2023 PLP 515 (CLC)

SHAKEEL AHMAD, J.

This civil revision petition filed under section 115 of the Civil Procedure Code, 1908 emanates from the order/judgment dated 2nd February, 2021, passed by the learned Additional District Judge-X, Peshawar in case No. 01/12(2) of 2020, whereby, respondent's application filed under Section 12(2), C.P.C., was accepted thereby setting aside the order dated 13.02.2020, passed in Civil Appeal No.150-P/2013, restoring the said appeal to its original number.

2. With a view to appreciate the submissions canvassed across the Bar, a brief reference to the facts of the case will be necessary. The present case arises out of the title suit filed on 16.03.2016 by the petitioner, (Fazle Khaliq) against the respondent (Dr. Nelofar Yousafzai), the suit was instituted as a title suit under section 42 of the Specific Relief Act, 1877 for a declaratory decree, and under Section 54 of the Specific Relief Act, 1877 for perpetual injunction. According to the plaintiff, he is owner in possession of CNG station situated at Charsadda Peshawar Road in khasra No.1851 at Mouza Chak Hisar Charsadda, constructed on the land measuring 03-Kanals witnessed by mutation No.5511 executed on 12.09.2008. The parties are partners having jointly invested the capital in the said business and had agreed to share profits and losses in the business carried on 50/50 percent basis. It was pleaded by the plaintiff that he is the sole owner of the said CNG on the strength of Tamleek Nama executed on 19th April 2011 to the exclusion of others and that the respondent/defendant has got no right, whatsoever, to deny the said Tamleek Nama, posing it to be forged, fictitious and fake or to claim her ownership over the said CNG and being the sole owner of the suit property, he is now entitled to receive its income. After narrating a litany of wrongs by the respondent/defendant, the plaintiff also sought consequential relief by restraining the respondent/defendant from claiming share in the income of CNG or ownership or making interference in it or causing harassment to the petitioner/plaintiff through police, perpetually. After service of summons, the respondent/defendant put her appearance. A written statement was filed by her in the said suit, denying all the allegations contained therein. From divergent pleadings of the parties, issues were framed and parties were directed to produce their evidence. After a full-dressed trial, the suit was decreed in favour of the petitioner vide judgment dated 4th November 2011. Being aggrieved of the same, the respondent/defendant preferred appeal before the learned Additional District Judge-X Peshawar. However, the appeal was subsequently withdrawn by her counsel in her absence and without authorisation on 13.02.2022, unconditionally. Against the said order, she filed an application, under section 12(2), C.P.C. questioning therein the order of withdrawal dated 13th February 2020. In response, the petitioner raised voice on the maintainability of the said application before the learned Court below. However, the said voice could not bring fruit, and the learned Court below proceeded to decide the case on merits. From the pleadings of the parties, following issues were framed and parties were directed to produce evidence in support of their respective contentions.

1. Whether plaintiff has got a cause of action? OPP

2. Whether plaintiff is estopped to sue due to his own conduct? OPD

3. Whether the suit of the plaintiff is within time? OPP

4. Whether plaintiff is exclusive owner of the business in Jan CNG through Tamleek Nama dated 19.04.2011 executed by defendant in his favour and defendant has got no rights in the same? OPP

5. Whether Tamleek Nama dated 19.04.2011 is result of fraud, misrepresentation and ineffective upon the rights of defendant and defendant is partner in the business to the extent of 50% share as per original agreement? OPD

6. Relief.

3. In support of her contention, the respondent produced as many as 02 witnesses including herself and closed her evidence. In rebuttal, the special attorney of the petitioner appeared as RW-1 and closed his evidence. After closure of evidence of the parties, the learned Court below accepted the respondent's application filed under section 12(2), C.P.C., vide judgment dated 2nd February 2021. Hence this civil revision petition.

4. I have carefully considered the rival contentions and perused the judgment and the material on record.

5. Upon consideration of rival contentions, the following points arise for consideration in this revisional application: - (i) Whether the appeal filed by the respondent was unauthorizedly withdrawn by her counsel if so its effect? (ii) Whether the dispute over withdrawal of appeal is a dispute between principal and agent, could not affect the third party and petitioner is not a privy to alleged fraud, misrepresentation or wrong doing of the agent, if any committed by agent with his principal? (iii) Whether the agent of the respondent was in league with the petitioner and impugned withdrawal order was obtained by practising fraud, and the agent connived in any manner with the opposite party/petitioner? (iv) Whether act of the agent/attorney in the absence of any permission/consent to withdraw the appeal is a misrepresentation and it had element of fraud? (v) Whether the respondent has expressly denied the authority of attorney to withdraw the appeal? (vi) Whether the impugned order is based on correct appreciation of evidence and needs no interference?

6. A neat plea, which is taken by the learned counsel for the petitioner, is that, even if the allegations contained in the application filed under section 12(2), C.P.C. are correct on its face value, these do not establish that the fraud has been practised by the petitioner on the Court in obtaining of the impugned order of withdrawal of appeal, as per the provisions of section 12(2), C.P.C., therefore, an application under section 12(2), C.P.C. was factually and legally not maintainable.

7. Before proceeding on merit, I deem it better and appropriate to reproduce contents of application, filed under section 12(2), C.P.C. as follows:

8. It will also be advantageous to reproduce section 12(2), C.P.C., to resolve the controversy between the parties: "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".

9. No doubt, remedy under section 12(2), C.P.C. to seek annulment of a decree on the ground of jurisdiction, misrepresentation or fraud is not the only remedy. A decree or order may be set aside through appeal, or a revision, or review, if available before the law as argued by the learned counsel for the petitioner.

10. Before proceeding further, it is appropriate to know the meaning of the words "fraud" or "misrepresentation" used in section 12(2), C.P.C. in the light of the judgments of the superior Courts in Pakistan. In the case reported as "Mst. Izat Begum and another v. Kadir Bux" (PLD 1959 Karachi 221) fraud was defined as under: "Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree"

11. In this context, reference may also be Allah Wasaya and 5 others v. Irshad Ahmad and 4 others (1992 SCMR 2184), wherein, it was held as under: - "Whenever a person intentionally deceives another with the motive having some illegal gain or advantage for himself or with the purpose of putting the person so deceived or cheated in wrongful loss and or disadvantage he is said to have committed fraud. It means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true, or the active concealment of fact by one having knowledge or belief of the fact

12. In this behalf further reliance can be placed on the case reported as "Khadim Hussain v. Abid Hussain and others" (PLD 2009 SC 419), wherein, it was observed that bad "faith" and "fraud" are synonymous. Fraud is an intrinsic collateral act, which vitiates the most solemn proceedings of Courts of justice.

13. Black's Law Dictionary Ninth Edition defines the word "Fraud" as under: "A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment Fraud is usu, a tort, but in some cases (esp, when the conduct is willfully it may be a crime. Also termed intentional fraud. A misrepresentation made recklessly without belief in its truth to induce another person to act. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. Unconscionable dealing; esp, in contract law, the unfair use of the power arising out of the parties relative positions and resulting in an unconscionable bargain".

14. Now turning to misrepresentation, the Hon'ble Supreme Court of Pakistan in its most celebrated judgment "Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd." (2010 SCMR 1097), after consulting Blacks' Law dictionary held as under: "Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead"

15. For the purpose of subsection (2) of section 12 of the C.P.C., the plea of collusion is as good as the plea of fraud as held in the case reported as "Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others" (PLD 1984 Lahore 396).

16. In ordinary common parlance, collusion is defined as a secret combination, conspiracy, or concert of action between two or more persons for fraudulent or deceitful purposes.

17. In the case reported as "Munir Ahmad Khan v. Sameeullah Khan and 7 others" (1986 CLC 2655), it was observed that: "The collusion, no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two persons that one should institute a suit against the order in order to obtain the decision of a judicial I? tribunal for some sinister purpose".

18. It is by now settled that fraud cannot be directly proved, it has to be inferred from the surrounding circumstances. It is also well settled law that fraud vitiates the most solemn proceedings as held by the superior Courts of Pakistan in the following judicial pronouncements. (i) Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710) (ii) Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331) and (iii) Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549).

19. Now at this stage, I feel that it will also be appropriate to reproduce the application for withdrawal of the appeal, which reads as under:

20. From the contents of the petition filed under section 12(2) of the C.P.C. before the learned appeal Court, it is discerned that allegation of the respondent was that her counsel withdrew the appeal filed by her without authorization and consent and the act of withdrawal by her counsel namely Zafar Ayub, Advocate is fraudulent, result of collusion and misrepresentation, and concealment of fact. In her statement recorded before the Court as PW-1, the respondent deposed that she had not authorized her said counsel to withdraw the appeal, during pendency of appeal. She left for USA and in her absence, he withdrew her appeal fraudulently and malafidely having hands with the defendant. According to her, on 05.05.2020, she sent text message to her advocate informing him that he is no more her counsel as she has lost trust in him.

21. It is an admitted fact that the respondent filed her appeal by appointing him as her counsel and his act of withdrawal was without her consent and authorization, which gave undue advantage to the petitioner and he became the sole beneficiary on the withdrawal of appeal.

22. After considering the material on record, I am of the view that all the essential ingredients of collusions are proved in the present case, wherein, the verdict of the learned trial Court dated 13.02.2020 in favour of the petitioner remained intact due to withdrawal of appeal by the counsel of the respondent unilaterally and making a false statement in the petition that he is under instruction of her client to withdraw the same and withdrawal application was accepted by the learned Court below in violation of ground realities, existed on the spot. As discussed above, this fact alone is sufficient to establish that petitioner is a beneficiary and secured order of withdrawal in connivance with her counsel. In this behalf, reference may be made to the case reported as "Messrs Walia Steel Industries PLC v. Messrs SAGA Shipping and Trading Corporation Ltd. and others" (PLD 2019 Sindh 22), wherein, it was held as under:- "

O.XXIII, R.3 & S.12(2)

Power of attorney, interpretation of

Compromise

Fraud and misrepresentation

During pendency of suit filed by the plaintiff-company against the defendant-companies, attorney of the plaintiff filed an application under O.XXIII, R.3, C.P.C. claiming that the matter between the plaintiff and defendants had been settled

Trial Court allowed said application and dismissed the suit as not pressed

Plaintiff contended that order by Trial Court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record

Held, that perusal of the power of attorney reflected that the plaintiff-company had appointed the agents severally as the company's attorneys in question to do the acts deeds and things in connection with and arising out of the subject consignment and for its delivery and transportation from Egypt to Ethiopia

Said purpose had been so stated and it clearly spelt out that the principal/plaintiff-company wanted these attorneys to act in furtherance of the said act

Though a specific power for compromise was not available in the power of attorney but even if the word "comprise" used therein was understood as "compromise" (treating it as an inadvertent error or a typographical mistake) by no stretch of imagination it could be held that this also provided power for withdrawing the proceedings

Word 'withdrawal' had been purposely left out from the Power of Attorney

Admittedly, no separate withdrawal power was available in the Power of Attorney

Order passed by Trial Court was obtained by way of misrepresentation and fraud in that the Attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit

Application under S.12(2), C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits"

23. Before parting with the judgment, it is observed that duties of the Muslims and their conduct in assisting the Court to do justice are also reflected in the various Ayat of the Holy Quran. The Hon'ble Supreme Court of Pakistan, keeping in view the principles enunciated in Surah Al-Nisa IV Ayat No.135 while discussing the duties of counsel to the Court of law and procedure in the case reported as "Shukar Din v. Inamullah and another" (PLD 1992 SC 67) observed as under: "All the parties and their counsel were bound to assist the Court in pursuance of the rule of good conduct in the Court; namely, when seeking justice do justice"

24. In the facts and circumstances of this case, the doctrine of ubi jus ibi remedium was rightly pressed into service to hold that the order of withdrawal of appeal of the respondent by her counsel was without authorization and consent and the same is the result of fraud, misrepresentation and collusion with the petitioner. I find no illegality, irregularity or jurisdictional defect in the impugned judgment, therefore, it will be just and proper to maintain the same.

25. In this view of the matter, I find no merit in the civil revision in hand, which is accordingly dismissed with no order as to costs. MH/321/P Revision dismissed.