1991 PLP 1975 (CLC)

On 14‑1‑1990 a learned Single Judge of this Court granted an interim injunction in favour of the plaintiff. The defendants filed a High Court Appeal (H.CA. No.36/1990) which was dismissed by a Division Bench of this Court and by a consent order the Bench ordered fixation of the case for framing of issues and disposal of the suit within three months. However, in the meanwhile the present application under Order VII Rule 11, C.P.C. has been filed on behalf of the defendant No.l. I have heard Mr. Akhtar Mahmood, learned counsel for defendant No.l, and Mr. A. Aziz Khan, learned counsel for the plaintiff. It has been firstly contended by Mr. Akhtar Mahmood that the present suit is barred under section 12(2), C.P.C. Section 12(2), C.P.C. provides that: "(2) Where a person challenges the validity of a judgment, decree or order on the 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." Reference has also been made by the learned counsel. to section 9 pf the ,C.P. Code which provides that:‑

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9. Courts to try all civil suits unless barred..‑‑The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. "Explanations.‑‑A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies." The correctness of this plea has, however, been challenged by Mr. A. Aziz Khan, learned counsel for the plaintiff, according to whom, the provisions of section 12(2), C.P.C. are not attracted to the circumstances of the present case. Although the learned counsel concedes that the provisions of section 12(2), C.P.C. may be attracted to the proceedings arising from a rent case but, according to the learned counsel, such provisions may not be attracted under all circumstances. Mr. Akhtar Mahmood has, however, placed reliance upon a number of cases decided by the Supreme Court on the point and I ‑now propose to refer to them. The first case relied upon by Mr. Akhtar Mahmood is the case of Messrs Arokey Ltd. v. Munir Ahmed Mughal (P L D 1982 SC 204). In this case, while dismissing a petition for leave to appeal, it was observed by the Supreme Court that where in a case, the grounds of attack are based on fraud, misrepresentation or want of jurisdiction, the appropriate remedy would be under section 12(2) of the C.P. Code. The next case cited by Mr. Akhtar Mahmood is the case of Muhammad Akhtar v. Abdul Hadi (1981 S C M R 878). In this case ejectment proceedings filed against the tenant by the landlord were resisted by the former by challenging the ownership of the landlord in respect of the disputed property. The litigation between the parties had reached the Supreme Court and after the tenant had failed to obtain a favourable order, a second round of litigation was started by him by filing a suit to challenge the title and ownership of the landlord. When the matter once again reached the Supreme Court, it was observed by the Supreme Court as follows:‑

"It is obvious that after the aforesaid adjudication by this Court, a fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. Moreover, in subsection (2) of section 12 of the C.P.C. (1908) it is laid down that" where a person challenges the validity, of a judgment, decree or order on the 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." The aforesaid provision was apparently not brought to the notice of the High Court. The result is that we convert this petition into an appeal and accepting the same, set aside the order of the High Court and maintain the orders of the Courts below thereto whereby the plaint had been rejected and suit was dismissed in that form." The third case to which Mr. Akhtar Mahmood has referred is reported as Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din (P L D 1988 SC 221) but before any reference is made to the facts of this case, I would like to refer to the case of Ismail Brothers v. Kevalram (P L D 1981 SC 545) as leave to appeal had been granted in the former to examine the effect of this case. In this case an ejectment order had been passed against the appellant by the Rent Controller. The order was reversed in an appeal filed by the appellant before the Additional District Judge but in the second appeal filed by the respondent the order of the Rent Controller was restored by the High Court and leave to appeal against this order was declined by the Supreme Court. Thereafter, a review petition was filed by the appellant before the Supreme Court but the same was subsequently withdrawn on the ground that the appellant had instituted a civil suit taking up all the fresh grounds on which review had been sought. The case of the appellant foi‑ the purpose of ad interim relief. was that the respondent had obtained the order of his eviction from the premises by suppression of material facts concerning his title and interest in the disputed property which, according to him, amounted to a fraud vitiating the early decision. However, the appellant's prayer for interim injunction was rejected. The appeal fled by the appellant was also dismissed by the two learned Judges of the same High Court who heard the appeal. Thereafter leave to appeal was granted by the Supreme Court to examine the question, whether the appellant had a good prima facie case justifying the grant of an ad interim injunction. The Supreme Court finally accepted the appeal filed by the appellant and granted ad interim stay to him. Turning to the facts of Mir Salah‑ud‑Din's case, an ejectment application in respect of a portion of a house was filed against one Ala‑ud‑Din, brother of the appellant Mir Salah‑ud‑Din, which was allowed by the learned trial Court. The appeal filed by Mir Ala‑ud‑Din was dismissed by the Additional District Judge allowing fifteen days time to him to vacate the premises. A suit on the last day before the expiry of the said period was filed by appellant Mir Salah‑ud‑Din claiming that he could not be ejected from the disputed premises otherwise than in due course of law as he then was in possession thereof. No reference in the suit was made to the earlier litigation. When these facts were brought to the notice of the learned trial Court, it rejected the application fled under Order VII Rule 11, C.P.C. The order passed by the learned trial Court was, however, reversed in appeal by the Additional District Judge who held that Order VII Rule 11, C.P.C. could not be attracted except on the facts disclosed, absence of cause of action or the suit being barred by some provision of law must be apparent on the face of the plaint itself which was not the fact in the said case. In an appeal filed before the High Court it came to a conclusion that the suit, in the circumstances of the case, was not maintainable and resort could be had only to Rule 100 of Order XXI, C.P.C. The judgment of the High Court was finally challenged before the Supreme Court and the dictum laid down in the case of Ismail Brothers was subjected to a thorough scrutiny by the Supreme Court and ultimately the facts of this case were found to be distinguishable in view of the fact that the case of Ismail Brothers had arisen in connection with the granting of a temporary injunction and the general question of jurisdiction raised by the parties was not finally determined. Consequently, it was held that the judgment in the case of Ismail Brothers was of no avail to the appellant. The Supreme Court finally came to a conclusion that the rule earlier laid down by it in Rehmatullah v. Ali Muhammad and another (1983 S C M R 1064) was applicable in the case. The following passage from the judgment in the said case was quoted by the Supreme Court: "In order to appreciate the argument of the learned counsel it is necessary to briefly re‑state the rule laid down in the case of Rehmatullah. It is that:‑

A matter involving even a dispute of title having once obtained finality in the Rent Controller's forum (including the heirarchy of appeals and thus the appellate and superior Courts) cannot be re‑agitated in a suit before a Civil Court of general jurisdiction, inter alia, because of principles of general res judicata; the provisions contained in section 12(2), C.P.C. read with section 9, C.P.C. and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 (as Amended)." Reference has also been made by Mr. Akhtar Mahmood to the case of Asif Jah Siddiqui v. Government of Sindh (P L D 1983 SC 46), wherein similar observations were made by the Supreme Court. Mr. A. Aziz Khan has, however, argued that this Court cannot easily brush aside the observations made by the Supreme in Ismail Brothers v. Kevalram. According to the learned counsel, except for the fact that the proceedings in the case had arisen out of refusal to grant an interim injunction, first by the learned trial Court and then by the learned appellate bench, the facts of the reported case and the present case are more or less identical. No doubt, the case of Ismail Brothers to some extent supports the contention raised by Mr. A. Aziz Khan but as pointed out earlier the judgment in that case was subsequently re-examined by the Supreme Court in Rehmatullah v. Ali Muhammad and Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din. Although the Supreme Court did not make a departure from the view earlier taken by it in Ismail Brothers' case, but the judgment in the case of Ismail Brothers can hardly be called in aid by Mr. Aziz Khan in support of his contention in view of the clear observations made by the Supreme Court in the judgments given by it on the point subsequently, in Rehmatullah's and Salah‑ud‑Din's case. Mr. A. Aziz Khan has also referred to a judgment given by me in the case of Mst. Fahmida v. Muhammad Khalid and another (1987 M L D 231), wherein I had held that the provisions of section 12(2), C.P.C. are not applicable in a case where the order to be set aside has been passed by a Rent Controller in proceedings under the Rented Premises Ordinance. It ‑may be pointed out that the respondent in this case had fled a civil suit on the ground of fraud and misrepresentation after he had been ejected from the demised premises in pursuance of the final order passed by the Rent Controller. It was held that the Rent Controller not being a Court but a persona designate, the provisions of section 12(2), C.P.C., which are applicable to suits, judgments, decrees or orders passed by Courts could not be invoked by the applicant in that case. The facts of the present case are, however, clearly distinguishable because the order in question had been passed in appeal by the Supreme Court. Consequently, the judgment given by me in Fahmida's case is not at all attracted in the present case because, as was observed by the Supreme Court in the case of Rehmatullah: "There does not seem to be any difficulty in including the appeal under the Rent Restriction Ordinance within the connotation of the expression "the Court which passed the final judgment ...." used in section 12(2) of the C.P.C., because it is now an established law in Pakistan that the District Judge when acting as an appellate forum, under section 15 of the Rent Restriction Ordinance (only after the relevant. amendment made therein) acts as a Court and not as a persona designate and same would apply to the superior Courts when they deal with the matter either in appeal and/or in the constitutional jurisdiction." Be that as it may, but Mr. A. Aziz Khan has argued in the alternative that, since the final order of ejectment was passed in this case by the Supreme Court, the provisions of section 12(2), C.P.C. would not be applicable to the facts of the present case as the Supreme Court is not governed by the provisions of C.P.C. but by its own rules framed under Article 191 of the Constitution. I asked Mr. Akhtar Mahmood that in such a case whether an application under section 12(2), C.P.C. could be filed by the plaintiff. The learned counsel was unable to answer the question. Needless to say that if the provisions of section 12(2), C.P.C. cannot be invoked before the Supreme Court, the plaintiffs suit cannot be held to be barred under such provisions. The bar imposed by the legislature in regard to the filing of a suit in the present context would correlate to the remedy provided by section 12(2), C.P.C. Since Mr. Akhtar Mahmood has failed to advance any satisfactory argument on this point, I am unable to hold that an application under section 12(2), C.P.C. could be maintained in the present case. The next argument of Mr. Akhtar Mahmood is based upon section 22 of the Sindh Rented Premises Ordinance, 1979. Section 22 provides:‑

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22. Execution of orders.‑‑Final order passed under this Ordinance shall be executed by the Controller and all questions arising between the parties and relating to the execution, discharge or satisfaction of the order shall be determined by the Controller and not by a separate suit." Section 22 appears to be analogus to section 47 (1) of the Code of Civil Procedure which provides that "all questions arising between the parties to the suit in which the decree was passed .... and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." The question is whether the issue raised by the plaintiff in the suit is a matter relating only to the Execution, discharge or satisfaction of the order of ejectment passed against the plaintiff. In this respect Mr. A. Aziz Khan has invited my attention to the case of Saifee Development Corporation Ltd. v. MA. Karim (P L D 1974‑ Kar. 426), wherein Tufail Ali A. Rahman, C.J., while dealing with a similar question, held that an Executing Court cannot go behind the decree by virtue of powers vested in it under section 47, C.P.C. nor it can entertain objection as to its validity on the ground of its being obtained by fraud or being nullity for. any other reasons. Reliance was placed by the learned Judge upon the case of SA. Latif v. Nadir Khan (P L D 1968 Lah. 144), where Sardar Muhammad Iqbal, (as he then was) observed:‑

"The executing Court cannot go beyond the decree and it must take the decree as it stands, for the decree is binding and conclusive between the parties. It is not competent for the executing Court to enter into a criticism of decree. It cannot also take notice of the plea of fraud in the execution proceedings. In Pravata v. Digamber, I L R 15 Bom. 307 it was held that it was not open to the judgment‑debtor to raise the defence of fraud in the course of the execution proceedings. In Sudindra v. I L R 9 Mad, 80 Budan, the view taken was: `A question whether the decree was obtained by fraud or collusion is not one which relates to the execution of the decree, but which affects its very subsistence and validity. Such a question can only be raised by a separate suit: In Muhammad Saeed v. Yasin, P L D 1966 Kar. 308 it has recently been held that a question whether a decree was obtained by fraud or collusion is not one which relates to the execution of the decree but one which affects its very subsistence and validity and such a question can only be raised by a separate suit. The same view was taken earlier in Ahmad & Co. v. Muhammad Siddique P L D 1965 Kar. 293 and it was observed that the executing Court has no power to entertain an objection as to the validity of the decree upon the ground that it was obtained by fraud." I find myself in respectful agreement with the view held in the two judgments. Reference to the provisions of section 22 of the Sindh Rented Premises Ordinance, 1979 is, therefore, misconceived. The last argument of Mr. Akhtar Mahmood is that the suit filed by the plaintiff is barred under the provisions of res judicata. Reliance in this respect has been placed by Mr. Akhtar Mahmood on Abdul Hameed v. Abdul Ghafoor Khan (P L D 1982 SC 146), Muhammad Chiragh‑ud‑Din Bhatti v. The Province of West Pakistan (1971 S C M R 447), Zahurul Hassan v. Mst. Ruqqia Begum (P L D 1981 SC 112) and Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din (P L D 1988 SC 221). In the case of Abdul Hameed v. Abdul Ghafoor Khan (P L D 1982 SC 146) one Abdul Sattar predecessor‑in‑interest of the respondents filed a writ petition in the High Court, which was dismissed. A Letters Patent Appeal filed against the judgment of the High Court was however allowed and the order of Rehabilitation Commissioner which had been challenged in the writ petition was quashed. Not satisfied with the decision of the High Court, the petitioner in the case filed a civil suit in the Court of Civil Judge and tried to meet the objection regarding the finality of the decision of the High Court in the Letters Patent Appeal by asserting that new material had been discovered. The suit was dismissed on account of the bar of res judicata as contained in section 11 of the C.P. Code. The petitioner filed a second appeal in the High Court which was dismissed in limine. When the matter went before the Supreme Court the Judgment of the High Court was upheld. In the next case cited by Mr. Akhtar Mahmood reported in P L; D 1971 SC 447, the principles of res judicata were held to be applicable to writ proceedings as well and jurisdiction of the Civil Court was held to be barred as the same matter which had been finally decided by the High Court in the exercise of writ jurisdiction had been re-agitated by the plaintiff before the Civil Court. In the case of Zahoorul Hassan which is the third case relied upon by Mr. Akhtar Mahmood, the order passed by the Rent Controller subject to the result of appeal, if any, was held to be final and not questionable in any Court of law by virtue of the provisions of section 15(7) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In Mir Salah‑ud‑Din v. Qazi Zaheer ud‑Din, it was held that the matter involving even a dispute of title, having once obtained finality in the Rent Controller's forum including the hierarchy of appeals cannot be reagitated in a suit before a Civil Court of, general jurisdiction inter alia, on account of the principles of general res judicata, the provisions contained in section 12(2) read with section 9, C.P.C. and the provisions of section 15(7) of the West Pakistan Urban Rent Restriction Ordinance. To recapitulate the facts once again, as has been pointed out earlier, the parties went through two rounds of litigation exhausting all the remedies upto the Supreme Court, including those of review. Thereafter when the matter went in execution before the learned Rent Controller the petitioner filed an appeal (F.RA. No.472/1989) in this Court challenging the order of the learned Rent Controller passed on the execution application. The order was once again challenged on the same allegations of fraud. However, the plaintiff's appeal was dismissed by this Court vide its judgment dated 17‑7‑1989 and it was held that the order of the learned Rent Controller could not be validly challenged in appeal in view of the judgment of the Supreme Court reported in P L D 1985 SC

1. The petitioner once again challenged the said order before the Supreme Court through Civil Petition for leave to appeal (C.P.LA. No.596‑K/89) but the same was once again withdrawn by the plaintiff as he expressed his desire to file a suit in the civil Court. There is therefore hardly any doubt that the plaintiff after discovery of the alleged fraud did agitate the same matter which is now in issue in the present suit before the Supreme Court and subsequently he withdrew his review applications and other applications on the ground that he wanted to agitate the same in a suit which he wanted to file in the Civil Court, but in order that the provisions of section 11,‑ C.P.C. may be attracted to the present proceedings, it must be shown that the matter in issue in the present suit was directly and substantially in issue in the former litigation. In other words, there must be a proposition of fact or law alleged by the plaintiff and either admitted or denied by the defendant. In the present case, after the plaintiff discovered the alleged fraud for the first time he did agitate the matter before the Honourable Supreme Court through successive review petitions and a petition under Order 33 rule 6 of the Supreme Court Rules, 1980 or section 12(2), C.P.C., but when the matter was still pending the plaintiff decided that a suit would be an appropriate remedy and therefore, he himself withdrew the petitions from the Supreme Court with permission to institute the present proceedings against the defendant No.l in this Court. Consequently, even if the matter was withdrawn by the plaintiff himself from the Supreme Court, it cannot be said that the same was in issue and decided by the Supreme Court. No doubt, fraud was pleaded in the earlier petitions before the Supreme Court., but before the matter was contested by the defendant No.l before the Supreme Court the same was withdrawn by the plaintiff with permission to file a suit against the said defendant. Consequently, I fail to understand how the matter can be barred by res judicata. Mr. Akhtar Mahmood has also contended that after an appeal (F.R.A. No.472/89) which had been filed by the plaintiff against the judgment of this Court dated 17‑7‑1989 upholding the order of the learned Controller, had been dismissed, although, the plaintiff filed a civil petition for leave to appeal (CPLA 596‑K/89) before the Supreme Court basing it on the same allegations of fraud, but again, the plaintiff subsequently withdrew the same from the Supreme Court. Now, in this regard, it may be pointed out that the question which was in issue before the High Court was in regard to the validity of the appeal itself. The question in regard to the alleged fraud was therefore not directly or substantially in issue in the said appeal before the High Court. Consequently, what become res judicata after the decision of this Court dated 17‑7‑1989 was the question in regard to the validity of the appeal filed by the plaintiff before the High Court and not what has been alleged by the plaintiff in the present suit. I am, consequently, of the view that the proceedings earlier instituted by the plaintiff cannot operate as a bar against the present proceedings which are based on independent cause of action. The suit, therefore, is not barred by res judicata. Consequently, neither the suit is barred by res judicata nor the provisions of section 12(2), C.P.C. nor by section 22 of the Sindh Rented Premises Ordinance. The application filed on behalf of the defendants must, therefore, fail. In the result, the application is dismissed and the matter shall now be posted for framing of issues etc., as was ordered by the learned Division Bench vide its short order dated 9‑4‑1990. AA./M‑1436/K Application dismissed.