' Through this Constitutional petition Elahi Bakhsh petitioner has challenged the order, dated 11-3- 1992, whereby his application filed under section 12(2), C.P.C. For setting aside the judgment and decree dated 27-2-1971 passed in favour of respondent No,1 was dismissed by the learned Civil Judge, Layyah and judgment dated 11-11-1995 passed by the learned District Judge, Layyah through which revision petition filed by the petitioner was also dismissed.
2. Briefly the facts as mentioned in the instant petition are that the petitioner was owner of 190 Kanals of land situated in Chak No,310/TDA. The petitioner engaged Sh. Muhammad Sadiq- respondent No,1, a practising lawyer of Layyah on account of some dispute with TDA. Thereafter, on 5-1-1971 Muhammad Sadiq filed a suit for declaration in the Court of learned Civil Judge, Layyah alleging that the petitioner had entered into an agreement/struck deal for sale of abovesaid land situated in Chak No,310/TDA, Square Nos.115/116/117 for a consideration of Rs,50,000. He also stated in para. No,2 of the plaint that the petitioner being not ready to execute the sale-deed was putting off the matter and also refused to complete the sale-deed. Thereupon, summons were issued to the petitioner. The case was fixed for 11-3-1971 but on 27-2-1971 at the request of the parties the file of the suit was put up before the learned Civil Judge when statement of the petitioner was recorded admitting the claim of respondent No,1 in the plaint and consenting written statement was also filed. Hence, a consenting decree was passed in favour of respondent No,1 on 27-2-1971.
According to the petitioner all this was done through fraud and impersonation and when he came to know about the passing of such decree in the year 1986, he moved an application under section 12(2), C.P.C. On 5-1-1986 for setting aside the impugned consenting decree, dated 27-2-1971. The reply was submitted by respondent No,1 in which he denied the allegations and the controversial pleadings of the parties necessitated the framing of the following issues:--
(1) Whether the application is time-barred? OPR
(2) Whether the petitioner is estopped by his conduct from bringing the present application? OPR
(3) Whether the impugned decree, dated 27-2-1971 is the result of fraud and misrepresentation?
OPA
(4) Relief.
3. In support of his claim the petitioner appeared as A.W.1 and also produced A.W.2 Allah Wasaya his neighbourer and A.W.3 Ashiq his tenant. He also produced documentary evidence, i,e, plaint filed by respondent No,1 (Exh.A./1), consenting written statement (Exh.A/2), the order passed by the learned Civil Judge, dated 27-2-1971 (Exh.A./3), the alleged consenting statement of petitioner (Exh.A./4), decree (Exh.A./5) and Khasra Girdawaries (Exh.A./7 etc.) and closed his evidence. Sh.
Muhammad Sadiq (respondent No,1) himself appeared as R.W.4 and produced Abdul Hameed Khan Niazi, the then Civil Judge (P.W.1) who passed the impugned consenting decree, Ghulam Nabi stamp vendor (R.W.2), Sh. Muhammad Latif (R.W.3), who was counsel of respondent No,1 in the suit.
He also tendered in evidence the copies of plaint, the consenting written statement of petitioner, order dated 27-2-1971 and decree and closed his evidence. The learned Civil Judge vide order, dated 11-3-1992 dismissed the application of the petitioner and revision petition filed by the petitioner was also dismissed by the learned District Judge, Layyah on 14-11-1995. Hence this writ petition.
4. Learned counsel for the petitioner contends that a fraud was committed by respondent No,1, who earlier was counsel of the petitioner in a suit filed against the TDA, which fact has been admitted by him while appearing as R.W.4. It is also contended that the suit was fixed for 11-3-1971 but it is strange that an application was moved by the counsel for respondent No,1 on 27-2-1971 and the file was summoned on the same day when by producing another person a consenting statement of the petitioner was got recorded besides filing of the consenting written statement and the learned Civil Judge without any proper inquiry regarding identification of the defendant-petitioner decreed the suit on the same day and the urgency of getting the suit decided on consenting statement before the actual date fixed by him as in this way there was element of fraud. It is further contended that a fraud was committed by respondent No,1 and the consenting decree was nullity in the eye of law whereas the petitioner neither appeared in the Court nor made such statement and the petitioner was shown to have been identified by Sh. Muhammad Latif who is closely related to respondent No,1 and also opposing counsel of the petitioner. It is also contended that the said counsel had also signed the consenting written statement on behalf of the petitioner but subsequently his signatures were removed which clearly depicts that the said document was prepared by respondent No,1 himself. The learned counsel contends that the fraud committed by respondent No,1 could not come into knowledge of the petitioner as even after passing of the decree that suit property remained in possession of the petitioner and only when a week's time earlier to filing of the application under section 12(2), C.P.C. Respondent No,1 had tried to interfere in the possession of the petitioner, he immediately approached the proper forum for redressal of his grievance while availing the remedy provided under the law. Relies upon 1994 SCMR 782, wherein it has been held that limitation would run from the date of knowledge. It is further contended that the petitioner had rightly moved application under section 12(2), C.P.C. Which was quite within time from the date of knowledge and the same was dismissed on surmises and conjectures by both the Courts below. It is also contended that even the suit filed by respondent No,1 against the petitioner in the form of declaration was not maintainable and at the most respondent No,1 could have filed a suit for specific performance as the sale-deed was never executed and only an oral sale was alleged to be agreed upon between the parties. Relies upon 1996 SCMR 1223 and PLD 1986 Lah. 399, to contend that respondent No,1 had no title over the suit-land and he was never delivered possession of the said suit-land. Also relies upon PLD 1982 BJ 33 (Head Note "b") in support of his contention that on the basis of oral agreement only suit for specific performance was maintainable. It is lastly contended that in the plaint filed on 5-1-1971, respondent No,1 claimed that possession of the suit property was delivered to him but from the statement of A.W.3, who is tenant over the suit property the possession was still with the petitioner and it also took no change in the Revenue Record. The learned counsel has also argued that in fact the plaint was liable to be rejected under Order VII, rule 11, C.P.C. As it did not disclose any cause of action and the suit in the form of declaration was not maintainable.
5. Respondent No,1, on the other hand, has opposed this petition on the ground that concurrent findings on facts have been arrived at by both the Courts below, which being based on evidence on record cannot be interfered with in writ jurisdiction. It is also contended that it was a time- barred application and the same was dismissed rightly. Also relies upon 2003 SCMR 1050 at p.1051, 2004 MLD 1677, 1999 YLR 2020, 1992 SCMR 2184 and PLD 1988 Lah. 398 at p.401, in support of his contentions. It is further contended that the decree was passed in the year 1971 and the same was challenged in the year 1986 under section 12(2), C.P.C. Which amendment was introduced in the year 1980 and having no retrospective effect, the remedy under section 12(2), C.P.C. Was not available to the petitioner. It is also contended that the signatures were accepted by the petitioner and the facts admitted need not to be proved. It is further contended that no fraud was committed with the Court as the signatures on the consenting statement have not been denied by the petitioner. It is lastly contended that the reappraisal of evidence cannot be made in writ petition.
6. I have heard the learned counsel for the parties and also gone through the contents of this petition as well as the documents attached therewith and the case-law cited by both the learned counsel for the parties.
7. The admitted facts in the present case are that respondent No,1 is a practising lawyer at Layyah and he remained counsel of the petitioner b fore filing of suit in the year 1971; that respondent No,1 filed a suit for d claration on the basis of an oral sale allegedly agreed upon by the p titioner regarding land measuring 190 kanals situated in Chak o.310/TDA for a consideration of Rs,50,000 and he claimed that the ssession was delivered to him but later on the petitioner refused to ecute the same, who was required to be restrained from interfering in e possession of respondent No,1; that Sh. Muhammad Latif is "Bhanja" ister's son) of respondent No,1, who was a practising lawyer at Layyah well and he filed a suit on behalf of respondent No,1, in which, notice as issued to the petitioner as defendant and case was fixed for 1r-3-1971 but on 27-2-1971 before the actual date an application was rhoved by Sh. Muhammad Latif, Advocate for respondent No,1 before t e learned trial Court for summoning the file when a consenting written atement was filed on behalf of the petitioner besides recording of his onsenting statement by the learned Civil Judge and on the same day suit as decreed in favour of respondent No,1; that the written statement was ubmitted through an Advocate but his signatures on the said application ere misplaced through cutting; and that the petitioner had neither ngaged any counsel on 27-2-1971 nor had moved any application while ffering to make such consenting statement and he was identified by Sh.
Uhammad Latif who is very close relative of respondent No,
1. The Learned Civil Judge had passed the decree on the basis of consenting tatement, but did not bother to ascertain the identification of the etitioner through any independent source as to whether he was a genuine erson. He also did not bother to raise any question about the maintainability of the suit, which on the face of it was not competent as regarding the claim of respondent-plaintiff in the plaint only a suit for pecific performance could have been filed, which required affixation of ourt-fee according to value of the suit. Moreover, no date regarding the eal between the parties for sale of the land was given and mode of the ayment of sale price was also not given. All this shows that respondent o.1 had not come in the Court with clean hands and firstly he had saved he amount of court-fee by filing suit in the wrong forum and as such also committed fraud with the Court besides causing loss to the public exchequer.
8. The petitioner himself in the Court as A.W.1 had denied filing of written statement or making of consenting statement. Also claimed that the possession was still with him and this fact was also proved through the statement made by respondent No,1 himself while appearing as R.W.4 that the possession was still with the petitioner. The documentary evidence was also produced by the petitioner in support of his claim that he came to know about the obtaining of impugned consenting decree through fraud and misrepresentation just some time earlier to filing of the application under section 12(2), C.P.C. It is also an admitted fact that Sh. Muhammad Latif was not a counsel for petitioner and no counsel was engaged by the petitioner. I am not much impressed by the contention of the learned counsel that the petitioner while appearing as A.W.1 had admitted his signatures on the written statement as in the same breath he stated that his signatures were obtained through fraud. The petitioner had earlier engaged respondent No,1 as his counsel. It is generally noticed that there is practice in this country that the clients normally gave signed blank papers to their Advocates having a trust on them for looking after their interest in case of any emergency for filing of any application during the proceedings of the case in their interest without waiting for the client to come and to sign the same as it may cause some irreparable loss to the client. As such, merely because the petitioner has admitted his signatures on the written statement is not sufficient to knock out him from the proceedings, because this is not sole question involved in this case.
9. So far as the contention of learned counsel for respondent No,1 that concurrent findings on fact have been arrived at by both the Courts below is concerned, this Court in writ jurisdiction can interfere in the same if any illegality or improbability is found to have been committed in passing the impugned orders. In the present case both the Courts below appear to have ignored the material facts and the manner in which the impugned consenting decree was passed on the statement of the petitioner on 27-2-.1971 while the case was actually fixed for 11-3-1971. It does not appeal to mind that what had persuaded the petitioner to make consenting statement in favour of respondent No,1 even before the actual date of hearing fixed in the suit. Respondent No,1 also failed to lead any evidence that the petitioner was ever served in the suit or he had actually appeared in the suit for making consenting statement. The statement of R.W.1. Abdul Hamid Khan Niazi, the then Civil Judge that the petitioner had appeared before him and made consenting statement does not inspire confidence as it is unbelievable rather improbable that how the Presiding Officer of a Court after a period of 20 years could recall his memory, that in a particular case some specific person had appeared to make statement as he might have been posted on different stations during his service and thousands of cases would, have been decided by him. It is also shocking that respondent No,1 who is a practising lawyer in order to prove his claim has produced the said Presiding Officer after his retirement from service, which shows some intimacy between them that how the proceedings of the suit were controlled and the same was got decreed even before the actual date fixed in the suit perhaps due to the fear that the proceeding might have not come in the knowledge of the petitioner-defendant. Even otherwise, statement of Sh. Abdul Latif R.W.2, who claims to have identified the petitioner in the Court is also not confidence inspiring as he is close relative of respondent No,1 and he had also given the wrong name of father of petitioner while claiming on the one hand that his father was known to him since 1946 but on the other hand his name was given as Muhammad Hussain instead of Allah Dewaya. The fraud committed by respondent No,1 is proved on the record that in the plaint he claimed that the possession of the suit-land was delivered to him but the actual position is that even till today the possession thereof is with the petitioner and it never changed hands. Moreover, respondent No,1 never sought implementation of the said decree during a period of about 15 years, which shows that he was afraid of its having come in the knowledge of the petitioner, otherwise, he might have got it executed immediately after passing of the same. As such, the claim of the petitioner that he could not have knowledge of the consenting decree for a long period is believable and, therefore, the petition was not barred by time.
10. The contention of the learned counsel for respondent No,1 that application under section 12(2), C.P.C. Was not maintainable is also repelled as no doubt the consenting judgment and decree was passed on 27-2-1971 but when the petitioner came to know about the passing of the same through fraud and misrepresentation in favour of respondent No,1 in the year 1986 then this amendment was already on the statute and the petitioner had rightly filed this application under the said provisions being law of the State. Moreover, in case he filed a separate suit for setting aside of the said decree, preliminary objections could have been raised by respondent No,1 about the maintainability of the suit due to the amendment in the Civil Procedure Code. As such application under section 12(2), C.P.C. Was fully maintainable and the petitioner has been able to prove that the suit was got decreed while keeping him in dark. Even otherwise, the technicalities cannot come in the way of fair justice. The reliance is placed on Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382. Mr. Justice B.Z. Kaikaus (as he then was) in the said judgment held as under:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to one form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
' Both the Courts below have failed to appreciate the evidence on record in true perspective and reached at a wrong conclusion that no fraud was committed with the petitioner. As such, both the impugned orders passed by the Courts below are not sustainable in the eye of law.
11. Apart from above, I am of the view that in fact the suit filed by respondent No,1 for declaration was not maintainable and at the most he could have instituted suit for specific performance of agreement, therefore, the plaint was liable to be rejected under Order VII, rule 11, C.P.C. Reliance is placed on Sajawal v. Mst. Saubia Hamid and another 1996 SCMR 1223 wherein it has been held as under:- "There can be no two opinions that a suit for declaration with prayer for consequential relief filed by a plaintiff not in possession of the suit-land is not maintainable." and Zafar Ahmad v. Mst. Hajran Bibi PLD 1986 Lah. 399, the relevant portion whereof is reproduced here for ready reference:- "----Ss. 12 and 42---Agreement to sell suit for declaration of_title to property on basis of agreement to sell not maintainable--- where plaint revealed that there was a mere agreement to sell, plaintiff, held, could not maintain his suit for declaration on basis of such agreement as it did not create any right; title or interest in property---Only proper mode of redress for plaintiff would be suit for specific performance of said agreement."
'In exceptional circumstances, this Court can straightaway reject the plaint under Order VII, rule 11, C.P.C. If the same is barred by law even if no plea was taken in the appropriate proceedings as a wrong decision cannot be allowed to perpetuate with another wrong. A period of about 34 years have elapsed when the suit for declaration was filed by respondent No,1, which on the face of it was not maintainable. Respondent No,1 is a practising lawyer at Layyah and on the other hand the petitioner is a simpleton villager, having become blind now. This Court has also come to the conclusion that fraud was committed with him by respondent No,1 to deprive him of his valuable property. The remanding of the case to the learned trial Court would amount to increase the worries of the petitioner, who has already faced a lot due to the profession of respondent No,1 being an Advocate. In Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782 the Honourable Supreme Court while observing that the claim of the plaintiff in the suit was fraudulent apparently from the record had declined to remand the case. The relevant portion is reproduced as under:-- "Lastly, we are conscious of the general principle that fraud vitiates even the most solemn proceedings and that the Courts of general jurisdiction are competent to suo motu recall decrees obtained from it by fraud, as held in Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and ordinarily we would have remanded the case to the trial Court for further proceedings, in the matter, but as the claim of the plaintiff is fraudulent which is apparent 'from the record, the remand of the case in our view would be sheer wastage of time and merely an exercise in futility.
' For the foregoing reasons, we accept this appeal, set aside the impugned judgments and decrees passed by the learned Judge of the Sindh High Court and dismiss plaintiff's suit with costs throughout."
12. For the foregoing reasons this writ petition is accepted, the impugned order dated 11-2-1991 passed by learned Civil Judge, Layyah and judgment dated 11-11-1995 passed by learned District Judge, Layyah are set aside, the application filed by the petitioner under section 12(2), C.P.C. Is accepted and the judgment and decree, dated 27-2-1971 passed by the learned Civil Judge, Layyah is set aside and plaint filed by respondent No,1 in a suit for declaration against the petitioner is rejected being barred by law while invoking provision under Order VII, rule 11, C.P.C. With costs.