Province of punjab . Vs ADJ etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.237725 of 2018 The Province of Punjab Versus Additional District Judge, Sargodha & 5 others

JUDGMENT

Date of hearing: 22.09.2026.

Petitioner by: Ch. Muhammad Jawad Yaqoob, Additional Advocate General, Punjab.

Respondents by: Mr. Muhammad Tariq Bashir Awan, Advocate for respondents No.3 and 4.

M/s Makhdoom Shah Nawaz Quraishi and Basharat Ali, Advocates for respondent No.5 through LRs.

M/s. M. Azhar Hayat Ranjha and Zubaira Bashir, Advocates for respondent No.6.

HASSAN NAWAZ MAKHDOOM, J.- Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the Province of Punjab, through the District Collector/Colony Officer, Sargodha (“the petitioner”), calls in question order dated 31.07.2017, passed by the learned Civil Judge (the “respondent No.2”), whereby its application under section 12(2) of the Code of Civil Procedure, 1908 (“C.P.C.”), seeking annulment of judgment and decree dated 26.06.2006, was dismissed, as well as judgment dated 22.02.2018, rendered by the learned Additional District Judge (the “respondent No.1”), whereby Civil Revision No.18 of 2017 preferred by the petitioner against the former order was dismissed.

2.The controversy has a chequered history. The respondents No.3 and 4, Muhammad Bashir and Muhammad Nazir (the “plaintiffs”), instituted a suit for specific performance and permanent injunction on the plea that Bahadar Ali, defendant No.1, now represented through his legal representatives as respondent No.5 (the “executant”), had agreed to sell

the suit land, originally allotted to him by the Government, for a consideration of Rs.30,000/-, received the consideration and delivered possession thereof to them about three decades earlier. They further claimed to have developed the then barren land and remained in continuous cultivation and possession. Ghulam Rasool, defendant No.2/“respondent No.6”, being the general attorney of the executant, filed a conceding written statement, whereas the executant and, subsequently, respondent No.6 remained absent and were proceeded against ex parte. The plaintiffs nevertheless substantiated their claim through oral as well as documentary evidence, including the general power of attorney (Ex.P1), Government deposit challan (Ex.P2), title deed (Ex.P3), agreement to sell (Ex.P4), receipt (Ex.P5) and Khasra Girdawari (Ex.P6); their evidence remained unchallenged and unrebutted. Consequently, respondent No.2 decreed the suit on 26.06.2006, subject to payment of the remaining Government dues and incidental charges, after examining the evidence rather than merely on account of the defendants’ absence. The executant thereafter sought setting aside of the decree by moving application under Order IX, Rule 13, C.P.C.; however, after recording evidence, the application was dismissed on 12.03.2012. In doing so, respondent No.2 noticed that the registered general power of attorney in favour of respondent No.6 and the agreement to sell had been executed on 16.12.1974; that respondent No.6 had filed his written statement on 25.02.2003, whereas the purported revocation of his authority was dated 26.03.2003 and was itself not duly produced; and that, apart from service through registered post and publication, counsel for the executant had filed a wakalatnama on 13.04.2005. On appraisal of this material, it was concluded that the executant had knowledge of the proceedings and that no illegality or material irregularity warranting recall of the decree had been established

3.The petitioner, more than a decade after passing of the decree, filed application under section 12(2), C.P.C., alleging that the written statement purportedly filed on behalf of the Government had been procured through collusion and bore bogus signatures of a Government functionary, who

was stated to have subsequently faced criminal proceedings and dismissal from service; it further claimed to have acquired knowledge of the decree only upon initiation of execution proceedings. The respondent No.2, upon examination of the original record, found that the petitioner had duly been impleaded in the suit, its representative had entered appearance and a contested written statement bearing the official stamp and signatures of the District Officer (Revenue), Sargodha, was available on the judicial file, whereafter it ceased to appear and was proceeded against ex parte on 16.02.2006. The allegations of fraud and collusion were found unsupported by requisite particulars or cogent material, including any documentary evidence substantiating the asserted criminal proceedings against the concerned official. Consequently, the application under section 12(2), C.P.C. was dismissed on 31.07.2017. Civil Revision No.18 of 2017 preferred by the petitioner met the same fate, as respondent No.1, vide judgment dated 22.02.2018, affirmed the findings that the petitioner had participated in the original proceedings before subsequently remaining absent, had failed to substantiate its allegations of fraud, forgery or collusion, and had invoked the remedy under section 12(2), C.P.C. after an extraordinary lapse of almost eleven years. Hence, the instant constitutional petition.

4.Learned Law Officer representing the petitioner has advanced two principal lines of argument. Firstly, it is submitted that once allegations of fraud, misrepresentation and collusion had been raised, the application under section 12(2), C.P.C. could not have been disposed of without framing issues and recording evidence. Secondly, and more emphatically, it is argued that the land admittedly originated as State land and, therefore, the Civil Court lacked jurisdiction to entertain the suit in view of sections 10 and 36 of the Colonization of Government Lands (Punjab) Act, 1912 (“the Act of 1912”). According to the learned Law Officer, an allottee who had not acquired proprietary rights could not transfer a title, which he himself did not possess. Reliance in this regard has primarily been placed upon Commissioner, Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58) and Muhammad Sadiq v.

Muhammad Ramzan and others (2002 SCMR 1821). It is further maintained that an agreement to sell concerning State land, even if capable of operating between the contracting parties, cannot bind the State or compel conferment of proprietary rights contrary to the governing law or the conditions of allotment. Learned Law Officer, while invoking section 36 of the Act of 1912, contends that the jurisdiction of the Civil Court stands excluded in matters which the Collector or other Revenue Authorities are empowered under the Act to determine. Reliance in this regard has been placed upon Administrator, Thal Development through EACO, Bhakkar v. Ali Muhammad (2012 SCMR 730), Muhammad Yaqoob and others v. Province of Punjab (2010 YLR 1402) and Muhammad Ishaq v. Abdul Ghani (2000 CLC 159). On that foundation, Order VII, Rule 11, C.P.C. has also been invoked with the submission that where a suit appears from the plaint to be barred by law, rejection of the plaint is the duty of the Court even in the absence of a formal application. Reliance for the general proposition has been placed upon Raja ALI SHAN v. Messrs ESSEM HOTEL LIMITED and others (2007 SCMR 741).

5.Conversely, learned counsel for the respondents/plaintiffs supports the concurrent orders; submits that the petitioner was a party to the original proceedings, entered appearance and filed a written statement, but thereafter abandoned the proceedings. Adds that section 12(2), C.P.C. cannot be pressed into service as another appellate remedy merely by describing matters, already determined, as fraud or misrepresentation. Further argues that the original suit was founded upon a private contractual arrangement/obligation arising out of an agreement to sell; the Civil Court neither conferred proprietary rights upon the executant nor deprived the Government of its statutory authority under the Act of 1912 and whatever title the executant possessed, or subsequently became entitled to obtain, could alone pass to the plaintiffs and the decree could not enlarge that title.

6.Arguments heard. Record perused.

7.The remedy envisaged under section 12(2), C.P.C. is confined to questioning the validity of a judgment, decree or order on the grounds of

fraud, misrepresentation or want of jurisdiction, and cannot be employed as a substitute for an appeal or revision, or as means of reopening matters, which have otherwise attained finality. The allegations of fraud and misrepresentation, being serious in nature, must be pleaded with clarity, precision and requisite particulars, mostly when object thereof is to unsettle a concluded adjudication of a lis. This requirement is also reflected in the principle embodied in Order VI, Rule 4, C.P.C., which mandates disclosure of material particulars where fraud, misrepresentation or similar misconduct is alleged. The mere use of expressions such as “fraud”, “collusion”, “forgery” or “misrepresentation” is, therefore, insufficient unless accompanied by specific facts identifying the acts complained of, the persons allegedly involved, the manner in which the purported deception was practiced and its nexus with procurement of the judgment or decree sought to be annulled. The assertions couched in general or omnibus terms, without requisite particulars or prima facie supporting material, neither satisfy the legal threshold for invoking section 12(2), C.P.C. nor, per se, oblige the Court to reopen concluded proceedings through a fresh evidentiary inquiry.

8.The contention that every application under section 12(2), C.P.C., upon raising an allegation of fraud, must invariably be subjected to a regular trial, involving framing of issues and recording of evidence, is equally misconceived. The procedure to be adopted is necessarily dependent upon nature of the allegations, the material already available on record and whether any disputed question of fact genuinely requires determination through evidence. In Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531), the Hon’ble Supreme Court of Pakistan held that framing of issues and recording of evidence is not an indispensable requirement in every proceeding under section 12(2), C.P.C.; where the existing material and judicial record are sufficient for determination of the controversy, the application may competently be decided thereon. The mode and extent of inquiry, therefore, remain

dependent upon the facts and circumstances of each case and the nature of the controversy requiring adjudication.

Likewise, in Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296), it was held that a Court dealing with an application under section 12(2), C.P.C. is not invariably required to frame issues and record evidence as if deciding an independent suit. The Hon’ble Supreme Court of Pakistan also disapproved re-agitation under section 12(2), C.P.C. of the same grounds already pursued through proceedings under Order IX, Rule 13, C.P.C.

9.The material available on the judicial record was sufficient for the Courts below to examine and determine the petitioner’s application without embarking upon a fresh evidentiary inquiry. The petitioner was admittedly impleaded as a party to the original suit; its representative had entered appearance and a contested written statement bearing the official stamp and signatures of the concerned Government functionary was available on the record. The judicial record further reflected its subsequent non-appearance, culminating in the order whereby it was proceeded against ex parte. These were, therefore, not disputed factual questions dependent upon fresh oral evidence, but matters capable of determination from the contemporaneous record. In these circumstances, no jurisdictional defect or procedural irregularity can be attributed to the Courts below merely because they proceeded to decide the application on the material already available before them.

10.The allegation that the decree-holders had procured the decree in collusion with a Government functionary remained unsupported by the particulars and material commensurate with an accusation of such gravity. No cogent material was produced to demonstrate that the written statement forming part of the judicial record was forged or fabricated, nor was it satisfactorily shown as to who was responsible for its alleged fabrication, the manner in which the purported fraud was perpetrated, or how such conduct contributed to procurement of the decree in question. The allegations of fraud, forgery and collusion cannot rest upon vague or omnibus assertions; rather, those must be founded upon specific and

definite facts establishing the alleged fraudulent conduct and its nexus with the judgment or decree sought to be annulled. A concluded adjudication of a lis, therefore, cannot be reopened merely by attributing fraudulent or collusive conduct to a Government functionary, without placing on record any material capable of lending substance to such an allegation.

11.The second limb of the petitioner’s case requires independent consideration because “want of jurisdiction” constitutes an independent ground under section 12(2), C.P.C. The proposition that an order passed without inherent jurisdiction may be questioned despite lapse of time is unexceptionable. The real question, however, is whether the decree dated 26.06.2006 was in fact passed in respect of a matter over which jurisdiction of the Civil Court had been expressly or impliedly excluded. The provision of section 36 of the Act of 1912 does not enact an indiscriminate prohibition against every civil dispute having some connection with State land. Its bar operates in respect of a matter, which the Collector is empowered by the Act to dispose of, and in relation to matters in which the Provincial Government, Board of Revenue, Collector or another Revenue Officer exercises power vested under the Act. Consequently, the character of the land as having originated from a Government grant is relevant, but it is not by itself conclusive of the jurisdictional question. The nature of the controversy and the relief sought must also be examined.

12.The authorities relied upon by the learned Law Officer are distinguishable on their own facts. In Administrator, Thal Development’s case (supra), the controversy arose directly from an order of resumption passed by the competent Colonization Authority, against which an efficacious statutory remedy within the revenue hierarchy remained unavailed. Muhammad Ishaq’s case (supra) similarly involved competing claims arising from Government allotment schemes and orders falling within the exclusive statutory domain of the Revenue Authorities, whereas Muhammad Yaqoob’s case (supra) concerned the allotment of State land, a matter itself entrusted to the revenue hierarchy. These precedents,

therefore, relate to matters which the statutory authorities were specifically empowered to determine and do not extend the bar contained in section 36 of the Act of 1912 to every contractual dispute between the parties merely because the property forming its subject matter originated from a Government allotment.

13.The legal position emerging from Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR 1821) and Commissioner, Multan Division v. Muhammad Hussain (2015 SCMR 58) further reinforces this distinction. In Muhammad Sadiq’s case (supra), the Hon’ble Supreme Court held that a transaction concerning State land, entered into by an allottee before acquisition of proprietary rights, does not immediately convey title, but may operate as a contract of sale and become effective upon subsequent acquisition of proprietary rights by the transferor. This principle was reiterated in Commissioner, Multan Division’s case (supra), wherein an agreement to sell executed by an allottee in anticipation of acquiring proprietary rights was recognized as valid between the parties, though incapable of enforcement as a transfer of ownership until such rights were conferred by the State. The Court further clarified that mere execution of such an agreement does not, without completion of the prohibited transfer and other requisite circumstances, necessarily attract penal consequences under the Colonization regime. Thus, contractual rights between the parties may subsist without curtailing the State’s statutory authority to determine the conferment of proprietary rights strictly in accordance with law.

14.Therefore, far from establishing that the agreement relied upon by the plaintiffs was void ab initio or incapable of recognition by a Civil Court for all purposes, the authorities cited on behalf of the petitioner recognize the distinction between contractual rights inter se private parties and proprietary rights, which can emanate only from the State in accordance with the governing law and conditions of allotment. The precedent is to be applied to the legal and factual controversy which it actually decides. A case involving challenge to resumption of a Government grant, refusal of proprietary rights or competing claims to an

allotment stands on a materially different footing from a suit seeking enforcement of contractual obligations against the executant of an agreement. The authorities relied upon by the learned Law Officer, therefore, run on distinguishable facts and do not support the broader proposition advanced on behalf of the petitioner.

15.An additional aspect of the matter is that the decree could confer upon the plaintiffs no better title than that possessed or lawfully acquired by the executant, in consonance with the settled principle nemo dat quod non habet. Any limitation, deficiency, restriction or statutory condition attaching to the executant’s interest would necessarily bind the plaintiffs as well. Significantly, the decree did not direct an unconditional transfer of State ownership; rather, it was expressly made subject to payment of the remaining Government dues and incidental charges, while the Government deposit challan was itself produced as Ex.P2. Thus, if proprietary rights had not vested in the executant, the decree could not, by itself, create such rights in favour of the plaintiffs or compel the competent authority to confer them contrary to the Act of 1912, the applicable scheme or the conditions of allotment. On the other hand, any future ownership rights the seller obtains will only pass to the buyers as far as the law allows, and will still be subject to the same restrictions and duties. The court’s decree only establishes the contractual agreement between the parties. It does not interfere with the official authority of the Colony or Revenue Departments, who retain the ultimate power to grant, deny, or enforce the legal conditions of land ownership.

16.The objection with reference to Order VII, Rule 11, C.P.C. also does not advance the petitioner’s case. A plaint is liable to rejection where, on the basis of its own averments, the suit is shown to be barred by law, as contemplated in Raja Ali Shan’s case (supra); however, such legal bar must be apparent from the plaint itself. The suit in hand sought enforcement of an agreement to sell allegedly executed by the allottee upon receipt of consideration and delivery of possession, whereas the decree ultimately passed remained subject to payment of Government dues and confined to the transferable interest of the executant. Since the

law recognizes a distinction between contractual obligations enforceable between the parties and the conferment of proprietary rights in State land by the competent authority, the mere fact that the land originated from a Government allotment did not render the suit, on the face of the plaint, barred by law so as to attract Order VII, Rule 11, C.P.C.

17.The jurisdiction conferred upon this Court under Article 199 of the Constitution is supervisory in nature and does not permit re-examination of factual matters already subjected to concurrent scrutiny by the Courts below. The scope of interference in constitutional jurisdiction extends to cases where the impugned order suffers from want or excess of jurisdiction, patent illegality, material irregularity, or misreading or non- reading of material evidence/record resulting in miscarriage of justice. No such infirmity, however, has been demonstrated in the present case. In dealing with the application under section 12(2), C.P.C., the judicial record was duly examined and the allegations of fraud and collusion were found to lack the requisite particulars and evidentiary foundation. The learned Revisional Court, upon an independent appraisal of the matter, concurred with that conclusion. In these circumstances, determination of the application on the material already available, without framing issues or undertaking a fresh evidentiary exercise, accords with the principle enunciated in Warriach Zarai Corporation’s case (supra).

18.For the foregoing reasons, no case warranting interference with the concurrent orders dated 31.07.2017 and 22.02.2018 is made out in exercise of the constitutional jurisdiction of this Court. The findings recorded by the Courts below are founded upon due examination of the judicial record and have not been shown to suffer from any jurisdictional defect, patent illegality, material irregularity, perversity, or material misreading or non-reading of the record resulting in miscarriage of justice. A mere difference of opinion with the conclusions concurrently reached by the Courts below, absent any jurisdictional or legal infirmity warranting correction, does not justify interference in exercise of jurisdiction under Article 199 of the Constitution. The principle governing interference with concurrent findings in exercise of constitutional

jurisdiction also stands reinforced by the dictum of the Hon’ble Supreme Court of Pakistan in Muhammad Ayub, Shop Manager Bata Pak.Ltd and another v. Muhammad Rahman and others (2026 SCMR 31), Mohammad Ziafat v. Tariq Nawaz Khan Tareen and others (2026 SCMR 1132) and Haji Said Wahab Khan v. Amjad Ali and others (2005 SCMR 840), wherein interference with such findings under Article 199 of the Constitution was held to be unwarranted in the absence of a legally sustainable basis for doing so. Consequently, the instant writ petition, being devoid of merit, is hereby dismissed, along with all pending miscellaneous applications, if any.

(Hassan Nawaz Makhdoom) Judge Announced/dictated on 22.09.2026 and signed on 05.10.2026.

Approved for reporting.

Judge Tahir Noor