1. ' MUHAMMAD ALI MAZHAR, J.--- This application is brought under section 12(2), C.P.C. For setting aside a decree passed by this Court in Suit No,1223 of 2005. In the application, it has been stated that applicant is the owner of double storey House bearing No,B-15/2, Block-4-A, K.D.A No,24, Gulshan-e-Iqbal, Karachi admeasuring 416.66 square yards. On approaching by local Estate Agent, she agreed to sell the said property to one Mr. Dabir Ali Khan in June, 2004, who paid a sum of Rs,50,000 out of the total sale consideration of Rs,78,00,000 and after payment of advance money Mr. Dabir Ali Khan left for United Kingdom hence the said deal could not, be materialized with him.
2. When the said deal was not materialized, the Estate Agent introduced the respondent who agreed to purchase the property for a total sale consideration of Rs,83,00,000 and before execution of sale agreement the respondent gave a cheque dated 11-10-2004 in the sum of Rs,50,000. The sale agreement was executed on 19-10-2004 between the applicant and respondent and at that time the respondent also gave two pay orders both dated 18-10-2004, one for Rs,15,00,000 and another of Rs,4,50,000. The pay order of Rs,4,50,000 drawn on Al-Baraka Islamic Bank Lakhani Centre,
1. I.
3. Chundrigar Road, Karachi, was in the name of MCB Consumer Assets Division, Housing Loan A/C 53/005 (Mrs. Azra Shabbir) and there was a cutting and correction therefore, it was not accepted by the applicant and the same was returned back to the respondent with the understanding that she will prepare another pay order for the said amount. The applicant/defendant was not ready to execute sale agreement but promise was made and assurance was given by the respondent/plaintiff that she will make payment of Rs,4,50,000 through pay order. The applicant presented the cheque of Rs,50,000 but the same was returned with endorsement "Drawer's signature differs". The said fact came into the knowledge of applicant when she was out of country in November 2004. The respondent failed to make any payment through pay order as mentioned in the agreement to sell and in such a way the respondent cheated, defrauded the applicant and failed to fulfil her promise for the payment of the said amount as well as the amount of said dishonoured cheque. The applicant/defendant on numerous occasions approached the respondent/plaintiff through the Estate Agent for the payment of said amount but the respondent paid no heed, therefore, the applicant through her advocate requested the respondent to pay said amount as well as balance sale consideration of Rs,33,00,000.00 as per Clause (5) of the Agreement to sell dated 19-10-2004. The applicant for her performance of agreement submitted an application on 21-10-2004 to the Senior Vice-President Head (Consumer Assets Division), MCB, Lahore for release of original title documents of the property as well as redemption of the mortgage which fact was within the knowledge of the respondent prior to the execution of the agreement to sell of the property. When the respondent failed to pay the amount of dishonored cheque and pay order for an amount of Rs,4,50,000 as well as failed to perform Clause (5) of the agreement to sell, the applicant/defendant served a legal notice on 19-12-2004 through her Advocate, whereby she had cancelled the agreement to sell. The respondent deliberately, intentionally, with the mala fide intention and ulterior motives did not disclose the fact and wrongly mentioned in paragraph 3 of the plaint that "the plaintiff has paid Rs,50,000 through cheque bearing No,174670 dated October 11, 2004 drawn in National Bank Limited, Alamgir Road Branch, Karachi." Whereas the said cheque was dishonoured hence the plaintiff has not made any payment of Rs,50,000 to the applicant. Additionally, the plaintiff has stated in paragraph 3 of the plaint that an amount of Rs,4,50,000 has been paid to applicant through pay order dated 18-10- 2004, which pay order was deposited in the name of the applicant but on the said pay order it was clearly written that "pay to the order of MCB, Maisam Plaza Branch, Gulshan-e-Iqbal, Account No, 013623-3, Mrs. Azra Shabbir" and no such amount was paid to the applicant by the respondent, thereby the respondent by misrepresentation of facts played fraud upon the Court and obtained the Ex parte Judgment and Decree.
4. ' The applicant/defendant on coming to know about the judgment and decree, engaged an Advocate and filed High Court Appeal No,05 of 1997 against the Judgment and Decree, which appeal was dismissed, whereafter, she filed the Civil Petition bearing No,113-K of 2007 in the Hon'able Supreme Court, which was also dismissed. The Hon'able Supreme Court has held that the applicant is partly responsible for her pathetic condition as she had been neglected in pursuing the suit filed against her and failed to file the written statement as a result whereof the suit was ordered to proceed ex parte against her and she never bothered to move the trial court to set aside the ex parte decree and provide her an opportunity to contest the matter. It is further stated in the application that the respondent herself did not perform her part of the agreement although, the applicant on numerous times orally requested the respondent to perform her part of the agreement but she failed to do so, as such the applicant through her Advocate cancelled the agreement to sell dated 19-10-2004. In nutshell, the applicant has prayed that the judgment and decree dated 6-10-2006 may be set aside as the same was obtained by the respondent through misrepresentation of facts and playing fraud upon the court.
5. ' The respondent filed her counter-affidavit in which she has stated that applicant is no longer the owner of the suit property and sale-deed was executed in her favour on 25-2-2009 by the Nazir of this Court in Execution Application No,9 of 2007, which was allowed on 3-9-2008, however physical possession has yet to be handed over to her. The respondent stated that paragraph 2 of the application are events preceding the agreement between herself and the applicant hence not within her knowledge. The respondent does not deny the over-writing on the pay order of Rs,4,50,000. However, the over-writing was duly attested by the bank. It was the applicant who requested to change the description of the payee when the pay-order had already been made. It was denied that the said pay-order was returned to her. The said pay order was accepted and presented by the applicant, the sum duly credited to the account of the applicant on 22-10-2004 which is reflected from the statement of account of the applicant and speaks for itself which is further confirmed by the letter of the bank which verified the payment to the applicant. It was also stated that the payment of Rs, 50,000 was effected by Cheque No, 1743671 dated 25-10-2004 and not by Cheque bearing No,1743670 dated 11-10-2004 for the reason that Cheque No,1743671 dated 25-10-2004 was given to the applicant when she informed the respondent that her earlier cheque had been returned on account of variation in the signature. The Cheque dated 25-10-2004 was duly encashed by the applicant's husband Mr. Shabbir Ahmed whose signature can be verified from annexures already on record. The mentioning of cheque No,1743670 in the plaint instead of cheque No,1743671 is a typographical error. It is also denied that the respondent failed to fulfil her promise in any manner. The payments now being disputed by the applicant were in fact received by her. From the letter addressed by the applicant to the bank it seems that the intention of the applicant was to redeem her property at respondent's cost and then to resile from the sale agreement and commitment. It was also stated that the applicant has received both the payments of Rs,50,000 and Rs,4,50,000, which are now being disputed by her. It is denied that respondent played any fraud or misrepresentation. The decree was passed ex part when the applicant failed to defend the subject suit despite service. The entire sale consideration has been paid and the application is not maintainable. It is also stated in the counter-affidavit that the subject decree was assailed before the Divisional Bench of this Court in HCA No,5 of 2007 and then before the Hon'able Supreme Court in C.P. No,113-K of 2007. The plea taken now before this Court that a sum of Rs,5,00,000 was not paid, was never taken in HCA No,5 of 2007. It is manifest that the application under reply is an afterthought, frivolous and an abuse of the process of this Court, which is liable to be dismissed with exemplary costs. It is also stated that the applicant having exhausted her remedy by way of appeal, the application under section 12(2), C.P.C. Is not maintainable.
6. ' I have heard the learned counsel and have perused the material available on record. Mr. Haleem Siddiqui, the learned counsel for the applicant argued that the applicant is the sole and absolute owner of the subject property. The earlier deal of the same property was not materialized, the Estate Agent introduced the respondent who agreed to purchase the property for a total consideration of Rs,83 Lac. Before execution of sale agreement, the respondent had delivered a cheque in the sum of Rs,50 thousand and the sale agreement was executed on 19-10-2004. The applicant was not ready to execute the sale agreement, however on the basis of a promise that the respondent will make payment of Rs,4,50,000 through pay order, the agreement was executed, besides that the cheque delivered by the respondent to the applicant in the sum of Rs,50 thousand was also dishonoured with the remarks "drawer's signatures differs". He further argued that the respondent failed to make any payment of Rs,4,50,000. The applicant on numerous times approached to the respondent for the aforesaid payment but on one or the other pretext the payment was delayed, therefore vide legal notice dated 3-12-2004 the applicant called upon the respondent to pay the aforesaid amount as well as balance sale consideration of Rs,33 lacs. When the respondent failed to fulfil the requirement of the legal notice and payment of balance sale consideration, the applicant served a legal notice on 19-12-2004 whereby the agreement to sale was cancelled. In fact, the respondent disputed the payment of Rs,5 Lac. Finally, the learned counsel argued that though an ex parte decree was challenged in the High Court Appeal and thereafter in the Supreme Court, this application under section 12(2), C. P.C. Is maintainable and the ex parte decree is liable to be set aside. In support of his arguments, the learned counsel relied upon following case-law:-
(1) Government of Sindh v. Khalil Ahmed 1994 SCMR 782. In this judgment, the Hon'able. Supreme Court has held that application under section 12(2), C.P.C. Should not have been dismissed on the ground of limitation as where the decree was obtained by fraud, question of limitation for setting aside the same would not arise. In the same judgment, the Hon'able Court further held that fraud vitiates even the most solemn proceedings and Courts of general jurisdiction are competent to Suo Motu recall decrees obtained from it by fraud.
(2) Abdur Rehman Khan v. Muhammad Altaf 1997 CLC 1260. In this judgment, the learned Divisional Bench of this Court has held that fraud would vitiate the most solemn of the transactions and would render the same as voidable and nullity in the eye of law and it was not necessary to examine the plea of fraud with a view to determine the possibility of commission of fraud by the respondents and its effect. There could be no room for doubt that any allegation of fraud whether it was specifically made during the course of proceedings in any Court or Tribunal or whether the party raising issue of fraud made reference to it by using words "collusion", "surreptitiousness" and "concealment", necessarily would cast duty upon the Court or Tribunal to hold an inquiry as to the allegation of fraud.
(3) Lodhran Cotton Ginners (Pvt.) Ltd. v. Zaffar Saleem and Brothers 1992 CLC 980. In this judgment, the learned Single Judge of this Court discussed the meaning of misrepresentation and fraud and held that fraud means anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it was an act, a word, silence, the suppression of truth, or other device contrary to plain rules of common honesty. "Fraud" and "misrepresentation" are more or less synonymous. In the same judgment, the learned Single Judge has also defined the meaning of "misrepresentation" and held that misrepresentation means the statement of untruth, a misstatement of fact, which if accepted, would lead the mind to an apprehension of a condition other and different from that which existed. The learned Judge has held that fraud and misrepresentation are more or less synonymous. Any judgment or order obtained by fraud or misrepresentation would be a nullity in eyes of law and thus liable to be set aside.
(4) Mrs. Anis Haider v. S. Aamir Haider 2008 SCMR 236. The Hon'able Supreme Court has held that application under section 12(2) containing serious allegations of forgery and fraud could not be decided without recording evidence.
7. ' The learned counsel for the applicant concluded his arguments with the bottom line that suit was wrongly decreed ex parte and his client was never served with the summons and the respondent has defrauded the payment of at least Rs,5 Lac to the applicant and in the light of aforesaid judgments, which are related to the cases of fraud, misrepresentation, the case of his client is at par and deserves the same treatment. To a query raised by this Court whether this application is maintainable at this stage when the applicant has already made recourse to the High Court Appeal and Civil Petition in the Supreme Court of Pakistan, the learned counsel replied that though his client agitated the ex parte judgment in the High Court Appeal, which was dismissed and further challenge to the Supreme Court was also declined but in spite of dismissal of both the appropriate remedies availed for redress, this application under section 12(2) is quite competent and in this case he has challenged the decree not in normal circumstances but against the fraud and misrepresentation therefore the first round of litigation availed cannot be treated past and closed transaction in this matter and cause is still alive.
8. ' Mr. Adnan Chaudhry, the learned Advocate for the respondent argued that after execution of conveyance deed by the Nazir of this Court in pursuance of decree, the applicant is no more owner of the property and only physical possession is to be handed over to the respondent for which Execution Application No, 9 of 2007 is pending adjudication in this Court. The learned counsel further stated that the payment of Rs,4,50,000 by way of pay order was made. The said pay order was accepted and presented by the applicant and the amount credited to the account of applicant on 22-10-2004, which is reflecting from the statement of accounts and confirmed by the letter issued by the banker. So far as the payment of Rs,50,000 is concerned, this payment was effected by Cheque No, 1743671 dated 25-10-2004 and not by Cheque No,1743670 dated 11-2-2004 for the reason that Cheque No,1743671 was given to the applicant when she informed the respondent that applicant's earlier cheque was dishonoured due to variance in signatures. The Cheque dated 25-10-2004 was duly encashed by the applicant's husband Mr. Shabbir Ahmed whose signatures can be verified from the annexures already on record. The applicant has already received both the payments and with mala fide intention, she is disputing to reopen the past and closed transactions and trying to avail the opportunity to agitate the decided issue in the second round of litigation. The learned counsel has filed copy of memo. Of High Court Appeal, judgment of this Court passed in HCA and judgment of Hon'able Supreme Court of Pakistan. In the memo: of appeal, the applicant took eight (8) grounds which are reproduced as under:- "(1) That the appellant was never served through summons and had no knowledge about the pendency of the suit.
(2) That the respondent has not informed the Hon'able Court about the real facts of the case. The respondent has not paid money in time and the loan of Rs,33,00,000 has increased up to Rs,63,00,000 due to non-payment of the sale consideration by the respondent.
(3) That the respondent had not paid remaining amount of Rs,30,00,000 in January, 2005 as has been mentioned in the sale agreement.
(4) That the respondent had concealed this fact from the Hon'able Court and the Judgment of learned Single Judge is silent on these points.
(5) That the cheques issued by the respondent in the initial stage were dishonoured by the Bank.
(6) That the appellant has very good case on merits and wants to contest the same on merits.
(7) That the appellant may be allowed to file written statement in this case.
(8) That the appellant craves leave of this Hon'able Court to raise further grounds at the time of hearing of this appeal."
9. ' The ground No,1 pertain to non-service of summons, ground No,3 relates to the non-payment of balance sale consideration, ground No,5 relates to the cheques issued by the respondent, which were dishonoured by the Bank. The grounds raised in appeal demonstrate that the applicant has already agitated all her grievances in the High Court Appeal. The learned counsel further invited my attention to a statement dated 23-12-2008 along with the same he has filed judgment of High Court Appeal dated 16-5-2007 and judgment passed by Hon'able Supreme Court on 29-5-2007 in Civil Petition No,113-K/2007. The ex parte decree passed by this court was uphold in the High Court Appeal and thereafter the judgment of High Court Appeal was affirmed by the Hon'able Supreme Court of Pakistan. The learned counsel referred to annexure R/3 to the counter-affidavit which is a letter dated 2-6-2009 issued by AlBaraka Islamic Bank, in which the AVP (operations) confirmed that the pay order in favour of Mrs. Azra Shabbir in the. Sum of Rs,4,50,000 was paid on 22-10-2004, besides that, he also referred to annexure R/4 to the counter affidavit, which is a Cheque No,1743671, drawn on National Bank of Pakistan, Alamgir Road Branch, dated 25-10-2004 amounting to Rs,50,000 which was also encashed. In support of contention, the learned counsel for the respondent relied upon following precedents:--
(1) Ardeshir Cowasjee v. K.B.C.A and others PLD 2003 Karachi 314. In this judgment, the learned Division Bench of this Court has discussed the remedies available to a person to challenge the decree and held 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. The person, therefore, has two remedies which existed 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. At the same time, any person who is aggrieved or adversely affected by decree also has a right to file an appeal under section 96, C.P.C. Both remedies are concurrent and one does not exclude the other. It is open to aggrieved party to choose either of the two.
(2) North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418. In this judgment, the Hon'able Supreme Court has discussed the power of the Appellate Court and held that section 107(2) was enacted to fill in the gaps in the procedure, whereunder, Appellate Court has the same powers and burdened with the same duties, as conferred and imposed on the trial Court. It has been further held that provision of Order XLI, Rule 33 gives wide discretionary powers to Appellate Court to adjust the rights of parties, as the ends of justice may demand and pass such decree or order, as ought to have been passed.
(3) Mst. Sabiran Bibi v. Ahmed Khan 2008 SCMR 226. The Hon'able Supreme Court has discussed the provisions of section 12(2), C.P.C. And held that same was not entertainable after dismissal of petition for leave to appeal before Supreme Court and review application. The Hon'able Court further held in the same judgment that if a point had not been raised at the hearing of said petition and not even at review stage before the Supreme Court, no new point of fact or law could be allowed to be urged in the proceedings under section 12(2), C.P.C. The application was dismissed awarding cost of Rs,5000 to respondents for unnecessarily dragging them to the Court.
(4) Gulzar Ahmad v. Muhammad Rashid 1993 CLC 824. The learned Single Judge of Lahore High Court has discussed the principle of merger in this case. It has been observed that decree of trial Court when appealed against would merge into the judgment passed by the Appellate Court therefore application under section 12(2), C.P.C. Would lie in the Appellate Court and not in the Court of first instance
(5) Banque Indo-suez v. Rehmani Brothers 1993 CLC 1257. In this judgment also, the learned Single Judge of this Court has discussed the doctrine of merger and held that where judgment and decree passed by the trial Court had merged in decree passed by the Appellate Court, application under section 12(2), C.P.C. Would not lie before trial Court but before the Appellate Court.
(6) Mrs. Amina Bibi v. Nasrullah 2000 SCMR 296. In this judgment, the Hon'able Supreme Court has discussed the remedies and options available to an aggrieved person for his redress against ex parte judgment and decree. The Hon'able Court has held that where civil suit was decreed ex parte, various remedies available to aggrieved person are: firstly, filing application under Order IX, Rule 13, C.P.C.; secondly, appeal under section 96(2), C.P.C.; thirdly, petition for review under section 114 read with Order XLVII, C.P.C. And fourthly, petition under section 12(2), C.P.C. Petitioner having exhausted remedy by filing an application under Order IX, Rule 13, C.P.C., she could not be permitted to re- agitate same issue by means of fresh petition under section 12(2), C.P.C. In the same judgment, the Hon'able Supreme Court further held that while dealing with allegations under section 12(2), C.P.C., it was not incumbent upon Court that it must, in all circumstances, frame issues, record evidence and follow procedure prescribed for decision of the suit.
10. ' The decisive consideration in this case is whether this application under section 12(2), C.P.C. Is maintainable after exhausting appropriate remedy of Appeal and Civil Petition to the Supreme Court of Pakistan. Though, the legislature has introduced subsection (2) of section 12, C.P.C. With a broad scope and instead of mentioning the word "defendant", the A word "person" has been used which gives even the third party a right to challenge a decree if it is obtained by way of fraud and misrepresentation but at the same time it is also to be kept in mind that the remedy provided under section 12(2), C.P.C. Cannot be equated or treated at par to a remedy of review or revision. In this case, the entire controversy has already been resolved and attained finality in the earlier round of litigation therefore, the applicant has no lawful excuse or justification to re-agitate the settled controversy again and again by resorting to different remedies not meant for the purpose for which the same has been utilized in this case. I have myself checked the memo. Of High Court Appeal minutely, which is available with the counter-affidavit of the respondent. The ground at Serial No,1 relates to the non-service of summons while in ground No,3 the applicant raised nonpayment of balance sale consideration while ground No,5 directly related to the dishonouring of cheque. The applicant has raised almost same grounds in this application, which were agitated by her in High Court Appeal. The High Court Appeal was dismissed, which order was further affirmed by the Hon'able Supreme Court. In fact, the concurrent findings of this Court have been approved/affirmed by the Hon'able Supreme Court of Pakistan. After failure in the High Court Appeal, the applicant has raised similar grounds to re-agitate the same issue, which has been finally decided by this Court. The judgments relied upon by the learned counsel for the applicant are highly distinguishable to the facts and circumstances of this case. In all judgments quoted above, the Superior Courts have discussed the meaning of fraud and misrepresentation, limitation against void order and Suo Motu power of the Court to set aside the decree if fraud or misrepresentation is apparent on the face of the record. None of the judgments cited above have come across to a situation whereafter dismissal of appeal up to the level of honourable Supreme Court, the party was allowed or entertained to, move application under section 12(2), C.P.C. For re- agitating the past and closed transactions as a fresh cause of action. The learned counsel for the applicant has also failed to satisfy this Court either by way of arguments or through the strength of any judgment of the Superior Courts in which a party was allowed to resurrect the decided issues under section 12(2), C.P.C. After the dismissal of appeal and petition by the Supreme Court of Pakistan. However, the judgments cited by the learned counsel for the respondents are relevant to take guidance on the availability of different remedies available to an aggrieved person. The Division Bench of this Court has already held in PLD 2003 Karachi 314 that any person, who is adversely affected by a judgment and decree has a right to file an appeal under section 96, C.P.C.
11. The person, therefore, has two remedies which existed side by side.. Under section 12(2), C.P.C., an aggrieved person without filing a separate suit can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction. To file such an application, an aggrieved party need not be a party in the suit but he has a right to challenge the same. At he same time, any person, who is aggrieved or is adversely affected by a decree also has a 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 aggrieved party to choose either of the two. Another judgment of Hon'able Supreme Court 2000 SCMR 296 prescribed a guideline and also discussed the different remedies available to an aggrieved person.
12. According to the judgment of the Supreme Court, an aggrieved person can avail four different remedies. Firstly, application under Order IX, Rule 13, C.P.C., secondly, appeal under section 96(2), C.P.C,; thirdly, petition for review under section 114 read with Order XLVII and fourthly, petition under section 12(2), C.P.C. The most important and crucial point in this judgment is that after availing any one of the remedies provided, the aggrieved person cannot opt another remedy by exhausting earlier one, therefore, the Hon'able Supreme Court in this judgment has held that the petitioner having exhausted remedy by filing an application under Order IX, Rule 13, C.P.C., she could not be permitted to re-agitate same issue by means of fresh petition under section 12(2), C.P.C. Since in this case the maintainability of the instant application is also under challenge, the core issue to decide is whether after dismissal of High Court Appeal and Petition by Hon'able Supreme Court of Pakistan, the applicant is entitled to re-agitate same cause by availing remedy under section 12(2), C.P.C., therefore it is not necessary for me to frame any issue and entire application may be decided on the basis of arguments and available record. The Hon'able Supreme Court has already held in its judgment reported in Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46 that Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. Matter is left to the satisfaction of this Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, the Court may in its discretion adopt any mode for its disposal. The applicant has already availed all best possible remedies up to the level of honourable Supreme Court, now at this stage, he has no plausible and cogent justification to file application under section 12(2), C.P.C. For resurrecting the earlier decided matter which has attained finality against her. If such type of misconceived applications are entertained, there will be no end. It will amount to grant a license to every lost/unsuccessful litigant to first avail all best possible remedies up to the level of honourable Supreme Court then file application under section 12(2), C.P.C. To commence second round of litigation for dragging the opponent in a vaxatious proceedings.
13. 'The whys and wherefores lead to me to conclusion that the application is not maintainable which is dismissed with no order as to cost.