1983 PLP 2048 (CLC)

Date of hearing : 6th October, 1982. This suit had been filed for declaration by the plaintiff, who is the son of late S. A. Salam, against his step‑mother, who is the only defendant in the suit. Deceased S. A. Salam died at Rawalpindi on 5th January, 1972. The plaintiff fi led a petition (Miscellaneous Application No. 1 of 1975) for letters of administration ‑ in respect of the property left by his deceased father and also a suit for accounts (Suit No. 376 of 1975) in the District Court at Karachi, against the defendant and her four real sons. The defendant filed a caveat against the plaintiff's Miscellaneous Application No. 1 of 1975; alleging that she had obtained a declaratory decree from the Court. of Administrative Civil Judge; Rawalpindi in Suit No. 173 of 1971 filed against her husband to the effect. That she was the owner of the land and buildings at 217, Sale Road, Rawalpindi, and the property bearing No. 38‑S, Block 6, P. E. C. 1‑

1. S., Karachi. These properties had been shown by the plaintiff in Miscellaneous No. 1 of 1975 filed in this Court as belonging to his deceased father. It is the case of the plaintiff in the present suit. which has been filed for declaration that the decree obtained in Rawalpindi Suit No. 173 of 1971 on 31st July, 1971 by the defendant against the deceased father of the plaintiff is a nullity having been obtained by fraud. It is alleged by the plaintiff in the present suit that at the relevant time the deceased S. A. Salam was incapacitated by a stroke of paralysis on his right side four months earlier and could not have put his signature on any document. It is the plaintiff's case that the signatures on the vakalatnama and the written statement of late S. A. Salam are forgeries. It is further alleged that the Advocate, who had appeared on 31st July, 1971 on behalf of the deceased S. A. Salam is untraceable and it is learnt that no such Advocate is a member of the Rawalpindi Bar Association. Following consent issues were settled by this Court on 18th March, 1978:‑‑ (1) Whether this Court has jurisdiction to try this suit ? (ii) Whether the defendant obtained the judgment in Suit No. 173 of 1971 filed in the Court of Administrative Civil Judge, Rawalpindi, through fraud ? (iii) What should the judgment be As issue No. (1) was a preliminary issue relating to the jurisdiction of this Court, it was ordered that this issue be decided first. I have heard Mr. Yousuf Rafi, learned counsel for the plaintiff and Mr. Muhammad Ali Shaikh, learned counsel for the defendant, on the preliminary issue of jurisdiction. It was argued by Mr. Muhammad Ali Shaikh on behalf of the defendant that in this case the decree was obtained in Rawalpindi and as such this Court has no jurisdiction to set aside the said decree and the present suit should have been filed at Rawalpindi, where the decree had been obtained by the defendant. The decree that had been obtained in Rawalpindi, related to two properties namely an immovable property in Rawalpindi and an immovable property in Karachi. The proposition of law advanced by Mr. Muhammad Ali Shaikh that as the decree had been passed in Rawalpindi, this Court has no jurisdiction, cannot be accepted as a general principle. Each case of such a nature has to be seen from the angle of its own facts. If in a certain case, the Court comes to the conclusion that cause of action or a part of cause of action has arisen in its jurisdiction, that Court will also have jurisdiction, although the decree, which is sought to be set aside on grounds of fraud may have been passed by a Court outside its jurisdiction. Learned counsel ,'or the plaintiff relied upon the following judgments for the proposition ,,hat in such suit if a cause of action or a part of cause of action arises within the jurisdiction of a Court, that Court will have jurisdiction, al though decree may have been passed by another Court :‑ (a) A I R 1915 Mad. 915 (b) A I R 1917 Pat., 598 (c) A I R 1923 Cal. 425 (d) A I R 1943 Cal. 172 The above four judgments do support the proposition advanced by learned counsel for the plaintiff. However, Mr. Muhammad Ali Shaikh, learned counsel for the defendant, relied upon I L R_ 29 All. 418, a D. B. decision of the Allahabad High Court. In that judgment. it was observed that except under special circumstances, a suit to set side a decree obtained by fraud in which no other relief whatever is claimed, cannot be maintained in any District Court outside the District Court, in which the fraud was committed and the fraudulent decree was obtained. According go the learned counsel for the defendants, in the present case only a decree for declaration is sought and therefore, this Court will have no jurisdiction. Even the judgment of the Allahabad High Court, relied upon by the learned counsel for the 'defendant, does not lay down as an absolute rule that a suit, in which the only relief that is sought is a declaration to set aside the decree, can only be filed in the district Court where the decree had been obtained or fraud had been practised. Even the Division Bench of the Allahbad High Court in that judgment was conscious of the cases, where ever' in such suits a Court may have jurisdiction, although the decree may have been obtained outside its jurisdiction. In my view the present is one of such cases where the only relief sought Js a declaration for setting aside the decree alleged to have been obtained by fraud. In this case the decree was obtained in Rawalpindi suit in respect of two immovable properties cut of which one immovable property is in Karachi. Secondly, the plaintiff has already filed a petition for grant of letters of administration in this Court and in which petition these two properties are mentioned as the properties of the deceased. It is only when a caveat was filed by the defendant informing that she had already obtained a decree in respect of the two properties that the plaintiff became aware of the passing of the decree in Rawalpindi and the need arose for filing a suit. By filing a caveat in the petition for grant of letters of administration filed by the plaintiff in this Court the defendant in fact was attempting to put an embargo on the plaintiff to proceed in respect of the aforesaid two properties.. In my view in these circumstances, the plaintiff bad cause of action to file the present suit against the defendant for a declaration to set aside the decree obtained in Rawalpindi, The preliminary issue is decided in the affirmative in favour of the plaintiff and as against the defendant. The file, of the Rawalpindi suit has already been summoned and is available in this Court. The case is adjourned to 6th December, 1982 for evidence of the parties. It was also suggested to the learned counsel that as the present dispute is between the mother and her step‑son, if the parties agree; the. matter can be referred to arbitration. Both the learned counsel state that they will obtain instructions from their respective clients and make a statement to that effect on 6th December, 1982. It has been made clear to both the learned counsel that in case this matter is not going to be referred to arbitration, they should be ready with their evidence on 6th December, 1982. K. M. A. Issue decided in plaintiff's favour.