2025 PLP 1636 (CLC)

TARIQ MEHMOOD JAHANGIRI, J.

C.M. No. 1946/2025. This is an application for placing additional documents on file, which is allowed subject to all just and legal exceptions. C.M. No. 1947/2025. Exemption sought for is allowed, subject to all just and legal exceptions. Main Case. Instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer; "It is, therefore, respectfully prayed that the impugned judgment/order dated: 06-01-2023 may very graciously be set-aside, and the application under section 12(2), C.P.C. filed by the petitioner be remanded to the learned trial Court for an opportunity to defend his valuable rights, being illegally usurped by the respondents, in the best interest of justice. Any other relief which the Honorable Court deems fit and proper, keeping in view the facts and circumstances of the case, may also be granted."

2. Succinctly stated facts of the matter are that earlier, respondent No. 1 filed suit titled as "Maqbool Hussain Awan v. Ijaz Mehmood" for declaration, mandatory and permanent injunction which was ex-parte decreed vide judgment and decree dated 04.04.2018. Thereafter, being aggrieved, the petitioner filed an application under section 12(2), C.P.C., with the contention that he along with respondent No. 1 and many other investors entered into a MOU for a project namely Rivers Gardens under the Umbrella of Muhammad Din Shahid Group with Messrs Renaissance Developers (Pvt.), who was represented by Major (R) Ejaz Mehmood being Managing Director. The petitioner arranged for a land measuring 171-Kanal 02-Marla, which was transferred in the name of Messrs Renaissance Developers (Pvt. Limited) by Din Shahid Group against the amount of Rs. 1,56,00,000/- but due to scarcity of funds at that time Messrs Renaissance Developers (Pvt. Ltd) agreed to allot developed plots in the name of Din Shahid Group. The total numbers of plot to be allotted were settled as 26 which were not allotted to Din Shahid Group. The petitioner further contended that Din Shahid Group never merged or renamed as Nexus group and respondent No. 1 got transferred 26 plot to his own family members and created as another group Nexus Group and become sole coordinator with the respondent No.

2. Furthermore, the petitioner remained unaware of the proceedings of the case as respondent No. 1 did not obtain any authority letter from Din Shahid Group. Moreover, the decree dated 04.04.2018, was obtained on the basis of fraud and misrepresentation and same is result of collusion of respondents. Thereafter, learned Civil Judge 1st Class, East-Islamabad, after hearing the parties at length, dismissed the application vide order dated 06.01.2023, hence the instant petition.

3. Learned counsel for the petitioner, inter alia, contends that the impugned ex-parte judgment and decree dated 04.04.2018, has been obtained by committing cheating, fraud and misrepresentation before the learned Trial Court; the letter produced by respondent No. 1 dated 18.02.2014, is fake and the petitioner has not admitted the genuineness of said document, whereas letter dated 02.05.2016, mentioned in the impugned order is not available on the record of learned Trial Court and the petitioner is totally unaware about the execution of the said letter. As far as mentioning of the arbitration award in the impugned order is concerned, the petitioner is also unaware about passing of any arbitration award and no document in this regard has been placed on record by respondent No.1 in the learned Trial Court, the petitioner signed the MOU for transfer of the land measuring 133-Kanal and was also entitled for allotment of the plots, whereas respondent No.1 by committing misrepresentation, fraud and concealment of facts, filed a suit and obtained ex-parte judgment and decree dated 04.04.2018, due to which valuable rights of the petitioner have been jeopardized; the impugned order is erroneous and is not tenable under the law, hence the same is liable to be set-aside.

4. On the other hand, learned counsel for respondent No. 1 has controverted the arguments advanced by learned counsel for the petitioner and has stated that the petitioner/Muhammad Din Shahid has no concern and relevance with the subject matter of suit as he had sold his plot in 1995 against the consideration of twenty five lac rupees to one Muhammad Anwar Khan Abbasi; the execution proceedings are pending against judgment debtor since long but the society headed by respondent No. 2 in this petition is reluctant to deliver the possession of allotted plots, so society in league with the petitioner filed an application under section 12(2), C.P.C. just to hinder the execution proceedings; earlier, suit titled as "Muhammad Anwar Khan Abbasi v. Muhammad Din Shahid and others" decided in favour of Muhammad Anwar Khan Abbasi vide judgment and decree dated 29.10.2014, said judgment and decree was implemented and plots were allotted to Muhammad Anwar Khan Abbasi/decree holder; the petitioner has no locus standi and is incompetent to invoke section 12(2), C.P.C. jurisdiction against judgment and decree dated 04.04.2018; concealment on the part of the petitioner disentitled him to invoke Court jurisdiction under Article 199 of the Constitution, as he deceitfully concealed earlier round of litigation and judgment and decree dated 29.10.2014, and has prayed to dismiss the instant petition with heavy cost.

5. The ex-parte judgment and decree was passed on 04.04.2018, by the Court of learned Civil Judge 1st Class, East-Islamabad. The petitioner has filed application under section 12(2), C.P.C. on 15.03.2021 i.e. after the delay of about three (03) years, which was dismissed vide impugned order dated 06.01.2023, by the Court of learned Civil Judge 1st Class, East-Islamabad.

6. The main ground for filing petition under section 12(2), C.P.C. was mentioned that valuable rights of the petitioner were involved in the matter and he has deliberately been deprived by the respondent No. 1 by filing the suit by committing fraud and misrepresentation and obtaining ex-parte judgment and decree.

7. During the course of arguments, learned counsel for the petitioner has produced revenue record which shows that land measuring 133-Kanals 6-Marlas was transferred on the name of Renaissance Developers (Pvt.) Limited/respondent No. 2.

8. The most important aspect of the matter is letter dated 14.02.2013, written by the petitioner to respondent No. 2, wherein it is admitted that the petitioner surrendered land measuring 31-Kanal in favour of the society and claimed the entitlement of 03 plots of 500 yards.

9. One Muhammad Anwar Khan Abbasi filed suit for possession through specific performance, declaration, possession, mandatory and permanent injunction on 18.12.2007, against the petitioner and other defendants, wherein he alleged that he paid an amount of Rs. 25,00,000/- to the petitioner for investment and prayed for the possession and specific performance/allotment of plots in River Garden Housing Project. The petitioner submitted written statement and admitted the claim of Muhammad Anwar Khan Abbasi, the suit was decreed vide judgment dated 29.10.2014, and plots were allotted to Muhammad Anwar Khan Abbasi.

10. This fact has established that in lieu of entitlement of the petitioner the plots have been allotted to Muhammad Anwar Khan Abbasi, as admitted by the petitioner in written statement that he received money from him for investment in the real estate projects.

11. The fact of the investment of money by Muhammad Anwar Khan Abbasi to the petitioner and claiming the plots from the society is also mentioned in the minutes of meeting of the Nexus Group held in July, 2002.

12. The petitioner has failed to establish any fraud and misrepresentation against the respondent No.

1. In the case of "Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others" (2023 SCMR 2158), the Honourable Supreme Court has held as follows: "Essentially, no case under section 12(2) of the C.P.C. is made out by the Appellants because no fraud was played on the Court. If there is any fraud, at best; it is inter se the parties which does not attract the provisions of section 12(2) of the C.P.C. Section 12(2) of the C.P.C. requires that fraud or misrepresentation be played on the court and that consequently the order obtained is through fraud or mis-representation." Moreover, in the case of "Shams-ud-Din and another v. Muhammad Ali and others"(2023 YLR 441), it was laid down by the Balochistan High Court as under: "The plea of fraud and misrepresentation are pre-condition for application under section 12(2), C.P.C. Whenever the fraud and misrepresentation is alleged by the party, the particulars of fraud and misrepresentation with detail have to be mentioned in the application. Besides the party who alleged the fraud and misrepresentation must bring the detail facts of fraud on record. There is no cavil to this proposition that the party who alleged something must prove the same." In the case of "Muhammad Ibrahim Qureshi v. Muhammad Aslam and 3 others"(PLD 2023 Lahore 555) it was held that: " application under section 12(2) of the Code can only be made if the misrepresentation is made or fraud is committed with respect to the subject matter of the suit on which the order, judgment or decree is passed, as the aggrieved litigant is precluded under subsection 12(1) of the Code to pursue an independent remedy. By now it is also well settled that fraud and misrepresentation, which is ground for the application of 12(2) of the Code, should be practiced during the proceedings in the court and not outside the Court."

13. It is well settled that certiorari is only available to quash a decision for an error of law. It will also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice. The High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. The High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal. In the case of "Murad Khan and others v. Mst. Humaira Qayyum and others" (2025 SCMR 739), the Honourable Supreme Court of Pakistan has held that: "Certiorari is an order which brings up to the High Court a decision of an inferior Court or Tribunal for it to be quashed, A decision of an inferior Court or Tribunal may be quashed by issuing a writ of certiorari where that Court or Tribunal acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where those rules are applicable, or where there was an error of law on the face of the record, or a decision is unreasonable in the Wednesbury sense. However, the High Court will not, in exercise of writ jurisdiction, act as a Court of appeal from the Court or the Tribunal concerned. The High Court cannot substitute its decision for the one taken by the subordinate Courts or Tribunals provided it is based on evidence. Where the High Court quashes a decision, it has the discretion either to take judicial notice and rectify a jurisdictional error in the order or to remand the matter to the court, Tribunal or the authority concerned with a direction to reconsider it and to reach a decision in accordance with the judgment given by this Court while deciding a writ of certiorari." Similarly, in the case of "Gul Muhammad v. Federation of Pakistan through Ministry of Finance Department, Islamabad and 7 others' (2025 PLC 30), it was held that: "It is a well-entrenched legal doctrine that certiorari is a remedy available to annul a decision on the grounds of a legal error. It can also be invoked to rectify jurisdictional errors when a lower Court or a tribunal acts beyond its jurisdiction, fail to exercise its jurisdiction, or where the Court or a tribunal acts unlawfully in the exercise of its undisputed jurisdiction and adjudicates a matter in contravention of the principles of natural justice. The High Court, in issuing a writ of certiorari, operates in the capacity of supervisory jurisdiction."

14. In this regard, reliance is placed upon following dictums/law laid down by the Supreme Court of Pakistan: i. Case titled as Amjad Khan v. Muhammad Irshad (Deceased) through LRs. (2020 SCMR 2155). ii. Case titled as President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others (2020 SCMR 260). iii. Case titled as Chief Executive MEPCO and others v. Muhammad Fazil and others (2019 SCMR 919). iv. Case titled as Chairman, NAB v. Muhammad Usman and others (PLD 2018 SC 28). v. Case titled as Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45). Reliance can also be placed on "Hamayun Ashraf Awan v. Bilal Faisal Amin" (2024 P.Cr.L.J 1746 Islamabad), "Asim Irfan Ahmad v. Additional District and Sessions Judge, Islamabad" (2023 YLR 1123 Islamabad), "Rehan Khalid v. Mst. Uzma Nawaz" (2022 MLD 272 Islamabad) and "Mst. Naila Hameed v. Ejaz Mahmood" (2022 MLD 920 Islamabad).

15. I have heard the learned counsel for the parties and gone through the record, carefully examined the impugned order dated 06.01.2023, and find that learned Civil Judge 1st Class, East-Islamabad has assigned valid reasons for reaching its conclusion which is duly supported by law and facts.

16. I find no reason, basis or justification to interfere with the matter, not persuaded to take a view different from the one taken by learned lower Court.

17. The petitioner has failed to point out as to how the impugned order dated 06.01.2023, passed by learned Civil Judge 1st Class, East-Islamabad was the consequence of an error of law or without jurisdiction or in excess of jurisdiction.

18. In view of the above prospective, instant writ petition has no merits and the same is dismissed.

19. All pending CMs are disposed of accordingly. MH/106/Isl. Petition dismissed.