Muhammad Naeem Vs Additional D&SJ Mansehra etc

Judgment Sheet

PnsnawAR Hrcn CouRT. Ango TTABAD CH

JUDICIAL DEPARTMENT

Writ Petition No.927-Al2012

Muhammad Naeem...

(Petitioner) Versus

Additional District Judge-IV, Mansehra etc... (ResPondents)

Present: Ch. Hassan Murtaza Mann' Advocate for petitioner.

Mr.Muhammad Rafique Yousaf, Advocate for respondent No.3.

Date of hearing : 13.11.2023.

JUDGMENT

MUHAMMAD IJAZ KHAN. J'- Through the instant petition filed under Article 199 of The constitution of Islamic Republic of Pakistan, lgT3,the petitioner seeks the following prayer:- "The instant writ Petition may kindly be allowed, both the I impugned judgments may kindlY be declared as having been Passed in contravention of the law and Constitution, as a result of exercise $1trG\\eo (Jamil) (SB) Hon'ble Mr,Justice Muhantmad Ijaz Khan.

of jurisdiction and Power with material irregularity by learned trial court as well as learned Additional District Judge, Mansehra, hence both the judgments be declared as void, coram-non-judice, without lawful authority, of no legal authority and may kindlY be set aside. Application of the petitioner under section l2(2) CPC as filed in the trial court may kindlY be allowed, exparte decree obtained by the respondent No.l in Civil Suit No.175l1 for specific performance titled "Muhammad Afzal Khan versus Abdul Hameed Khan" instituted on 27.10.2003 decided on 31.05.2004 maY kindlY be set aside with full consequential relief, in the interest ofjustice."

2.This case has got a chequered history as one AbdurRaufwhoproceededtoThailandinl920s wasownerof426Kanalsofland.Initiallythesaid Abdur Rauf sold half of his property i'e' 2131426 'y Kanals to Faiz Rasan who is father of respondent No.3 herein, however, when said Abdur Rauf was

Faiz not honouring the said transaction, thereforc' which Resan filed a suit No'432/1 on 30'04 '1975 (Jamil) (SB) Hon'ble Mr.Justice Muhammqd ljaz Khan.

a

J

suit was ultimately decreed in his favour vide judgment and decree dated 19.02.1975. The sisters of Abdur Rauf filed a suit No.35lll on 14.04.T975 challenging the aforesaid judgment and decree, however, the said suit was dismissed in the year 1989 which judgment and decree was challenged before the Appellate court and thereafter the case was remanded to the trial court and ultimately the suit was dismissed in the year 1999'

3.It is the case of petitioner that he has purchased the aforesaid half of the property of Abdur Rauf from the said Faiz Resan. It is also the case of petitioner that he has also purchased the remainin g 213 Kanals of land from the sons of

Abdur Rauf namely Abdul Hameed and Abdur Rasheed vide an Iqrarnama dated 2l'04'1996' (Abdul however, when the respondents No'4 and 5 Hameed and Abdur Rasheed) were not * he filed a implementing the said agreement to sell' but suit for the specific performance on28'02'2003 the same suit was dismissed in default by the

(Jamil) (SB) Hon'ble Mr.Justice Muhamm ad ljaz Khan.

learned trial court vide order dated 05.01 .2004 and that suit has not been restored till date by the petitioner, however as per the version of the petitioner, the aforesaid 213 Kanals of land was lateron transferred in his name by said Abdur Hameed and Abdur Rasheed vide registered sale deed dated 29.0L2005.

4.On the other hand, a suit was filed by respondent No.3 Muhammad Afzal on 27 'L0'2003 against Abdul Hameed (respondent No'4) for specific performance of a document which was written in a Thai language. The aforesaid suit was decreed exparte vide judgment and decree dated 31.05.2004. The aforesaid judgment and decree was challenged by the present petitioner by filing l2(2) CPC application on 0l '05'2004 which application was duly contested by the present t7 respondents by filing their reply and thereafter issues were framed, however, the said petition was

of the dismissed by the learned trial court vide one impugned order and judgment dated 31'05 '2010' (Jamil) (SB) Hon'ble Mr.Justice Muhamm ad ljaz Khan.

5.The petitioner being aggrieved of the aforesaid order and judgment preferred a revision petition before the Additional District Judge-IV, Mansehra, however, the same was also dismissed vide second impugned order and judgment dated 17.01.20t2. The petitioner has now challenged the aforesaid order and judgment before this court through the instant Petition.

6, Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance'

7.It is the case of petitioner that he has purchased half of the property of deceased Abdur Rauf i.e. 213 Kanals from one Faiz Rasan and which fact has also been judicially determined and finally decided in favour of the petitioner and it is r2 also the stance of petitioner that he has also purchased the remaining 213 Kanals out of his two Kanals of land owned by Abdur Rauf from sons namely Abdul Hameed and Abdur Rasheed

(respondents No.4 and 5 herein) vide an

(Jamil) (SB) Hon'ble Mr,Justice Muhammad Ijaz Khan.

Iqrarnamalagreement to sell dated 21.04.1996' It is also part of the record that lateron when said Abdul Hameed and Abdur Rasheed were not implementing the aforesaid Iqrarnamalagreement to sell, the present petitioner had filed a suit on 28.02.2003 for specific performance of the aforesaid agreement, howevet, that suit has not been taken to its logical conclusion as the same was dismissed in default on 05.01 .2004 and which suit has not been restored till date. It is also part of the record that after one year of the dismissal of the aforesaid suit, a registered sale deed dated and 29.01.2005 was executed by Abdul Hameed AbdurRasheedinfavourofthepresentpetitioner but it is noteworthy thatrespondent No'3 had filed a suit on 27.10-2003 against Abdul Hameed for specific performance of an agreement which is a

written document in a Thai language and the aforesaid suit was decreed in his favour vide

exparte judgment and decree dated 31'05 '2004' therefore, from the aforesaid sequence of events'

(Jamil) (SB) Hon'ble Mr.Justice Muhammad Iiaz Khan.

it is established on the face of record that the present petitioner was not a recorded owner neither on the date of filing of the suit i.e' on 27 '10'2003 nor on the date of passing of the impugned decree dated 31.05.2004, therefore, respondent No'3 was not required to implead the present petitioner as a party in his suit, therefore, to this extent' respondent No.3 has not committed any fraud or misrepresentation, with the court in getting a favourable decree dated 3 1.05'2004'

8.It is also relevant to mention here that the petitioner in his petition filed under section 12(2) CPCwasrequiredtohavespecificallypleadedthe fraud, misrepresentation on behalf of the decree- holder i.e. respondent No'3 to have been played with court or any jurisdictional defect in the impugned order/judgment, however, the contents u ofll(z)Applicationfiledbythepresentpetitioner would show that he has alleged vague and evasive allegations of fraud to the effect that when

respondent No.4 had come to Pakistan in the year

(Jamil) (SB) Hon'ble Mr.Justice Muhamm ad ljaz Khan.

1996 he must have been told to respondent No'3 that he has sold out his property to the present petitioner and as such respondent No'3 should have been impleaded him in his suit, however' such allegations are mere presupposition and personal inferences of the petitioner which could not be considered as sufficient to maintain a petition under section 12(2) CPC'

g.Itisalsorelevanttomentionherethatwhen the instant application under section l2(2) CPC was filed, the same has not been summarily dismissed, however, a fair and reasonable opportunity has been provided to the present petitioner to prove his allegation qua obtaining the impugned decree on the basis of fraud or r misrepresentationortoestablishthefactumof jurisdictional defect but petitioner has miserably failed to prove either of them as on behalf of petitioner one Gulzaman Khan appeared as his

facts attorney but he is totally blank about those which are essential for the outcome of a successful (Jamil) (SB) Hon'ble Mr.Justice Mluhammad Ijaz Khan.

I2(2) Petition as he in his cross-examination has made the following admission:-

ptL .lv L Qfv> ct| t a1979 t)v .l ,.d ,h ,i & du sl ,rv d ,f C * -s)t ,i / iilty dl * )uq tt *}ry L L,ir,t 2l-04-1996 u/ ,lV k vts 4 -7 Ul-' "d fr, v,,, 6 oi ul :* ri & $t Jl a ut tJ gl ,trt fiits / /tf ilt L ot tl iLv L 'iv ,W *,/ o1f L i ,tit k u, tf a -d 2-t d on.? { ol lt{,i :t 4),1 { L o'Q tJ ;), L urY Ltt fil 16 k -" tf o -f vtits 2-W I .Q, vn d oi vd :tr :i :h i I ( Lfv O : tt A */ gt : &'l2Q) i: 1) af.e tlut k ,.d I r *u un A -a Jv lW ( el {t Lrrt uA ,.tle Jl I: 'tt I ; * tP1 "-,.d 4*i<tfuttfvk;t The aforesaid categorical admission on the part of none else but the attorney of petitioner speaks volume that he is ignorant about all the

relevant facts which are essential to maintarn a

petition under section l2(2) CPC and for its t7 successful result as though as per the contents of

that they the petition, it is the case of petitioner have purchased the suit property through an

(Jamil) (SB) Hon'ble Mr.Justice Muhammad Ijaz Khan.

agreement to sell dated 21.04.1996 and they are also having the possession of the same but his attorney is not in the knowledge that as to whether the suit property is in possession of his principal i.e. the petitioner or respondent No'l' When such being the position then petitioner has to suffer as under the law, he was not only required to specifically plead the factum of fraud' misrepresentation or jurisdictional defect but he was also required to prove the same through a positive, cogent and confidence inspiring evidence which arc apparantely missing in the present case' therefore, the two courts below have rightly dismissed his petition filed under section l2(2)

CPC.

10.During the course of arguments' learned counselforthepetitionerseriouslyattackedthe ,y impugned judgment and decree on the ground that

the same suffers from "want of jurisdiction" as the

was very suit was not maintainable as the same based on a document which was written in a Thai

Hon'ble Mr.Justice Muhammad Ijaz Khan.

(Jamil) (SB)

language and it was not at all an agreement to sell, however, such ground could be agitated by the judgment-debtor of the impugned decree but not by a petitioner of a petition under section 12(2) CPC as under the law, the statutory duty of the petitioner was to establish that the decree-holder has played fraud with the court which he has miserably failed to establish on the basis of his evidence.Itisalsorelevanttomentionherethatan objection of want of jurisdiction qua a decreel order/judgment could be agitated in those cases where the court, tribunal or an authority is not having the jurisdiction to entertain a lis' whereas an objection qua the suit being not maintainable would be attracted where the court, tribunal or an

authority is having jurisdiction but the aggrieved person has not filed his petition, lis or suit in a r, petitioner proper forum, therefore, such plea of the in the present case is totally misconceived' (Jamil) (SB) Hon'ble Mr.Justice Muhamm ad liaz Khan.

11.It is relevant to mention there that before 1980, any decree obtained on fraud or misrepresentation could be challenged by an aggrieved person by filing a suit however' thereafter through Ordinance X of 1980' subsectiofi (2) was inserted in section 12 of the Code of Civil Procedure, 1908 where-after an aggrieved person could file an application for setting aside such a decree, the same being relevant is reProduced below:-

ll2. Bar to further suit' (1)l Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code aPPlies.

lQ) Where a Person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or t ry want of jurisdiction, he shall seek his remedy by makin g an application to the Courtwhich passed the final judgment' decree or order and not by a separate suit']

Hon'ble Mr.Justice Muhamm ad liaz Khan.

(Jamil) (SB)

The aforesaid provision of law unmistakably shows that the validity of a judgment, decree or order could be challenged by an aggrieved person, if such judgment/decree or order has been obtained on the basis of fraud and misrepresentation or if judgment, decree or order suffers for want of jurisdiction. It is also relevant to mention here that for maintaining a l2(2) petition, the nature and extent of fraud and misrepresentation or jurisdictional defect has to be pleaded specifically and then it has to be proved through positive evidence. In the case tilted "Mst'NASIRA KHATOON and another vs' Mst'AISHA BAI and

12 others" reported as 2003 SCMR 1050' the Apex

Court has hetd that the concealment of mateial

facts by a person having knowledge or belief of

same must such facts may constitute fraud but the ,u? be proved through clear and convincing evidence

lie on the and the burden of proof of fraud would in which partywhich alleges fraud except in a case the fraud is floating on the face of record' The

active concealment and suppression of facts in

Hon'ble Mr.Justice Muhammad Ijaz Khan.

(Jamil) (SB)

l4

words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of the opposite-pafiy' There can benoexceptiontotheruleoflawthatwithout bringing the essential facts on the record and the evidence in proof of the fraud the plea of

lgnorance and lack of knowledge simPliciter would not be sufficient to constitute fraud and dislodgethesanctityattachedwiththeofficialacts and judicial proceedings' The fraud undoubtedly vitiates solemn proceedings and time would not

sanctiff, an action of fraud and misrepresentation 'o? but no inference of fraud can be drawn merely on

the basis of an oral assertion in absence of any

proof of the allegation of fraud' Thus' a summary of the above jurisprudence of the Hon'ble all acts Supreme Court is that Fraud encompasses Hon'ble Mr.Justice Ijaz Khan.

(Jamil) (SB)

and omissions whether by suppression of truth or

suggestion of fact, which ate deliberate and

and to cause intended to cause benefit to oneself loss' It the other to suffer a loss or the risk of actual act includes the element of intent and the or omission which follows from such an intent' However, in circumstances there may not be a

deliberate intent, yet the act or omission may be

so reckless so as to constitute Fraud' Where allegation of Fraud is raised, such an allegation party must be specific and must be proved by the atleging such a Fraud.

12.It is also relevant to mention here that through the instant petition, petitioner is seeking

issuance of writ of certiorari, to declare the

impugned orders of the fora below as invalid and

unlawful, therefore, to get a favourable declaration, the petitioner has to establish that r7 either the fora below were not having the

jurisdiction to pass the impugned order(s) or that

jurisdiction they have improperly exercised their course of vested in them, however, during the Hon'ble Mr.Justice Ijaz Khan.

(Jamil) (SB)

arguments the learned counsel for the petitioner

was unable to bring his case within the aforesaid parameter so as to warrant the issuance of the

desiredwrit.InthecasetitledrrMUHA]VIMAD AZIM KIIAN AFRIDI vs' The PRESIDENT OF th I

@,, reported as 2023 SCMR 68, the Apex lie court held that it is plain that certiorari does not in order to bring up an Order or decision for re- hearing of the issue raised in the proceedings' It

on the exists to correct error of law where revealed or face of an order or decision or irregularity, shown' absence of, or excess ofjurisdiction where or The control is exercised by removing an Order decision, and then by quashing it' Similarly' in

case titled "AMJAD KIIAN vs' MUHAMMAD IRSHAD (DECEASED) throueh LRs,, reported as

Court 2020 SCMR 2155, the august Supreme ,0 observed that it is by now a settled principle of law

their that the High Courts must not exercise constitutional jurisdiction in order to interfere with

courts unless the the discretion exercised by lower Ijaz Khan.

(SB)Hon'ble Mr.Justice

same suffers from jurisdictional, factual or legal

would be effors. In other words, such interference justified in cases where the impugned order has been passed without jurisdiction or is based on

or is not in misreading or non-reading of evidence' accordance with the law' If none of these errors is

their present, the High Courts must not exercise constitutional jurisdiction to interfere with the

findings of lower courts merely because it reached than a different conclusion as to the controversy the latter. Likewise, in case titled "@ vs.

MUHAMMAD F'AZIL and others" reported as

9 Hon'ble SuPreme Court held that

jurisdiction where the court or the Tribunal has and it determines specific question of fact or even

of law, unless patent legal defect or matetial irregularity is pointed out, such determination cannot ordinarily be interfered with by the High a * under Article Court while exercising jurisdiction Court, in case 199 of the Constitution. The Apex titlEd ..CIIAIRMAI\' NAB VS. MUHAMMAD Ijaz Khan.

(SB)Hon 'ble Mr.Justice

Y

USMAN and others" reported as PLD 2018 S'C 28' also held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands however, the same shall not be exercised in a case where discretion is exercised just by the subordinate court/Tribunal in a fair and manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner

13.In view of above discussions and expositions of law on the subject, this writ petition

and the being bereft of merits is hereby dismissed impugned orders/judgments of the lower fora are

maintained and uPheld'

ANNOUNCED.

t3.11.2023.

Q

(Jamil)

.IUDGE

Hon'ble Mr'.Justice Muhammad Ijaz Khan.

(SB)