Mst. Shaheen Gohar Vs Muhammad Humayun & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(Judicial Department)

WP No. 1710-A/2023

Mst. Shaheen Gohar Versus Muhammad Humayun & others

JUDGMENT

For petitioners: Mr. Fayaz Muhammad Khan, Advocate. For respondents: M/s Qazi Ghulam Rauf and Mehdi Zaman Khan, Advocates.

Date of hearing 01.09.2025

SADIQ ALI, J.- Through the instant petition, the petitioners have called in question the judgment and order dated 04.10.2023 rendered by learned Additional District Judge-V, Abbottabad, whereby the appeal filed by the respondents against the order dated 10.02.2023, dismissing their application under Order-VII Rule-11 CPC, was allowed and consequently, the application under Section 12(2) CPC of the petitioner was rejected.

2.Respondent Muhammad Humayun Khan filed a

declaratory suit bearing No. 164/1 on 01.11.2000, challenging therein gift mutation No. 5379 attested on 17.10.1979, whereby Ali Gohar Khan gifted his property to the petitioners herein. The learned trial Court issued notices to the present petitioners, but their appearance could not be procured and ultimately, the suit was decreed ex-parte on 03.10.2001. Petitioners herein alleged

that they got knowledge of the decree on 23.09.2020 and tried to obtain copies of the record, but due to burning of the record room, the record was not available. The petitioners then filed application under Section 12(2) CPC on 21.03.2022, wherein the respondents were summoned. The respondents, when put appearance and filed reply to the application under Section 12(2) CPC, they sought its dismissal on the ground that an earlier application bearing No. 7/12(2), filed on the similar grounds by the petitioners was dismissed by the learned trial Court on 27.01.2011, therefore, this subsequent application was not only hit by the principle of res-judicata but was also hopelessly time barred. The petitioners herein also challenged the order passed in application bearing No. 7/12(2) through application under Section 12(2) CPC. The learned trial Court consolidated both the applications under Section 12(2) CPC vide order dated 01.11.2022. The respondents filed application under Order-VII Rule-11 CPC for dismissal of application under Section 12(2) CPC. The petitioners herein contested said application by filing their reply. Learned trial Court heard arguments and vide order dated 10.02.2023, dismissed application of the respondents under Order-VII Rule-11 CPC.

The respondents assailed order of the learned trial Court through appeal, which was accepted by the learned Additional District Judge-V, Abbottabad vide impugned order dated 04.10.2023, hence the instant writ petition.

3.Arguments heard and record gone through.

4.Perusal of record reveals that the ex-parte decree was passed in favour of the respondent on 03.10.2001. The petitioners challenged the ex-parte judgment and decree through their application dated 21.03.2022 by alleging that they came to know about the decree on 23.09.2020. It was further claimed by the petitioners in their application under Section 12(2) CPC that their predecessor Ali Gohar Khan had contracted two marriages. The petitioners are the daughters of Ali Gohar Khan from his second wife while respondent Humayun Khan is the son of Ali Gohar Khan from his first wife. The petitioners claimed that they along with their mother were residing abroad and after her marriage, she was residing at Karachi, however, despite the fact that respondent was in knowledge of their address, he purposely mentioned wrong address and succeeded to obtain ex-parte decree. The respondent on the other hand, contended that the petitioners were in knowledge of the impugned decree and a similar application under Section 12(2) CPC was filed on 12.08.2009, which remained pending for sufficient time and was ultimately dismissed on 27.01.2011. Said order of dismissal of application under Section 12(2) CPC was not challenged by the petitioners and after lapse of almost eleven years, the petitioners filed another application under Section 12(2) CPC, which was not maintainable at all.

5.Although the petitioners also challenged the order dated

27.01.2011, through which their earlier application under Section 12(2) CPC, bearing No. 7/12(2), was dismissed for non- compliance of Court order, they again sought to set aside the same proceedings by filing a subsequent application under Section 12(2) CPC. In this later application, the petitioner not only reiterated her challenge to the previous proceedings but also impleaded her husband and Mr. Sultan Ahmed Jamshed, Advocate, as respondents No. 6 and 7 respectively. She alleged that she had neither appeared before the court nor appointed any attorney to act on her behalf, asserting that the earlier application under Section 12(2) CPC had not been filed by her or with her authorization. However, she had not specifically attributed any fraud or collusion to respondents No. 6 and 7 but arrayed them as respondents in her application under Section 12(2) CPC.

6.However, this assertion fails to carry weight or inspire confidence in the mind of a prudent person. There is nothing on record to indicate that the petitioner had any estranged or hostile relationship with her husband at the relevant time. No adverse relief was ever sought against him in the proceedings, and it is an admitted fact that the petitioner continues to reside with her husband in the same household. In these circumstances, it is implausible, indeed difficult to believe, that the petitioner's own real sister, namely petitioner No. 2 Mst. Aliya Gohar, would appoint the husband of petitioner No. 1 as her attorney, through whom the application under Section 12(2) CPC was subsequently filed via legal counsel, without petitioner No. 1 being aware of

such developments. The version presented by the petitioner, therefore, appears to be an afterthought and is not supported by any credible evidence on record. The petitioner arrayed Mr.

Sultan Ahmed Jamshed, Advocate as respondent No. 7 in the subsequent application filed under Section 12(2) CPC. The reply submitted by the said learned Advocate, also negates the version of the petitioner. The petitioner also does not seek any relief against said Advocate nor filed any complaint against him. In the case of “Swat Textile Mills Limited, Haripur through Managing Director and 4 others Vs. Mst. Nabeela and others” reported as PLD 2021 Peshawar 146, this Court held that;

“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.”

7.The plaintiff in main suit was the step brother of the petitioners and the earlier application bearing No.

7/12(2) remained pending for sufficient time. The petitioners were pursuing said application, thus it cannot be said that they were not in knowledge of said proceedings.

They have not lodged any complaint against their lawyer at any forum. Allowing the petitioners to again agitate the same question through subsequent application, would amount to abuse of process of law as held by this Court in the case of “Bibi Farida and 2 others Vs. Gul Rehman and others” reported as 2022 YLR 1720, wherein it was held that;

“The petitioners could not show that they had ever lodged a criminal complaint for allegedly fabricating power of attorney on their behalf and divesting them from their rights. It seems that they are hands and gloves but want to reopen the concluded litigation again and prolong it for indefinite period of time. So much so, that the entire family has bene part of this litigation and three local commissions had visited the spot

which had been constituting the cause of dispute in the instant litigation, but nowhere could the petitioners become aware of the pendency of litigation. This stance is totally unbelievable, nothing more than a false plea, and an afterthought. If such practice is allowed, then there would be no end to abuse of the process of Court and there would be no finality ever, in litigation between the parties. Hon’ble Supreme Court of Pakistan while giving its judgment in the case of “Trading Corporation of Pakistan V. Devan Sugar Mills Limited” reported as PLD 2018 Supreme Court 928 has held that after exhausting one of the remedies against order of striking out defence, judgment debtor could not be allowed to avail another remedy, as it would amount to abuse of process of Court and multiplicity of proceedings.”

8.The available record thus clearly indicates that the petitioners were having knowledge of the impugned decree passed in the year 2001 which was assailed through application bearing No. 7/12(2) in the year 2009 and after dismissal of said application in the year 2011, the subsequent application was filed in the year 2022, which was not only hit by the principle of res-judicata but was also hopelessly time barred. Reference may be made to the case of “Muhammad Shifa and others Vs. Meherban Ali and others” reported as 2022 SCMR 647, “Muhammad

Sharif and others V. MCB Bank Limited and others” reported as 2021 SCMR 1158, and “Bashir Ahmed through Legal Representative and others V. Muhammad Hussain and others” reported as PLD 2019 SC 504.

9.So far as contention of learned counsel for the petitioners that the earlier application of the petitioners was not decided on merit, suffice it to say that it is not mandatory for the Court to frame issues and record evidence in each and every application under Section 12(2) CPC. In the case of “Hafiz Malik Kamran Akbar V.

Muhammad Shafi” reported as PLD 2024 SC 262, honourable Supreme Court of Pakistan was pleased to hold that;

“It is a well-settled exposition of law that for determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application moved under section 12(2), C.P.C., the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for

framing of issues and recording of evidence, without which the allegations levelled in the application filed under Section 12(2), C.P.C. cannot be decided. The main ground alleged in the application by the petitioner is that the summons on their predecessor-in-interest was not served due to wrong address. Neither the copy of plaint is attached to the paper-book to show the title of the suit or address, nor the agreement on which the suit for specific performance was filed. There is an eye- catching distinction between Order IX, Rule 13 and the niceties of Section 12(2), C.P.C. In case of an ex-parte decree, the defendant may apply under Order IX, Rule 13 C.P.C. for setting aside the ex-parte decree and if the Court is satisfied that summonses were not duly served or the defendant was prevented from any sufficient cause from appearing when the suit was called, the Court can make an order for setting aside the decree and appoint a day for proceedings with the suit. However, it is further provided in the day for proceedings with the suit. However, it is further provided in the same Rule that no ex- parte decree shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for the reason that the defendant had knowledge of the date of hearing in sufficient time to appear on that date to answer the claim. In tandem, a person can challenge the validity of

a judgment, decree, or order on plea of fraud and misrepresentation or want of jurisdiction under Subsection (2) of Section 12, C.P.C. by making an application with full particulars of the fraud and misrepresentation to the Court which passed the final judgment, decree, or order and not by a separate suit. The term "person" provided in this Section cannot be interpreted narrowly to restrict its scope and application only to the judgment-debtor or his successors but it includes any person adversely affected by the judgment and decree or order of the Court without any distinction on whether he was party to the original proceedings or not.

Reliance may also be placed on the case of “Yousaf Khan and another Vs. Altaf Khan and others” reported as 2025 CLC 449.

10.It is also settled proposition of law that the principle of res-judicata also applies to the applications.

Therefore, when earlier application under Section 12(2) CPC filed by the petitioners had been dismissed, then second application was barred by the principle of res- judicata. Reference may be made to the case of “Gulistan Textile Mills Lts. And another Vs. Soneri Bank Ltd. and another” reported as PLD 2018 SC 322.

11.The learned trial Court has fallen into error while dismissing application of the respondent under Order-VII Rule-

11 CPC, which error has rightly been rectified by the learned appellate Court through the impugned judgment and order dated 04.10.2023. No illegality, irregularity or jurisdictional error could be pointed out in the impugned judgment of the learned appellate Court, warranting interference by this Court in its constitutional jurisdiction. Resultantly, this petition being bereft of merits, stands dismissed.

Announced.

Dt:01.09.2025. JUDGE Tufail./*