1997 PLP 3225 (MLD)

Karachi Central. " It is contended further that the said land has been transferred to the Directorate of Katchi Abadi. It is further contended that the allotment of the respondent/landlord is bogus. However, no proof has been produced that the allotment in favour of the respondent/landlord was bogus. Mr. Mumtaz Ahmed, learned counsel drew the attention of the Court towards the statement quoted above. On my question as to what is the right of pro forma respondents/applicants for filing this application as they are legal heirs of a licensee. It was contended that appellant i.e. Pakistan State Oil Company Limited (hereinafter called "P.S.O.") has granted licence to the applicants. I further asked whether the copy of that licence has been produced? The reply was in negative. Section 12, subjection (2) of Code of Civil Procedure confers right on a person to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. In this case the fraud has been alleged but the particulars of fraud are not given. All that was stated was the letter dated 19‑3‑1953 is not available in the record of the office of Mukhtiarkar and, therefore, the Government land has been transferred to K.M.C. This letter on the face of it does not speak of any fraud. The respondent/landlord claimed title through the letter dated 19‑3‑1953 which was issued by Deputy Refugee Commissioner and obviously, Taluka Mukhtiarkar may not have the copy of that letter. Non‑availablity of that letter with Mukhtiarkar on the face of it is not a pointer to the alleged fraud. Learned counsel for the applicants relied on the judgment of this Court in the case of Pakistan State Oil Company Limited v. Khaliq Raza Khan (1994 CLC 1866). During the pedency of proceedings before the Rent Controller an application was filed in terms of section 3 of Sindh Rented Premises Ordinance and it was stated that the rent application was not maintainable and this Court ruled that: "The conclusion is, therefore, irresistible that the Legislature did not intend to exempt the relationship of landlord and tenant but intended to confer on the premises owned by the Government an immunity from the operation of the Ordinance." Just on the letter of Mukhtiarkar it cannot be said that letter of Deputy Refugee Commissioner was not valid. This judgment is not applicable in the circumstances of this case. Section 3, relied upon by the learned counsel for the applicants reads as follows:‑‑ "

3. Applicability: (1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance;" According to letter quoted in the earlier part of the order the Government has handed over that land to K.M.C. which is an autonomous organisation. The land is neither owned by Federal Government nor by Provincial Government. Land transferred to K.M.C. is not exempt from the operation of laws. Even otherwise that land which was transferred to K.M.C. is not known as its description is not given nor it is established on record for the purposes of notice, as to whether the applicants have any case in terms of section 12(2), C.P.C., which may need the enquiry. The learned counsel further relied on judgment of Hon'ble Supreme Court in the case of Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCMR 1908), regarding the jurisdiction under section 12(2), C.P.C. to the same effect, he has further relied upon the case of Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917). He has also relied on the case of Laldin and another v. Muhammad Ibrahim (1993 SCMR 710). All these three judgments are on the jurisdiction of Rent Controller in terms of section 12(2) of Code of Civil Procedure. There is no dispute that the Court has jurisdiction to set aside a decree challenged on the ground of fraud or for that matter set aside ejectment order if obtained through fraud. In the last quoted judgment of Lal Din, it has been held as follows:‑‑ "After hearing the learned counsel for the parties what we find is that the first and the more important question to be determined in such a case was whether the use of forged document in Court proceedings for obtaining and in fact obtaining a judgment on its basis amounts to fraud or not. We would like to owner this simple question equally simply. Suppose a forged copy of the Court's judgment is used to bar the suit. The suit is held barred on its basis. The defendant had all the opportunity to file a correct/true copy of the judgment. He did not filed it in the proceedings. He could challenged the correctness of the copy of the judgment filed in the proceedings. He did not do it. Will these factors preclude him from agitating against the forged judgment by recourse to section 12(2), C.P.C. or earlier to it by a separate suit. If the falsity of the document was known to the party during the knowledge may be precluded from invoking that provision, or earlier to it of instituting a first suit. The law on what is fraud has been correctly stated and the statement is inclusive of the exception as laid down in the case of Mst. Izat, in the following words:‑‑ 'Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the patty has deliberately put forward and untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party." In the light of this judgment the representation was made by the landlord on the basis of letter dated 19‑3‑1953. On the basis of that letter while claiming to the landlord, he entered in an agreement with appellant. The appellant acknowledged hire to be the landlord. The applicants who are legal heirs of licensee of the appellant, P.S.O. and occupied the premises under the authority of tenant. They have no independent right as such on the basis of Annexure "D" which is quoted in the earlier part of the judgment. There is no mention that the basis of the title i.e. letter is false or obtained through fraud. I have already stated earlier that if the letter is not available on the record of Mukhtiariar, it would not be termed that no such letter exists or fraud was committed by the landlord. Since no fraud was established, I am afraid the application under section 12(2), C.P.C. is not maintainable. Even otherwise the Courts exercising functions under the rent laws do not decide the rights pertaining to the title of the parties, more particularly whether the respondent was owned or not. Even otherwise the applicants are legal heirs of licensee. They have no independent right. They have been inducted by the appellant company. Under the circumstances, since they have no right, the application under section 12(2), C.P.C. is misconceived and consequently dismissed.

3. In view of the above order Civil Miscellaneous Application No.407 of 1997 has become infructuous and dismissed as such. H.B.T./P‑35/K Application dismissed.