Ghani Subhan etc VS Saadullah etc

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IN THE PESHAWAR HIGH COURT,

BAI\NU BENCH

(Judicial Departmenf)

WP No.39l-812024

Ghani Subhan, etc.

V.

Saadullah, etc.

JUDGMENT

Date of hearing 05.11.2024

For petitioners: Mr. Sardar Naeem Khan Advocate

KAMRAN HAYAT MIANKIIEL. J.- Challenged in this writ petition under Article 199 of the Constitution are the vires of a judgment and order dated 20.07.2024, passed by the learned Additional District Judge-I, Bannu, maintaining the trial Court's judgment and order dated 09.02.2024, which dismissed an application under section l2(2) CPC, vide which the petitioners had challenged, on the plea of fraud and misrepresentation, the validity of a judgment and decree dated 19.05.1954, passed by the Sub-Judge, Bannu, in Civil Suit No.154/1, whereby, a declaratory suit concerning the suit property was decreed in favour of the predecessors- in-interest of the respondents.

(Ghafoor Zaman) Mr. J Hayat

2.The brief facts leading to the filing of this writ petition are that the predecessors-in-interest of the respondents instituted the aforesaid declaratory suit against the predecessors-in-interest of the petitioners, claiming to have become owners by prescription of the suit land. It was asserted that the plaintiffs, along with defendants # 15 to 17, are the mortgagees of the suit land, whereas, the defendants # 1 to 14 are the owners thereof. The suit land, they added, was mortgaged by the predecessors-in- interest of the defendant-owners in favour of the predecessors-in-interest of the plaintiffs and defendants # 15 to 17 before the year 1878, and since then, it has come down as mortgaged with the plaintiffs. To this mortgage, they continued, the period of 60 years has passed, and as a result, the owners have forfeited their right of redemption in the suit land, with the result that it has become the exclusive property of the plaintiffs and the defendants # 15 to 17. The defendants #l to 14 have been approached with the request that they should acknowledge the so acquired title of the plaintiffs and the defendants # 15 to 17 regatding the suit land, but they did not agree.and instead applied to (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

! the Reforms Officer, Bannu, for the redemption of the land under Act 32 of 1950, prompting the plaintiffs to file the suit, the plaint concludes.

3.By the judgment and decree dated 19.05.1954, the Sub-Judge decreed the suit in favour of the plaintiffs. Now, the present petitioners, claiming to be the successors-in-interest of the defendants in the aforesaid suit, have called into question the validity of the said judgment and decree on the plea of fraud and misrepresentation by filing the application under section l2(2) CPC before the trial Court. However, the said application was concurrently dismissed by the two Courts below, as indicated hereinbefore.

Hence, this petition.

4.Arguments heard. Record perused.

5.The main thrust of the arguments put forward by the learned counsel is that the predecessors-in- interest of the petitioners were not duly served, nor did they sign andlor thumb impress any power of attorney authorizing any special attorney or pleader to contest the suit on their behalf and this fact, in itself, is sufficient to prove the elements of fraud and misrepresentation within the contours of section (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

\-' l2(2) CPC. Concluding his arguments, the learned counsel submitted that despite the fact that the determination of allegations of fraud and misrepresentation ordinarily involves investigation into questions of fact, and in such cases, an inquiry should normally be held to adjudicate upon the matter in issue, but the trial Court still did not feel the need to frame issues, hold trial, ffid afford the petitioners a reasonable opportunity to adduce evidence in support of their claim. This, to the leamed counsel, is sufficient to hold that both the Courts below failed to exercise the jurisdiction, conferred upon them, in accordance with law.

6.It is discernible from the record that the aforesaid suit was instituted before the Sub-Judge, Bannu, on 17.05.1952. Subsequently, the predecessors-in-interest of the petitioners appeared before the Sub-Judge and filed a written statement on 14.06.1952. It is imperative to note that in the plaint, the address of the predecessors-in-interest of the petitioners is the same as mentioned by the petitioners themselves in the application under section l2(2) CPC. This fact suggests least regarding the commission of fraud and (Ghafoor Zanan) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

I misrepresentation as has been contended. The copies of the order sheets of the trial before the Sub-Judge duly show that the learned counsel representing the predecessors of the petitioners were in attendance during the trial. The record also demonstrably reveals that the predecessors-in-interest of the petitioners, as defendants # 1 to 4, fervently contested the suit, and the judgment and decree passed by the Sub-Judge on 19.05.1954 clearly reveals that the decree was passed after a hot contest between the parties. There is also nothing on the record which suggests that the predecessors-in- interest of the petitioners ever challenged the vatidity of the said decree, which aspect of the matter not only attaches finality to the said decree, but also points towards its validity.

7.In this view of the matter, the mere assertion that neither the predecessors-in-interest of the petitioners were duly served, nor did they sign and/or thumb impress any power of attorney authorizing any special attorney or pleader to defend their case, is not sufficient to hold that this warranted the holding of an inquiry to necessitate the framing of issues by the trial Court, especially (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

v when the petitioners have failed to prima facie establish the factum of fraud and misrepresentation.

Therefore, the very ingredients of section l2(2) CPC are lacking in the instant case.

8.In these circumstances, it can safely be concluded that when the predecessors-in-interest appeared before the Sub-Judge and the decree impugned itself reveals that it was passed after a fervent contest between the parties, then there remained no need to frame issues or hold an inquiry.

Moreover, it is not necessary to frame issues in each and every case brought under section l2(2) CPC, rather it depends upon the peculiar facts and circumstances of each case. In this regard, reliance is placed on Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased\ through LRs and others (PLD 2024 SC 262), wherein the Supreme Court authoritativelY ruled:

7.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 l2(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 (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

v 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 L2(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.

9.Similarly, in the case of Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCMR 662),the Supreme Court held:

It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. The matter is left to the satisfaction of the Court which has regulate its to proceedings and keeping in view the nature of the allegations in the application' may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand.

10.Moreover, as observed by both the Courts below, the impugned decree was passed on (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

v 19.05.1954, while the application under section l2(2) CPC was filed on 03.10.2022. Thus, it is clear that the validity of the said decree was called into question after 68 years. It is imperative to note that instant case is not where the suit land was in possession of the petitioners, but the revenue record reflected the respondents as its owners. If it were the case, the contention of the petitioners would have some substance to the extent that the decree was obtained after the predecessors-in-interest of the petitioners were kept in the dark. As nothing of the sort has been asserted in the application under section l2(2) CPC, nor even in the instant writ petition, therefore, as held by the Supreme Court in Mst. Nasira Khatoon and another v. Mst. Aisha Bai (2003 SCMR 1050), the mere lack of knowledge, which is the backbone of the contention in this case, would not be a valid reason for invoking the jurisdiction of the Court under section 1,2(2) CPC to set aside the decree, which was passed 26 years prior to the insertion of sub-section (2) in section 12 CPC. It would not be out of context to mention that in Nasira Khatoon's case (supra), the Supreme (Ghafoor Zaman) (S.B.) Hon'ble Mr. Kamran Hayat Miankhel

v Court addressed a somewhat similar issue in the following manner:

The decree in the civil suit if was obtained through fraud and misrepresentation or was passed without jurisdiction could certainly be set aside under section l2(2), C.P.C. but in the present case, the suit for specific performance of the exchange agreement was filed by the predecessors-in- interest in 1960 in the High Court of Sindh at Karachi on the original side which was dismissed by the trial Court on 7- 12-1964 and was ultimately decreed by a Division Bench of the High Court in appeal vide judgment dated 16th September, 1970. Subsection (2) of section 12, C.P.C. was enacted by virtue of Ordinance X of 1980 promulgated on 26-3-1980 and prior to the enactment of this subsection, the appellants could conveniently avail the remedies of moving an application for setting aside the decree and for re-hearing' the appeal after becoming party in the appeal or could seek review of the judgment on the same ground under section 114 read with Order XLVIL rule 1, C.P.C., or could file an appeal before the Supreme Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973. In addition to the above remedies they could also bring a civil suit for setting aside the decree on the ground of fraud but the appellants did not avail any such remedy and much after the enactment of subsection (2) of section 12, C.P.C. sought setting aside of the decree under section L2(2), C.P.C. on the ground of fraud taking the plea that they were ignorant of the decree before December,1978. The mere lack of knowledge would not be a valid reason for abandoning the legal remedies available to the appellants and for invoking the jurisdiction of the Court under section l2(2), C.P.C. for setting aside the decree which was passed about L0 years (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

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v prior to the enactment of this subsection. The statutes relating to the remedies and jurisdiction of the Courts, Tribunals and Authorities are considered procedural in character and subject to the rights of parties may take retrospective effect but if retrospectively of a statute affects the substantive rights and causes injustice in such rights the Courts by taking exception to the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the authorities operates retrospectively, may not accept its retrospectively. The remedy of civil suit for setting aside the decree obtained through fraud or misrepresentation or if passed without jurisdiction was substituted with the provision of subsection (2) of section 12, C.P.C. but it would not be given retrospective effect except in the cases which were pending adjudication on its enactment or in which the decrees already passed were under challenge in the civil suits on the ground of fraud or in which the decrees were passed within three years prior to the date of its enactment. The period of limitation for an application under section l2(2), C.P.C. is not specifically provide under law, therefore, the same is governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be fileu within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be.

11.In line with the law laid down by the Supreme Court in the above quoted rationale, the application under section l2(2) CPC was also barred by the law of limitation.

(Ghafoor Zaman) (s.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel

v 12. Confronted with this factual and legal background of the case, the learned counsel for the petitioners was unable to point out any illegality, irregulariff, or jurisdictional defect in the impugned judgments and orders that would warrant interference by this Court in its extraordinary jurisdiction under Article 199 of the Constitution.

Therefore, this Court is firm in its view that the instant writ petition is devoid of any merit. It is, therefore, dismisse d in limine.

Announced

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