Najam Parvez etc. vs Rana Muhammad Shafi etc.

HCJD/C-121

ORDER SHEET.

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W. P. No. 17110 / 2019

Najam Pervaiz and another Versus Rana Muhammad Shafi (late) through Legal Heirs & 10 others

JUDGMENT

Date of Hearing: 08.02.2022 Petitioners By: Mr. Qaiser Imran Rao, Advocate Syed Asif Raza Gillani, Advocate Respondents By: Ch. Muhammad Shafi Mayo, Advocate Mr. Khush Bakht Khan, Assistant Advocate General

ABID HUSSAIN CHATTHA, J: This constitutional Petition is directed against the orders dated 29.06.2018 & 25.09.2019 passed by the Civil Judge, Lodhran & Additional District Judge, Lodhran, respectively, whereby, an application under Section 12(2) of the Code of Civil Procedure, 1908 (the “CPC”) filed by the Petitioners against the Respondents seeking to set aside the Judgment and Decree dated 10.04.1996 was concurrently dismissed.

2.Briefly, the Petitioners filed an application stating therein that they are sons of Rana Muhammad Manzoor. Another son, Rana Muhammad Shafi, the predecessor in interest of the present Respondents filed a suit for declaration titled, “Rana Muhammad Shafi v. Jindan Mai” alleging therein that Rana Muhammad Manzoor had gifted the property fully described in the plaint of the said suit (the “Property”) to him on 20.02.1987 and as such, the other legal heirs of Rana Muhammad Manzoor have no concern with the Property. The Petitioners were not impleaded as party in the said suit but later, they filed an application under Order I, Rule

10 of the CPC to become a party to the said suit. The application was filed through good offices of Mahar Nusrat Sial, Advocate and later, represented by Ijaz Ahmad Anari, Advocate when the said suit was transferred from Multan to Lodhran. The Petitioners submitted that they had never engaged any counsel, filed any application or submitted written statement and the proceedings conducted on their behalf were result of fraud and misrepresentation. During the proceedings of the said suit, the consenting statements recorded on their behalf as DW-1 to DW-3 were also recorded fraudulently. As such, the Judgment and Decree dated 10.04.1996 is liable to be set aside being result of fraud and misrepresentation as the Petitioners attained knowledge of the same on 16.05.2013 during litigation before the Assistant Commissioner, Khairpur Tamewali, District Bahawalpur.

3.Notices were issued to the Respondents who contested the application under Section 12(2) of the CPC by filing their written reply. Issues were framed on 22.04.2017 and the parties thereto got recorded their evidence in support of their respective contentions. The main issue, however, within the parameters of Section 12(2) of the CPC was as to whether the impugned Judgment and Decree dated 14.04.1996 was procured through fraud, although another issue, that is, as to whether the Respondents are legal heirs of Rana Muhammad Manzoor (deceased), was also framed. After due appraisal and evaluation of evidence by the Courts below, the following conclusions were drawn which led to the dismissal of the application under Section 12(2) of the CPC:-

(i)Mahar Nusrat Ali Sial, Advocate appeared as RW-3 and testified that he was appointed as counsel by the Petitioners in the referred suit and he filed application under Order I, Rule 10 of the CPC which was accepted, whereafter, he also submitted written statement on their behalf.

(ii)Tahir Ijaz Ansari, Advocate while appearing as RW-2 in his capacity as son of Ijaz Ahmad Ansari, Advocate (late) also identified and recognized the signatures of his father on the consenting statements of the Petitioners recorded before the Trial Court on 10.04.1996.

(iii)The impugned Judgment and Decree was passed on 10.04.1996, whereas, the application was filed with the delay of about 17 years.

(iv)The Advocates were independent witnesses whose testimonies did not corroborate the stance taken by the Petitioners in the Application under Section 12(2) of the CPC.

(v)Presumption of truth is attached to the judicial proceedings which could not be dislodged by the Petitioners with any cogent and reliable evidence.

(vi)The consenting statements of the Petitioners contained their signatures and thumb impressions on the order sheet which though disowned by them yet they did not apply for expert comparison of the same.

(vii)Rana Muhammad Manzoor himself died in 1988 and impugned Judgment and Decree was passed in the year 1996, however, the application under Section 12(2) of the CPC was filed in the year 2013 and there was no satisfactory explanation regarding their silence for such a long period.

4.Learned counsel for the Petitioners was confronted as to what is the illegality or infirmity in the impugned Orders which may entitle them to invoke the discretionary extraordinary constitutional remedy by filing the instant Petition. He submitted that Rana Muhammad Manzoor was “Noon” by caste but the recorded consenting statement depicted that the parentage of the Petitioners is written as “Noor Muhammad Dhakku”. The contention was repelled by learned counsel for the Respondents who stated that their mother contracted second marriage with Noor Muhammad Dhakku due to which their parentage was recorded as such by their counsel which fact is mentioned in paragraph No. 13 of the impugned Order dated 29.06.2018. Hence, the Petitioners have failed to make out the case that they were not represented in the suit culminating into impugned Judgment and Decree dated 10.04.1996 and the consenting statements and representation therein were in fact procured fraudulently through impersonation. As such, the impugned orders are unexceptional. The

Application under Section 12(2) of the CPC was duly decided after framing of issues and full opportunity of recording of evidence was provided to the Petitioners but they failed to prove their stance. The Application did not fall within the parameters, mandate and scope of Section 12(2) of the CPC. The presumption of truth attached to the judicial proceedings was not dislodged by the Petitioners.

5.In view of the above discussion, this Petition is dismissed.

(Abid Hussain Chattha) Judge *Waqar*