2011 PLP 1956 (MLD)

SYED SAJJAD HASSAN SHAH, J.

The petitioner Syed Amir Hussain Shah filed a suit seeking declaration to the effect that he is entitled for allotment of house No.C/765 Taxation No.T/1115 situated in Mata Street, D.I.Khan being available evacuee property, detailed in the heading of the plaint, which was dismissed on 9-6-2000. However, another Suit No.582/1 was instituted by Syed Dilbar Hussain Shah respondent No.1 against the Settlement Department and the present petitioner seeking declaration to the effect that the house mentioned above is in his possession and he is entitled for its allotment being the available property. Both the suits were consolidated and the proceedings were carried out in Suit No.582/1 of 1994.

2. The defendants including the petitioner failed to attend the trial Court on 9-6-2000 and proceeded ex parte by the learned Senior Civil Judge. After recording ex parte evidence, the learned trial Court passed ex parte decree on 6-7-2000 in favour of respondent No.1 against the defendants including the petitioner. The petitioner did not opt to seek any remedy to set aside the ex parte decree. However, an application under section 12(2), C.P.C. was filed on 26-5-2004 for setting aside the ex parte decree. The application was contested by the respondents by filing written replies. The learned trial Court, after hearing the parties, dismissed the application and maintained the ex parte decree passed in Suit No.582/1 of 1994.

3. Feeling aggrieved the petitioner filed revision petition which was dismissed by the learned Additional District Judge-VI, D.I.Klan vide judgment dated 22-1-2007. Hence, the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4. The learned counsel for the petitioner contended that both the learned trial Court has not provided the opportunity to the petitioner to produce his evidence in support of his application under section 12(2), C.P.C. Similarly, the learned revisional Court has also not adverted to this aspect of the case. He further contended that the decree obtained by respondent No.1 against the petitioner is the result of fraud, and collusion and also suffers from jurisdictional defect. He argued that there was a prima facie case of commission of fraud and collusion etc., but both the Courts below erred in holding otherwise. He added that the application has been filed within time and finding to this effect is also not supported by any law. The learned counsel vehemently argued that for filing application under section 12(2), C.P.C, no time limit has been prescribed under the law and this important aspect of the case escaped the notice of the learned Courts below.

5. As against that the learned counsel for respondent No.1 argued that the petitioner intentionally committed default in appearance on the date of hearing of the suit and eventually, he was proceeded ex parte and his suit which was consolidated with the suit of respondent No.1 was also dismissed. Besides the knowledge of the dismissal and ex parte proceedings against the petitioner, he kept mum for sufficient long time and there after filed the instant petition for setting aside the ex parte decree which being time barred is not maintainable. The learned counsel supported the judgments of the Courts below.

6. I gave my thoughtful consideration to the submissions of learned counsel for the parties and carefully perused the record.

7. A perusal of the record reveals that the petitioner, in his application under section 12(2), C.P.C. mentioned the ground that the respondent No.1 patched up the matter with the petitioner through an oral compromise and in presence of the witness it was promised that respondent No.1 would not press his suit and would pray to the Court for its dismissal. However, he did not abide by his commitment, the suit of the petitioner was dismissed and the learned trial Court proceeded with the suit of respondent No.1 which was ultimately decreed ex parte against the petitioner. It is by now well settled law that the judgment and decree passed by the Court can be challenged under section 12(2), C.P.C. when the fraud is committed by either of the parties in the proceedings of the suit. In such circumstances, the Court has the jurisdiction to entertain and adjudicate upon such a matter. As mentioned above, in the instant case nothing has been mentioned by the petitioner that respondent. No.1 has committed any fraud in the Court during the course of proceedings. The so-called compromise was effected beyond the limits of the Court and that too not in writing but it was verbal and its terms and conditions have not been acknowledged by the respondent No.1. In such eventuality, the very maintainability of the application becomes doubtful. More so, no particulars of fraud have been mentioned along with dates, time and venue etc., which is the mandatory requirement of Order VI Rule 4, C.P.C.

8. It was also the bounden duty of the petitioner to inform the Court about the alleged compromise. If at all it was not admitted or acknowledged by the respondent No.1, then the remedy was available under Order XXIII Rule 3, C.P.C. to seek the attestation of such compromise by filing the same in the Court and in case it has not been admitted by the other side, then the petitioner was at liberty to prove the terms and conditions of the alleged compromise but instead of availing the proper remedy, on the same facts and circumstances, he has filed the instant application which is apparently not maintainable.

9. It is also not appealing because even after filing the suit for redressal of his grievances, the petitioner did not attend the Court in order to get himself informed about the status of proceedings and also about the proceedings being carried out in the suit filed by the respondent No.1. This fact casts aspersion on the allegations of petitioner and sufficient to dislodge his claim. Even if the promise made by the respondent No.1 was false, even then it does not fall within the provision contained in section 12(2), C.P.C. as mere falsity of 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. When the fraud has not been committed in Court proceedings for obtaining a judgment, it cannot be termed that the fraud has been committed within the purview of above section of law. In this respect, reference can be made to a case titled Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710). Provision of section 12(2), C.P.C. can only be pressed into service where fraud was played or misrepresentation was made during the proceedings of the suit in Court and not if done outside the Court. Reference may be made to 2006 CLC 1018.

10. The learned counsel for the petitioner argued that neither issues have been framed nor evidence recorded, therefore, prejudice has been caused to the rights of the petitioner. The learned Courts below, after going through the record of the case, arrived at a conclusion that the matter can be decided on the face of it and there is no need to frame issues and record the evidence. Whenever the Court does not think it proper that the proceedings should be carried on in accordance with provision of C.P.C., it has the power to refuse the framing of issues and recording of evidence. Similar question was raised in case titled Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296) and it was resolved that:-- "Be that as it may, while dealing with the allegations under section 12(2), C.P.C, it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit."

11. As far as the question of limitation is concerned, no provision has been provided in the Limitation Act to control the period in which the application under section 12(2), C.P.C. can be made. Whenever there is no limitation provided for a matter, then the resort can be made to Article 181 of the Limitation Act which provides three years when the right to apply accrues. In the instant case, right to apply accrued to the petitioner on 6-7-2000 when the ex parte decree was passed in favour of the respondent No.1 against the petitioner, however, the application was filed on 26-5-2004 which seems to be hopelessly time barred. This matter has been set at rest by august Supreme Court, therefore, there is no need to further highlight the said question. Reliance placed on the cases titled Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917), Mst. Umtul Kabir and others v. Safia Khatoon and others (1991 SCMR 1022), Muhammad Iqbal and another v. Muhammad Alamgir and others (1990 SCMR 1377), Mst. Nasra Khatoon and another v Mst. Aysha Bai and 12 others (2003 SCMR 1050) and Province of Punjab through Collector, Multan and others v. Muhammad Rashid and others (1988 MLD 2560).

12. For the reasons discussed above, I am of the view that both the learned Courts below have committed no illegality, irregularity or jurisdictional error and arrived at just and lawful conclusions. The judgments of the Courts below being based on solid grounds call for no interference. Resultantly, the instant petition fails which is hereby dismissed. S.A.K./264/P Petition dismissed.