' MUHAMMAD TASNIM, 1.--- Through this order I intend to dispose of application under section 12(2), C.P.C. Filed by the present applicants against the respondents.
2. Brief facts leading to the controversy as per present application are that the respondent No:1 filed Suit No,789 of 2008 against the applicants and respondents Nos,2 to 5 for seeking relief for specific performance and injunction. Such suit was being contested by the defendants. During the pendency of suit the parties settled their dispute outside the Court and accordingly, an application.
Being C.M.A. No,10481 of 2008 under Order XXIII, Rule 3, C.P.C. Was filed. Such application contained the terms of the compromise agreed upon between the parties and was signed by the plaintiff, his counsel, defendants and their counsel more particularly defendant No,2, who is present applicant No,1, signed for self and as Attorney for defendant No,1, who is applicant No,.2 in the present proceedings. The aforesaid application was supported by an affidavit and the same was taken up by the Court on 14-11-2008. At the time of hearing of aforesaid application by this Court the present applicant No,1, namely, Khalid Munawar, was present, who is also Attorney of defendant No,1, who is applicant No,2 in the present proceedings. In presence of the applicant No,1 and his advocate suit was decreed in terms of the compromise application and the suit against defendant No,3 was not pressed, which was accordingly dismissed against defendant No,3. Feeling aggrieved against the aforesaid judgment and decree present application under section 12(2), C.P.C. Was presented in this Cottrt on 16-1-2010 praying therein that compromise decree dated 14-11-2008 passed in Suit No,789 of 2008 be set aside and Suit No,789 of 2008 may be ordered to be dismissed.
3. Along with main application C.M.A. No,415 of 2010 seeking suspension of operation of the decree dated 14-11-2008 was also filed.
4. After notice of this application under section 12(2), C.P.C. Contesting respondent No,1, who was.
Plaintiff in Suit No,789 of 2008, has filed counter-affidavit and denied allegations made in the application `under disposal. It was stated in the counter-affidavit that the present proceedings are full of malice and the same has been instituted just to harass the respondents and with a view to stop the Nazir of this Court to perform his duties in terms of compromise decree of the Court dated 14-11-2008. The present case was taken up by this Court on 25-10-2010 when the learned counsel for applicants was asked to satisfy: this Court as to the maintainability of present proceedings.
Accordingly, office has fixed the case today for order as to maintainability of the case.
5. Learned counsel for the applicants in support of maintainability of the present proceedings has submitted that proceedings are validly initiated, as according to him, respondent No,1 had played fraud with the applicants and had obtained decree dated 14-11-2008 by misrepresentation of facts.
He further submitted that compromise application filed in Suit No,789 of 2008 by the respondent No,1, who had obtained signature of applicant No,1 under pressure; threats to life of applicant No, 1.
He further submitted that respondent No,1 had also extended threats to the applicant No,1 and has caused serious mental torture. Per learned counsel, respondent No,1 had played fraud with the present applicants and in pursuance to such fraud compromise application was manoeuvered and the decree was obtained by the Court, which is liable to be set aside for the aforesaid reasons.
Learned counsel for the applicants in support of his submissions has relied upon following case- law:--
(1) Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782;
(2) La! Din and another v. Muhammad Ibrahim 1993 SCMR 710; and
(3) John Paul v. Lrshad Ali and others PLD 1997 Karachi 267.
6. ,Conversely, Mr. Tasawur Ali Hashmi, learned counsel for the respondent No,1, has submitted that the application in its present form is not maintainable, as through these proceedings consent decree has been challenged. He has further submitted that the applicant No, I has signed application for compromise for self and as Attorney for applicant No,2, he was very much present at the time of passing of order, his advocate was also in attendance. The Court had asked the parties as to whether they accept the compromise or not. The parties present in Court admitted the execution of compromise application so also contents thereof and, thereafter, the Court decreed the suit in terms of compromise application. Learned counsel has invited my attention to an undertaking signed by the present applicant No,1 addressed to the Nazir of this Court, which was delivered to him on 17-2-2009, which reads as follows:--- "We, Mr. Khalid Munawwar son of Munawwar Ali (Late) holding CNIC No,42301-60112; Muslim, adult, resident of Bungalow No,7, Embassy Villas, G/29, Block 8, Clifton, Karachi, self and attorney of defendant No,(1), and Mr. Jawed Munawwar, son of Munawwar Ali (Late), CNIC No,42301- 2953594- 5, Muslim, adult, self and as a attorney of defendant No,(4), have given following undertaking to Mr. Hanif Abdani:--
(1) That as per compromise decree Mr. Hanif Abdani is liable to pay balance sale consideration to Nazir High Court of Sindh within 7 days but delayed because of us. As per compromise decree, I have to obtain General Power of Attorney from Mr. Arif Munawwar in favour of Mr. Khalid Munawwar and Mr. Javed Munawwar and Declaration from MRs, Nafeesa Khalid duly attested from Consulate- General of Pakistan, Washington D.C. Which takes some time.
(2) In compliance of compromise decree the revocation of General Power of Attorneys are all pending with Nazir.
(3) Similarly, the photographs on mutation in KDA /CDGK record is to be replaced at photographs of Mr. Arif Munawwar are to be pasted.
(4) As Mr. Hanif Abdani is already enjoying peaceful physical possession of said premises now we have no objection if Mr. Hanif Abdani will demolish and reconstruct the said premises before the conveyance deed which is still pending for execution in his favour with Nazir High Court of Sindh, Karachi."
7. Learned counsel for the respondent No,1 has also invited my attention to the application being C.M.A. No,10055 of 2009 filed by the applicant No,1 under his own signature in Suit No,789 of 2008 wherein he has stated that the contemnor above named is wilfully and deliberately avoiding the order dated 14-11-2008 passed by this. Court in favour of defendant No,2. He further prayed that the Court may direct the plaintiff/contemnor to fulfil the Court's order dated 14-11-2008, as the plaintiff/contemnor is creating third party interest in the suit premises. He also prayed therein that in terms of consent decree of the Court Nazir may be directed to take over the possession or otherwise, direct the plaintiff/contemnor to deposit remaining amount of Rs,60 Million before the Nazir of this Court. Per learned counsel, after filing of the aforesaid application when it was brought to the notice of the Nazir, who had submitted his report on 8-1-2010 in Suit No,789 of 2008. Per learned counsel, after passing of the consent decree no appeal was filed or any other proceeding was drawn by the present applicants. However, he submitted that present applicant No,1 had filed Const. Petition No,D-1265 of 2009 on 23-6-2009 and such petition was disposed of on 31-3-2010. Per learned counsel, no doubt the allegation with regard to the decree was made in the aforesaid petition, but it was mainly directed against the Federal Investigation Agency and other Government functionaries. Per learned counsel, no observation whatsoever was made by the learned Division Bench with regard to the consent decree passed by this Court in aforementioned suit. Learned counsel has further submitted that on the one hand applicant No,1 was praying to the Court through C.M.A. No,10055 of 2009 that consent decree dated 14-11-2008 may be implemented and on the other hand, after about two years present application has been filed for setting aside the consent decree dated 14-11-2008. It was argued by the learned counsel for respondent No,1 that delay of two years has not been explained by the applicants, therefore, he prayed that present proceedings are liable to be dismissed being not maintainable. Learned counsel for the respondent No,1 in support of his contentions has relied upon following case-law:-
(1) Abdul Hakim v. Shamim Mushtaq Siddiqui and 2 others 1986 CLC 2611,
(2) Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Karachi 183,
(3) Ghulam Akbar v. Muhammad Ilyas and others 1992 MLD 2279,
(4) Mst. Zaitoon v. Mst. Rehmi through L.Rs, 2005 MLD 978,
(5) Messrs GAMA Silk Mills (Pvt.) Ltd. v. Abdus Salam and others 2006 CLC 1113, and
(6) Tanveer Siddiqui and another v. Muhammad Rashid 2010 YLR 1851.
8. Mr. Irfan Haroon, learned counsel for the respondent No,5, has adopted the arguments of the learned counsel for respondent No,1 and has submitted that the present application merits no consideration and the same is liable to be dismissed.
9. I have heard the learned counsel for the respective parties, perused the record of this case with the assistance of the learned counsel and have gone through the case-laws cited at the bar including synopsis filed by the learned counsel for applicants.
10. The submission of the learned counsel for applicant No,1 that signatures were obtained by the respondent No,1 from the present applicants under pressure or threats. An examination of the application under Order XXIII, Rule 3, C.P.C. Reflects that it bears the signature of applicant No,1 for self and for applicant No,2 as attorney, such application was also signed by the advocates of the applicant No,1. At the time of passing of order on application under Order XXIII, Rule 3, C.P.C. The present applicant No,1 was very much present in the Court and did not raise any objection of whatsoever nature. Thereafter, he made statement on 17-2-2009 before the Nazir of this Court, but did not mention anything about the pressure and threat or obtaining signature by the respondent No,1 from the present applicant No,1 on the application under Order XXIII, Rule 3, C.P.C.
11. The applicant No,1 filed C.M.A. No,10055 of 2009 under his own signature in Suit No,789 of 2008 wherein he had stated that the plaintiff/alleged contemnor is deliberately avoiding the order dated 14-11-2008 passed by the Court in favour of the present applicants. He further prayed in that application that the Court may direct the plaintiff to fulfil the Court's order dated 14-11-2008 after about two years of filing such application the present application under section 12(2), C.P.C. Has been filed.
12. The applicants' counsel remained unsuccessful to satisfy this Court as to whether statement made by the present applicant No,1 in C.M.A. No,10055 of 2009 was correct or the allegations made in the present proceedings are correct, as in the above referred C.M.A., the applicants have prayed to the Court for seeking direction for the plaintiffs to implement the decree passed by the Court on 14-11-2008. From the above conduct, the present applicant is not aboveboard.
13. Learned counsel for the applicants in support of his case has placed reliance on the case of Government of Sindh through the Chief Secretary (supra) the facts of reported case were distinguishable as in that case parties who entered into compromise were not the owner of the property, hence after passing of the decree some application under section 12(2), C.P.C. Was made by the person who was the owner of the property, but was not party to the proceedings, which was dismissed by the learned Single Judge of this Court holding the said application is barred by time.
Appeal was filed against the order of the learned Single Judge and such appeal also failed, however, honourable Supreme Court of Pakistan in appeal set aside the judgment and decree passed by the learned Single Judge of this Court and remanded the case for decision afresh.
However, the Court made following observation:- "It appears, that learned trial Court, overlooked the pleadings of he parties, the issues framed and the contents of the application for compromise in the light of the provisions of Order XXIII, rule 3, C.P.C. And section 23 of the Contract Act, before decreeing the suit, otherwise it would have come to its notice that the agreement itself was void and no effective decree touching the property of third party could have been passed. In fact the impugned decree nullified the effect of the orders of the public authorities earlier passed in respect thereto, for instance on the migration of evacuee owner, the treatment of the land in dispute as evacuee property. Its- notification as building site by the Chief Settlement Commissioner, after repeal of Evacuee Laws the property having vested in the Provincial Government and its transfer to various agencies were actions taken by the public authorities in discharge of their functions. These actions could not have been set at naught in collateral proceedings rather the courts were under legal obligation to explore every possible explanation for their validity. In this regard it was held in The Chairman, East Pakistan Railway v.
Abdul Majid Sardar PLD 1966 SC 725 and Lahore Improvement Trust v. The Custodian, Evacuee Property and others PLD 1971 SC 811 that the acts performed and orders made by public authorities; deserve due regard by the courts and every possible explanation for, the validity should he explored."
14. From the perusal of the above-quoted judgment it would be seen that -the.. Facts of the reported case and the instant case are entirely distinguishable. Hence the rule laid down in the aforesaid judgment does not apply to the present case.
15. The other judgment cited by the learned counsel for applicants in the case of Lal Din (supra), an examination of above reported case shows that some documents were forged which was brought on record and thereafter decree was obtained by the Court based on such forged documenk, but in the present case no allegation of placing any forged documents has been made by the applicants. In the circumstances, reported case is based on different set of facts and ratio of the judgment is not attracted to the present case, therefore, the judgment cited by the learned counsel is distinguishable on facts.
16. The third judgment cited by the learned counsel for applicants in the -case of John Paul (supra) in said reported case some General Power of Attorney containing the power of sale was brought on record, which was allegedly executed by the petitioner at the time when the petitioner was in Saudi Arabia and based on such Power of Attorney proceedings were conducted and decree was obtained by the Court. After having knowledge of the decree the aggrieved person approached the Court by means of application under section 12(2), CPC, the said reported judgment is also distinguishable on facts and does not apply to the instant case.
17. The judgment cited by the learned counsel for respondent No, 1 in the case of Tanveer Siddiqui (supra) it was observed by the learned Single Judge of this Court that the provisions of section 12(2), C.P.C. Cannot be used as substantive or alternative for the petitioners remedy of appeal.
Once a contesting or defaulting party gives up or fails to avail remedy of appeal. Then the matter attains finality and remains no more open to challenge. Remedy of section 12(2). C.P.C. Would be available to a person, who was either not party to proceedings or if was a party but was not duly served with the summons or notice and ex parte proceedings. Were drawn against him. But in the instant case, the applicants have failed to point out any fraud played upon the Court or any misrepresentation before the Court on the basis of which decree was passed by the Court. In the present case as submitted earlier E compromise application was signed by the applicants and he did not raise any objection regarding his signature thereupon and even he was present in Court at the time of passing of decree and did not raise any objection.
18. Learned Division Bench of this Court in the case of Messrs GAMA Silk Mills (Pvt.) Ltd. (supra) while deciding an appeal directed against the order passed on the application under section 12(2), C.P.C.
Held that internal family dispute would fall beyond the limited scope of application under section 12(2), C.P.C. Which would only be agitated before the proper forum, but could not be the basis for setting aside the compromise decree. In the present case as well, the dispute with regard to the property, share or entitlement is amongst the applicants and other party to the proceedings, but there is nothing on record to show that some fraud was played upon the Court or order was obtained by misrepresentation of facts.
19. In the case of Abdul Hakim (supra) wherein consent decree was challenged through an application under section 12(2), C.P.C. a learned Single Judge of this Court (as he then was) while dealing with the matter came to the conclusion that compromise application having being signed by the parties and their counsel held could not be set aside because in the said reported case petitioner has made grievance about mistake in the compromise application, but merely because there is an alleged mistake which does not seem to be prima facie correct does not entitle the petitioner to file application under section 12(2), C.P.C. And the application was dismissed with costs.
20. After having examined the record and case-laws cited by the parties I am of the view that no case for invoking the provisions of section 12(2), C.P.C. Has been made out, as in the first place the applicants have admitted the decree and even otherwise, have filed application to the Court for implementation thereof and he has also taken steps before the Nazir for execution of the decree passed by the Court by consent of the parties, but after passage of two years time present application under section 12(2), C.P:C. Has been filed praying therein that consent decree be set aside. The applicants have failed to point out any fraud. Or misrepresentation of facts before the Court, hence the application under section 12(2), C.P.C. Merits no consideration, which is accordingly-dismissed along with all the pending applications.