2020 PLP 1985 (MLD)

FIAZ AHMAD ANJUM JANDRAN, J.

Through the instant Civil Revision Petition, petitioners have impugned the Order dated 14.11.2019 passed by the learned Civil Judge 1st Class Islamabad-West, whereby their application under Section 12(2) read with Order IX Rule 13 of the Code of Civil Procedure, 1908 ("the Code") was dismissed. Through the said application, petitioners had challenged the ex-parte order dated 21.05.2018 and ex-parte judgment and decree dated 26.07.2018, passed by the learned Civil Judge.

2. Precisely facts relevant for the disposal of instant civil revision petition are that the respondent filed a suit for recovery of Rs.30 Million (Rs.10 Million each towards cash security, earnest amount and damages for breach of agreement. The petitioners contested the suit through a counsel and at the inception, filed an application under Section 34 of the Arbitration Act, 1940 ("Act of 1940") for stay of the proceedings, inter alia, on account of an arbitration clause stipulated in the agreement entered into by and between the parties. On 21.05.2018, said application was dismissed for non-prosecution and the respondent was directed to produce ex-parte evidence. After the recording of ex-parte evidence, the suit of the respondent was decreed ex-parte to the tune of Rs.20 Million while claim of Rs.10 Million in terms of damages was dismissed. On receipt of notice in execution proceedings, the petitioners contacted their counsel, who during the pendency of the suit disjoined the proceedings and not even informed them regarding the status of the suit. The petitioners having been left with no option filed a complaint against their counsel on the stated misconduct before the respective Bar Council alongside an application under Section 12(2) read with Order IX Rule 13 of the Code for setting aside the ex-parte order dated 21.05.2018 and ex-parte judgment and decree dated 26.07.2018, which has been rejected vide order dated 14.11.2019, impugned herein.

3. Learned counsel for the petitioners contends that a fraud has been committed with the petitioners by the respondent in connivance with their former counsel; that they have withdrawn the briefs of their other cases from the said counsel as well; issued a notice and have filed a complaint regarding the fraud/misconduct before the concerned bar council i.e. Punjab Bar Council which is still pending. Learned counsel further contends that the learned Trial Court was required to record evidence after framing of issues on the application under Section 12(2) of the Code filed by the petitioners whereas the same had been dismissed summarily. The learned counsel in support of his submissions placed reliance upon the case laws cited as Muhammad Nawaz Khan v. Muhammad Khan and and others (2002 SCMR 2003), Waik Orient Power and Light Limited v. Westinghouse Electric Corporation and others (2002 SCMR 1954), Lahore Development Authority v. Arif Manzoor Qureshi and others (2006 SCMR 1530), Ms.Anees Haider and others v. S.Amir Haider and others (2008 SCMR 236) and K. Electric Limited v. Federation of Pakistan (PLD 2014 Sindh 504).

4. On the other hand, learned counsel for the respondent contends that the suit was filed on 17-01-2012 while memo of appearance from the petitioners' side was filed on 21.02.2012 and the power of attorney on 04.07.2012. On 14.10.2014, ex-parte proceedings were initiated against the petitioners which were subsequently set aside and again on 25.05.2015, ex-parte proceedings were set-aside second time by the learned Trial Court. According to the learned counsel, if at the verge of 2020, suit filed in the year 2012 is allowed to be restored, a lengthy exercise would be awaiting the respondent for the redressal of his grievance and that mere negligence of the counsel is not a sufficient ground as law favours the vigilant and not the indolent. Learned counsel fortified his submissions by placing reliance upon case law reported as 2012 SCMR 540, 2000 SCMR 296, 1995 CLC 946, 2008 YLR 119, 2019 YLR 427, 2015 YLR 1051, 1999 SCMR,1696 and 2000 SCMR 667.

5. Heard the learned counsel for the parties and perused the record with their able assistance.

6. Record appended with the instant civil revision petition shows that the issue between the parties is regarding sale and purchase of land for which the petitioners have entered into an agreement with the respondent, whereby the latter had to provide certain piece of land for the construction of a housing colony, setup for the welfare of the employees of the petitioners/Pakistan Television Corporation. Pursuant to arbitration clause provided in the said agreement, petitioners filed an application under Section 34 of the Act of 1940 which was dismissed due to non-appearance and the case was fixed for recording of ex-parte evidence of the respondent. Ultimately, ex-parte judgment and decree for the recovery of Rs.20 Million was passed against the petitioners. On 08.07.2019 the petitioners filed an application under Section 12(2) read with Order IX Rule 13 of the Code. Thereafter on 25-11-2019 the petitioners filed a complaint against their counsel under the Legal Practitioners and Bar Council Act, 1973 before the Punjab Council Bar.

7. In order to appreciate as to whether the case of the petitioners warrant due process that includes framing of issues and recording of evidence of the parties, it is imperative to go through Section 12(2) of the Code which reads as under:- "Where a person challenges the validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate Suit." [emphasis added]

8. If the provisions of Section 12(2) of the Code are construed in the light of its plain meaning then it reveals that the scope of application under said provision is very vast and on a big canvas unlike the provision of Order IX Rule 13 of the Code, where the petitioner has to prove sufficient cause for non-appearance. In the former case, the petitioner has to explore element of fraud, misrepresentation or want of jurisdiction and is required to file an application instead of separate suit as the compulsion has expressly been incorporated in the Section by using the words "not by a separate suit".

9. This Court is of the opinion that since the provision of Section 12(2) of the Code is substitution of the suit, unlike any other provision in the Code for setting aside ex-parte judgment and decree, therefore, in a case where material alleged and produced by the applicant in support of allegations of fraud and misrepresentation is serious and specific, it would be safe to record evidence for just adjudication of the application under Section 12(2) of the Code. This principle, in stricto sensu, would not be construed as a "set rule" to follow the proceedings of a regular suit in an application under Section 12(2) of the Code but is limited only to the requirement of recording of evidence and that too, in a case where serious and specific assertion qua fraud and misrepresentation coupled with some material, is alleged. Hence, the analogy can safely be drawn that an application under Section 12(2) of the Code is required to be decided after the framing of issues and providing chance to the respective parties to lead their evidence.

10. The principle ibid is not required to be followed in each and every case wherein application under section 12 (2) of the Code is preferred. In fact it depends upon the nature of the assertions made in the application and the material annexed therewith to substantiate the said assertions. If it is felt that the grounds so agitated coupled with the material could not be assessed/adjudicated upon judiciously in affirmative or otherwise, then it requires recording of evidence, this depends upon the facts of each case and the material to be evaluated on the touchstone of the provisions of Qanun-e-Shahadat Order, 1984 ("Order of 1984").

11. Although the application of the petitioners before the learned Trial Court was not only under the provisions of Section 12(2) but side by side under the provisions of Order IX Rule 13 of the Code. When the provisions of Order IX Rule 13 of the Code are examined then it transpires that said provision could be availed of simultaneously to challenge the ex-parte judgment and decree under Section 96 of the Code but in case of Section 12(2) of the Code, the remedy is independent and exclusive of the other remedies. So, the concept and sphere of this provision is broader and comprehensive as compared to any other provision of the Code in respect of ex-parte judgment and decree. This Court being revisional/constitutional Court has to seek guidance from the principles governing interpretation of statutes, whereby the intention of the legislature and plain meanings of the statutory provisions are of material importance.

12. When the above said principle is applied to the case at hand then it demonstrates that petitioners issued two notices to the Advocate, who had been their counsel. On failure to respond to their notices, petitioners also filed a complaint against the said Advocate under the Legal Practitioners and Bar Councils Act, 1973 and the Rules made there-under before the Punjab Bar Council. The petitioners have annexed some material to show that they have withdrawn other cases from the said counsel due to alleged negligent and fraudulent act. The petitioners, as mentioned above, have leveled allegation of fraud and misrepresentation, statedly committed by the respondent in-league with their counsel. Therefore, the oral assertions and the documents being submitted by the petitioners regarding said allegations are required to be evaluated on the touchstone of the principles of evaluation of evidence contained in the Order of 1984 and that could only be decided after the framing of issues and recording of evidence of the parties. Although in each and every case, this rule could not be applied as a rule of thumb but the material which a party alleges and presents, in support of his assertions in application under Section 12(2) of the Code, is required to be decided by following due procedure i.e. framing of issues and recording of respective evidence of the parties. The Hon'ble Supreme Court of Pakistan has held in many judgments that where allegation of fraud and misrepresentation is alleged which is duly supported by the material, in that eventuality, recording of evidence is incumbent upon the Court for disposal of application under Section 12(2) of the Code. In this respect, very humbly reliance is placed upon case law reported as 2008 SCMR 236 (Mrs. Anis Haider and others v. S. Amir Haider and others) wherein it was held as under:-- "It requires no lengthy discussion and there cannot be two opinions about the fact that the matter had already been remanded to the trial Court by this Court on 10-4-2003 for settling the above narrated points and for deciding application under section 12(2), C.P.C. Obviously an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence." [Emphasis added].

13. As this Court has come to the conclusion that in the present case, in order to settle the controversy, recording of the evidence after framing of issues is essential, therefore, the case law relied upon by learned counsel for the respondent which primarily lays down the principle dealing with a distinct proposition i.e. where the party deliberately avoids appearance, either in person or through his counsel, with ulterior object to defeat or delay and frustrate the litigation, do not extend any help to the respondent.

14. In the light of what has been discussed above, the instant civil revision petition is allowed, impugned Order dated 14.11.2016 is set aside. The application filed by the petitioner under Section 12(2) of the Code shall be deemed pending which shall be deemed after framing of issues and recording evidence of the parties. As the matter pertains to the year 2012, same cannot be kept pending for indefinite period, therefore, the learned Trial Court is directed to decide the application within a period of one month of assuming the work on regular basis after the pandemic of Covid-19/summer vacations, whichever is earlier. The respondent is compensated with cost of Rs.10,000, to be paid by the petitioners. KMZ/99/Isl. Order accordingly.