2002 PLP 2531 (YLR)

(1) Have petitioners no locus standi or cause of action? (2) Is petition under section 12(2), C. P. C. in its present form incompetent? (3) Are the decree‑holders/respondents entitled to special costs under section 35‑A, C.P.C.? to what extent? (4) Was the decree, dated 6‑11‑1988 obtained through fraud and misrepresentation? (5) Relief.

6. Muhammad Ismail, General Attorney of the petitioners appeared as P.W.1 while in documentary evidence, the petitioners produced Exh.A.1 to Exh. A. 53.

7. On the other hand, respondents Nos. 1 to 7 produced Muhammad Ramzan son of Nehal Khan P. W.1, Muhammad Bux son of Muhammad Ramzan R.W.2, Haji Manzoor Ahmed son of Bakhshanda Khan R.W.3 and Haji Manzoor Ahmed (respondent No. 14) as R.W.4. In documentary evidence they produced Exh.R.1 to Exh. R.13. The trial Court on the basis of the evidence on the record, accepted the application under section 12(2), C.P.C. vide judgment, dated 4‑4‑1993 and declared the consent decree, dated 6‑1‑1988 to be a result of fraud and misrepresentation and consequently set aside the same. Respondents Nos.1 to 7 filed a revision petition which was accepted vide order, dated 20‑7‑1993 wherein, upon issue No.4 it was held that fraud and mis representation had not been proved by the petitioners.

8. This writ petition is directed against the said order, dated 20‑7‑1993 passed by respondent No.17 in exercise of revisional jurisdiction.

9. Sardar Muhammad Hussain Khan, Advocate, the learned counsel for the petitioners, has assailed the order, dated 20‑7‑1993 on the ground that the revisional Court exceeded the jurisdiction conferred upon it under section 115, C.P.C. as the order of the trial Court was passed in exercise of jurisdiction duly vested in it and there was nothing on the record to infer that the trial Court had acted in the exercise of its jurisdiction illegally or with material irregularity. According to the learned counsel it was not correct for the revisional Court to reappraise the evidence when no case of misreading or non‑reading was made out. It was further submitted that the learned Court in revision completely ignored and/or misread the documentary evidence which was produced on the record. The learned counsel further submitted that reasonable/inference drawn from the evidence on the record by the trial Court was set aside without justification. He emphasised that the fraud and misrepresentation practised by respondents Nos. 1 to 7 and respondent No. 14 is evident from the following facts:‑‑ (i) that while filing the suit on 31‑10‑1988, the factum of the pendency of the earlier suit was not disclosed. This was for the ulterior motive to enable respondent No. 14 to make a concessional statement on behalf of Haji Muhammad in the subsequent suit to obtain the consent decree. According to him respondent No. 14 Manzoor Ahmed was himself plaintiff in the earlier suit and thus was not in a position to act on behalf of Haji Muhammad. (b) that no service had been made in the second suit upon Haji Muhammad. The said suit was fixed for 7‑11‑1988. In the absence of service, the post‑haste voluntary appearance of respondent No.14, professing to be the general attorney of Haji Muhammad and making conceding statement on 6‑11‑1988 was based on mala fides, collusion and fraud in order to give unlawful benefit to respondents Nos.1 to 6 (his real sons) and respondent No.7 his brother. (c) that respondent No. 14 had admitted through his written statement in suit titled Mst. Bakhtan v. Rafque Ahmed and others, wherein be submitted that Haji Muhammad was mentally and physically invalid in the last days of his life. There was no legal justification for respondent No.14 to have made the conceding statement in favour of his sons and brother on 6‑11‑1‑988 on behalf of the said Haji Muhammad who admittedly died shortly thereafter on 9‑11‑1988. (d) that respondents Nos.1 to 7 failed to appear in the witness box and it was only respondent No. 14 the general attorney of Haji Muhammad who appeared as P.W.4. With the death of Haji Muhammad, respondent No. 14 had even lost the status of being representative of Haji Muhammad. In such circumstances, there was no justification for the revisional Court to reverse the well considered judgment of the trial Court. (e) that the documents such as Exh.A.1. Exh. A.6, Exh. A.10. Exh.A.14, Exh. A.19, Exh.A.23, Exh.A.25, Ezh.A.27, Exh.A.51 and Exh.A. 53 produced by the petitioners were ignored by the revisional Court.

10. The learned counsel for the petitioner supported his submissions, with reference to case law. For the proposition that a writ is competent against an order without jurisdiction reliance has been placed upon Haji Mohibullah & Co and others v. Khawaja Bahauddin 1990 SCMR 1070, Syed Ali Shah. v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504, Muhammad Lahrasab Khan v. Mst. Aqeel-un‑Nisa and 5 others 2001 SMRC 338, Qamar‑ud‑Din. v. Muhammad Din and others PLD 2001 SC 518 and Riaz Hussain and others v. Board of Revenue and others (1991 SCMR 2307).

11. The learned counsel further stressed upon the limited scope of the revisional jurisdiction itself. He referred to Haji Abdul Jalil. v. Anjuman Jame Masjid Haquani 1996 MLD 818, Messrs Asad Brothers. v. Ibadat Yar Khan PLD 1993 Karachi 140, Syed ‑Ghulam Mustafa Shah and another v. Syed Muhammad Hussain Shah and two others PLD 1993 Karachi 369 and Haji Khan Baz Khan and 8 others v. Abdur Rahim and 5 others PLD 1993 Peshwar 36.

12. The various aspects of fraud were discussed. Concealment of fact has been treated to be an act of fraud. Reliance has been placed upon Mst. Bhano and another v. Mian A.M. Saeed and others 1969 SCMR 299, Allah Bakhsh and 3 others v. Mst. Bakht Bhari and another 1990 CLC 2027, Abdul Aziz Khan Niazi and others v. Mrs. Salma Rehman and another 1992 CLC 777 and Karam Hussain Shah and others v. Hasil and others 1991 MLD 2275. In furtherance of his proposition that collusion also amounts to fraud, the learned counsel for the petitioner has relied upon Zafar Ullah and 3 others v. Civil Judge, Hafizabad and 3 others PLD 1984 Lahore 396, Iqbal v. Mst. Jainan Bibi (1991 CLC 553) and Abdur Rauf and others v. Abdur Rahim Khan, Advocate PLD 1982 Peshawar 172.

13. On the other hand, Mr. M.M. Bhatti, Advocate appearing for respondents Nos. 1, 4, 5 and 6 and Choudhary Abdus Sattar, Advocate for respondents Nos.2, 3 and 7 have controverted the legal and factual pleas raised by the petitioner. It may here be mentioned that although the initial application under section 12(2), C.P.C. was filed by the petitioners and respondents Nos.8 to 13 jointly, later, on account of some intermediate development, respondents Nos.8 to 13 were pursuaded to detach their interest from the petitioners and allign themselves with the respondents. Later, however, respondents Nos.8 to 13 submitted their written statement on 13‑11‑2000, whereby they accepted the claim of the petitioners and prayed that writ petition be allowed. The stance of respondents Nos.8 to 13 through their learned counsel Mr. Aejaz Ahmad Ansari, Advocate continues to be supportive of the writ petitioners.

14. Mr. M. M. Bhatti, Advocate, submitted that various acts which have been described by the petitioners as fraudulent cannot be termed as fraudulent under the law. Intact, even if a prior suit is pending, the subsequent suit filed during its pendency is permissible and is not even hit by the provisions of Order 23, C.P.C. It is contended that it an act is permissible under the law it cannot be termed as fraudulent. The Learned counsel placed reliance upon Ghulam Nabi and others. v. Muhammad Yaqub and others PLD 1983 SC 344 and The Commissioner of Income‑tax, N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406.

15. Referring to the impugned order of the revisional Court the learned counsel for the respondents urged that the type of fraud contemplated under section 12(2), C.P.C. is the one which is practised on Court or inter se the parties. It is only such fraud that will render a decree void. It was contended that a valid gift was made by Haji Muhammad in favour of respondents Nos.1 to 7 and there was no element of fraud which is borne out from the record. The learned counsel relied upon Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 and Rehmatullah. v. Ali Muhammad and another 1983 SCMR 1064 at 1080 to contend that fraud must be committed on the Court to render a decree void. Relying upon Zaib‑un- Nisa Habib v. Allay Rasool 1989 SCMR 416, the learned counsel submitted that section 12(2), C.P.C. does not apply to a compromise decree.

16. Lastly it was submitted that the writ petition itself was not maintainable against an order passed in revision. For this proposition reliance was placed upon Dilshad v. Additional District Judge, Multan and others 1996 SCMR 1396 Mst. Zaidat v. Shahadat and others 1989 SCMR 1392 and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970.

17. Choudhary Abdus Sattar, Advocate made detail submissions but essentially reiterated the contention made by Mr. M.M. Bhatti, Advocate.

18. Mr. Aejaz Ahmad Ansari, Advocate representing respondents Nos.8 to 13 elaborated that the first suit which was filed on 4‑9‑1988 was filed by respondents Nos.1 to 3 (sons of Haji Manzoor Ahmed), Haji Manzoor and Ramzan respondent No.7. The petitioners were not impleaded as a party but on coming to know of the said suit the petitioners appeared in the said suit and filed their Wakalat Name. According to the learned counsel the second suit which culminated in the impugned decree, dated 6‑11‑1988 was filed by respondents Nos. 1 to 7 i.e. the six sons of Haji Manzoor and Muhammad Ramzan his brother. The mala fide behind the second suit have been explained as under:‑‑ (a) that in the first suit the petitioners had put in appearance and the plaintiffs of the first suit did not anticipate a smooth culmination of their collusive designs. (b) in the first suit Haji Manzoor who claimed to be the general attorney of Haji Muhammad could be of no use in obtaining the desired decree as he himself was the plaintiff. (c) in the second suit the plaintiffs were the six sons of Haji Manzoor alongwith his brother Muhammad Ramzan. Haji Muhammad was the sole defendant. Haji Manzoor could and did take advantage of being the general attorney of Haji Muhammad and collusively got the ease fixed in advance and made a concessional statement in favour of his sons and brother as attorney of Haji Muhammad. (d) that it was for this reason that the factum of the pendency of the first suit was concealed in the second suit, wherein, a fraudulent decree was procured without even service of summons upon Haji Muhammad.

19. Arguments heard. Record perused.

20. There is no denying the fact that the petitioners are the real daughters of Haji Muhammad and that Haji Muhammad in matters of inheritance was governed by Muslim Law. Thus the petitioners were entitled to their legal Muslim Law share of inheritance in the estate of Haji Muhammad. Similarly, respondents Nos.8 to 13 and respondent No. 16 are the children of Faiz Muhammad who was pre‑deceased son of Haji Muhammad and are also entitled to inherit under section 4 of the Muslim Family Laws Ordinance, 1961. If the impediment of the decree, dated 6‑11‑1988 is removed, the petitioners as well as respondents Nos.7 to 13 and 16 would be entitled to their Sharia share of inheritance.

21. In order to assess the legality and validity of the decree, dated 6‑11‑1988, the evidence on the record has been perused. Exh.A.1 is the copy of the earlier suit which was filed by Muhammad Aslam, Muhammad Ajmal and Muhammad Saleem sons of Haji Manzoor Ahmed, Haji Muhammad Ramzan and Haji Manzoor Ahmed himself on 4‑9 1988. In this suit only Haji Muhammad was arrayed as the defendant. Exh.A.6 is the copy of the Tamleek Nama on the basis of which the said 'suit was filed. Exh.A.11 is the certified copy of the Wakalat Nama filed by the petitioners and respondents Nos.8 to 13 in the said first suit. Exh.A. 14 is a copy of a plaint filed by Mst. Bakhtan widow of Haji. Muhammad wherein, Manzoor Ahmed was impleaded as respondent No. 10 and Muhammad Ramzan as defendant No.

11. In her suit Mst. Bakhtan had challenged the Tamleek, dated 3‑9‑1988 made by Haji Muhammad in favour of Rafique Ahmed and Shafiqur Rehman inter alia on the ground that Haji Muhammad was on old man of over 100 years of age at the time of the alleged Tamleek and was physically and mentally in capacitated in his last days. Ironically both Manzoor Ahmed and Muhammad Ramzan admitted this averment in their written statement Exh.A.53 which was filed on 26‑9‑1991. Exh.A.26 is the Wakalat Nama filed by Manzoor Ahmed as attorney of Haji Muhammad in the second suit on 6‑11‑1988 while Exh.A.27 is the Wakalat Nama filed by the plaintiffs of the second suit. Exh.A.30 is the copy of the statement of Haji Manzoor Ahmed where: by conceding statement was made on 6‑11‑1988 followed by the impugned decree.

22. The learned trail Court considered the entire evidence on the record and justifiably draw correct inference from the evidence, oral and documentary as well as from the attending circumstances of the case. The entire conduct of the respondents Nos. 1 to 7 and respondent No. 14 in filing civil suits clandestinely to obtain a decree in respect of the estate of Haji Muhammad was noticed and it was rightly concluded that the entire exercise was mala fide, fraudulent and collusive. The oral and documentary evidence of both the parties was elaborately discussed. It was in these circumstances that vide order, dated 4‑4‑1993, the application of the petitioners under section 12(2), C.P.C. was accepted. This is not appealable. Obviously, by bringing section 12(2), C.P.C. on the statute book it was the intention of the legislature that a shorter summary procedure be provided by filing an application to set aside a fraudulent decree in the same Court. This was to avoid the misery of afresh long drawn out litigation. It was in line with this purpose that right of appeal was not provided against an order accepting an application under section 12(2), C.P.C. The respondents Nos. 1 to 7 were obliged to file a civil revision. By doing so, the order of the trial Court could only be interfered with if the same suffered from any illegality, irregular exercise of jurisdiction or any other legal defect. The learned revisional Court, exercised its jurisdiction, as if it was a Court of appeal rather than a Court of revision. It unnecessarily re‑appreciated the evidence on the record without first coming to the conclusion, that any misreading or non‑reading of evidence has taken place. The learned revisional Court itself found that in order to vitiate the proceedings within the purview of section 12(2), C.P.C. fraud must be one which is either practiced on the Court or inter se the parties. Approaching the evidence on the record with a different perception of fraud, revisional Court conducted its own appreciation of evidence and set aside the well‑considered order of the trial Court.

23. While coming to this conclusion the revisional Court did not consider that the respondents were guilty of active concealment of fact which amounted to fraud and misrepresentation sufficient to vitiate the decree. The learned revisional Court also failed to see that the entire proceedings were collusive between respondents Nos. 1 to 7 and respondent No. 14 and were directed only for the unlawful advantage of respondents Nos. 1 to 7 in order to deprive the other legal heirs of Haji Muhammad.

24. Fraud is found inherent in the filing of the two successive suits. In the first suit respondent No. 14 Manzoor Ahmed who was holding general power of attorney on behalf of Haji Muhammad was himself one of .the plaintiffs against his principal Haji Muhammad and contended in the suit that his principal had resiled from transferring the property under the alleged Tamleek. In the second suit this very Manzoor Ahmed omitted himself from the list of the donees and the plaintiffs and in his place introduced all his sons as the plaintiffs. He could now appear as attorney of Haji Muhammad which he promptly did and conceded the suit of his sons through his statement as attorney of Haji Muhammad on 6‑11‑1988. Its, was thus that the decree was obtained.

25. The parameters of Revisional jurisdiction are well‑defined. It is primarily meant for correcting errors made by subordinate Court in the exercise of its jurisdiction. It cannot be invoked against conclusions of law or fact which do not in any manner affect jurisdiction of the Court. If a Court, possessed of jurisdiction violates or disregards any rule of law or procedure, prescribing the mode in which the jurisdiction is to be exercised, it acts illegally and with material irregularity. Such irregularity might also be occasioned through gross misreading or non‑reading of the evidence on the record, or by drawing an inference from the evidence that no prudent 'man is likely to draw or by a perverse fanciful or arbitrary exercise of discretion. Thus the revisional power under section 115 of the Code of Civil Procedure is a superintending, rectifying and visitorial power which should be exercised to correct jurisdiction error and irregularities alone. The revisional Court must not sit as a Court of appeal over the judgment of the subordinate Court.

26. Viewed in this perspective the re appraisal of the evidence on the record by the revisional Court, without there being any misreading or non‑reading of evidence found against the trial Court, was an illegal exercise of Revisional Powers, and was in excess of authority conferred by section 115, C.P.C.

27. The facts and circumstances as disclosed through evidence, were sufficient to lead to the conclusion that the decree, dated 6‑11‑1988 was a result of fraud and mis representation. Two Tamleek Namas were made on the same date. In one of these Manzoor Ahmed respondent No.4 was shown as one of the donees, while in the other he was omitted. In the first suit Manzoor Ahmed was one of the plaintiffs who wanted to enforce the Tamleek in his favour. The petitioners had intervened in that suit. Concealing the pendency of this suit, the 2nd suit was filed by sons and brother of Manzoor Ahmad, wherein, on a date advanced upon application, Manzoor Ahmed acting as Attorney of Haji Mohammad conceded the suit and facilitated the impugned decree. The petitioner and respondents Nos.8 and 13 were thus deprived of their lawful share.

28. The trial Court had come to the conclusion that the decree obtained by respondents Nos.1 to 7 was through fraud, misrepresentation and concealment of facts. Had the respondents Nos.1 to 7 brought the material fact of the filing of earlier suit to the notice of the Civil Court, the petitioners would have been directed to be impleaded, as the petitioner had put up appearance in the earlier suit. Suppression and concealment of material facts amounts to practising fraud on the Court as well as on the parties whose rights are adversely affected.

29. In view of this legal and factual position it is concluded that the order in Revision, if allowed to stand would perpetuate palpable injustice and illegality. The reversal of the well‑considered judgment of the trial Court is in excess of the parameters of the jurisdiction provided by section 115 and is thus illegal. The object or writs is to curb excess of jurisdiction, so as to keep subordinate Courts and Tribunals within their bounds. It is appropriate in all such cases where substantial rights of a party have been so far invaded as to prejudicially affect him if the proceedings or judgment remains un-reversed. The invocation of writ jurisdiction in such, circumstances, is appropriate, nay essential.

30. Obviously, the impugned order passed under section 115, C.P.C. cannot be assailed further through any legal remedy available under ordinary law. Writ against an order passed in revision is thus competent i where, circumstances so warrant.

31. This being the case, this writ petition succeeds and the order, dated 20‑7‑1993 passed by the revisional Court is set aside. As a result the order, dated 4‑4‑1993 of the trial Court is restored and the suit of respondents Nos. 1 to 7 shall be deemed to be pending before the trial Court which shall be disposed of in accordance with law.

32. Before parting with this judgment it is necessary to dispose of miscellaneous applications on the record. C.M. No.552 of 1999 is an application filed by Muhammad Ramzan respondent No.7 for accepting the claim in writ petition. Later C.M. No.655 of 1999 was filed by the same respondent for withdrawal of 552 of 1999. In view of the judgment passed in writ petition both these C. Ms. have become intructuous. C. M. No. 1487 of 2001; C.M. No. 1463 of 2001 and C. M. No. 1431 of 2001 These are applications for registration of case against the Revenue Officers for misappropriation of the produce of the suit property. As the main writ petition has been disposed of, these civil miscellaneous applications are also disposed of with the direction that aggrieved party may proceed, if so, advised before the Collector who shall pass an appropriate order. This is an application praying for an order of open auction of produce of the land in question till the disposal of the writ petition or to the alternate to dispose of the main writ petition itself. As the main writ petition has been decided, this C.M. has become intructuous and is dismissed. C.M. No.495 of 2001, and C.M. No.595 of 2001 Through these civil miscellaneous applications it is prayed for an order of open auction of the produce till the final disposal of ;he writ petition or in the alternative to dispose of the writ petition itself. As the writ petition has been decided, the above C.Ms. have become infructuous and are dismissed as such. This C.M has been filed for taking action against the respondents mentioned therein for alleged misappropriation of the produce. As the writ petition stands decided and party still interested in pursuing this matter may approach the Collector who shall proceed in accordance with law after hearing all the parties concerned. As the writ petition stands decided any party interested in this C.M. may approach the trial Court for redress of his grievance if any. These are applications for proceedings against the persons named therein. The applicants of the civil miscellaneous applications, if so advised may move the Collector who shall proceed with the case after healing the parties in accordance with law. Parties to bear their own costs. Order accordingly. Q.M.H./M.A.K./K‑134/L