1. ' The plaintiffs filed suit for declaration and damages seeking following reliefs:-- "(a) Declaring that the defendants Nos.2, 3 and 4 have committed professional misconduct, in relation to their professional obligations, in the proceedings before 1st Rent Controller, East Karachi, in Rent Case No,598 of 1992 and Execution No,15 of 1993, by concealing the facts regarding pending proceedings between the plaintiffs and the defendant No,1, in disregard/violation of the Proviso of Article 9. Of Qanun-eShahadat, 1984.
(b) Declaring that the defendants have jointly/collusively committed perjury in relation to the proceedings in Rent Case No,598 of 1992 and Execution No,15 of 1993, before the Rent Controller No,1, East Karachi.
(c) Directing the defendants to jointly/severally pay the following amounts to the plaintiffs on account of damages/compensation, per description in para.26 of the plaint, hereinabove:
(i) Losses to personal effects Rs,6 lacs
(ii) Losses due to missing of the personal Rs,5 lacs effect
(iii) Losses to the immovable property due to Rs,25 lacs demolition
(iv) Losses due to payment of monthly rentals, being incurred by the plaintiffs w,e,f, 1-8-1993 per month, at the rate of Rs,9,000 per month (until recovery in this suit).
(v) Rs,70,00,000 on account of damages/ Rs,70 lacs compensation for the torts/wrongs done to the plaintiffs.
(d) Granting costs of the suit.
(e) Passing any other order(s) deemed just fit, proper and appropriate under the circumstances of the case."
2. ' On 20-8-2003, when the matter was fixed for evidence, it was ordered that the issue, "Whether the suit is barred under section 12(2), C.P.C.?" will be decided first as preliminary issue and the matter was adjourned to 28-8-2003, on which date, the arguments of the learned counsel for the parties were heard.
3. ' Brief facts of the case of the purpose of deciding the issue are that the father of the plaintiffs, namely Barkat Ali died in the year 1982. He was residing in House No,296, PIB Colony, Karachi. The said house was purchased jointly by the three brothers of the plaintiffs, namely, Rehmat Ali, Hashmat Ali and Karamat Ali from one Muhammad Iqbal. It is alleged that the said property was gifted to the father of the plaintiffs on 10-7-1993. It is alleged that defendant No,1, who is son of Rehmat Ali and grandson of Barkat Ali, fraudulently managed to fabricate a fake and forged agreement of sale dated 27-3-1968 in respect of the property in question and got the house mutated in his name in the records of rights. The plaintiffs filed Suit No,1130 of 1991 against the defendant No,1 seeking declaration, cancellation of transfer/mutation in the Court of IVth Senior Civil Judge, Karachi. In the said suit on 19-8-1981 an order was passed restraining the parties not to raise any further construction on the property in question. It is alleged in the plaint that after institution of Suit No,1130 of 1991, defendant No,1 instituted two suits against the plaintiffs. Suit No,1142 of 1991 was instituted during. The Month of August, 1991 for declaration and injunction which is also pending before IVth Senior Civil Judge, Karachi (East) and Suit No,309 of 1992 was instituted during the month of February, 1992 and is also pending before the 1st Senior Civil Judge, Karachi (East).
4. Suit No,309 of 1992, filed by the defendant, is for possession and mesne profits. The defendants Nos.2 to 4, who are practising Advocates of this Court and as per averments in the plaint, had knowledge about the pendency of these suits, filed Rent Case No,598 of 1992, concealing the facts regarding the pendency of suits and obtained ex parte ejectment order against the plaintiffs. The Rent Case, filed by the defendant No,1, was allowed by the learned Rent Controller vide his order, dated 15-5-1993. The defendant No,1 filed Execution Application No,15 of 1993 before the Court on 5- 7-1993 and by order dated 8-7-1993, the learned Rent Controller issued writ of possession with police aid. The possession was taken over by the defendant No,1 in pursuance of the order passed by the learned Rent Controller.
5. ' Being aggrieved by the said order, the plaintiff has filed this suit claiming Rs,6,00,000 for the losses to the personal effects/luggage due to breakage, etc. While mishandling the process of ejectment through police, Rs,5,00,000 being the losses due to the missing personal effects which, could not be found out after the luggage was thrown out in the street Rs,25,00,000 being the losses sustained in the shape of demolition of the subject house and Rs,9,000 per month in terms of monthly rent. The plaintiff also claimed Rs,70,00,000 towards his claim of defamation, mental torture and humiliation.
6. The relief claimed by the plaintiffs is that the defendants Nos.2 to 4 have committed professional misconduct in relation to their professional duties in the proceedings before the Rent Controller, Karachi in Rent Case No,598 of 1992 and Execution No,15 of 1993. The plaintiff further sought declaration that the defendants have jointly/collusively committed perjury in relation to the proceedings in Rent Case No,598 of 1992 and Execution No,15 of 1993 before the Rent Controller.
7. ' Heard Mr. Ghulam Ghous, learned counsel for the plaintiffs, and Mr. Abdul Waheed Kanjo, learned counsel for the defendants.
8. ' The learned counsel for the plaintiffs argued that in the present suit the plaintiffs are seeking damages under Tort and as such the suit is not barred under section 12(2), C.P.C. The learned Advocate admitted that the application filed by him under section 12(2), C.P.C. Seeking relief to set aside the order passed by the Rent Controller is pending for adjudication in the Court of Rent Controller. In support of his contention the learned Advocate did not point out any provision of law under which relief sought under Tort is not hit by the bar under section 12(2), C.P.C.
9. ' On the other hand, the learned counsel for the defendants argued that the plaintiffs are entitled for the relief asked only in case it is held by the competent Court that the order passed by the learned Rent Controller has been obtained by fraud and misrepresentation. He further argued that the application filed under section 12(2), C.P.C. Filed by the plaintiffs is pending before the Rent Controller and the plaintiffs are avoiding to proceed with the said matter though the matter has been listed time and again for hearing.
10. ' I have gone through the memo. Of plaint as well as documents filed by the respective parties and have also taken into consideration the arguments advanced by the learned counsel. The precise question for determination is whether the order passed by the Court has been obtained by fraud and misrepresentation or not. The plaintiff filed application in the Court of 1st Rent Controller/Senior Civil Judge, Karachi, under section 12(2), C.P.C. Read with proviso of Article 9 of Qanun-e-Shahadat, 1984 and sections 41 and 54 of the Legal Practitioners and Bar Councils Act, 1973 read with sections 193 and 196 of the Pakistan Penal Code: In the said application the plaintiffs sought following reliefs:--
(a) Recall, vacate and set aside the order, dated 15-5-1993 in R.C. No,598 of 1992 passed on the Ejectment Application declaring the same to have been obtained by fraud and misrepresentation;
(b) Ordering annulment of the orders passed and the proceedings taken in the Execution No,15 of 1993;
(c) Restoring possession of the subject premises to the Applicants;
(d) Granting costs to the Applicants;
(e) Sending References to the Sindh Bar Councils against the respondents Nos.2, 3, 4, above- named for their professional misconduct practised in these judicial proceedings;
(f) Directing registration of criminal complaint with the Area Magistrate for prosecution of the respondents under sections 193/196 of the Pakistan Penal code.
11. Section 12(2), C.P.C. Has been added in the Code by Ordinance X of 1980. Through this section a new remedy has been introduced by the Legislature to provide speedy and cheap relief to the affected parties in case the party establishes that the judgment, decree or order has been obtained by fraud, misrepresentation or want of jurisdiction. The remedy for filing suit challenging the judgment, decree or order by way of filing separate suit, which was available to affected parties, is no more available to the parties, and an order/judgment/decree, passed by the Court, can now be questioned by filing application under section 12(2), C.P.C. In the instant case the entire claim is based on the allegation that the order of ejectment passed by the Rent Controller has been obtained by fraud, misrepresentation and due to professional misconduct of defendants Nos.2 to 4, who obtained the said order in collusion with each other by concealing material facts from the Court. Since there is a bar to file/institute any suit questioning the validity of the order passed by the Court, even if such order has been passed without jurisdiction, the present suit, in which the plaintiffs seek declaration that the order has been obtained by perjury in relation to the proceedings in Rent Case No,598 of 1992 and Execution No,15 of 1993, in my view the said declaration cannot be granted.
12. As regards the claim of the plaintiffs for damages, for which the plaintiffs can claim the same only in case competent Court holds that the order was obtained by fraud, misrepresentation and concealment of the facts. The plaintiffs have no cause of action to claim the damages, which damages according to them, have been caused to the plaintiffs while executing the order passed by the Rent Controller.
13. ' In the case of Mrs. Amina Bibi v. Nasrullah and others 2000 SCM R 296, the Honourable Supreme Court held as under:-- "Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redressal of his grievance. Firstly, an application under Order IX, Rule 13, C.P.C.; secondly, an appeal from the ex parte decree under section 96(2), ' C.P.C.; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12(2), C.P.C. Here, the petitioner has exhausted her remedies by filing an application under Order IX, Rule 13, C.P.C. And, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12(2), C.P.C."
14. It is now settled that a validity of a judgment, decree or order could not be challenged by way of an independent suit, questioning the same on the ground of fraud, misrepresentation or want of jurisdiction.
15. ' In the case of Ardeshir Cowasjee and others v. K.B.C.A.. PLD 2003 Kar. 314, my learned brother Mr. S. Ahmad Sarwana and Muhammad Majeebullah Siddiqui, JJ, held as under:- "It may, however, be noted that any person, who is adversely affected by a judgment and decree of a Court has the right to file an appeal against the decree as provided by section 96, C.P.C. The person aggrieved, therefore, has two remedies available to him which exist side by side. Under section 12(2), C.P.C., the aggrieved person without filing a separate suit can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction by simply filing an application under the said section supported by an affidavit. To file such an application, the aggrieved person need not be a party in the suit but he has the right to challenge the same if he is aggrieved or is adversely affected by the judgment, decree or order. (See 1984 SCM R 586 and 1999 SCM R 1516).
16. The Code has thus provided an easy and an inexpensive method of seeking relief without having to pay any court-fee, which would be required in case a suit was to be filed. At the same time any person, who is aggrieved or is adversely affected by a decree also has the right to file an appeal under section 96, C.P.C. Both the remedies are concurrent and one does not exclude the other. It is open to the aggrieved party to choose either of the two. The only distinction between the two remedies, in case the person seeking the remedy is not a party in the suit and wants to file an appeal against the decree is that he must show that he is adversely affected by the decree of the trial Court and obtains leave of the Court to appeal (PLD 1969 SC 65 and PLD 1993 Kar. 548)."
17. In view of above, the plaint is rejected as the same is barred under section 12(2), C.P.C. With no order as to costs. However, I would like to make it clear that in case the Rent Controller after hearing the parties comes to the conclusion that the order has been obtained by fraud or misrepresentation, in that eventuality the plaintiffs may have a right to file suit for damages, if any, suffered by them and the said suit will be decided by the Court strictly in accordance with law.
18. Plaint rejected.