1. ' SYED HASAN AZHAR RIZVI, J.--- The applicants by the present Judicial Miscellaneous Application bearing No,34 of 2009 under section 12(2) read with section 151, C.P.C. Have challenged the order and decree dated 6-3-2009 obtained by the respondents Nos.1 and 2 in Suit No,642 of 2006 (Hammad Asif Dosslani versus MRs, Badr-e-Rahim and another).
2. ' Brief facts of the case are that Lt. Col. (R) S.H.M. Zaidi the predecessor-in-interest of the applicant had filed a suit bearing No,426 of 1987 against the respondent No,2 MRs, Badar Rahim in this Court for specific performance of contract, declaration and permanent injunction claiming himself to be the owner and beneficiary of property bearing Plot Nos.23/I and 23/II Mehmoodabad Road, D.H.A.
3. Karachi and respondent No,2 above named as ostensible/benami owner thereof and further sought relief of direction to specifically perform her obligations under two affidavits dated 10-12- 1977 and 18-2-1985. On 10-6-1987 interim injunction was granted restraining the respondent No,2 MRs, Badar Rahim from disposing of the property, the interim order was confirmed by this Court vide order dated 6-8-1987. Thereafter, vide order dated 19-8-1990 the respondent No,2 who had already got "A" Lease in respect of the aforesaid properties was restrained from obtaining 'B' Lease from the DHA till decision of the suit and further restrained to mortgage or otherwise encumber the said property and dispossess the plaintiff from any part thereof except in accordance with law.
4. After change in pecuniary jurisdiction of this Court, the aforementioned suit was transferred to District Judge, Karachi (South) where it was numbered as Suit No,2227 of 1996 and was assigned to learned VI Senior Civil Judge, Karachi (South) where that suit was dismissed for non-prosecution vide order dated 9-10-2000. The Application for restoration was filed on 5-11-2004 by the applicants and that suit was restored on 18-12-2004.
5. ' On 21-12-2004 the applicants above named filed an application under Order I, Rule 10 read with section 151, C.P.C. In Suit No,2227 of 1996 for impleading the respondent No,1, whom the respondent No,2 had agreed to sell the suit property subject to approval by the trial Court of learned Senior Civil Judge and Muhammad Yousuf Moosa whom the respondent No,2 had fraudulently and surreptitiously sold out and transferred Plot No,23-II part of the suit property and Defence Housing Authority, Sub-Registrar T. Division and Province of Sindh through Secretary Land Utilization, Board of Revenue Sindh, Karachi. After receipt of notice of application under Order I, Rule 10, C.P.C. The respondent No,1 had filed his counter affidavit on 22-3-2006. It is alleged in the application by the applicants that the respondent No,1 with mala fide intention filed Suit No,642 of 2006 on 16-5-2006 in this Court against the respondent No,2 MRs, Badar Rahim and respondent No,3 Defence Housing Authority, Karachi for specific performance and injunction. The respondent No,1 filed copy of the said application under Order I, Rule 10, .C.P.C. In Suit No,642 of 2006 as Annexure 'E' however, in affidavit of Major (R) Syed Jaffar Siddiq Nizam in support of the said application under Order XXXIX, Rule 2(3), C.P.C. Read with sections 3 and 4 of the Contempt of Courts Act, 1976 against the respondents. It is stated in the application that the respondents have suppressed the factum of filing Suit No,642 of 2006 filed by respondent No,1 against the respondents Nos.2 and 3 however, the Counsel for the respondent No,1 filed a statement on 22--12-2008 in Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South) that copies of order and decree passed in Suit No,642 of 2006 on 6-3-2009 by this Court along with copy of compromise application under Order XXIII, Rule 3, C.P.C. (C.M.A. No,2103 of 2009) filed by the respondents Nos.! And 2 in that suit. The applicants in their applications stated that the compromise order and decree in Suit No,642 of 2006 was obtained by the respondents by playing fraud, misrepresentation and concealment of facts that Suit No,2227 of 2006 was pending in the Court of VI Senior Civil Judge, Karachi (South) filed by the predecessor-in-interest of the applicants, who had been claiming himself to be real owner of the said property and respondent No,2 as benami/ostensible owner and at the same time claiming specific performance of obligations by the respondent No,2 in respect of same property created under two affidavits dated 10-12-1977 and 18-2-1985, executed by the respondent No,2 for transferring the title of suit property in favour of predecessor in interest of applicants.
6. ' It is also stated by the applicants in the application that respondents Nos.1 and 2 in collusion with each other obtained order and decree in Suit No,642 of 2006 dated 6-3-2009 by playing fraud and misrepresentation. However, it was admitted in para-9 of the said application that the sale agreement dated 7-8-2004 executed between the respondents Nos.1 and 2 in respect of the suit property was duly witnessed by one of the applicants/legal heirs of Lt. Col. (R) G.M. Nizamuddin in token of consent by all the legal representatives of said deceased but submits that Major (R) Syed Jaffar Siddiq Nizam son of Lt. Col. (R) G.M. Nizamuddin the applicant No,9 had signed the sale agreement dated 7-8-2004 executed between the respondents Nos.1 and 2 as witnesses in his personal capacity on the assurance of respondent No,2 who is widow of applicant's No,9 maternal uncle that the said sale agreement would be got suppressed by the Court in Suit No,2227 of 1996 and the sale consideration will be shared at 55% by the respondent No,4 and 45% by the applicants. It is stated in the application that in view of provision of section 52 of the Specific Relief Act alleged sale agreement dated 7-8-2004 was invalid documents and no further action could have been taken thereto and the same was brought on record by the parties in Suit No,2227 of 1996. In support of the application under Order 12(2) affidavit of applicant No,9 Major (R) Jaffar Saddiq Nizam has been filed.
7. ' Respondent No,1 has filed his counter-affidavit to the application under section 12(2) C.P.C.
8. Respondent stated in his counter-affidavit that the sale transaction of two properties bearing Plots Nos.23/1 and 23/2, Mahmoodabad Road, Phase-I, DHA, Karachi was executed between him and respondent No,2 with complete blessings of the applicants as the applicant No,9 who is also holder of registered General Power of Attorney from all the other applicants had signed the sale agreement dated 7-8-2004 as an attesting witness in token of his assent whereas respondent No,2 had signed the said agreement as vendor. Respondent No,1 in his counter-affidavit has referred Annexure A/5 where applicant No,9 on behalf of applicants filed an application under Order I, Rule 10, C.P.C. In Suit No,2227 of 1996 or Suit No,426 of 1987 and along with that application affidavit of applicant No,9 has been filed. In paragraph No,3 of that application applicant No,9 stated, which has been reproduced in the counter affidavit of respondent No,1. For the ready reference the same contents are being reproduced hereinbelow:-- "That I say that the defendant, MRs, Badar Reheem is the wife of the plaintiff's maternal uncle Syed Abdul Raheem, therefore, for a long time there had been negotiations between the parties for a outside the court compromise, which was recently finalized, whereby it was settled that the suit property, comprising of two separate Plots Nos.23/I and 23/II, measuring 1600 Sq. Yards (approx.), Mehmoodabad Road, Phase-I, DHA, Karachi, be disposed of at highest possible price and after deducting the expenses, payment of dues and other charges, the consideration amount would be shared at 55% by the defendant and 45% by the plaintiffs. Thereafter, by mutual consent a sale agreement dated 7-8-2004 was signed by the defendant and the proposed defendant No,2, Mr. Hammad Asif Doslani, also signed by me as its one of the attesting witnesses. The sale consideration was fixed at the rate of Rs,19300 per Sq. Yards, out of which the said proposed defendant No,2 made advance payment of Rs,35,00,000 and the balance payment was to be made after hundred days of the date of sale agreement, on or before 17-11-2004 . "
9. ' It is further deposed in the counter-affidavit by the respondent No,1 that the Attorney of the applicants had also confirmed-preparation of an application for compromise in Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South), which had been duly signed by him as well as Mr. Badar Alam learned counsel for the applicants (who is also appearing for the applicants). The sale of the two properties in his favour and thus, the applicants as well as respondent No,2 was with full understanding and the judgment and decree in Suit No,642 of 2006 passed by this Court on 6-3- 2009 in consonance with the terms of compromise reached between applicants and respondent No,2 and Mr. Badar Alam Advocate had drafted the said compromise application and incorporated therein all the terms of compromise. Respondent No,1 further submits in his counter affidavit that as admitted by the applicants the respondent No,1 was not party to the proceeding in Suit No,426 of 1987 (renumbered as Suit No,2227 of 1996) and he was informed that respondent No,2 was owner of Plots Nos.23/I and 23/11, Mahmoodabad Road, Phase-I, DHA, Karachi and by agreement dated 7-8- 2004 Respondent No,2 had agreed to sell the said properties to him at the rate of Rs,19,300 per square yard. It is further stated that the agreement referred to above contained recital to the effect that respondent No,2 was seized, possessed and entitled to the two plots and had agreed to sell and transfer the same in favour of respondent No,1. The attorney of the applicants namely Major
(R) Syed Jafar Saddiq Nizam applicant No,9. Had signed the said sale agreement as well as receipt of payment of Rs,35,00,000 as an attesting witness leading to an inference that the respondent No,2 was exclusive owner of the above described property.
10. ' Respondent No,1 further stated in the counter-affidavit that assuming without conceding that the applicants have any right in respect of the two plots, they cannot setup hostile title after making respondent No,1 believe that the respondent No,2 is lawful owner of the two plots. Respondent No,1 lawfully acted with the belief that the two plots were owned by the respondent No,2. It is further stated that the other Plot No,23/I, Mahmoodabad Road, Phase-I, DHA, Karachi had also been transferred in favour of respondent No,1 against receipt of balance sale consideration of Rs,16,450,800 but the respondent No,1 and the applicants collusively denied the right in terms of agreement dated 7-8-2004. Respondent No,1 has also stated that the Suit No,2227 of 1996 was dismissed on 9-10-2000 and restored on 18-12-2004 whereas the sale agreement was executed on 7-8-2004 before restoration of Suit No,426 of 1987 which was renumbered as Suit No,2227 of 1996 and there was no interim injunction operating at the relevant time. Respondent No,1 further stated that the applicants have tried to mislead this Court while stating in para-5 of the application that the respondent No,1 suppressed the factum about filing of the proceedings before subordinate court regarding pendency of Suit No,2227 of 1996 before the VI Senior Civil Jude, Karachi (South).
11. Respondent No,1 stated that on perusal of the order dated 6-3-2009 passed by this Court in Suit No,642 of 2006 that the pendency of the Suit No,426 of 1987 which was renumbered as Suit No,2227 of 1996 has been mentioned in Para-4 of the judgment and decree of Suit No,642 of 2006 dated 6- 3-2009 with complete details. Thus respondent No,1 denied that he has suppressed any material from this Court in Suit No,642 of 2006. Respondent No,1 further submits that he has not suppressed or concealed any detail or committed any fraud or misrepresentation with the applicants or to this Court. Respondent No,1 further denied any collusion between him and respondent No,2. He further stated in counter affidavit that respondent No,2 and applicants are related inter se and had acted collusively to deprive him from his rights in respect of the two plots of land. He further stated in counter affidavit that the terms of compromise dated 6-3-2009 in Suit No,642 of 2006 provided for adequate safeguard and protect the interest of the applicants made it subservient to proceedings in Suit No,2227 of 1996. It is further stated by the respondent No,1 that the observations to the effect that the learned Civil Judge cannot dare to pass any order contrary to and in conflict with the decree dated 6-3-2009 passed in Suit No,642 of 2006 by this Court is contemptuous and malicious.
12. Respondent No,1 further submits in counter-affidavit that the application under section 12(2), C.P.C.
13. Lacks merit and is liable to be dismissed.
14. ' The respondent No,2 also filed counter-affidavit to the said application whereby he denied the contents of the application under section 12(2) of C.P.C. And affidavit in support thereof. The respondent No,2 took preliminary objections to the maintainability of the application filed under section 12(2) of the C.P.C. And submits that the same is not competent, filed with mala fide, applicants have not come with clean hands before this Court and they have suppressed and misrepresented the important and crucial facts from this Court. The respondent No,2 submits that she is exclusive owner of the suit property and was fully entitled to enter into agreement of sale dated 7-8-2004 with respondent No,l. Respondent No,2 further stated in her counter affidavit that applicant No,9 who is attorney of all the other applicants signed the sale agreement of the subject property as one of the attesting witness. In the said agreement respondent No,1 was shown as exclusive owner of the suit property, therefore, contention of the applicants that respondent No,2 is benami owner is patently false. Respondent No,2 specifically denied having executed affidavits dated 10-12-1977 and 12-2-1985 in favour of predecessor in interest of the applicants. She further submits that the predecessor in interest of the applicants with and mala fide had filed Suit No,426 of 1987 before this court, which had been subsequently transferred and renumbered as Suit No,2227 of 1996. Respondent No,2 further deposed in her counter affidavit that on 9-10- 2000 Suit No,2227 of 1996 was dismissed by the order of VI Senior Civil Judge, Karachi (South) for non- prosecution and ad interim order dated 19-8-1990 was vacated till the suit was restored in its original position on 18-12-2004. Respondent No,2 further stated in her counter-affidavit that she entered into an agreement to sell dated 7-8-2004 with the respondent when there was no interim order in the field. Respondent No,2 further stated that on 21-12-2004 an application under Order I, Rule 10, C.P.C. Was filed on 21-12-2004 by the applicant No,9 in Suit No,2227 of 1996 and the counsel for proposed defendant(i)/present respondent No,1 endorsed his no objection for joining present respondent No,1 on that application the said application is enclosed as Annexure A/5 with present petition. Respondent No,2 further stated that the instant pplication filed by the applicants with and mala fide intention in order to extract unlawful monetary benefits. Respondent No,2 further stated that the applicants had full knowledge and information about transaction/sale agreement dated 7-8-2004 as the applicant No,9 who is also the Attorney of all the remaining applicants had signed the sale agreement as attesting witness therefore, no fraud or misrepresentation has been done by the respondents Nos.1 and 2. Respondent No,2 further submits that she had not suppressed the fact regarding pendency of Suit No,2227 of 1996 in the compromise application filed in Suit No,642 of 2006 and stated that the order dated 6-3-2009 passed by this Court in Suit No,642 of 2006 is self-explanatory. Respondent No,2 further stated that she never dared to play a fraud and misrepresentation to this Court as she is law abiding citizen and commission of fraud is beyond her imagination. Respondent No,2 denied that the compromise decree in Suit No,642 of 2006 has been obtained from this Court by concealment of facts regarding pendency of Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South). Respondent No,2 strongly denied that she had ever concealed any material facts from this Court in Suit No,642 of 2006. Respondent No,2 further stated that she had been advised by her counsel that the compromise decree in Suit No,642 of 2006 is not hit by doctrine of lis pendens.
15. ' Applicant No,9 Major (R) Syed Jafar Saddiq Nizam has filed affidavit in rejoinder. In the affidavit in rejoinder applicant No,9 has denied the averments of the counter affidavits filed by the respondents Nos.1 and 2, however admitted his signature on the sale agreement dated 7-8-2004 and receipt and submits that the same has been signed as an attesting witness in his personal capacity and not as Attorney of the applicants. In the affidavit in rejoinder applicant No,9 has stated that the respondent No,1 has avoided to reproduce para-4 of the affidavit in support of Annexure A/5 annexed with the application under section 12(2), C.P.C. By the applicants, for ready reference the said is reproduced as under, which is essential for disposal of the present application:- "That I say that in view of aforesaid oral compromise agreement between the plaintiff and the present defendant it was mutually decided that in order to get remove injunction dated 10-6-1987, confirmed by order dated 18-10-1987 and further restraining order dated 19-8-1990, passed by the honourable High Court, a joint application for the compromise will be filed in the instant suit before execution of registered sale deed by the present defendant in favour of proposed defendant No,2.
16. Consequently in the middle of August 2004 the counsel for plaintiffs Mr. Badar Alam Advocate drafted a compromise application incorporating therein all the terms of aforesaid compromise, copy of which was supplied by me to the present defendant. Thereafter on Monday, 25-10-2004 at about 10-30 a.m. The younger son of the present defendant, namely Mr. Faisal Raheem and the learned counsel for defendant No,1 Mr. Nasir J.R. Shaikh, Advocate, also held a meeting with plaintiffs' said counsel and suggested him to simply withdraw the suit and let the said compromise be completed outside the Court. After some discussions it was decided that the caption of said compromise application under Order XXIII, Rules (1) and (3), C.P.C. Would be corrected by Order XXIII, Rule 3 C.P.C. And within a couple of days the present defendant shall visit D-1 Branch of the High Court and shall put her signature on the said compromise application. Accordingly on 29-10- 2004 at about 10-00 a.m. The present defendant along with her younger son namely Faisal Raheem, her counsel Mr. Nasir J.R. Shaikh, Advocate visited D-1 Branch of the honourable High Court and signed the said compromise application before the Assistant Registrar (D-1) Branch Mr. Mumtaz. At that time the counsel for present defendant also signed the said compromise application. I myself, being duly constituted General Attorney of other plaintiffs had already signed the said compromise application with my counsel Mr. Badar Alam, Advocate. I had also filed an application for urgent hearing under rule 110 of Chief Court Rules (OS) and sworn my affidavits to both the said applications before the said Assistant Registrar D-1 Branch. Thereafter the said Assistant Registrar informed to the Assistant of our counsel Mr. Shabbir Ahmed, that the said Suit No,426 of 1987 had already been transferred to the learned District Judge, Karachi, South after change of pecuniary jurisdiction of Civil Courts and after cancelling the presentation seal thereon returned the said two applications to the said Assistant of our said counsel for their presentation before the transferee Court. Thereafter Mr. Nasir J.R. Shaikh the learned counsel for the present defendant had taken back the said signed compromise application and urgent hearing application from Mr. Shabbir Ahmed for keeping the same in trust with him for filing the same before the transferee Court. Therefore computer copies of said compromise application under Order XXIII, Rule (3), C.P,C. Read with section 151, C.P.C. And another application under Rule 110 of Chief Court Rules (OS) with their respective supporting affidavits by me."
17. ' Mr. Badar Alam learned counsel for the applicants contended that the respondents have obtained the order and compromise decree in Suit No,642 of 2006 by playing fraud, misrepresentation, concealment and suppression of material facts in collusion with each other. He further submits that impleading the present applicant in Suit No,642 of 2006 was necessary and without impleading the applicant, respondents Nos.1 and 2 have obtained compromise decree in Suit No,642 of 2006 on 6-3-2009 by misleading the Court and by concealment of facts. Learned counsel further submits that in the compromise decree in Suit No,642 of 2006 has been obtained during pendency of Suit No,2227 of 1996 (old No,426 of 1987) without disclosure of its nature. He further stated that compromise decree in Suit No,642 of 2006 has been obtained by the respondents Nos.1 and 2 to circumvent the facts in Suit No,2227 of 1996. It was further argued by the learned counsel that para-5 of the order and decree in Suit No,642 of 2006 have been misrepresented. Learned Counsel further argued that under section 10 of the C.P.C. During pendency of Suit No,2227 of 1996 no decree can be passed in Suit No,642 of 2006. He further stated that under Order XLI, Rule 43 subsequent Suit No,642 of 2006 was not maintainable as the subject plot and parties were same. He further submits that respondent No,1 was not party in Suit No,2227 of 1996. He has referred General Power of Attorneys executed by all the applicants annexed as Annexures A-14 to A-21 along with application where no power has been given to sell the property to any third party. He has further referred to Rule of Lis Pendence and section 52 of the Transfer of property Act. He has also urged the fact of passing compromise decree in Suit No,642 of 2006 and thereby except sale transaction the applicants have been deprived from their valuable rights in subject property. He further argued that the decree in suit No,642 of 2006 dated 6-3-2009 was a conditional decree and as according to para 6-A of the order and decree dated 6-3-2009:--- "The defendant No,1 present respondent No,2 shall execute transfer documents in respect of Plot No,23/1, Mehmoodabad Road, Defence Housing Authority, Phase-1, Karachi in favour of plaintiff (respondent No,1) in terms of requirements of Defendant No,2 Defence Housing Authority after obtaining appropriate orders in Suit No,2227 of 1996 pending before the VI Senior Civil Judge, Karachi (South) within three months from the grant of this application and shall thereupon received the balance in the sum of Rs,16,485,800.00 from Nazir of this honourable Court without any further order or reference.
18. ' That upon receipt of certified copy of order in Suit No,2227 of 1996, passed by the learned Vlth Senior Civil Judge, Karachi South and transfer of subject plot in favour of plaintiff (respondent No,1), the Nazir of this court may encash the defence saving certificates of the above face value deposited by the plaintiff duly pledged in his favour."
19. ' Learned counsel for the applicants has submitted that no such application in accordance with paragraph No,6-A of the order and decree passed in Suit No,642 of 2006 dated 6-3-2009 has been filed by the respondents in the Court of VI Senior Civil Judge, Karachi (South) in Suit No,2227 of 1996 for obtaining appropriate order. However, learned counsel for the plaintiff submits that a statement was filed on 30-4-2009 by the Advocate for the defendant, respondent No,2 in present petition, whereby certified copies of the order and decree dated 6-3-2009 passed in Suit No,642 of 2006 by this Court and Application under Order XXIII, Rule 3, C.P.C. Were placed on record. He further contended that non-compliance of the terms and conditions of para 6-A of the decree, the decree in Suit No,642 of 2006 has become infructuous. Learned Counsel for the applicants has placed reliance upon the cases reported in (1985 CLC 2569), (1996 CLC 1657), (PLD 1982 Peshawar 172), (1991 CLC 553), (2002 YLR 2531), (1984 SCMR 586), (2002 SCMR 1838) and (AIR 2004 SC 3992).
20. ' In the case of Mst. Bibi Sahiba and 9 others v. Mustaqir Shah and others 2002 SCMR 1838, it was held that:- "---Ss. 12(2) & 115---Constitution of Pakistan (1973), Art.185(3)---Challenge to consent decree on ground of fraud and collusion---Grievance of applicants was that they were owners in possession of 1/3rd share in suit property, but plaintiffs without impleading them as party brought a collusive suit and got a compromise decree, whereby parties to the suit were declared to be owners of suit property---Trial Court dismissed said application---Applicants filed revision petitions---High Court, after close scrutiny of evidence, came at the conclusion that alleged compromise had been manipulated in mysterious circumstances, and the mode and manner in which the same was presented was not above board---High Court set aside the consent decree and remanded the case for decision on merits--Validity---High Court without commenting upon the claim of parties in suit property on merits had decided only a limited question relating to the character of compromise---Without determination of disputed questions regarding genuineness of compromise and rights of the parties in suit property, the decree on the basis of compromise between parties in the suit with exclusion of applicants would not be sustainable---Record did not show that applicants were either strangers to suit property or had no locus standi to challenge the decree---Controversy relating to right, title and inter se to parties in the suit could not be resolved without recording evidence---High Court had rightly remanded the case back to Trial Court for decision on merits---Supreme Court dismissed the appeals in circumstances."
21. ' In the case of Muhammad Noor Alam v. Zair Hussain and 3 others 1993 SCMR 1646, wherein it was held that:--- "It is true that the injunction order passed against the assignor owner of the property would not strictly and legally bind the assignee if an alienation is made in breach of it. All the same, the relief under section 52 of the Transfer of Property Act being an equitable relief has to be obtained on the totality of the factors appearing on the record and not on the mere compliance or non- compliance of the amended provisions of the two laws. That is the view taken by the High Court."
22. ' In the case of Vareed Jacob v. Sosamma Geevarghese and others AIR 2004 Supreme Court 3992 it was held that:--- "I am, therefore, of the opinion that the interim order of injunction did not revive on restoration of the suit. The Courts however, would be well-advised keeping in view the controversy to specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory ordeRs, An express order to that effect should be passed."
23. ' On the other hand, Mr. Mushtaq A. Memon learned counsel for the respondent No,1 argued that section 12(2), C.P.C. Is of limited scope and there are three grounds on which an application under section 12(2) can be filed viz (i) fraud committed on court, (ii) misrepresentation and (iii) want of jurisdiction. He further argued that the detail of fraud are missing in the application under section 12(2) filed by the applicants and no fraud upon the Court has been committed, applicants had knowledge of pendency of Suit No,642 of 2006 but they did not join the same. He has referred to Para-11 of the memo of plaint in Suit No,426 of 1987 filed by the predecessor-in-interest of the applicants, which has been annexed as Annexure A/1 with the present application wherein the predecessor in interest has referred to the incident of 8-5-1987 of involvement of mysterious cause of the defendant and in Para-20 on 10-5-1987 lodging of F.I.R. By the defendant against the plaintiff at Defence Police Station wherein the present suit was filed after those incident on 26-5-1987. He has drawn my attention to the case reported in 2009 SCMR 124 wherein apex Court has laid down the criteria determining the benami transaction and has held that for determining factors to be taken into consideration are (i) source of construction; (ii) from whose custody the original title, bill and other documents came in evidence, (iii) who is in possession of the suit property and (iv) motive for benami transaction. He has further argued that negotiations were going on between the legal heirs of the Lt. Col. G.M. Nizamuddin and the respondent No,2 MRs, Badar Raheem through applicant No,9, who is admittedly Attorney of the legal heirs vide General Power of Attorney enclosed as Annexures A-14 to A-21 along with application where the applicants executed registered Power of Attorneys wherein the applicant No,9 was, authorized to represent them in Suit No,426 of 1987 and to settle the terms and conditions of the compromise at his sole discretion in the suit with the defendant and to sign compromise application or any other application for and on their behalf, receive their share separately or along with shares of his other brothers and sisters, who are legal representatives of the deceased plaintiff, out of sale consideration of the suit property being Plot No,23, admeasuring 1640 square yards, off Phase-I, Mehmoodabad Road, DHA, Karachi with construction thereon.
24. ' Learned counsel for the respondent No,1 has urged that along with application under section 12(2), C.P.C. Application under Order I Rule 10 read with section 151, C.P.C. Was filed on 21-12-2004 by advocate for the applicants to implead respondent No,1 and other defendants in Suit No,2227 of 1996. Counsel for the proposed defendant (i) endorsed his no objection for joining the proposed defendant (i) in that suit, the said application and affidavit in support thereof has been filed by the applicant No,9 Major (R) Syed Jafar Saddiq Nizam and the application is annexed as Annexure A/5 along with application under section 12(2), C.P.C. In Para-4 of that affidavit applicant No,9 categorically admitted that their had been negotiations between the parties for outside court compromise, which were finalized, whereby it was settled that the suit property, comprising of two separate plots Nos.23/I and 23/11, measuring 1600 Sq. Yards (approx.), Mehmoodabad Road, Phase- I, DHA, Karachi, be disposed of at highest possible price and after deducting the expenses, payment of dues and other charges, the consideration amount would be shared at 55% by the defendant and 45% by the plaintiffs. Thereafter, by mutual consent a sale agreement dated 7-8- 2004 was signed by the defendant (respondent No,2 in the present petition) and the proposed defendant No,2, Mr. Hammad Asif Doslani (respondent No,1 in the present petition), also signed by applicant No,9 as its one of the attesting witnesses. The sale consideration was fixed at the rate of Rs,19300 per Sq. Yards, out of which the said proposed defendant No,2 made advance payment of Rs,35,00,000 and the balance payment was to be made after hundred days of the date of sale agreement, on or before 17-11-2004.
25. ' He further contended that in Para-4 of that affidavit applicant No,9 has admitted that in the middle of August, 2004 the counsel for plaintiffs (applicants) Mr. Badar Alam Advocate who is also appearing in the present petition for all the applicants drafted a compromise application incorporated therein all the terms of aforesaid compromise and decided to file the same in Court in Suit No,426 of 1987 which has been renumbered as Suit No,2227 of 1996. This paragraph has already been reproduced hereinabove, the contents of which are self explanatory.
26. ' Learned counsel for the respondent No,1 has also referred to the agreement of sale dated 7-8-204 executed between respondents Nos.1 and 2 and the receipt signed by the respondent No,2, both these sale agreement as well as receipt applicant No,9 Major (R) Syed Jafar Saddiq Nizam has signed as attesting witness. He has also referred to Annexure A/8 of the application under section 12(2), C.P.C. Which is contempt application filed by Major (R) Syed Jafar Saddiq Nizam applicant No,9 for and on behalf of the applicants as their Attorney against the respondents Nos.1 and 2 and others in Suit No,2227 of 1996, in support thereof affidavit of Major (R) Syed Jafar Saddiq Nizam has been filed wherein averments of Paras-3 and 4 made in affidavit in support of application under Order I, Rule 10, C.P.C. Annexed as Annexure A/5 with the application under section 12(2), C.P.C. Has been repeated. He further urged that section 52 of the Transfer of Property Act is not applicable in the present case. According to learned counsel under Sindh Act No,XIV of 1939 Transfer of Property and Registration Act notice of pendency of suit is to be registered before the Registrar. Learned counsel has placed reliance upon the cases reported in (YLR 1992 Civil Law 373), (2000 MLD 1970), (PLD 2003 Karachi 222). He has also drawn the attention of this Court towards order dated 10-5- 2008 passed in Suit No,2227 of 1996 by VI Senior Civil Judge, Karachi South, wherein it is stated that Advocate of proposed defendant No,1 (respondent No,1) is present and record reveals that the Advocate for the plaintiffs (applicants) had filed contempt application on 16-11-2008 but till yet notice of the said application has not been issued due to non-payment of cost by the applicants.
27. Today Advocate for the plaintiffs (applicants) is present and she has not moved any application for condonation of delay, therefore, the contempt application dated 16-11-2008 stands dismissed in default due to non-payment of cost of process fee. He has also referred to the compromise application annexed as Annexure A/13 with the application under section 12(2) C.P.C. In Suit No,642 of 2006. According to him there is no commission of fraud or misrepresentation in the order or decree dated 6-3-2009 in Suit No,642 of 2006. Applicants claim to be the real owner and have alleged that respondent No,2 is the ostensible/benami owner and applicants never challenged the cause of the ostensible owner. He further placed reliance on the cases of Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal heirs and others (PLD 2003 SC 818) wherein it was held as under:--- "Collusion in judicial proceedings is a secret arrangement between two persons where one institutes a suit against the other in order to obtain a judicial decision for some sinister purpose. In such case the claim is fictitious, the contest is unreal and the decree passed therein is a mere mask having the similitude of a judicial determination, with the object of confounding the third party. In a fraudulent proceeding, the claim is untrue but the verdict of Court is managed to be obtained by practicing fraud on the Court".
28. ' In the case of Messrs Dadabhoy Cement Industries Ltd. And 6 others v. National Development Finance Corporation, Karachi (PLD 2002 SC 500), it was held that: "The consent decree did not suffer from fraud, misrepresentation or want of jurisdiction, therefore, the same was not amendable to challenge under section 12(2), C.P.C. Thus the applications were not maintainable as none of the ingredients for challenging the validity of decree as contemplated in section 12(2), C.P.C. Was available to the petitioners".
29. ' In the case of Akhter Ali v. Anjuman-e-Ansar Ahle Bait and 4 others (2009 MLD 653), it was held that:- "Section 12(2) is limited and restricted to fraud, misrepresentation and error of jurisdiction, Order VI, rule 4 clearly enjoins, mandates and stipulates that ingredients of fraud committed are required not only to be mentioned but are to be elucidated and detailed. This is conspicuously missing in the present application".
30. ' In the case of Mst. Shabana Wan v. Muhammad Shafi Khan and others (2009 SCMR 40), wherein it has been held that:--- "If any fraud was allegedly committed by attorney with owner of the property, it was the matter between agent and principal, for which principal could institute a suit in civil Court, proceed against delinquent agent through criminal proceedings and agitate his grievance therein. Owner of the property having other separate remedies against his agent, he could not be allowed to affect the transaction of plaintiff, who had paid a huge sum to the agent of owner of the property-- -Petition under section 12(2), C.P.C. Could be decided summarily by the court, which had passed final judgment, decree or order in dispute, when there were admitted facts and documents betweens the parties---No need to prolong the litigation, when the case ex facie appeared to have not been filed in a wrong jurisdiction and when fraud or misrepresentation was not involved in the case or in the transaction---Matter and dispute in between principal and agent could not affect the third party, as the third party (plaintiff) was not privy to the alleged fraud, misstatement, misrepresentation or wrong doing of the agent, if any committed by the agent with his principal".
31. ' In the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) it was observed that:- "Section 12(2), C.P.C. The scope of this special provision can neither be extended beyond the ground of fraud, misrepresentation and the defect of jurisdiction enumerated therein nor the learned Division Bench of the High Court seized of the matter, could sit over the judgment passed in letters patent Appeal".
32. ' In the case of Subedar Sardar Khan and others v. Muhammad Idrees and another (PLD 2008 SC 591), wherein it was held that:--- "---S.12(2)---Scope of S.12(2), C.P.C.---Decree could be set-aside only on the ground stated in S.12(2), C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree was not at all a such ground as envisaged by S.12(2)', C.P.C. Was liable to be dismissed".
33. ' Learned Counsel for the respondent No,1 has urged that the sale transaction of the two properties bearing Plots Nos.23/I and 23/11, Mehmoodabad Road, Phase-I, DHA, Karachi was executed between respondents No,1 and 2 with complete blessings of the Applicants and in order to resolve their inter se dispute, the applicant No,9 who is attorney of the applicants admittedly signed said sale agreement as an attesting witness as well as respondents Nos..1 and 2 had signed the sale agreement dated 7-8-2004 and this fact has been admitted by the applicant No,9 in paragraph No,3 of the application filed under Order Rule 10; C.P.C. Which has already been enclosed as Annexures A-5 and A-8 with the main petition whereby the applicant No,9 admitted the fact of sale of both the aforementioned plots to the respondent No,1 in the ratio of 55% and 45%. The applicant No,9 who is also attorney of the applicants has also confirmed preparation of a compromise application in Suit No,426 of 1987 drafted by Mr. Badar Alam Advocate who is appearing in the present petition for the applicants.
34. ' Learned counsel for respondent. No,1 further argued that the judgment and decree dated 6-3- 2009 passed in Suit No,642 of 2006 was never obtained through fraud or misrepresentation as the applicant No,9 the attorney of the applicants and respondent No,2 all agreed with full understanding to sell the property to the respondent No, 1 . Sale agreement dated 7-8-2004 was executed between respondents Nos.1 and 2 and the applicant No,9 who is attorney of all the applicants had signed the said agreement as attesting witness. At the relevant time there was no restraining order in operation as the Suit No,2227 of 1996 (old No,426 of 1987) was dismissed for non-prosecution on 9-10-2004 and was restored by the order dated 18-12-2004. He also argued that in Suit No,2227 of 1996 applicant No,9 has himself filed an application under Order I, Rule 10, C.P.C. For impleading respondent No,
1. It has been further argued by the counsel for respondent No,1 that since the respondent No,1 had no privity of contract with any of the applicants therefore, there was no reason to join the applicants as party in Suit No,642 of 2006 filed by the respondent No,1 in this Court for specific performance of the contract dated 7-8-2004 against the respondent No,2 who is exclusive owner of the said property. Since applicant No,9 was simply an attesting witness to the agreement dated 7-8-2004, therefore, he could not be joined as a party in Suit No,642 of 2006.
35. ' Learned counsel for the respondent No,1 contended that section 10, C.P.C. Was not attracted in any event and does not render subsequent proceeding invalid, void or without jurisdiction. Applicants had complete knowledge about the sale agreement dated 7-8-2004 as after the sale agreement the applicant No,9 and the respondent No,2 in the middle of August, 2004 got drafted a compromise application to be filed in Suit No,426 of 1987 and for that on 25-10-2004 younger son of the respondent No,2 namely Faisal Rahim counsel for the respondent No,1 held meeting with the applicants and the counsel for the applicants suggested him to simply withdraw the suit and let the said compromise application be completed outside the Court. He further contended that Plot No,23/I, Mehmoodabad Road, Phase-I, DHA, Karachi has already been transferred in the record of DHA. He further submitted that section 52 of the Transfer of Property Act does not apply in the present case.
36. ' Messrs Amir Raza Naqvi and Haq Nawaz Talpur learned Counsel for respondent No,2 adopted the arguments of Mr. Mushtaq A. Memon learned counsel for respondent No, 1.
37. ' I have heard Mr. Badar Alam, Advocate for the applicants, Messrs Mushtaq A. Memon and Ishtiaq A. Memon, Advocates for respondent No,1, Messrs Haq Nawaz Talpur and Amir Raza Naqvi, Advocates for respondent No,2 and perused the relevant record and case-law cited by the counsel for the respective parties.
38. ' The main grievance of the applicants is that the respondents Nos.1 and 2 have obtained compromise decree in Suit No,642 of 2006 by playing fraud, misrepresentation, concealment and suppression of facts during pendency of Suit No,2227 of 1996 (Old Suit No,426 of 1987) without disclosing of its nature. On careful examination of the relevant record it reveals that the applicant No,9 who is the Attorney of the other applicants vide General Powers of Attorney executed by the applicants, whereby all the applicants authorized the applicant No,9 to represent them in Suit No,426 of 1987 in the High Court of Sindh at Karachi and to settle the terms and conditions of compromise at his sole discretion in the said suit with the defendant and, to sign the compromise application or any other documents or application for and on their behalf out of sale consideration of the suit property being Plot No,23 admeasuring 1640 square yards of Phase-I, Mehmoodabad Road, DHA, Karachi, with construction thereon, through pay-order/cross cheque in his own name and to deposit the same in his own bank account for payment to them and their legal representative. All the powers of Attorney have been filed as Annexures A-14 to A-21 with the present petition. In the affidavit in support of application under Order I. Rule 10, C.P.C. Filed as Annexures A-5 with the present petition the applicant No,9, the attorney of the other applicants in paragraph No,3 of his affidavit stated that the present respondent No,2 MRs, Badar Rahim for a long time had been in negotiation with the parties for compromise outside the Court which had been finalized at the time of filing of affidavit by the applicant No,9 and it was settled that the suit property comprising of two separate Plots bearing Nos.23/I and 23/II, measuring 1600 square yards (approximately), Mehrnoodabad Road, Phase-I, DHA, Karachi be disposed off at highest possible price and after deducting the expenses, payment of dues and other charges, the consideration amount would be shared at 55% by the respondent No,2 and 45% by the present applicants. It is further admitted by the applicant No,9 that by mutual consent a sale agreement dated 7-8-2004 was signed by the respondent No,1 and the respondent No,2 as well as by the applicant No,9 as one of the attesting witness. Sale consideration was fixed at the rate of Rs,19300 per square yard, out of which present respondent No,1 had made advance payment of Rs,35,000,00 and the balance payment was to be made after hundred days of the date of sale agreement, on or before 17-11- 2004. In paragraph No,4 of the aforesaid affidavit of applicant. No,9 he stated that in view of compromise agreement between the applicants and the present respondent No,2 it had been mutually decided in order to remove injunction dated 10-6-1987 in old Suit No,426 of 1987 (new Suit No,2227 of 1996) passed by this Court a joint application for the compromise would be filed in that suit before execution of registration of sale deed by the present respondent No,2 in favour of present respondent No,l.
39. ' It is further stated by the applicant No,9 that in the middle of August, 2004 the counsel for the present applicants Mr. Badar Alam Advocate who is also appearing in the present petition drafted a compromise application incorporated therein all the terms of the compromise, copy of which was supplied by the applicant No,9 to the present respondent No,2. Thereafter, on Monday 25-10- 2004 at about 10-30 a.m. The younger son of present respondent No,2 namely Faisal Rahim and the learned Counsel for the present respondent No,2 Mr. Nasir J.R. Shaikh Advocate held meeting with the applicants' counsel named above and suggested him to simply withdraw the suit and let the said compromise to be completed outside the Court. It is also stated in the affidavit of the applicant. No,9 that after some discussion it had been decided that the caption of said compromise application under Order XXIII, Rule (1) and (3), C.P.C. Would be corrected by Order XXIII, Rule 3, C.P.C., and within a couple of days the present respondent No,2 shall visit D-1 Branch of the High Court and shall put her signature on the said compromise application. Accordingly on 29-10- 2004 the present respondent No,2 along with her younger son, her counsel visited D-1 Branch of this Court and had signed the said application before the Assistant Registrar D-1 Branch Mr. Mumtaz. It is further stated that at that time the counsel for the present respondent No,2 had also signed the said compromise application. It is averred in the affidavit of the applicant No,9 being duly constituted General Attorney of the other applicants he had already signed the compromise application with his counsel Mr. Badar Alam Advocate. He had also filed an application for urgent hearing under Rule 110, Chief Court Rules (OS) and sworn his affidavits to both the said applications before the Assistant Registrar of D-1 Branch of this Court. The applicant No,9 has stated in paragraph No,7 of his affidavit referred to above that after restoration of the suit to its original position on 18-12-2004 it 'transpired that present respondent No,2 with mala fide intention had sold out the second portion of the suit property being Plot No,23/lI measuring 684 square yards at an exorbitant sale price to Mr. Muhammad Yousuf Moosa, got the same mutated in the record of the DHA fraudulently and in collusion with the officials of the DHA and the DHA issued transfer order vide Sr.No,R008734 dated 11-12-2004 in favour of Muhammad Yousuf Moosa, the same facts have also been stated by the applicant No,9 in the affidavit in support of contempt application enclosed as Annexure A/8 with the present petition. The averments stated on oath by the applicant No,9 in his affidavits filed in support of application under Order I, Rule 10, C.P.C. And contempt application filed as Annexures A/5 and A/8 with the present petition are contradictory with pleas/defence taken by the applicants in application under section 12(2), C.P.C. And the affidavit in rejoinder filed on 21-10-2009 by the applicant No,9. Applicant No,9 has denied that the sale agreement dated 7- 8-2004 was executed between respondents Nos.1 and 2 with complete blessing of the applicants and the applicant No,9 had signed the said sale agreement as witness in his personal capacity and not as Attorney of the applicants whereas in Paras-3 and 4 of the affidavit in support of application under Order I, Rule 10, C.P.C. Annexure A/5 with the present petition the applicant No,9 has stated that "I myself being duly constituted General Attorney of the other plaintiffs (applicants) had already signed the said compromise application with my counsel". The contents of para-3 are being reproduced as under:--- "That I say that the defendant, MRs, Badar Raheem is the wife of the plaintiffs maternal uncle Syed Abdul Raheem, therefore, for a long time there had been negotiations between the parties for a outside the Court compromise, which was recently finalized, whereby it was settled that the suit property, comprising of two separate Plots Nos.23/I and 23/11, measuring 1600 square yards (approx.) Mehmoodabad Road, Phase-I, DHA, Karachi, be disposed of at highest possible price and after deducting the expenses, payment of dues and other charges, the consideration amount would be shared at 55% by the defendant and 45% by the plaintiffs. Thereafter, by mutual consent a sale agreement dated 7-8-2004 was signed by the defendant and the proposed defendant No,2, Mr. Hammad Asif Doslani, also signed by me as its one of the attesting witnesses. The sale consideration was fixed at the rate of Rs,19300 per square yard, out of which the said proposed defendant No,2 made advance payment of Rs,35,00,000 and the balance payment was to be made after hundred days of the date of sale agreement, on or before 17-11-2004 . "
40. ' Hence applicant No,9 cannot take plea that he had signed the sale agreement in his personal capacity not as the Attorney of the applicants. Since initiation of the negotiation between the parties for a compromise outside the Court regarding the sale of the properties subject matter of the present suit. The applicant No,9 had full information and knowledge about the sale agreement dated 7-8-2004, application for compromise which had been drafted with his consent by his counsel and it was applicant No,9 who himself admitted that he supplied the copy of the said compromise application drafted by his counsel, who incorporated all the terms of compromise to the respondent No,2 and on 29-4-2004 according to the averments of the affidavit of the applicant No,9/Attorney of the applicants along with Annexure A/5 with the memo of present petition visited D-1 Branch of this Court and signed the compromise application it was the Assistant Registrar D-1 Branch Mr. Mumtaz the applicant No,9 being duly constituted General Attorney of other applicants had already signed aforesaid compromise application with his counsel Mr. Badar Alam Advocate.
41. In paragraph No,4 of the compromise application it is stated that :- "That the sale agreement with the proposed buyer of the said property shall be signed by the defendant and Maj. (R) Syed Jafar Sadiq Nizam as duly authorized Representative of Legal Representatives of the deceased plaintiff. However all the legal formalities for mutation/transfer of the said property on the name of proposed buyer, including execution of Conveyance Deed shall be completed/executed by the defendant".
42. ' As regards to the contention of the learned Counsel for the petitioner that the compromise decree in Suit No,642 of 2006 has been obtained by the respondents No,1 and 2 without disclosure of its nature when the Suit No,2227 of 1996 (old Suit No,426 of 1987) was pending. . I am fully convinced with the contention of learned Counsel for the respondent No,1 that since respondent No,1 had no privity of the contract with the applicants, therefore, there was no reason to join A applicants as party in Suit No,642 of 2006 which had been filed for specific performance of contract dated 7-8- 2004 executed between respondent No,1 and 2. However, applicant No,9 the Attorney of the other applicants was an attesting witness to the agreement referred to above and could not be joined as patty in Suit No,642 of 2006. .
43. ' As regards to the contention of the learned Counsel for the petitioner that the compromise decree in Suit No,642 of 2006 has been obtained by the respondents Nos.1 and 2 by playing fraud, misrepresentation, concealment and suppression of material facts in collusion with each other, it is apparent from own admission of applicant No,9 that he being Attorney of the applicants confirmed preparation of compromise application in Suit No,2227 of 1996 (old Suit No,426 of 1987) before VI Senior Civil Judge, Karachi South and have admitted the sale of the property subject matter of Suit No,642 of 2006 in favour of the respondent No,1 establishing that the applicant No,9 who is Attorney of the other applicants and the respondent No,2 had agreed to sell the said property vide sale agreement dated 7-8-2004 to the respondents. By filing Suit No,642 of 2006 and obtaining order and compromise decree dated 6-3-2009 the respondents No,1 and 2 have not committed any fraud or misrepresentation with the Court or with the applicants. The compromise decree dated 6- 3-2009 adequately protects and safeguard the interest of the applicants. The fact of pendency of the Suit No,2227 of 1996 (old Suit No,426 of 1987) and the applications filed by the applicant No,9 under Order I, Rule 10, C.P.C. And other relevant facts regarding pendency of Suit No,2227 of 1996 have been mentioned in paragraph Nos.9 and 10 of the Suit No,642 of 2006. In paragraph Nos.4, 5 and 6 of the order passed by this Court on 6-3-2009 in Suit No,642 of 2006 it is specifically mentioned that during pendency of Suit No,426 of 1987 (New No,2227 of 1996) the sale agreement dated 7-8-2004 was executed which was duly witnessed by. Applicant No,9 in the present Petition legal heir of Lt. Col. (R) G.M. Nizamuddin and it was stated in the order that the defendant No,1 (respondent No,2 in the present petition) shall execute transfer documents in respect of Plot No,23/I, Mehmoodabad Road, Phase-I, DHA, Karachi in favour of the plaintiff (respondent No,1 in the present petition) in terms of requirement of respondent No,2 (DHA) after obtaining appropriate order in Suit No,2227 of 1996 pending before VI Senior Civil Judge, Karachi South within three months from the grant of compromise application. . Therefore, the respondents Nos.1 and 2 have not concealed and suppressed the real facts from this Court in Suit No,642 of 2006. This Court by order and compromise decree dated 6-3-2009 has protected and safeguarded the interests of the present applicants by holding that after obtaining appropriate orders in Suit No,2227 of 1996 pending before Senior Civil Judge, Karachi South the present respondent No,2 shall execute transfer documents in respect of the Plot No,23/I, Mehmoodabad Road, Phase-I, DHA, Karachi in favour of the respondent No,1 within three months from the grant of the compromise application.
44. ' I have closely examined the pleadings of the parties in both, suits i.e. Suit No,642 of 2006 and Suit No,2227 of 1996 (old Suit No,426 of 1987) and has come to the conclusion that no fraud, misrepresentation, concealment and suppression of material facts has been committed by the respondents Nos.1 and 2.
45. ' As regards to the arguments of the learned counsel for the petitioner that the present Suit No,642 of 2006 is barred under section 10 of the C.P.C. And said section is not attracted in the facts and circumstances of the present petition.
46. ' As regards to section 52 of the Transfer of Property Act referred to by the learned counsel for the petitioners, this section is attracted only if notice of pendency of suit before Registrar is registered under section 18 of the Registration Act vide Sindh Act No,XIV of 1939 Sindh Code Volume-V.
47. ' As regards to the contention of learned counsel for the petitioners that the respondents Nos.1 and 2 in violation of paragraph 6-A of the order and decree passed in Suit No,642 of 2006 dated 6-3- 2009 filed by the respondents have failed to obtain appropriate orders in Suit No,2227 of 1996 before the VI Senior Civil Judge, Karachi South within three months from the grant of compromise application i.e., 6-3-2009. It is apparent from the record that the respondents Nos.1 and 2 are contesting Suit No,2227 of 1996 but the applicants have not pursuing the Suit and the contempt application filed by the applicants on 16-11-2006 and the same was dismissed on 10-5-2008 and on that date on the application under Order I, Rule 10, C.P.C. Service was not effected on all the proposed defendants. However, on 30-4-2009 along with a statement Advocate for the respondent No,2 in the present petition filed certified copy of the order and decree dated 6-3-2009 passed in Suit No,642 of 2006 on record in Suit No,2227 of 1996 before the VI Senior Civil Judge, Karachi South.
48. ' The case-law cited by the learned counsel for the petitioner is not relevant and applicable in the present case ' In view of the facts, circumstances and case-laws discussed above, I am of the view that the order and consent decree dated 6-3-2009 in Suit No,642 of 2006 passed by this Court no fraud, misrepresentation, error of jurisdiction has been committed by the respondents Nos.1 and 2. The petitioners have failed to make out a case of fraud or misrepresentation against the respondents therefore the instant Petition filed under section 12(2), C.P.C. By the petitioners against the respondents is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.