Buzarg Khan Vs Mst. Jabin etc.

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BEFORE THE PESHAWAR HIGH COURT BENC

MTNGORA (DAR-UL-QAZA) SWAT .'-,\,

,:. .. - \rll writPetitionNo. r.3/ of 2017

Buzarg Khan Son of Muhammad Qabool residen(- Shaldiru Tehsil & District Chatral..,... ....................Petiti oner

VERSUS

1)Mst. ]abin wife of Ibrahim Khan resident of ShaldirU Tehsil & District Chahal.

2)Qazi Mehboob son of Mehboob Ilahi resident of Shahmiranda, Sangoor, Tehsil & District Chatral.

3)District & Session Jud ge I Zilla eazi District Chatral. ........Respondents

Writ Pe tition Under cle 199 of the Constitution of Islamic Reoub lic of Pakistan ,1973.

Respectfully Sheweth:- Brief Facts of the casq

1)That the respondent No. 1 / plaintiff filed a declaratory suit coupled with permanent injtrnction & recovery of Rs. 9,12,000/- as outstanding rent regarding one shop situated at near. Dreem Land Hotel Chatral on the strength of a fake and bogus gifr deed / dower deed dated 16-03-1989 in the court of Senior Civil Judge / Alla Ilaqa Qazi District Chatral, which was further

FILED TODAY

entrusted for adjudication to the court of Civil Judge-I

? 5 JUI- 20,1

\,/ / Allaqa Qazi District Chatral.(Copies of plaint along Additionat Reg istrar with alles ed Gift / dower e d are annexed as Annexure " &'B"l

.2) That thepetitfon?r 7?efendant was summoned and he appeared before the court oI leamed Civil Judge I /

I

JUDGMENTSHEET

IN THE PESIIAWARmGH CO{JRT,

MTNGORA BENCH (DAR-ULQ AZA),SWAT

(Jnrltcial D ep arfrnent)

W.P. No.53l-M of 2017

JADGMENT

Date of he$inp:- 30.11.2017

Petitioner: - (Buurs Khan) bv Mr. Abdul Kabir. Advocate.

Resoondents: - ( Mst in & otheril Mr. Amir Gulab Khan. Advocqtq.

MOHAMMAD IBRAHIM KHAN. J. By introducing her suit Mst. Jabin wife of Ibrahim Khan in collision with Buzarg Khan her father-in-law and another Qazi Mehboob for obtaining declaratory decree on the strength ofdeed Hiba- bil Htwaz dated 16.03.1989, it perLains to a shop situated in new Bazar near Dream land hotel Chitral. There is another specific prayer for obtaining permanent injunction that being 1y'- l" owner of the said premises, Buzarg Khan f, father-inJaw has no right to collect rent of the said shop and in alternative there is prayer for recovery of Rs. 9,l2,OOOl- recoverable from father-in-law Buzarg Khan as he has obtained 4Trr3t*6 rt

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P,..,,,,.., , - ., . .. I,i itrrh rl ):r:'r, S,.'aL .ub (sl.) Eor'bh Mi J. L. Mo[rd.d $6tb IO.i

the rent with malafide intention and committed fraud with her.

2.This claim was however contested, but on 01.07.2013 the parties through a compromise deed Ex. PB, amongst the husband of the Plaintiff (now Respondent No. I Mst.

Jabin) by the name of Ibrahim Khan who is son of the Petitioner Buzarg Khan offered his statement to be recorded to the effect that the parties have entered into compromise and requested that the suit be dismissed as withdrawn. The application for withdrawal was exhibited as Ex. PA, the compromise deed as Ex. PB and the special power of attomey of the said Ibratrim Khan husband of the Plaintiff (herein Respondent No. I Mst. Jabin) is Ex. PC.

Even identification of the Plaintifr/Respondent No. I Mst. Jabin's husband was confirmed ,t).

f, through CNIC exhibited as Ex. PD' It was followed by a Order --09 dated 01.07.2013, the Iearned Civil Judge/Judicial lvlagistrate Chiral fiT-'-l "ff while referring to the compromise in between . \i' ,.,Ch ,,;lt the parties and in view of the statement of

special attorney of the Plaintiff (herein Respondent No. I Mst. Jabin) allowed the suit dismissed as withdrawn. The statement of the special attorney of the Plaintiff (herein Respondent No. 1 Mst. Jabin) by the name of Ibrahim Khan is reproduced as under:-

"W

soeclal allornev namclv lbruhtm Khan S/O Buzurp R/O Shalldan Tehsll & Distrtcl Chttral

Sloled on oolh thol compromhe has been eflected between lhe parlies, therefore, il ls rcquested lhot the lnstanl sult be dismissed os wilhdruwn. In lhis regord appltcatlon for wilh&awol ,s Ex. PA, compromlse deed is Ex. PB.

Speclal power ol atlorney is Ex PC while copy of my identifier CNIC is Ex PD on casetile."

RO &AC

Civil Judee/JWI.Q-l Chttrol Likely order of the learned Civil Judge/Judicial Magistmte Chital in support of the compromise is reproduced below for ready rE)" f reference:-

" Order-9

p-.17p.*.;y/f 01.07.2013 : Platntitf through /t Ii:..,'ii(r.:r husband/special ottofieY namelY Ibruhlm Khan S/O Buzutg Ptesenl -, ...r :r.. .. :i13lr.h Delendant No. I also Prcsenl Special rEiirar-iffi friiEIEffi ffi i;8.

powet of atlomey submlfled by thc Plaintilfs attoraey, be placed on ftle, meanwhlle an applicatlon lor wlthdtowal of the sull on the bosis ol wos also submided by the plaintiffs special Morney In thls regard, slalement of lhe plainfiffs spcciol t on ey recorded on oalh whereln he confitmed the loclum of compromise and hts request .for dismissol of the inslant suit os wlthfuawn.

In vlew of lhe plaintifs application for withdrowal coupled wlth sldement ol the speciol momey for the platnlffi the instqnl suil stunds dtsmksed as w hdrawn. Ponlles orc lefi lo bear their own cos,

File he consigned to the rccotd room ol Honorable Dislrict & .Sessioas ludge Chtlral atler fu ,tosesnary completion and compllollon.

Civil ludge/JLI/1.@I

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3.Despite the fact that the suit was dismissed as withdrawn, the said father-inJaw Buzarg Khan the Defendant (herein the Petitioner) preferred an application under section 12 (2) of the Civil Procedure Code to

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" -fr declare the order dated 01.07.2013 to have been

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obtained by his son Ibrahim Khan in favour of the Plaintiff (herein the Respondent No. l) Mst.Jabin on the basis of committal of fraud in view of the compromise deed/ agreement Ex PB. This application under section 12 (2) C.P.C was hotly contested by Mst.Jabin (herein the Respondent No. 1) on various legal and factual grounds. The leamed Civil Court on the basis of averments taken in the said pleadings framed the following issues:-

I. Whether Petitioner has got a cause of action? (oPP)

2.Whether the petition is within time? (OPP) 3. llhether the iudgment and Decree doted 01.07.2013 is based on fraud & misrepresentation whtch is liable to be set aside? (OPP)

4.Wether the Petitioner is entitled to the relief as f, U,4 prayedfor? (OPP)

5.Relief.

4.The parties then led their evidence in the petition under section 12 (2) of the CPC' The leamed Civil Judge-l Chitral desigrated himself ,i"i--l'.n-_,- !--r at the top of judgment "BEFORE THE COURT E..r,,' OF..............C[VIL JLJDCE- I PESIIAWAR' and at r@

the foot of the judgment then realized to be Civil Judge Chitral signed the judgment dated 15.08.2016. Concluding Para of the said judgment is reproduced as under:- nRelief. 12. For whal has been dlscussed above, relief is adended ln tovour of Petitioner os pruyed ln lhe lnslont appllcabn under adludlculon Fllc be consigned to Record Room afier necessory completloa and complladon wllhln lls prescrlbed lbc."

f,. Next off, the Respondent No. I Mst.

Jabin filed her civil revision bearing No. 07lC.R of 2016 titled as " Mst. Jabinvs Buzars Khan & I another". which came up for hearing before the leamed District judgelZila Qazi Chitral and the revision petition was accepted. The impugned judgment of the leamed Civil Judge Chitral was set aside with no order as to costs.

r^ ,r4 6. Here this is a writ petition bearing No. 531-M of 2017, whereby the facts and grounds being taken the following prayer has been set in:- ElrTtr'ri1-' u It ls therefore, humblY PraYed tha i. i i : :-' i' , ':lJ'i cl'\ on acceflonce ol lhis l,tit pelltlon' xr.b (31, f,-'tr Ma J.d. M.LD.a Dd$.lo.r

the lnpugned order of the leorned revlslonal Court/respondent No. 3 dated 05.06.2017 may klndly be set aslde ond the judgment & order of lhe komed Ctvll Judge-l Chttral dated 15,08.2016 may *tndly be rcslorcd,

Any other remedy coupled with cosl, whlch ir etflcoclous and appoprlale in peculiar circumstances of the case, may please be granted, though not spec ific al ly p r aye d fo r. " 7. Having heard arguments of leamed counsel for the parties, record with their valuable assistance gone through.

E. It is extremely mirthful that at all the stages ofthe presentation ofthe application under section 12 (2) of the Civil Procedure Code either by father-in-law Buzarg Khan .l against his daughter-inJaw Mst. Jabin calling \Vn forthe setting aside of the order/judgment dated 01.07.2013 where specifically on the basis of factum of compromise an application for withdrawal of the suit was submitted and the F i.-*;Y:":pr special attorney lbrahim Khan by recording his t:)i :l ,.-li D i,: r'..ra.,t.r1 statement on behalf of his wife Mst. Jabin for N ! (3[) d t] Mt ld.. M&r..a llnll. xt-

withdrawal of the suit and the suit was accordingly dismissed as withdrawn. It is beyond understanding as to why when suit has been dismissed as withdrawn an application under section 12 Q) C.P.C was preferred before the learned Civil Court. It is again keenly observed that the learned Distict JudgelZila Qazi Chitral without rcalizing that on the basis of reasons being given the revision was accepted, the impugred judgment of the leamed Civil Court delivered upon an application under section 12 (2) C.P.C when was set aside without recourse to that in view of the suit being dismissed as withdrawn even then accepted the revision which was not warranted under the law.

9 According to section 12 (2) of the Civil Procedure Code which reads:- g- 1

(r)....................

(2)Where a percon chatlenges thc volidily of a judgment, decrce or order of the plea ol fraud' misrepresenlalion or wonl ol Jurlsdlclion, he shall seek his remedy by moking an appllcullon to the Coa whlch possed the iadgmcnt, decree or order and final A'8..., +:*"ir# not by o sePorak suil" f/l l y..r ri: r!: t:i i

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Here specifically it is open to any person having any interest under the cause of action to challenge the validity of a judgment, decree or order obtained on the plea of fraud, misrepresentation or want of jurisdiction and has to move by making an application to the Court which passed the final judgmen! decree or order and not by a separate suit. The judgment/ order terms are understandable that being passed by the leamed Civil Judge on the basis of statement of Ibrahim Khan special attomey of the Respondent No. I Mst. Jabin who is her husband and had requested tlrough filing of an application for withdrawal of the suit and having no interest left on the basis of compromise had further prayed for dismissal of the suit to be termed as even withdrawn. Thus, t"r- when the order dated 01.07 .2013 has already v^ been carried out for withdrawal of the suit and dismissed accordingly. There is no decree left for execution. Hence, the basic application under section 12 (2) of the Civil Procedure Aii"ii-Fe= Code preferred by father-in-law Buzarg Khan f.i.;'r - :t r't -_-.lt :i I i 'ili I cit ch i,l ,,,;;1-,r1 N.a! (si.) tr6'E f,lr, lork H.trEra r'!va t_

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against his daughter-in-law Mst. Jabin Respondent No. I is of no legal effect and unwarranted for the cause of action being set therein. Absolutely, there is no decree executable and ifthere is any execution petition preferred on the basis of the order dated 01.07.2013 in the civil suit of Mst. Jabin against her father-in-law Buzarg Khan the same shall be fi led without further proceedings/execution.

r0. In such terms this writ petition is disposed accordingly.

ANNOUNCED f d- Dt:30.i,1.2017 JUDGE

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