' UMAR ATA BANDIAL, J.---The petitioner entered into an agreement to sell dated 9-12-2003 with the legal heirs of Iqbal Ahmad Khan for purchase of a house No.554/3C-1, Township Lahore measuring 10-marlas for a total consideration of Rs,1.6 million. He filed a suit for specific performance of the said agreement against the yendors on 21-4-2004. The defendant No.1 Javed Iqbal and defendant No.2, Nadeem Iqbal (predecessor of the presently contesting respondents Nos.3 to 5) filed a joint written statement on 15-6-2006. The defendant No,1 died on 20-12-2006 and his legal heirs were impleaded on record. Thereafter, on 20-2-2007, the suit was dismissed for non-appearance by either of the parties; however, on application by the petitioner-plaintiff it was restored on 31-3- 2007. Neither notice of the restoration application nor fresh notices on the restored suit were issued to the defendants. Accordingly, through an ex-parte judgment the suit was decreed on 6-4-2009.
The execution petition on the said dedee was filed on 6-5-2009 in which possession of the suit property was secured by the petitioner/plaintiff on 14-5-2009.
2. One of the legal heirs of Iqbal Ahmad Khan, namely, respondent No.10, Nasir Iqbal, had filed a conceding statement in the suit but never participated in the proceedings. Another legal heir respondent No,11, Mst. Iffat Masood, filed an application along with affidavit and got recorded her statement in the executing court admitting claim of the petitioner and prayed for withdrawal of the amount to the extent of her share. The defendant No,2, Nadeem Iqbal, died during the pendency of the suit on 14-1-2008. He is succeeded by his legal heirs respondents Nos.3 to 5 herein. 'After their dispossession from the suit property in the above noted execution proceedings these legal heirs filed an application in the trial court on 22-5-2009 under section 12(2), C.P.C. Challenging the ex parte decree dated 6-4-2009. This application was allowed by the learned trial court on 3-12-2009.
A civil revision there against by the petitioner-plaintiff was dismissed on 3-4-2010 by the learned appellate court. The present writ petition is filed to challenge the afore noted two orders whereby the ex parte decree dated 6-4-2009 has been set aside.
3. The first objection taken by the learned counsel for the petitioner is that the learned courts below have based their decisions on grounds that are not taken in the respondent's application under section 12(2), C.P.C. He points out that the allegation that Nadeem Iqbal, predecessor of the contesting respondents Nos.3 to 5, had not signed the power of attorney of the counsel appearing in the trial court, is not mentioned in the application. Secondly, he asserts that the application lacks the allegation that consequent upon the restoration of the suit on 31-3-2007 fresh notice was not issued to the defendants-respondents. Accordingly, it is submitted that the petitioner has been condemned on the basis of allegations that were not part of the record. The learned counsel for the contesting respondents has explained that the allegations are not based on any extraneous evidence but are derived from the record, namely, wakalatnamas filed by the defendants and the order sheet of the learned trial court in the suit. Consequently, neither point can surprise the petitioner/plaintiff nor can he claim prejudice on account thereof.
4. The next point raised by the learned counsel for the petitioner is that the decree has been set aside as a whole by the impugned judgments whereas at best it should be set aside partially in favour of the persons who have challenged the same, namely, respondents Nos.3 to 5, heirs of Nadeem Iqbal. He submits that the other defendants have not participated in proceedings under section 12(2), C.P.C. At all either before the learned trial court or learned appellate court.
Notwithstanding the issuance of notice in the present proceedings to the said parties they have not participated. He submits that they accept the decree and do not claim any right in the proceedings under section 12(2), C.P.C. Learned counsel for the respondents Nos.3 to 5 submits that there is no precedent whereby a decree is set aside partially in exercise of power under section 12(2), C.P.C. He adds that property in question is indivisible and for that reason also partial relief would be inappropriate in the circumstances.
5. The controversy brought to this Court in the present petition must satisfy the limitations imposed on the exercise of constitutional jurisdiction of this Court. This Court ordinarily interferes with judicial orders passed by the learned lower courts either on account of jurisdictional defect or the commission of illegality in the impugned orders. In the present case, no jurisdictional defect has been pointed out in the impugned judgments. Insofar as decision by the learned lower courts to set aside an ex parte decree is concerned, it is evident from the record that the parties, including Nadeem Iqbal deceased, predecessor of the contesting respondents Nos.3 to 5, was never issued notice of restoration of the suit consequent upon the order dated 31-3-2007. Such an omission constitutes a serious default by the learned trial court. Secondly, Nadeem Iqbal had passed away on 14-1-2008 whereas the impugned decree was passed against him, a dead person, on 6-4-2009.
It is also correct that the signatures of Nadeem Iqbal appearing on the agreement to sell do not tally with his attributed signatures affixed on the wakalatnamas. Consequently, an ex parte decree, passed against a dead person whose fake signatures appear on the power of attorney/ wakalatnama, cannot enjoy the sanctity attached to a judicial order.
6. There is superficial force in the procedural objection that the section 12(2), C.P.C. Application by the respondents does not contain the grounds of challenge to the ex parte decree that have prevailed with the learned courts below. The fact of the matter is that both grounds are apparent on the face of the record. Such an objection may have substance if a party is caught by surprise and suffers prejudice as a result. Reference may be made to Ch. Sir Muhammad Zafrullah Khan v.
The Custodian of Evacuee Property, West Pakistan and Karachi and others (PLD 1964 SC 865). The petitioner cannot take the said plea because he had two opportunities one before the learned appellate court and again before this Court to demonstrate the prejudice suffered, inter alia, by showing that material rebutting the findings was prevented from being brought on record.
Accordingly, this allegation does not disclose a sufficient basis to interfere with the impugned findings regarding validity of the impugned ex parte decree dated 6-4-2009.
7. However, the other argument that the respondents Nos.3 to 5 are not entitled to relief that avoid the entire decree, is appealing. This is because ordinarily relief is extended to the party that approaches the court. Otherwise, even consenting judgment debtors could seek the reopening of a decree that has attained finality. The application of this principle in relation to ex parte decrees is made in Mst. Shaukat Ara v. Mst. Banu Begum through legal heirs and others (PLD 2009 SC 437).
There is, however, a distinction to be made in the present case. The ex parte decree dated 6-4- 2009 has been set aside not for sufficient cause for non appearance being shown by the respondents/defendants under Order 9, C.P.C. But for wrongdoing committed by the plaintiff- petitioner under section 12(2), C.P.C. The general principle of law is that fraud vitiates the most solemn proceedings. Therefore, the tainted actions are void ab initio wholly and not partly. Section 12(2), C.P.C. Equates fraud with illegality, ,invalidating a defective order fully and not by some degree. Reliance is placed on Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCM R 1097), Lal Din and another v. Muhammad Ibrahim (1993 SCM R 710), Khadim Hussain v. Abid Hussian and others (PLD 2009 SC 419). Therefore the ex parte judgment and dperee dated 6-4- 2009 must be set aside wholly and not partly because there are no degrees of invalidity.
8. Be that as it may, it also transpires now that the respondents Nos.3 to 5 claim to have purchased the shares of other heirs of Iqbal Ahmad Khan. This plea is not taken up in the written statement jointly filed by Nadeem Iqbal (predecessor in interest of respondents Nos.3 to 5) and his brother Javed Iqbal. Obviously, the plea capitalizes a subsequent development and the question would arise whether such a development, even if it is factually true, can have any legal consequence.
Insofar as the present proceedings are concerned the said development has not been asserted as respondents Nos.3 to 5 have neither filed any authority on behalf of other heirs of Iqbal Ahmad Khan nor sought the deletion of their names as parties.
9. As the matter is now before the learned trial court for proceeding from the pre-decretal stage, the petitioner-plaintiff has the right to dispute any effort, by the defendants to revive, conceded or surrendered rights whether personal or acquired before the learned trial court. Accordingly, it is best that such objections are heard and decided by the learned trial court which may, if necessary, record further evidence in the matter.
10. In the light of the foregoing observations, the impugned orders dated 3-12-2009 and 3-4-2010 are not disturbed and this petition is disposed of.