' Ahmad Bakhsh alias Ahmad son of Samanda purchased the suit-land from Karim Bakhsh father of respondents Nos. 1 to 5 vide Mutation No,2654 attested on 25-1-1972. The respondents Nos. 1 to 5 filed a pre-emption suit which was decreed by a learned Trial Court at Muzaffargarh, on 21-10-1975 subject to deposit of Rs,7,000. Feeling aggrieved, the said Ahmad filed a first appeal which was entertained by learned District Judge, Muzaffargarh. On 31-5-1976 the case was taken up by the learned District Judge in the presence of Ch. Muhammad Sana-ulHaq, Advocate, for the said petitioner and Syed Zafar Hasnain, Advocate, for the said respondents. A compromise was filed.
The statement of the counsel for the parties was recorded. As a result of the said proceedings, the appeal was accepted and the suit of the respondents Nos. 1 to 5 was dismissed. A decree sheet was prepared accordingly. On 2-6-1976, an application was filed under section 151, C.P.C. Before the learned District Judge by the respondents Nos.1 to 5 stating that the appeal was fixed for arguments on the said date when they were told by the Reader that a compromise had been effected and the case had not been listed for hearing. It was stated that the respondents never appeared in the Court neither they had given any power of attorney to any other Advocate. The file be summoned and an inquiry be instituted. The application was entertained by the learned District Judge who issued notices to the parties as well as the said Advocates. The replies were filed.
Following issue was framed by the learned District Judge:- "Whether a valid compromise was effected between the parties in this appeal?"- ' The learned District Judge then recorded evidence of the parties. Vide order, dated 7-6-1977 the learned District Judge, Muzaffargarh, concluded that a valid compromise was made between the parties in the appeal and the issue was answered accordingly. Consequently, the application was rejected.
2. On 12-9-1977 the respondents Nos.1 to 5 filed a suit against the petitioner and others. In the plaint after narrating the said facts already noted by me above, it was stated that no compromise had been effected and a fraud had been committed. Regarding the said proceedings and order passed by the learned District Judge, it was stated that the, application was not competent and the entire proceedings pursuant to said application are without jurisdiction. It was accordingly prayed that the said decree, dated 31-5-1976 passed by the learned District Judge, Muzaffargarh, being result of fraud be set aside. It may be noted here that the petitioner who is the son of said Ahmad and presently is representing him as his L.R. Was impleaded in the said suit with the allegations that he used to pursue the matter on behalf of his father. It was further stated in para.6 of the plaint that the present petitioner after the passing of the decree, dated 21-10-1975 in favour of the respondents Nos.1 to 5 approached them for compromise but they refused. After the filing of the appeal, the petitioner started his efforts to influence the learned counsel for the respondents Nos.1 to 5 i.e, defendant No,5 in the suit that he should accept money from him and to enter a compromise in Court and the respondents Nos.1 to 5 suspect that the petitioner and the three Advocates who were named as defendants Nos.3 to 5 in the suit had colluded in the matter of said appellate decree based on compromise. The suit was contested by the petitioner and his late father who stated that the compromise was effected. A sum of Rs,5,000 was paid to the respondents Nos. 1 to 5. However, they demanded more money and when it was not paid they filed an application before the learned District Judge which was dismissed on 7-6-1977. It was further stated that the learned Advocate impleaded as defendant No,5 in the suit is a relative of the respondents Nos. 1 to 5 and it was at his instance and support that first the said application was filed and then the present suit was filed. Following issues were framed by the learned trial Court:--
(1) Whether the impugned decree and judgment, dated 31-5-1976 passed by the District Judge, Muzaffargarh, are based upon fraud, collusion and were secured under coercion and as such the same are void, ineffective and not binding upon the plaintiffs for the facts and reasons set out in the plaint? OPP
(2) Whether the plaintiffs have got a cause of action for filing" of the suit? OPP
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the suit is false and vexatious and as such the defendants are entitled to special compensatory costs, if so, to what extent? OPD
(5) Whether the suit is bad for misjoinder of parties? OPD
(6) Relief.
' Evidence of the parties was recorded. The suit was dismissed vide judgment and decree, dated 23-2-1982. A first appeal filed by the respondents Nos. 1 to 5 was heard by a learned ADJ-II, Muzaffargarh, who allowed the said appeal and decreed the suit of the respondents Nos. 1 to 5 on 27-4-1985 directing that the appeal shall be heard by the District Judge, Muzaffargarh, w.e.f, 31-5- 1976.
3. Learned counsel of the petitioner contends that it is a well-settled law that the primarily it is the Court passing the decree who has the jurisdiction to look into the allegations of fraud in the matter and the learned District Judge took cognizance of the application which was filed two days thereafter. Parties and Advocates were issued notices. Issue was framed. Evidence was recorded and thereafter a finding was recorded that the compromise was valid and as such the suit was not competent. Further contends that the learned ADJ-H, Muzaffargarh, has adopted a novel procedure and in the process has either misread or failed to read the evidence altogether while passing the impugned judgment and' decree. Learned counsel for the respondents Nos. 1 to 5, on the other hand, supports the impugned judgment and decree of the learned ADJ.
4: I have examined the trial Court records with the assistance of learned counsel for the parties.
Now I have already referred to the pleadings in the suit above. To my mind the question that arises in these proceedings is as to whether the learned District Judge who had recorded the compromise and had passed the decree on 31-5-1976 had the jurisdiction to declare the same to be a nullity and to recall on the grounds that it was obtained by practising fraud. The question that follows is that in case the learned District Judge was the jurisdiction and he exercised the same then whether after the decision made by him holding that no fraud had been practised upon him, could also be questioned in the suit filed after the said later decision.
5. Now the learned trial Court dealt with the matter whether briefly in its judgment. Dated 23-2- 1982. According to the learned trial Court since the learned District Judge had already held that the compromise was valid, he would not sit over the said judgment.
6. Now the learned A.D.J. With reference to the judgment of the Hon'ble Supreme Court of Pakistan, in the case of "The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others" (PLD 1975 SC 331) observed that where fraud has been committed, notwithstanding the fact that the judgment had been passed as a result of commission of such fraud, by a party, by a superior Court, a subordinate Court can set aside the same. Now there can be no possible cavil with the said proposition in the present case as the matter cropped up long before the amendment of Civil Procedure Code whereby subsection (2) was added to section 12, C.P.C.
Making it to be mandatory that on the said ground a decree would be challengeable only in the Court who passed the final judgment and decree. However, the learned A.D.J. Has completely failed to meet the brief reasonings of the learned trial Court that since the District Judge has already held that the compromise was valid, he would not sit in appeal.
7. To may mind the answer to the questions formulated by me above lie in the same very judgment referred to by the learned A.D.J. In his impugned judgment. Now in the afore-noted judgment the contention raised before the Hon'ble Supreme Court was that a Tribunal of special or limited jurisdiction has no authority to recall its order or judgment even on the ground of fraud. The said question was answered by their lordships in the following terms at pages 345 and 346 of the report:-- "It seems to us that while there are cases in which the power of Court or Tribunal of special or limited jurisdiction to suo mom recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, Tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a Tribunal of limited or special jurisdiction has the power to suo motu re-call or review an order obtained from it by fraud.
' However, in the matter of collateral impeachment of such an order, the position appears to be different. Whereas, a superior Court or a Court of general jurisdiction was the power to disregard, as a nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or authority making it, such a power is not available to a Tribunal which either acts in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere. As this question has only recently been examined by this Court at some length in Raunaq Ali v. Chief Settlement Commissioner (1) it is not necessary to go over the same ground again, and it would suffice to state that the conclusion reached in that case to the effect that where fmality is given to the decision of a certain body which has also the jurisdiction to decide finally, facts upon which its own jurisdiction is founded, that decision cannot be called in question in any other collateral proceeding by another Tribunal or body of limited jurisdiction."
8. In view of the said observations of the Hon'ble Supreme Court of Pakistan it can safely be said that the learned District Judge who recorded the compromise on 31-5-1976 and passed the decree was duly vested with the power and authority to recall the same. This power vested in the learned District Judge was invoked by the plaintiff/respondents themselves by filing an application brining to the notice of the learned District Judge the allegation that they had not entered into a compromise and a fraud has been practised. I have already noted above that the learned District Judge issued notices not only to the parties but also to the learned Advocates who had appeared.
An issue was framed. A full dress trial was conducted and on the basis of evidence so recorded, the learned District Judge concluded vide order, dated 7-6-1977 that a valid compromise was made between the parties in the appeal. The said order passed by the learned District Judge was admittedly not challenged in this Court.
9. Now in the plaint, as noted by me above, the only comment made regarding the said proceedings conducted by the learned District Judge and the order passed by him thereafter was that the application filed by the plaintiff/respondents themselves was not maintainable and the entire proceedings conducted by the learned District Judge on the basis of the same were without jurisdiction. There is no manner of doubt in my mind that the said plea taken by the plaintiff/respondents qua the said application is baseless and the proceedings conducted by the learned District Judge and the order passed by him thereon, by no B stretch of imagination can be said to be without lawful authority or without jurisdiction.
10. Now the learned A.D.J., notwithstanding the aforesaid legal and factual position has proceeded to hold that the suit was competent. Now upon a reading of the said plaint wherein it has been stated that the learned District Judge had no jurisdiction to recall the said order, and as such, the application and the C proceedings thereon were coram non judice, the suit can be held to be competent. However, the decision thereof is dependent upon the determination of the question as to whether or not the learned District Judge had the said jurisdiction. Once this question is answered in the affirmative, the suit was bound to be dismissed.
11. Now I may advert to the merits of the suit and of course the judgment of the learned A.D.J.
Impugned in this civil revision. The reading of the evidence in this case gives a clear impression that the plaintiff/respondents and their learned counsel were cognizant of the legal position emerging in this case. Fazal Khan P.W.1 proceeded to state that a year ago a `Punchyiar was called at the `Dera' of Mehmood Khan and Allah Ditta petitioner was asked to state the correct position and he admitted that he had committed a fraud and spent money and got the suit decided in his favour. To same effect is the statement of Allah Dawaya P.W.2. The events referred to by these two witnesses obviously took place after the decision of the learned District Judge upon the application of the plaintiff/respondents. I may note here that learned A.D.J. Has correctly discarded the testimony of Muhammad Khalid D.W.1 pertaining to the report of the expert who had died. For the simple reason that such-like report is inadmissible without the examination of the author thereof.
D.W.2 is the petitioner himself who made a statement in accordance with the plea taken in the written statement. Elahi Bakhsh one of the respondents appeared as P.W.3 in rebuttal and made a statement which had already been considered by the learned District Judge while holding that a valid compromise had taken place between the parties. Some observations made by the learned A.D.J. While passing the impugned judgment have really _shocked me. In para.20 of his judgment at pages 9 and 10 thereof he has observed as follows:-- "Defendant No,2 might have approached defendant No,5 Mr. Ghulam Haider (Advocate) and offered certain amount in order to help them for the procurement of signatures of the plaintiffs on some blank papers and power - of attorney, which might have been used subsequently by the other defendants in order to obtain their ulterior and nefarious motive of obtaining the judgment on the basis of alleged compromise, dated 31-5-1976."
' In para.21 of the judgment he has observed as follows:-- "The fact that the application under section 151 of C.P.C. Was moved on 2-6-1976 by the plaintiffs against the so called compromise also supports the contention and the allegation of the plaintiffs and prove their bona fides. Had they themselves entered into compromise genuinely on a day earlier i.e, 31-5-1976 there was no point incoming again and moving the said application. Their absence on 31-5-1976 in Court further lends support to the contention of the plaintiffs."
' Needless to state that the learned A.D.J. Had very conveniently opted to remain oblivious of the proceedings that took place on the said application and the result thereof.
12. Thereafter the learned A.D.J. Has picked up the statement of Hafiz Ghulam Haider (Advocate) recorded by the learned District Judge, while conducting proceedings in the said application and has observed as follows:-- "If we read together, statement of Hafiz Ghulam Haider (Advocate) made before the learned District Judge and his written statement, it is not difficult to arrive at a conclusion that defendant No,2 after losing the case, he was out and out to nullify the pre-emption decree by adopting fair or foul means. He went to the extent of approaching an offer of Rs,5,000 to his opponent counsel".
13. To my mind the impugned judgment is manifestly usurpation of jurisdiction by the learned Additional District Judge and that too on pure conjectures and surmises.
14. For all that has been discussed above I do find that the learned A.D.J. Has proceeded to exercise a jurisdiction not vesting in him while passing the impugned judgment and decree. The civil revision accordingly is allowed. The impugned judgment and decree, dated 27-4-1985 passed learned A.D.J., Muzafargarh are set aside and the one passed by the learned trial Court on 23-2- 1982 dismissing the suit of the plaintiff/respondent is restored.
15. Records of the learned lower Courts be remitted back immediately.