ORDER GULZAR AHMED, J.- Plaintiff has filed this suit under Ordinance XLV1 of 2001 for permanent injunction and damages with the following prayers:- "(i) Permanently restrain the defendants Nos. 1 and 2 their servants, agents or any other person acting through or under any of them to enforce or cause to be enforced in any manner whatever the purported decrees fraudulently obtained in Suit No. 1424/1997 from the Hon'ble High Court of Sindh Karachi and in Suit No. 944/1998 from the Hon'ble Banking Court ' No. IV, Karachi and/or to otherwise proceed against the plaintiff for recovery of any sum or part thereof granted to M/s. Allied Granite Mines Ltd. In any manner whatever;
(ii) Pass judgment and decree severally and/or jointly in favour of the plaintiff against the defendants Nos. 1 and 2 in the sum of Rs.52 million with interest/mark up thereon at the prevalent rate till its realization; (i.e) Grant any further relief that this Hon'ble Court may deem appropriate in the circumstances of the case and
(iv) Award costs." The defendants were served with the summons out of whom defendants Nos. 1 and 2 have filed applications for leave to defend the suit while no such application is filed by the defendant No. 3 the National Accountability Bureau (NAB). On 27.10.2003 while hearing the parties counsel on the applications for leave to defend the suit it was pointed out that perhaps the suit is barred by the provisions of Section 12(2), CPC and parties counsel were allowed time to make submissions on the point of maintainability of the suit.
2. Mr. Akhtar Ali Mehmood learned counsel appearing for the plaintiff has argued that plaintiff has sought two reliefs, one in respect of decrees passed in suits filed by defendants Nos. 1 and 2 and other for damages. He stated that if the first relief as claimed is not found to be tenable, he can sustain the suit on the basis of second relief which is for compensation and damages and in support he placed reliance upon the case of Bank of India v. Lakshmani Dass (AIR 2000 SC 1172). He further submitted that the maintainability of the suit under Order VII, Rule 11, CPC has to be examined on the basis of contents of the plaint and the contents will show that the suit is maintainable. Mr. Masood Anwar Yusaf, learned counsel appearing for the defendant No. 2 has contended that the very prayer No. (i) s^hows^that the plaintiff is seeking to restrain, the defendants from enforcing the decrees passed against him on the. Basis. That the decrees have been obtained fraudulently.|He ' stated that the provision .Of Section is fully applicable to the present case and (s, barred. With regard to second prayer learned counsel stated .That it is a claim in the nature of malicious .Prosecution and where the suits have been decreed against the plaintiff, there is no basis for such claim. Learned counsel has further argued that the suit is also barred on the principles of res judicata as contained in Section 11, CPC. In support of his submission he has relied upon the case of Mst. Farida Begum v. Hafiz Muhammad Shamim (1997 CLC 343), Noor Muhammad v. Additional District Judge. Chakwal (PLD 1994 Lah. 170), Peer Bukhsh v. The Chairman Allotment Committee (PLD 1987 SC 145), Muhammad Yousaf v. Mst. Rafia Begum (20O2 CLC 19.96), Rabat Mehmood v. Tariq Rasheed (PLD 1993 Kar. 648), Sardar Muhammad v. Chaudhry Muhammad Bashir (2000 CLC 1040), Ghazanfar Baig v. Muhammad Salam (2001 YLR 871) and Khawaja Muhammad Nadeem v. Shafiqur Rehman's (1996 CLC 1460).
3. Mr. Arshad Tayabally, learned counsel appearing for the defendant No. 1 has adopted the arguments of Mr. Masood Anwar Yusaf. He has however, added that for maintaining a banking suit, the plaintiff has to plead that there is commission of default in fulfilment of any obligation with regard to finance as required by Section 9 of the Financial Institution (Recovery of Finances)
Ordinance, 2001, (Ordinance XLV1 of 2001) and that no default is shown in the plaint.
4. I have considered the arguments of the learned counsel. Dealing with the first argument in respect of prayer clause (i) as reproduced above, it will be seen that defendants Nos. 1 and 2 have filed two separate suits namely suit No. 1427/1997 by the defendant No. 1 in which the present plaintiff was defendant No. 6 who filed his written statement but thereafter did not appear on the date of hearing. On 26.10.1998 the said suit was decreed against the defendants (including the present plaintiff) jointly and severally in the sum of Rs.13,77,80,222/- with mark up at the rate of 15.50% per annum from the date of suit till payment and cost. The defendant No. 2 had filed suit No. 94/1998 in Banking Court No. IV at Karachi in which the present plaintiff was defendant No. 8. The plaintiff was served who filed application seeking leave to defend the said suit and by judgment dated 28.3.2000 the said suit was decreed against the defendants (including the present plaintiff) jointly and severally for a sum of Rs. 16,522,513/- along with cost and mark-up. The plaintiff claims that he has filed appeals against both the decrees passed in the said two suits which are still pending, Section 12(2), CPC is as follows:- "12. BAR TO FURTHER SUIT(1)........... (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of- jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
5. In the case of Mst. Farida Begum (supra) Mr. Justice Rasheed A. Razvi (as his lordship then was) at page 347 has discussed the question as follows:- "7. Sub-section (2) of Section 12, CPC provides that where any person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to the Court which has passed such final judgment, decree or order. This sub-section clearly prohibits filing of a separate suit to challenge the validity of a judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The Hon'ble Supreme Court has held in the case of Government of Sindh and another (PLD 1991 SC 197) that the intention of Legislature in amending Section 12, CPC by adding sub- section (2) was to provide a substitute for such a suit against the judgment, decree or order obtained by fraud, In the instant case, the impugned judgment of the learned VII the Additional District Judge was passed on 13,1.1983, thereafter the matter was twicet heard by this Court in Civil Revision No. 69 of 1983 and was also heard thrice before the Supreme Court in two different appeals. But on no occasions, the plaintiffs have ever pointed out or alleged the same grounds as of the present plaint. Para. 16 of the plaint which is about the accrual of cause of action is absolutely silent on the point that when these alleged frauds or misrepresentations were committed, In my view, the defendants had an opportunity to raise all these questions before this Court in civil revision as well as before the Supreme Court which they have miserably failed and now they cannot be allowed to have resort to the provisions of Section 12(2), CPC for their on acts of negligence or omission. Reference be made to the following para of the reported case viz., Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197):-
13. Further, as will appear from the above- quoted paragraph, the appellants did not plead any such \facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under Section 12(2), CPC.
"This will be against the rule of finality, It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under Section 12(2), CPC because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of Section 12(2), CPC for their on acts of negligence or omissions.
Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the Legislature as the same would be against public policy."
In the case, Muhammad Akhtar, etc. v. Abdul Hadi, etc. (1981 SCMR 878), it was held that after adjudication of dispute between the parties by a Competent Court of law; fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. In view of the said circumstances, order of the Trial Court rejecting the plaint in the suit was restored and the order of the High Court was set aside. Even prior to the 1980 amendment in Section 12, the Supreme Court has held that even under Sections 9 and 11 of the CPC such suits are barred which are filed to challenge the legality and validity of judgments and orders passed on the grounds of fraud or misrepresentation. Reference be made to the case of Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) where a party to a decision, to show that it was obtained by other party by fraud or collusion or that the Court acted without competence, It was further held that this section does not lay down a mandate that it must be shown in a separate suit and not be moving the same Court or the appellate authority. The rule laid down by the Supreme Court in the case of Abdul Majid (supra) was followed in the case of Asif Jah Siddiqui v. Government of Sindh and others (PLD 1983 SC 446).
8. Recently, a learned Single Judge of Lahore High Court, Mr. Muhammad IIyas, J. (as his lordship then was) in the case of Sarwar and 3 others v. Muhammad Saeed- ud-Din Khan alias Saadat-ud- Din Khan (1992 CLC 2323) held that since the petitioner's predecessor-in-interest had challenged the judgment and decree passed in favour of respondent on the ground of fraud and misrepresentation, it was barred by done by making an application under Section 12(2), CPC and not by a separate suit. The learned Judge has followed the rule laid down in the cases of Zfrullah and 3 others v. Civil Judge, Hafizabad and 3 others (PLD 1984 Lah. 396), Sardar Bakhsh v. Sahib Khatoon (1988 CLC 2037), Iqbal v. Mst. Jainan Bibi (1991 CLC 553) and the case of Abdul Rauf and others v. Abdul Rahim Khan (PLD 1982 Pesh. 172). The facts of the reported case; Sarwar and 3 others (supra) are similar to the facts of the present case. Even this Court in the case of Mst.
Rukhsana Ansar and 2 others v. Mst. Raeesa Khatoon (1993 MLD 1319) held that by virtue of newly- added sub-section (2) suit cannot be instituted to challenge the validity of the judgment, decree or order by a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction and that such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order."
In the present case the plaintiff has pleaded in para 23 of the plaint that the cause of action firstly accrued to- him when his name was shown as share-holder/Director of M/s. Allied Granite Mines Limited and then on institution of the two suits and then on execution of Memorandum of Understanding by Mr. Lakhani with defendants Nos. 1 and 2 on 23.2.2001. In respect of first cause of action, the plaintiff cannot claim any relief against the present defendants, as it is no where alleged nor anything pointed to show that the defendants have made or on their on shown him as shareholder/Director of Allied Granite Mines Limited. Besides, whether the plaintiff was a shareholder/Director of the company has been discussed and finding given in the judgment of Suit No. 944/1998 against which appeal is pending. Further, it may be noted that the plaintiff was served in both the suits and he* has also made appearance in them and filed his written statement and application for leave to defend the suit. While in Suit No. 1424/1997 he choose to remain absent resulting in rejection of his written statement and decreeing of the suit against him while in the other suit No. 944/1998, the plaintiff defence was considered on merit and rejected, resulting in passing of decree against him. Thus there are two decrees against the plaintiff and he pleads that such decrees were obtained fraudulently. Section 12(2), in my view will have application with full force and the remedy which the plaintiff will have is of making of an application under Section 12(2), CPC. Merely, by pleading Memorandum of Understanding between Mr. Lakhani and defendants Nos. 1 and 2, dated 23.2.2002 will not furnish independent cause of action for filing of a separate suit to the plaintiff where such Memorandum of Understanding effects the decrees passed against the plaintiff. The plaintiff remedy in that case too would be to make an application under Section 12(2), CPC or to plead such Memorandum of Understanding in the appeal filed by him against the decrees.
As regards the second prayer in the suit, it is based on the allegation contained in para 21 of the plaint which js as follows:- "21. That the plaintiff, in the circumstances has. Submitted hereinabove, is entitled to be compensated by the defendants Nos. 1 and 2 .In severally and/or jointly for the losses sustained n< and compensated for damages suffered on account of illegal, wrongful and mala i.e acts as under:-
(a) Compensation for valuable time lost and expenses incurred by the plaintiff in prosecting and defending legal proceedings concerning M/s. Allied Granite Mines Limited instituted by the 2. (b)
Damages/compensatio for mental for mental agony of illegal proceedings initiated by the and 2 as detailed in the plaint. (c) On account of defamation.
The above-quoted para of plaint appears to be based on the assumption that the two suits filed by the defendants Nos. 1 and 2 against him were wrongful and so also the decrees obtained therein. Learned counsel for the plaintiff has relied upon the judgment of the Supreme Court of India which case was based on Dr. Arjumand Faisel V. Secry. Rev. Division C.L. 921 (Saleem Akhtar, J.) the provision of Section 95, CPC in respect of obtaining of wrongful injunction. The facts and circumstances of the cited case are altogether different from the present one. On examination of para 21 of the plaint and prayer clause (ii) it appears that for determination of this relief, it will be imperative for the plaintiff to establish that the suit filed by the defendants Nos. 1 and 2 were based on malice and that the decrees obtained therein were based on fraud which in other words means that plaintiff has to succeed in its first prayer and then only the question of determination of second prayer will arise. The second prayer, therefore, is dependent on determination of the first prayer and it cannot sustain itself independently. As it has been found that a separate suit for determining the question that the decrees were obtained fraudulently does not lie and the plaintiff remedy is by way of an application under Section 12(2), CPC or by way of challenging the decrees in the Appellate Forum, the suit for second prayer also cannot be sustained.
6. Therefore, in view of the above discussion I am of the considered view that the plaint of the present suit is barred by Section 12(2), CPC and the same is liable to be rejected under Order VII, Rule 11, CPC. The plaint of this suit is therefore rejected.