P L D 2021 Peshawar 146 (PLP)

SHAKEEL AHMAD, J.

Petitioners have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenging the validity of judgment/order dated 14.04.2014 passed by the learned Senior Civil Judge, Haripur, whereby, their application under section 12(2), C.P.C. was dismissed and upheld by the learned Additional District Judge-I, Haripur vide order/judgment dated 04.10.2016.

2. The gist of the facts became base of the longstanding dispute between the parties are that Swat Textile Mills (STM) Haripur was closed in 1975 as the Mill was unable to pay debts amounting to Rs.34.413 million, besides liability of 04 months' salary of 1600 workers. During liquidation proceedings Habib Bank Limited provided Rs.3.556 million to official liquidator on account of the salary of workers for four months, the Provincial Government of Khyber Pakhtunkhwa signed guarantee on 06.06.1975, in favour of Habib Bank Limited for advance to Swat Textile Mills Haripur for payment of dues to their workers. The Provincial Government subsequently paid Rs.5.732 million to discharge its liability on the request of Secretary Industries Department vide No.SOII(IND)/2-9/7 dated 26.12.1984, Board of Revenue Khyber Pakhtunkhwa, submitted a summary to the then Governor KPK regarding the sale of surplus land of Swat Textile Mills, which was approved by the then Governor and Board of Revenue accordingly issued a letter to Secretary Industries to sell surplus land measuring 533 'Kanals' and 10 'Marlas' vide Board of Revenue letter No.2562/REV: V/LA-140 dated 24.01.1985, out of total land 762 'Kanals' and 11 'Marlas' (acquired land of the Swat Textile Mills) and the sale proceed of the land was decided to be deposited in an ESCROW account with Habib Bank Limited, Haripur.

3. Swat Textile Mills challenged the liquidation proceedings through Civil Appeal No.7-P of 1976. During pendency of appeal compromise was arrived at between the parties, filed a compromise application praying therein to dispose of the appeal in terms thereof. Accordingly, the prayer was accepted in terms of compromise application, and the winding-up order was set aside vide judgment/order dated 15.6.1987. It would be appropriate to reproduce the relevant portion of the compromise deed as under: 1) To pay dues of NWFP Government (Now KPK) Government. 2) To pay outstanding dues of WAPDA. 3) To appropriate the balance amount amongst IDBP, NBP, and Habib Bank Limited as per the formula given by the Banking Council. The liability of the Government of KPK could not be cleared as per agreed terms executed between Habib Bank Limited and Swat Textile Mills. Consequently, the Finance Department served a notice upon the Bank authorities, which was impugned before this Court by Habib Bank through Constitutional Petition No.39-A of 2006, finally the writ petition was dismissed vide judgment dated 5.6.2007. The Board of Revenue KPK had allowed Swat Textile Mills to sell out land measuring 533 'Kanals' and 10 'Marlas' to clear its outstanding liabilities. However, the Company sold out 632 Kanals (Excess land measuring 98 Kanals and 10 Marlas). Respondent No.1, Mst. Nabeela Sikandar wife of Sikandar Hayat Engineer was one of the purchasers of the suit land. She filed a Civil Suit No.49/1 on 19.06.1999 against Swat Textile Mills, in the Court of Senior Civil Judge, Haripur, seeking therein that the land measuring 5 'Kanals' and 5 'Marlas' and construction thereon was originally owned by the defendant/petitioner, which was purchased by her, after paying the sale consideration of Rs.13 Lakh (Thirteen Lakh) to the defendant, whereafter, she has become an owner in possession of the same and entrance of the name of the defendant/petitioner in the revenue record as owners is illegal, without legal authority, without jurisdiction and sought rectification in the revenue record. As a consequential relief, she sought perpetual injunction restraining the defendant/ petitioner from alienating the suit property based on the wrong entry in the revenue record, perpetually. After service of summons, the petitioner No. 1, Managing Director Swat Textile Mills put his appearance through a duly nominated counsel, namely, Ismail Tanoli, Advocate and Saleh Nazar, the then Secretary of the Mill, submitted cognovit in favour of the respondent No.1/plaintiff admitting therein her claim and to this effect joint statement of the counsel for the petitioner No.1 and Saleh Nazar, Secretary was got recorded by the learned Senior Civil Judge, Haripur on 19.06.1999 and the suit was decreed in favour of the respondent No.1 accordingly vide judgment and decree dated 19.6.1999. On 13.06.2013, the petitioners moved an application under section 12 subsection (2) of C.P.C. for revocation of judgment and decree dated 19.06.1999 in the Court of Senior Civil Judge, Haripur, which was dismissed on 14.04.2014. Aggrieved by the aforementioned dismissal order, Civil Revision No.45 of 2014 was filed by the petitioner before the learned Additional District Judge-I, Haripur. The learned Additional District Jude-I, Haripur, after hearing the parties dismissed revision petition vide judgment dated 04.10.2016. This petition has arisen in the aforementioned background.

4. The learned counsel for the petitioners urged that the judgment and decree dated 19.06.1999 was obtained by practicing fraud and on the basis of misrepresentation. He next urged that neither Mr. Ismail Tanoli was appointed/ engaged as the counsel for the petitioners nor Saleh Nazar was competent to submit cognovits in favour of respondent No.1. He further urged that the joint statement of the said counsel and Saleh Nazar, was fraudulent, particularly in the absence of resolution of Board of Directors of the Company in their favour. He urged that excess land has been sold out on behalf of the Company. He lastly urged that the petitioners had raised factual controversy which can only be adjudged upon after recording pro and contra evidence and that dismissal of the petition, summarily, is illegal, therefore, the impugned orders/judgments of the Courts below are liable to be set aside and case be remanded back to the learned trial Court for adjudication, after providing the parties an opportunity to produce evidence in support of their contentions.

5. The learned counsel representing the respondents vociferously opposed the contentions of the learned counsel for the petitioners and argued that the application filed under section 12(2), C.P.C. was hopelessly and miserably barred by time. He next argued that the matter and dispute on the face of record is in between the principal and agent cannot affect the third party, as the third party is not privy to the alleged fraud and misstatement, misrepresentation, or wrongdoing of the agent if any, committed by the agent with his principal is not amenable to petition under section 12(2), C.P.C. He further argued that the petitioners had sold out the suit land by sale deed dated 3.10.1998, after receiving the entire sale consideration through a proper receipt, and Saad Ullah Khan, Zia Ullah Khan and Ehsan Ullah Khan, who are Managing Directors of the Company are signatories of the aforesaid sale deed and went on to say that petitioners are estopped by their own conduct to file the petition under section 12(2), C.P.C. He added that mere allegations of fraud and misrepresentation, not supported by any material, would not invariably warrant inquiry or investigation in each case. He lastly argued that the impugned orders passed by the learned lower fora do not suffer from any illegality, irregularity, or jurisdictional defect, calling for interference and prayed for dismissal of the petition.

6. I have given my anxious consideration to the submissions of the learned counsel for the parties and have gone through the record with their able assistance.

7. It transpires from the record that the respondent Mst. Nabeela had brought a suit in the Court of Senior Civil Judge, Haripur against Swat Textile Mills, Haripur, seeking therein declaration to the effect that she is owner in possession of the Bungalow Swat Textile Mills Haripur constructed on the land measuring 5 'Kanals' and 5 'Marlas' (detail whereof as given in the headnote of the plaint) and entrance of the name of the defendant in the revenue record as an owner of the suit property is illegal, without lawful authority and liable to be rectified. As a consequential relief, the respondent/plaintiff sought issuance of perpetual injunction restraining the petitioner from alienating the suit property on the basis of wrong entry and posing themselves to be owner of the suit property, perpetually. It was stated in the plaint that the suit property was owned by the petitioners/defendants, which was sold to her vide sale deed dated 20.12.98 after receiving sale consideration of Rs.1,300,000/-(Thirteen Lakh). The suit proceeded and was contested through duly appointed advocate, namely, Ismail Tanoli and Saleh Nazar Secretary of Swat Textile Mills. On 19.06.1999 an application was filed by the advocate of the petitioners disclosing therein that a compromise had been effected between the parties and on the basis of compromise they admitted the claim of the respondent and stated that they have got no objection if the suit of the respondent is decreed in her favour. It would be appropriate to reproduce the contents of the application as under: Petitioners were represented by Secretary Saleh Nazar as well as the counsel in the Court. Both of them appeared before the Court on the same day i.e. 19.6.1999 and their joint statement was recorded on the same day. In view of the said application and joint statement of their counsel and Secretary Saleh Nazar, suit was decreed in favour of the respondent on 19.6.1999. Thereafter, the petitioners filed an application under section 12(2), C.P.C., on 13.06.2013, which was dismissed by the learned trial Court vide order dated 14.04.2014. The petitioner filed a revision petition against the said order, which was also dismissed vide order dated 4.10.2016, whereafter, they filed the instant petition.

8. Perusal of the record reveals that in the application petitioners have alleged fraud and misrepresentation against their counsel and Secretary Saleh Nazar. Perusal of the contents of the said application reveals that petitioners have nowhere disowned their signature on the 'wakalatnama'. They had rather accepted their signature on it. In the petition, they had only alleged that 'wakalatnama'/power of attorney had been obtained by their Secretary to be used in other cases, but it was wrongly used in the instant case. This contention of the petitioners does not carry weight because on the 'wakalatnama' the title of the instant suit/case was specifically written, which clearly suggests that 'wakalatnama'/power of attorney was issued to the learned counsel Ismail Tanoli for contesting the instant suit. In the 'wakalatnama'/ power of attorney the authorization to enter into arbitration, settlement or compromise had expressly been conferred on the attorney/Advocate. It seems that the case comes out to be one where the attorney or Advocate and Secretary of Swat Textiles Mills have committed fraud with them. No case of fraud or misrepresentation comes out of the available record against the contesting respondents in the suit or anyone else. When an attorney/advocate defrauds a person, the only remedy available to him is to sue his attorney for damages or recovery of any such amount on his part. The other parties may not be dragged into litigation just because of the fact that an advocate has allegedly committed some fraud with any person. In this behalf, reference may be made to the cases reported as 'Mst. Shabana Irfan v. Muhammad Sham Khan and others' (2009 SCMR 40) 'Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation' (PLD 1996 SC 213) and 'Zaheer Hussain Naqvi v. Sahibzada Saeed and others' (2002 YLR 1984). It is observed that no legal action whatsoever was taken against the said advocate and secretary of the Mills Mr. Saleh Nazar during their life. It is also interesting to note that the said Advocate was not arrayed as respondent in the petition filed under section 12(2), C.P.C. though fraud and misrepresentation was alleged against him too. On this score alone the petition was not maintainable.

9. Another intriguing fact of the case is that the sale agreement executed between the parties on 20.8.98 carries the signature of Mr. Saad Ullah Khan, Managing Director Swat Textile Mills (Petitioner No.1). Not only this, the record further depicts that petitioners Saad Ullah Khan, Hamd Ullah Khan, and Zia Ullah Khan had received sale price through different receipts of their letter pads, which were issued on different dates. All these receipts carry their signatures. Silence of the petitioners for about fourteen (14) years qua their signatures over the sale deed as well as receipts itself ratifies the act of their agent and Secretary in terms of sections 196,197 and 199 of the Contract Act, 1872, thus, in these circumstances, there was no need of resolution of Board to be filed before the Court.

10. Another issue raised by learned counsel for the petitioners that the application under section 12(2), C.P.C. has been dismissed without recording of evidence, in a summary manner, and without allowing the petitioners to substantiate their case. It is evident from the facts mentioned above that Mr. Ismail Tanoli Advocate had contested the suit through a written 'wakalatnama' after being so authorized through a written power of attorney, available on the file and their said Secretary had been representing the petitioners in many other cases. Recording of evidence in the case in hand would not make the case of the petitioners any different from the one which he has at hand now. By the documentary evidence available on record, the facts established and the opinion formed cannot be changed. While deciding the fate of the application under section 12(2), C.P.C., the Court is not always bound to hold a full dressed trial like a regular suit. It is left to the discretion of the Court while dealing with an application under section 12(2), C.P.C. to decide it on case to case basis. If the Court concludes that the material available on the record can safely be utilized for making a just decision on the application under section 12(2), C.P.C., according to law, then recording of evidence may be avoided to save the people from the agony of a protracted trial. In my view in the case in hand, there was no need to record evidence. In this context, reference may be made to the case reported as 'Mst. Shabana Irfan v. Muhammad Sham Khan and others' (2009 SCMR 40), wherein, it was held as under:- "Needless to add that petition under section 12(2) of the C.P.C. can be decided summarily by the learned Court, which has passed the final judgment, decree or order in dispute, when there are admitted facts, documents between the parties. There is no need to prolong the litigation, when the case ex facie appears to have not been filed in a wrong jurisdiction, and when fraud or misrepresentation was not involved therein the case or in the transaction. The matter and dispute in between the principal and the agent cannot affect the third party, as the aforementioned third party is not privy to the alleged fraud, misstatement, misrepresentation or wrongdoing of the agent, if any committed by the agent with his principal."

11. So far as sale of excess land is concerned, it is for the Board of Revenue to take appropriate action against Management of Swat Textile Mills for selling excess land, if any. It is not open for the petitioners to ask for restoration of its possession and seek relief by way of filing petition under section 12(2), C.P.C., after selling it to the respondent or any one else. Perhaps this plea was taken by the petitioners to save their skin from expected legal action at the hands of Board of Revenue, therefore, this plea is outrightly repelled.

12. Now turning to the question of limitation, I am afraid, the contention of the learned counsel for the petitioner in the facts and circumstances of the case is misconceived. It is apparent on the face of the record that on 16.9.1999 Messrs Sehvan Brothers and others had instituted a suit against the petitioners, wherein it was specifically stated in Para No.3 of the plaint that the suit property had been sold to the respondent and Rafique Hussain Shah (respondent in W.P. No.406-A of 2017) and the claimants have nothing to do with their rights and do not have a claim against them. The suit was contested by the petitioners by way of filing their written statement on 3.10.1999. They did not deny the said assertion of the plaintiffs, which clearly shows that they got knowledge of the impugned sale in the year 1999. However, the petition for revocation of impugned judgment and decree was moved on 13.06.2013, after almost fourteen years of the passing of the impugned judgment and decree. This application under section 12(2), C.P.C. was moved by the petitioners beyond the prescribed period of three years. I am unable to accept the argument of the learned counsel for the petitioners that they learnt about the impugned judgment and decree a few days before the filing of the application under section 12(2), C.P.C.

13. For the foregoing reasons, I do not find any merit in this petition, which is accordingly dismissed. MH/67/P Petition dismisse