1992 PLP 777 (CLC)

This application has been filed by the Chairman, Board of Trustees of the Abandoned Properties, constituted under the Abandoned Properties (Taking Over and Management) Act, 1975 (Act XX of 1975) and the Administrator of Abandoned Properties Karachi, under Section 12 (2), C.P.C., for setting aside the judgment and decree dated 11‑12‑1988 and 9‑1‑1989 respectively passed in Suit No.329/88 on the grounds that the same have been obtained by the Plaintiff by fraud and misrepresentation and that this Court had no jurisdiction to grant the said decree. Briefly, the facts are that Abdul Aziz Khan Niazi (hereinafter to be referred to as the Plaintiff) filed the above suit against Mrs. Salma Rehman and Abdul Faiz Nabi Bux (hereinafter referred to as the Defendant and Attorney respectively), for specific performance of contract. According to the Plaint, the Defendant was allotted Plot No.6, Street No.7 (Shalimar), Islamabad, by the Capital Development Authority, Islamabad. The said Defendant appointed Abul Faiz Nabi Bux as her Attorney under the General Power of Attorney, registered on 13‑5‑1970, with the District Registrar, Dacca. The said property was purchased by the plaintiff through the Attorney of the Defendant under an agreement dated 23‑7‑1970 for sale consideration of Rs.25,

000. According to the Plaint, sale could not be finalises: and, therefore, two agreements for renewal of sale were executed on 12‑7‑1978 and 17‑2‑1988, between the plaintiff and the said Attorney. Since the Defendant and the Attorney neglected to perform their part of the contract, the Plaintiff filed the suit. The said Attorney filed Written Statement for self and on behalf of the Defendant in which he admitted the chum of the Plaintiff. The Plaintiff filed application under Order 12, Rule 6,. C.P.C., and the suit was decreed accordingly. The case of the Applicants is that the Defendant was the resident of erstwhile East Pakistan and had submitted an application to the Capital Development Authority, Islamabad, from Dacca for allotment of a plot and the said plot was allotted to her in the year 1966. After the fall of Dacca, the defendant ceased to be the citizen of Pakistan. On promulgation of Act XX of 1975, the said plot became abandoned property and was declared as such under Section 11 of the said Act, by Notification dated 3‑3‑1976, published in the Gazette of Pakistan dated 5‑7‑1916. The Applicants have submitted that the plaintiff knowing the fact that the property was an abandoned property had suppressed the above fact and obtained decree by fraud. The Defendant was resident of Dacca but the plaintiff did not mention such fact in the plaint. It is also stated that although the agreement was allegedly executed on 23‑7‑1970 yet no steps were taken by the plaintiff to get the plot transferred in his favour and the suit was filed after more than 18 years. According to the Applicants, the remedy was available to the Plaintiff to approach the Tribunal for confirmation of sale but they avoided to do so and filed the suit which was barred under Section 23 of the aforesaid Act. The Plaintiff in reply to the application sunder Section 12 (2), C.P.C. has filed his objections/counter‑affidavit in which he has raised the following pleas:‑ (i) Property was purchased by the Plaintiff on 23‑7‑1970, and, therefore, the provisions of the said Act are not attracted as the said Act applies to such properties which are purchased after 16‑12‑1971. According, to the Plaintiff, the sale had stood finalized on 23‑7‑1970, and the Defendant stood divested of all her rights in the said property. (ii) The Defendant was not resident of erstwhile East Pakistan but was resident of territories now forming part of Pakistan. It is simultaneously stated that she was a British National, born in Scotland, and that she has now returned to her place of birth. She had shown the address of Dacca only to facilitate early allotment of the plot in question. ;i .4 (iii) The transfer was not effected in the records of the Authority because of the War that broke out between India and Pakistan: Since the allottee was in Scotland, it was not possible for her to personally appear before the Authority which according to the plaintiff was mandatory requirement. (iv) The Notification under Section 11 of the said Act is ultra vires being against the injunctions of Holy Quran and Sunnah. I have heard Mr. Hisamuddin, learned Advocate for the Applicants and Mr. Zahid Hussain Burhani for the Plaintiff. The learned Advocate for the Applicants has contended that the plot in question was allotted to the Defendant in her capacity as resident of erstwhile East Pakistan. In her application for transfer of the plot, she has' described herself as resident of Dacca, giving her address as c/o Dacca Steam Laundry & Dry Cleaning Limited and the communications were carried out between the allottee and the Capital Development Authority, Islamabad, at the above said address. The General Power of Attorney describes her as resident of 78, Bama Charan, Chakraverty Road, Dacca, East Pakistan. In the agreement she has been described as resident of Dacca Steam Laundry and Dry Cleaning Limited, 2, Gulistan Building, Jinnah Avenue, Dacca, and the new address is that of Chakraverty Road. The Plaintiff while filing the suit concealed the above facts and even the Dacca address of the Defendant. In the plaint, her address has been described as resident of Edinburgh, Scotland, (U.K.) through her Attorney/Agent, Abul Faiz Nabi Bux. The Plaintiff did not go even so far as to disclose to the Court that the Plaintiff was resident of Dacca. The Applicants had issued Notification under Section 11 of the said Act as the property in question was owned by a citizen of Pakistan, domiciled in the territories which immediately before the 16th day of December, 1971, constituted the Province of East Pakistan and after the fall of Dacca, had ceased to be the citizen of Pakistan and as such the Defendant was specified person. Under Section 3 of the said Ordinance, the property, therefore, came to be vested and shall be deemed always to have vested in the Federal Government on or from the 16th day of December, 1971. It is urged that the suit was therefore, barred under Section 23 of the said Act which provides that no Court shall grant any injunction or make any order, nor shall any Court entertain any proceeding, in relation to anything done trader the said Code. Had the Plaintiff disclosed the above facts to the Court instead of suppressing them and misrepresenting the fads, this Court would not have granted the decree. The learned Advocate for the Plaintiff repeated the submissions as were made in the objections and relied on the cases of Mohammad Rafiullah v. The Board of Trustees for Abandoned Properties and another, reported in 1978 MLD 558, on the proposition that where the agreement between the parties was executed before the speed date i.e.16‑12‑1971 and part whereof was acted upon by delivery of possession, such property cannot, be deemed as abandoned property and Maudood Ahmed Farooqui v. Amina Fabrics and two‑; others PLD 1983 Kar. 176 on the proposition that the property in order to be held as abandoned property must be shown to have belonged to a specified person. He also contended that application under Section 12 (2), C.P.C., is not maintainable as such application can be filed only by a party to the suit and not strangers, as the Applicants are. He placed reliance on the case of Marium and five others v. Haji Ali and three others PLD 1985 Kar.

705. There can be no cavil on the proposition that only such property can be declared as an abandoned property which is owned by a specified person and also to the proposition that any property validly acquired from a specified person before 16‑12‑1971, cannot be subjected to the provisions of the said Act. The facts of the present case are altogether different. The application has been filed under Section 12 (2), C.P.C., on the ground that the decree has been obtained by the plaintiff by misrepresentation and fraud and since the property stood vested in the Federal Government with effect from 16‑12‑1971, under section 3 of the Abandoned Properties (Taking Over and Management) Act XX of 1975, and subsequently was declared by Notification dated 3‑3‑1976 as abandoned property, it will continue to be so, until the said Notification is nullified in due process of law. Additionally, the plaintiff being aware of the aforesaid Notification, suppressed the same in his plaint and obtained collusive decree without joining the Applicants in the suit, who were necessary parties. It is within this limited sphere that the Court has to determine the question whether the decree has been obtained by misrepresentation or fraud The basis of the present application is engrafted in the Notification dated 3‑3‑1976 and suppression of the said Notification by the Plaintiff, in spite of his awareness thereof. The Plaintiff in his lengthy objections filed in reply to the application under consideration, has not stated anywhere that he was not aware of the aforesaid Notification and rightly so, because he was fully aware of the existence of the said Notification. The plaintiff nonetheless suppressed it, to oversimplify the dispute as one of refusal of performance of the contract and by such dubious device obtained the decree, with active connivance and collusion of the Attorney, who filed the Written Statement for himself and the Defendant, admitting the contents of the plaint and conceding to the claim of the Plaintiff. Now the question that arises is whether the Applicant is guilty of suppression of the fact regarding issuance of the aforesaid Notification. The answer is obviously in affirmative. The questions whether the Defendant is a specified person, whether she had executed the General Power of Attorney, whether the Plaintiff had acquired any right by virtue of the agreement in question and whether the Notification had been issued validly, would have been open to consideration only if the plaintiff had come to the Court with clean hands, disclosed the fact of issuance of the said Notification by the Applicants and raised the question of its validity in the plaint. Had he done so, then the Applicants also would have been joined as parties to the suit and consequently all the above questions would have arisen for consideration of the Court, including the issue whether the suit was barred under Section 23 of the said Act. Therefore, the controversy in this application will stop there and the fraud being apparent on the face of the record and proceedings of the suit, the decree is liable to be annulled. The learned Advocate for the Plaintiff has not considered it proper to counter the said aspect. His entire case is based on the proposition that although the aforesaid Notification had been issued but because of the fact that the property was absolutely acquired by the Plaintiff and the defendant had stood divested of all her rights and interest in the said property before the specified date, the provisions of the aforesaid Act are not attracted. Reliance has been put on para. 2 of the Agreement which reads as under:‑ That the vendor has this day delivered peaceful vacant possession of the said plot with all its documents of title etc. to the said vendee who will henceforth be the sole and absolute owner of the said Plot and shall, have, held, occupy, and possess and enjoy the peaceful possession and profits thereof to which the said vendor or any other person or persons on her/his behalf shall have no claim and concern therewith." According to the learned Counsel of the Plaintiff and so also, the projection of the Plaintiff's case in reply to application under section 12 (2). C.P.C. the defendant had divested herself of all her rights and interests in the property and the property was sold to the Plaintiff who was made the sole and absolute owner of ‑ the plot in question under the said Agreement. Such assertions are made in Para 3 of the objections under the head of preliminary objections and Para 10 of the objections filed by the Plaintiff. In Para 5 of the objections, it is stated that the execution of any further sale document or sale deed was not necessary. In short, the case of the Plaintiff is that the aforesaid sale agreement by itself has conferred on him the title to the property in question and no further documents were intended to be executed except letter of mutation to be sent to Capital Development Authority. Now the question arises whether the said document should be accepted as depicted by the learned Counsel for the Plaintiff, and if it is so accepted, what would be the legal effect thereof. The above document is though titled as an Agreement of Sale but in, fact is a Sale‑Deed whereby the property has been absolutely sold to the Plaintiff. The deed has been typed on non‑judicial stamp paper of the value of Rs.4.50. The document is thus deficiently stamped. It would nonetheless, be just and proper to scrutinize the other covenants of the document in juxtaposition of the relevant law. It may be pointed out that in the agreement it has been provided that any document required for effecting mutation of the aforesaid plot in favour of the Plaintiff in the record of the Capital Development Authority, shall be signed by the defendant. Except as above, nothing more has been provided for execution of any document which on its execution would create title in favour of the Plaintiff. Had it been so, Section 17 (2) (v) of the Registration Act, 1908, would have been attracted but the document in question is such which by itself has created, declared, assigned, extinguished all rights, title and interest in the provision of law would be frustrated because then a person not being a judgment‑debtor or his successor‑in‑interest or a party to the suit,' although his rights may have been jeopardized by the decree obtained by fraud of misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents." In view of above legal position, with great respect, the rule laid down in the case of Marium and 5 others (supra) cannot prevail. The above are the reasons for the short order announced on 10‑9 1991, whereby the application under Section 12 (2), C.P.C. was granted. AA./A‑1150/K Application accepted.