' SYED HASAN AZHAR RIZVI J.--- The petitioner being aggrieved and dissatisfied with the order dated 17-7-2010 passed by the Ist Additional District, Judge, Karachi (East) in Civil Revision Application No,27 of 2009 filed the present Constitutional Petition.
2. Learned counsel for the petitioners argued that the petitioners have filed an application under section 12(2) read with section 151, C.P.C. Against the ex parte judgment and decree dated 8-1-2007 and 12-1-2007 respectively in Civil Suit No,1306 of 2002 (old Suit No,687 of 2000) which had been filed by the respondent No,1 against the petitioner No,1 and others for specific performance of contract, possession and injunction. Admittedly the petitioner No,1 had booked a Flat No,W-304, 3rd Floor, Haroon Royal City situated on Plot No,187/2, Block-17, Gulistan-e-Johar, Karachi, the registered indenture of lease of that Flat as executed in favour of petitioner No,1 on 22-2-1996. Admittedly the possession of the subject Flat was obtained by the petitioner No,1 from the Builder. The petitioner No,1 on 6-5-2003 vide sale agreement sold out the said flat to the petitioner No 2 and delivered the physical possession to her who is living in the said flat. In 2008 petitioners filed an application under section 12(2) read with section 151, C.P.C. In the Court of IV Senior Civil Judge, Karachi (East) that the respondent No,1 by committing fraud and misrepresentation kept the petitioners into dark and away from the proceeding, obtained ex parte judgment dated 8-1-2007 and decree dated 12-1- 2007 in Suit No,1306 of 2002 (old Suit No,187 of 2000). The information of commission of fraud by the respondent No,1 was known to the petitioners just one month before when the notice of the Execution Application No,1 of 2007 was served in the house bf the petitioner No,2 in the name of her husband Zahid Khan as she was in occupation of the suit property and thus came to know about the fraud committed by the respondent No,l. Aforesaid application under section 12(2), C.P.C. Of the petitioners was dismissed vide order dated 16-3-2009 by the IV Senior Civil Judge Karachi (East).
The petitioners filed Civil Revision No,27 of 2009 which has also been dismissed on 17-7-2010 by 1st Additional District Judge, Karachi (East) and thereafter, the petitioners have filed the present Constitutional Petition.
3. The learned counsel for the petitioners further contended that the impugned orders passed by both the Courts suffered with infirmity and illegality, which prejudiced the constitutional rights of the petitioneRs, Learned counsel for the petitioners further submits that the petitioner No,1 had sold out the subject flat on 6-5-2003 to the petitioner No,2 but the trial Court sent the processes at the wrong address of the petitioner No,l. The respondent No,1 committed fraud by providing wrong address of the petitioner No,1 to the Court when he was fully aware that the petitioner is residing on another address and that address of respondent No,1 mentioned in the Execution Application.
When the notice of the execution was received by the petitioner No,1 she immediately appeared before the Court and had filed application under section 12(2), C.P.C.. Learned counsel, for the petitioners urged that notices ware issued to the petitioner No,1 on the address of R-1369, Block-14, Federal B. Area, Karachi where the petitioner No,1 never resided.
4. It is further argued by the learned counsel for the petitioners that respondent No,1 executed fake and manipulated agreement of sale dated 31-3-1996 showing the date of purchase of the stamp paper as 20-3-1997 where the agreement on that stamp paper was executed on 31-3-1996.
5. Learned counsel for the petitioners further submits that respondent No,1 had prepared fake and manipulated General Power of Attorney dated 31-3-1996 and also bogus special Power of Attorney dated 1-2-2000 in favour of one Imtiaz Ali son of Mumtaz Ali and further argues that the petitioner No,1 neither having any relation with said Imtiaz Ali nor she ever executed that Power of Attorney in his favour. It is further contended by the counsel for the petitioners that different fonts have been used on different pages of the General Power of Attorney which fact establishes that the documents are forged and fabricated.
6. Learned counsel for the respondent No,1 filed objections reply to the petition and has argued that the subject Flat was mortgaged with HBFC and the original sub-lease was in the custody of the HBFC and to take back the original lease and other paper-5 from HBFC the petitioner No,1 on 31-3- 1997 executed a General Power of Attorney for HBFC in favour of respondent No,l. The petitioner was entered into sale 'agreement with respondent No,1 of the subject flat for a total sale consideration of Rs,300,000 and executed a General Power of Attorney. Since the petitioner No,1 avoided to deliver the possession of the subject flat to the respondent No,1 therefore, he filed Suit No,687 of 2000 in this Court. Notices were issued by this Court to the petitioner No,1 which haw been duly received by the petitioner No,1 herself on 26-3-2000, 17-11-2000 and 28-10-2000 by the petitioner No, 1.
7. The respondent No,1 has annexed photocopies of the processes which bear the signatures of the petitioner No,1 along with the counter-affidavit of respondent No,1 to the injunction application filed in the present case.
8. Learned counsel for the respondent No,1 has urged, that IV Senior Civil Judge, Karachi (East) issued court motion notices to all the parties on 2-11-2002 but the same were returned unserved thereafter, order was passed for substituted service and publication appeared in Daily "Khabrain" dated 6-4-2006 and the trial Court had held the service good upon the petitioner No,1 vide order dated 8-4-2006.
9. The learned counsel for the respondent No,1 submits that the trial Court as well as the revisional court have not committed any legal error in passing orders, the petitioners have come with unclean hands and the, present petition is liable to be dismissed.
10. We have heard the counsel for the parties and perused the relevant record carefully.
11. The petitioners have filed the application under section 12(2), C.P.C. On two grounds, one is that petitioner No,1 was not properly served as the processes/summonses of that suit were issued on wrong address of the petitioner No,1 where she was not residing and other ground was that the documents filed by the respondent No,1/plaintiff with the plaint including the sale agreement, powers of attorney are false, forged, bogus and fabricated/fictitious. The petitioner No,1 has denied the execution of these documents and of her appearance before sub-Registrar for execution of the said document.
12. By the orders of this court dated 28-1-2002 whereby order dated 13-12-2001 passed by the Additional Registrar (OS) of this court for holding service good upon petitioner No,1 was set aside by this court and the process was ordered to be repeated through Head Bailifff to serve the defendants strictly in accordance with the orders passed by this court on 8-10-2001 vide order dated 16-9-2002 of this court, this Court observed that service upon defendant No,1 does not appear to be satisfactory and passed order for issuance of fresh notice through Bailiff, registered post A/D and through courier service Bailiff was directed to paste notice at the outer door of defendant No, 1 's (petitioner No,1 in present case) house in case of refusal presence of two witnesses whose NICs should be noted.
13. Both the Trial Court as well as revisional court have relied upon the false reports of the Bailiff dated 31-10-2000 and 18-11-2000 which have not been considered by this court vide orders dated 28-1-2002 and 16-9-2002. It is further transpired from the record that the respondent No,1 has not mentioned the correct residential address of the petitioner No,1 before the trial Court and for the first time in the Execution Application No,8 of 2007 on 28-3-2009 correct address of the petitioner has been mentioned. It further reveals from the record that in the 'Execution Application No,8 of 2007 filed by the respondent No,1 in the Court, of IV. Senior Civil Judge Karachi-East on 21-2-2007 the respondent No,1 shown HBFC Karachi and Mr. Zahid Khan as the judgment-debtors whereas both judgment-debtors were not impleaded as B defendants in the suit. The decree-holder again filed another Execution Application and shown the present petitioner No,2 as judgment-debtor and deleted the name of HBFC and Mr. Zahid Khan from the array of judgment-debtors in the fresh Execution Application.
14. On careful examination of the record of trial Court it transpired that vide order dated 19-5-2005 the trial Court held the service good upon the defendant No,1 (the petitioner No,1 in present petition) on the basis of Bailiff report dated 9-4-2005. I have perused the said report wherein it is stated by the Bailiff namely Ahmed that he went on the given address where the defendant No,1 was not found present and he pasted copy of summons on the given address and no witness was found there. Again same Judge passed order on separate order-sheet on 15-10-2005 debarred the defendant No,1 from filing written statement and adjourned the matter for further proceeding for 2- 11-2005. The same Presiding Officer Mr. Syed Azmatullah on 8-4-2006 again passed an order on separate order-sheet and stated that processes through all modes defendant No,1 but she did not appear in the court and publication was service viz registered A/D TCS and Bailiff were issued against the made in Daily "Khabrain" dated 6-4-2006 for 8-4-2006. Service against defendant No,1 was held good and matter was adjourned to 18-4-2006 for filing written statement. On 9-5-2006 Syed Azmatullah IV Senior Civil Judge, Karachi-East on a separate order-sheet again passed order of debarring the defendant from filing the written statement. On careful examination of the record of the trial Court it transpired that the petitioner No,1 who is defendant No,1 in the suit was never served directly. No any A/D or receipt of courier is available in the record of the trial Court establishing that the summonses were issued to the petitioner by the trial Court through registered A/D and through courier service as directed by this Court vide order dated 16-9-2002. In the record of the trial Court notices were shown to be pasted but no name or NIC number of any of the witnesses as directed by this court vide order dated 16-9-2002 has been mentioned on the said summonses/notices. In paragraph-4 of the present petition reports of the Bailiff submitted in this court have been challenged on the ground that the address of the petitioner No,1 was wilfully, knowingly and intentionally mentioned wrongly.
15. It appears from the record that Mr. Syed Azmatullah IV Senior Civil Judge, Karachi-East without availability of appropriate reports and statements of Bailiff in accordance with law wrongly held the service good upon defendant No,1 vide order dated 19-5-2005. No application for substituted service is available on record for issuance of summonses through publication and even no oral request is available on the diary sheets after 19-5-2005 when the trial Court held the service good upon defendant No,
1. However, summonses were issued for 8-4-2006 in Daily Khabrain' dated 6-4- 2006 and again service was held good on 8-4-2006. No explanation of repetition of holding service good upon the defendant No,1 by the same Presiding Officer Mr. Syed Azmatullah is mentioned in the ordeRs,
16. Evidence on record clearly shows that the petitioner No,1/defendant No,1 in the suit was never served and that she acquired knowledge of ex parte decree after notice of execution was pasted at the address of the subject property where the petitioner No,2 is residing since 2003. The record of the trial Court regarding service upon the petitioner No,1 who was defendant No,1 before the trial Court is prima facie based on fraud and misrepresentation. No service in accordance with Order V, Rule 17 of the Civil Procedure Code as well as provisions of Sindh Chief Court Rules (OS) was made.
Summonses were never served upon defendant No, 1/petitioner No,1 in accordance with legal requirements. The Sindh Chief Court Rules (OS) envisaged that for the purpose of identification and service and for affixation of copy of summons requirement of law is that the Bailiff should do it in presence of one respectable person of the locality and obtain his signature or thumb-impression which is also in accordance with Order V, Rule 17, C.P.C. Endorsement of the Bailiff dated 9-4-2005 clearly shows that defendant No,1/petitioner No,1 was not personally served and that Bailiff did not take any respectable person with him at the time of affixation of summonses on the door of the residential address of the defendant No,
1. Rules of procedure which meant to promote cause of justice and they cannot be F used as engine of oppression against the party to suit as has been done by the trial Court.
17. It appears that both trial Court as well as revisional Court have not taken into consideration the orders of this court dated 28-1-2002 and 16-9-2002. The trial Court has held the service good upon the defendant No,1 in violation of the Order V, Rule 17 and provisions of Sindh Chief Court Rules (OS).
18. Petitioner No,1 has categorically denied in his application filed under section 12(2), C.P.C. That no documents which were enclosed with the documents filed by the respondent No,1 with the memo.
Of plaint including, sale agreement and powers of attorney are false, forged, bogus, fabricated and fictitious. Respondent No,1 in his counter-affidavit to the Application under section 12(2), C.P.C. Filed before the trial Court in paragraph-6 stated that after getting possession of the subject flat by the petitioner No,1 (defendant No,1) from the builder on 14-10-1998 she never resided in the said flat even for a week and rented out the same to one Sikandar till 2002, after that Mr. Asif Riaz and later on to Mr. Zahid Khan whose name plate was affixed on the main door: H From the record it appears that the petitioner No,2 is wife of said Zahid Khan who claims to be owner by virtue of the sale agreement executed in her favour on 6-5-2003 by the petitioner No,1 which has been admitted by the petitioner No,1 in the pleadings.
19. We have also perused the file of the trial Court and found that the plaintiff had filed affidavit-in- evidence and was examined by the trial Court on 14-12-2006. No original document has been produced at the time of evidence of the plaintiff as there is no endorsement of the Presiding Officer either on the I affidavit-in-evidence of plaintiff/ respondent No,1 or on any photocopy of document available on record that original documents were produced/confronted at the time of evidence of the plaintiff and only photocopies were produced.
20. Section 12(2), C.P.C. Is being reproduced as under:--- "12(2) Where a person challenges the validity of the judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
21. There are three ingredients for which the application under section 12(2), C.P.C. Can be filed:-
(i) Fraud committed on Court,
(ii) misrepresentation, and want of jurisdiction.
22. Petitioners in their application under section 12(2), C.P.C. Submitted specific and tangible grounds of commission of fraud and misrepresentation by the respondent No,1 as the respondent No,1 on the basis of forged, fabricated, bogus, false and fictitious documents obtained the decree by deceitful manner.
23. We have carefully examined R&P of the trial Court and found that the service has been wrongly held good by the trial Court upon the petitioner No,1 in violation of Order V, Rule 17, C.P.C. And provisions of Sindh Chief Court Rules (OS) Orders dated 28-1-2002 and 16-9-2002 of this Court were not complied with. Moreover, the respondent No,1 has not produced the original documents at the time of his evidence, those documents petitioner No,1 is claiming to be forged one. This controversy of the genuineness of documents enclosed with the plaint could only be resolved after recording of the evidence of the parties and production of the original documents before the trial Court is mandatory under the law. Subject flat is admittedly mortgaged with HBFC and none of the party has produced any document establishing that who has paid the instalments of loan of the subject flat to the HBFC.
24. Prima facie on the material available on record it is apparent that fraud and misrepresentation has been committed by the respondent No,1 on the court by producing photocopies of the agreement of sale, general powers of attorney and receipts etc., without producing original of the same at the time of his evidence. The petitioner No,1 claims that those documents have been prepared fraudulently by the respondent No,1 service of summons has also not been effected in accordance with law upon the petitioner No,1 before the trial court, we therefore, allow the present petition, set-aside the order dated 17-7-2010 of 1st Additional District Jude, Karachi (East) in Civil Revision No,27 of 2009, the order dated 16-3-2009 passed in Civil Suit No,1306 of 2002 Execution No,8 of 2007 and ex parte judgment dated 8-1-2007 and decree dated 12-1-2007 in Suit No,1306 of 2002 (old No,687 of 2000) passed by IV Senior Civil Judge, Karachi (East).
25. Since the respondent No,1 has already impleaded the petitioner No,2 as judgment-debtor No,2 in the Execution Application filed on 28-3-2009 and the petitioner No,2 is residing in the subject flat since 2003. Moreover, the petitioner No,1 has admitted in her pleadings that she had sold the subject flat to the petitioner No,2, therefore, in our view the petitioner No,2 is an essential and necessary party to be impleaded in the suit therefore, we direct the counsel for the respondent No,1 to implead the petitioner No,2 as one of the defendant in the suit before the Trial Court, file amended title within one week from today. The petitioner are directed to file their written statements before the Trial Court within three weeks for today and the trial Court is hereby directed to decide Suit No,1306 of 2002 (old No,687 of 2000) expeditiously within a period of six months from the date of receipt of the order.
26. Observations made by us in this order are of tentative nature and the trial Court shall not be prejudice or influenced by any of such observations. 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.