2004 PLP 1128 (CLC)

Heard Mr. Farrukh Zia Shaikh, learned counsel for the applicant, and Mr. Abid S. Zuberi, learned counsel for respondent No.

1. Mr. Farrukh Zia Shaikh, learned counsel for the applicant argued that the decree has been obtained by fraud and misrepresentation as the respondents were not holding any share in the Company Messrs Niazi Films (Pvt.) Ltd., nor said company holds any assets which they undertake to transfer in favour of the respondent. On the other hand, Mr. Abid S. Zuberi, learned counsel for respondent No.1 opposed the application on two grounds. Learned counsel argued that the applicant filed Judicial Miscellaneous No.8 of 1995 under section 12(2), C.P.C., to set aside the decree to the extent of clause 5 of the compromise application whereby the application was dismissed by the learned Single Judge vide order, dated 1st November, 2002 and now the applicant has again filed the application and malafidely questioning another clause of the compromise decree which is not permissible under the law. The learned counsel further argued that under Article 181 of the Limitation Act, period for filing the application under section 12(2), Civil Procedure Code is three years. The decree now questioned was passed on 12th August, 1993 whereas the application has been filed almost after ten years of the decree and, therefore, same is hopelessly barred by time. Mr. Farrukh Zia Shaikh, learned counsel for the applicant, in reply to the preliminary objections argued that no limitation is provided if an order or decree has been obtained by fraud. In support of his contention he had relied upon the case of Government of Sindh v. Khalil Ahmed 1994 SCMR

782. As regard the contention of the learned Advocate about the filing of the previous application, the learned Advocate argued that in the previous application, the applicant had questioned only para.5 of the compromise application and in the present case he is questioning para.3 of the compromise application. Heard the learned counsel for the parties and gone through the contents of the application under section 12(2), C.P.C. filed by the applicant. The learned counsel for the applicant mainly argued that since the respondents have committed fraud, therefore, the present application, filed on 8-1-2003, seeking to set aside the compromise decree dated 12-8-1993 to the extent of para.3 of the application under Order XXIII; rule 3, C.P.C., is within time as there is no limitation so far as an act of fraud is concerned. I am afraid that the contentions of the learned counsel have any force in the instant case. In the case of Sharif Ahmed Hashmi v. Chairman, Screening Committee 1978 SCMR 367. the Honourable Court held as under:-- "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order, which has been passed, can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Munir, C.J. with usual lucidity (I say so with respect) in Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 where Munir, C.J., observed at page 117: 'And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded'. This passage does not mean that a void order is always to be struck down provided there is no statute or principle of law, which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of Limitation (see this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal-ud-Din and others v. Mst. Noor Sain and others and Jalal-ud-Din and others v. Shams-ud-Din and others), respectively. Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 a writ petition has been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches." In another case of Muhammad Ismail v. Abdul Rashid and another 1983 SCMR 168, the Honourable Supreme Court held as under:--

5. Even if the transfer order be void, the assumption that a Court must always strike it down regardless of the consequences of such decision, as held in Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367 a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provision of a statute of limitation or if he was estopped by his conduct from challenging the order or if he had been guilty of laches." In terms of para. 3 of the compromise application, the respondents were required to transfer their respective shares in the company Niazi Films (Pvt.) Ltd. in the name of the respondent within two weeks of passing of the order. It was for the applicant to pursue his remedy diligently and in case of failure of the respondents to transfer the shares within the stipulated period of time prescribed in the said clause, to take action as available 'in law for enforcement of the said clause by filing execution application or the remedy as may be advised to him. Admittedly compromise application was filed in Court on 12-8-1993 and the applicant has not placed on record any document to show that after passing of the compromise decree, the respondents represented that they will transfer the shares and assets of the company and kept on the applicant on promise so as to take benefit of such misrepresentation to condone the delay, which, I am afraid, can be condoned even if it is so. It is settled that an application under section 12(2), C.P.C. can be filed within three years from the date of judgment and decree passed by the Court and or from the date when the fraud came into the knowledge of the applicant. The applicant was party to the agreement and para.3 provided time for performance of the obligation under the said para. As the applicant himself failed to take action and or question para.3 within. the stipulated period of time, the application, in my opinion, is barred by time. The applicant has also filed an application under section 12(2), C.P.C. earlier being Judicial Miscellaneous No.2 of 1998, in which the applicant has questioned para.5 of the compromise deed. Even in the said application the applicant has not alleged that while executing the agreement any misrepresentation has been made and or fraud has been committed by the respondents in respect of para.3 of the agreement in question. For the foregoing reasons, the application is dismissed with no order as to costs. H.B.T./S-25/K Application dismissed.