2006 PLP 1357 (CLC)

SH. HAKIM ALI, J.

To reach on a correct decision, the material facts necessary for the disposal of this writ petition are to be comprehended before examining and discussing the arguments of both the learned counsel.

2. The facts as narrated by both the learned counsel and found from the record in brief are that PICIC, the petitioner, who had granted loan to Messrs Hafiz Brothers (Pvt.) Ltd. and others had filed a suit for recovery of Rs.1,47,27,279 against Messrs Hafiz Brothers (Pvt.) Ltd., and others, before the learned Judge Banking Tribunal at Karachi. The suit was decreed on 10-1-1994 with mark-up and 20% liquidated charges. As the mortgaged property was situated at Rahimyar Khan District, therefore, for execution, the decree was transferred to Senior Civil Judge, Rahimyar Khan. After this litigating period, Mst. Zahida Khanum, respondent No.1, filed a suit in the Court of learned Judge, Family Court at Rahimyar Khan with regard to this mortgaged property claiming it to be property of her dower and got the decree of dower in her favour from the learned Judge, Family Court, Rahimyar Khan on 17-9-1999. It is pertinent to point out that Mst. Zahida Khanum was wife of one of the judgment-debtor namely, Haji Muhammad Anwar, therefore, Haji Muhammad Anwar particularly and the other partners and judgment-debtors were commonly and fully aware of the litigation of PICIC, which had culminated into a decree, passed in favour of PICIC on 10-1-1994 for recovery of Rs.1,47,27,279 even then decree was got passed from the learned Judge, Family Court, with regard to that mortgaged property without impleading the PICIC in that family suit. When it became known to the PICIC, it filed an application under section 152 of the C.P.C., before the learned Judge Family Court for recalling of this judgment and/or modifying the decree by correcting the mistake. The application was dismissed by learned Senior Civil Judge on 20-12-2002. The appeal was filed against that order/judgment before the learned District Court on 14-5-2003. Learned Additional District Judge remanded the case to the learned Senior Civil Judge by setting aside the impugned order, dated 19-12-2002 (in fact the order was passed on 20-12-2002 but mistakenly and inadvertently it was noted as 19-12-2002). The learned Additional District Judge directed the learned trial Court to frame the appropriate issues, with regard to the validity and correctness of the decree in question (dower decree) and after recording the evidence of the parties, to make a decision afresh in accordance with law. On 24-5-2003, the learned Senior Civil Judge framed the issues. P.W.1 (Muhammad Ali Haider) was produced by the PICIC in evidence whose statement was recorded, but the learned Senior Civil Judge on an application filed by decree-holder for summoning of witnesses not only declined the prayer of the decree-holder to summon the witnesses but consigned to the record, the application under section 152 of the C.P.C. (of the PICIC) after holding that the order, dated 20-12-2002, passed by learned Senior Civil Judge had attained the finality as it was not appealed against by the PICIC. This order, dated 10-6-2004 was again appealed against by PICIC before the learned Additional District Judge, who dismissed the appeal on 11-10-2004, by upholding the order, dated 10-6-2004, passed by the learned Senior Civil Judge. Hence, this writ petition against judgment/order, dated 11-10-2004 passed by the learned Additional District Judge, Rahimyar Khan.

3. Learned counsel appearing on behalf of writ petitioner submits that learned Senior Civil Judge had wrongly consigned to record the application filed by PICIC because the order/judgment dated 14-5-2003 passed by learned Additional District Judge remanding the case to learned Senior Civil Judge for framing of issues, recording of evidence and for making decision afresh was very much clear and unambiguous. Mere wrong mentioning of date in the order as 19-12-2002 instead of correct date of 20-12-2002 could not be made a ground for consigning of - the application of the PICIC. As per learned counsel, the technicalities have been brought into play by ignoring the true facts, law on the subject and declining the substantial justice to be done in the case. The PICIC had obtained a decree of huge money against the judgment-debtors after litigation. While in the execution proceedings, one of the judgment-debtors namely Muhammad Anwar, through fraud and fabrication, got the suit filed for recovery of dower, through his wife and got the decree passed in her favour, on the basis of a fake and forged document, without impleading the decree-holder/the writ petitioner. The order dated 19-12-2002 was inadvertently written in the judgment/order of learned. Additional District Judge, although that was a date on which the arguments were heard by learned Senior Civil Judge and case was adjourned to 20-12-2002, while the judgment/order impugned was passed on 20-.12-2002, So, on the basis of this wrong mention of the date as 19-12-2002, instead of 20th in the judgment/order of the learned Additional District Judge, the application of the petitioner (filed under section 152 of C.P.C.) could not be consigned to the record room. He has prayed for acceptance of the writ petition and setting aside of the order passed in appeal on 11-10-2004 as well as the order, dated 10-6-2004 passed by learned Senior Civil Judge.

4. Learned counsel appearing on behalf of respondent No.I (Mst. Zahida Khanum) wife of Muhammad Anwar, has replied in the following manner: (i) The writ petitioner is guilty of laches, because in the instant writ petition, the prayer has been made for setting aside the judgment and decree dated 19-9-1999, orders dated 20-12-2002, and, that of 11-10-2004, passed by learned Additional District Judge. As against the judgment and decree, dated 19-9-1999 and order, dated 20-12-2002, the instant writ petition was barred by the rule of laches, therefore, was liable to be dismissed, as it has been filed in the year 2005. (ii) The writ petitioner had got the remedy of appeal, under section 14 of the West Pakistan Family Courts Act, 1964, or an application under section 9 of the aforesaid Act, against the judgment and decree, dated 17-9-1999 passed for the recovery of dower in favour of Mst. Zahida Khanum, but both these remedies having not been availed of by the writ petitioner, the application under section 152 of the C.P.C., was not maintainable. Therefore, the writ petition is liable to be dismissed. (iii) The learned Senior Civil Judge has correctly passed the order, dated 10-6-2004 for consigning to record, the application under section 152 of the C.P.C., filed by writ petitioner because the order dated 20-12-2002, passed by learned Senior Civil Judge dismissing the application under section 152, C.P.C. was never set aside by learned Additional District Judge on 14-5-2003. The order which was reversed was 19-12-2002, therefore, the impugned order, dated 10-6-2004 passed by learned Senior Civil Judge and the order of appellate Court of learned Additional District Judge on 11-102004 have been correctly passed.

5. The arguments of the learned counsel and the scrutiny of record have brought me to conclude with the following observations/directions and declarations:-- (a) It is an admitted fact that the present writ petitioner had obtained decree of huge amount against (i) Hafiz Brothers (Pvt.) Ltd., (ii) Haji Muhammad Anwar (iii) Hafiz Faqir Muhammad Shahzad (iv) Mrs. Inayat Begum and (v) Mrs. Gulzar Anwar. It is also not denied that the property of 13-Factory Area, Rahimyar Khan and 32 Kanals lands at Kot Kammu Shah Chowk Bahadurpur, Rahimyar Khan was mortgaged with PICIC and the decree was obtained by PICIC on 10-1-1994 from the Banking Tribunal, Karachi and Sukkur. It is also admitted fact that this decree was transferred for execution to the Court of learned Senior Civil Judge, Rahimyar Khan. So, in the presence of this decree in favour of PICIC, any suit or proceeding, if were to be commenced, the PICIC was to be impleaded so as the rights which were conferred through the above- noted decree, dated 10-1-1994 to PICIC could be defended by the PICIC. The filing of suit for recovery of dower by Mst. Zahida Khanum, who is admittedly wife of Muhammad Anwar and resident of 13-Factory Area, Rahimyar Khan, as this address has been found from the record, in her suit was bound to implead PICIC which was a necessary party, to the suit. But for the reasons best known to Mst. Zahida Khanum, respondent No.1 PICIC was not made a party to that suit and the decree was got passed on 17-9-1999 in the presence of that earlier decree, dated 10-1-1994 which was prior in time also, having been passed in favour of PICIC in the year 1994. It was so, that the application under section 152 of the C.P.C. was moved by PICIC. At this stage, I am conscious of the fact that the application under section 152 of the C.P.C. was not maintainable before the learned Judge, Family Court but the question is as to whether wrong mention of section or law could be made a ground to deprive a person/party of his rights, which he had got confirmed through a decree to his score. The wrong mention of section 152 of the C.P.C., by the learned Advocate, was in fact a mistake for which writ petitioner/applicant could not be penalized and punished, for the wrong drafting of a learned Advocate. The power/jurisdiction to set aside the decree of Family Court was available with the Family Court. As argued by the learned counsel for respondents the decree could also, be set aside by filing an appeal under section 14 of the West Pakistan Family Courts Act, 1964. Section 9 of the West Pakistan Family Courts Act, 1964 has also conferred power upon Family Courts to set aside a decree, which has been passed ex parte against a defendant. The petitioner was to be impleaded and treated as a defendant in the suit of dower, because the writ petitioner had got a prior decree in its favour from a competent Court of Judge'Banking Tribunal. If I consider that section 9 of the West Pakistan Family Courts Act, 1964 and section 12(2) of the C.P.C. were not maintainable due to non-applicability of C.P.C., even then the learned Judge Family Court in a case where a decree has been obtained through fraud, deceits, misrepresentation or on any of such grounds, which necessitated the reversal or modification of the decree, the learned Judge, Family Court can competently entertain such an application under the inherent jurisdiction, which is presumed and considered to be vesting in all Courts Tribunals or authority of even limited jurisdiction. Because it is a settled law that fraud vitiates the most solemn proceedings even and the decrees, orders or the judgments obtained in pursuit of these intentions or actions are to be reviewed, reversed, recalled or upset. This rule is based on the principle that an authority if can do act or pass an order, judgment or decree, it can undo it also but with some exceptions also, if the authority has been defrauded in the passage of that act, order or judgment. (b) It was, therefore, that the dismissal order, dated 20-12-2002 passed by learned Senior Civil Judge upon application under section 152 of the C.P.C. filed by PICIC, was set aside by learned Additional District Judge on 14-5-2003 and the learned Senior Civil Judge was directed to decide the case afresh. It is important to mention here that the learned Additional District Judge had considered the maintainability of filing of application under section 152 of the C.P.C., also in his judgment. Therefore, learned Senior Civil Judge could not sit over the judgment of learned Additional District Judge and pass an order against the letter and spirit of the order of learned Additional District Judge. (c) Mere wrong mention of date of "19-12-2002 instead of correct date of 20-12-2002" cannot be considered to have changed the character and nature of the order of learned Additional District Judge because both the parties were conscious of the fact that the order impugned and challenged before the learned Additional District Judge was the order, dated 20-12-2002, which had dismissed the application of PICIC. It cannot be considered that the learned Additional District Judge was not aware of the correct order being challenged before him. In fact, the intention of the learned Additional District Judge while upsetting in appeal was the setting aside of the order, dated 20-12-2002 and not the order dated 19-12-2002, which was passed for adjournment of date only and had fixed the date of the case for 20-12-2002 for decision of the application. (d) The order, dated 14-5-2003 passed by learned Additional District Judge was also understood by the learned Senior Civil Judge, to have upset the order dated 20-12-2002, when the learned Senior Civil Judge, after the post remand proceedings, ' had framed issues on -24-5-2003, in accordance and in compliance with the remand order of the learned Additional District Judge dated 14-5-2003 and had recorded the evidence of A.W. 1 also. After these orders were passed and the proceedings were taken upto the extent of partly recording of the evidence. The sudden reversal by learned Senior Civil Judge and passing of order dated 10-6-2004, consigning to record room the application filed under section 152 of the C.P.C. was in fact a mala fide and fishy act of the learned Senior Civil Judge, which in this Court, I cannot approve it. The learned Senior Civil Judge had acted against the clear order of 14-5-2003, passed by learned Additional District Judge, remanding the case to him, when he had passed the order dated 10-6-2004, consigning to record the application of the PICIC. Mere wrong mention of the date while the month and the year was correctly mentioned in the judgment, and it was also correctly understood firstly by the learned Senior Civil Judge and the proceedings were correctly commenced initially, but during the continuance of the proceedings, this hasty reversal steps why were taken, I have not been able to understand, the necessity of such steps to be taken at that stage. This smacks of something fishy dealing of the case. The impugned order, dated 11-10-2004 passed by learned Additional District Judge in appeal has also omitted to comprehend the real facts of the case. (e) It is settled law that to keep flag of justice high, substantial justice has to be done. Formal defects, technical faults, clerical or arithmetical mistakes, wrong drafting of suit, appeal, review or revision or any petition, incorrect quoting, omission of section, Article of law or misquoting of a Rule or Regulation cannot deprive a genuine claimant and real contestant. If the power of the Court is there and the Court has got the jurisdiction to undo a fraudulent order obtained, then all these irrational technicalities and formalities should not deprive a real and genuine litigant. The contents of application, and the prayer of a litigant are to determine the fate of a suit, an appeal or a petition. Court is not to act in furtherance of depriving a genuine litigant upon these technicalities. Substantial and real justice must be done, granted and showered upon the real, genuine litigant, leaving aside all these formal and minor technicalities, hindering the path of doing justice. (f) There was no laches on the part of writ petitioner because the judgment and decree dated 17-9-1999 was challenged by writ petitioner through filing of application under section 152 of the C.P.C. although with wrong mention of section. The dismissal of that application was challenged through appeal by the writ petitioner in the Court of learned Additional District Judge and up till this Court. Therefore, this Court does not consider the petitioner of being guilty of laches or having failed to avail the alternate remedy of filing of appeal under section 14 of the West Pakistan Family Courts Act, 1964 before the learned District Court.

6. So, in these circumstances and discussion, the writ petition ill accepted. The order, dated 11-10-2004 passed by learned Additionall District Judge and the order dated 10-6-2004 passed by learned Senior Civil Judge, Rahimyar Khan are declared to be illegal and unlawful. Consequently, learned Senior Civil Judge, Rahimyar Khan is directed to decide the application of PICIC although wrongly filed under section 152 J of the C.P.C: treating it to be an application under section 12(2) read with section 151 of the C.P.C., (inherent power to undo) and proceed with it in accordance with the order of remand dated 14-5-2003 passed by learned Additional District Judge. The proceedings having already consumed much time, it should be expedited by the learned Senior Civil Judge so that it should reach to its final conclusion, as soon as possible. F.B./P-6/L?????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.