' MAHMOOD AHMAD BHATTI, J. --- This writ petition is directed against the order dated 02.04.2011 passed by learned Civil Judge, Rajanpur and the judgment dated 07.01.2012 passed. By learned Additional District Judge, Rojhan Camp at Rajanpur.
2. The facts in brief, are that Muhammad Yaseen, predecessor-in interest of petitioners Nos. 1-a to 1- g, Muhammad Yameen, predecessor-in-interest of petitioners Nos. 2-a to 2-I, Abdul-ur-Razzaq, petitioner No, 3 and Shamshad Ahmad, petitioner No, 4 instituted a suit for declaration against Muhammad Siddique, their real father in respect of !And measuring 100 Kanals, 12 Marlas, situated at Mouza Rajan Pur, contending therein that Muhammad Siddique, defendant had entered into an oral agreement to sell with the plaintiffs and delivered possession to them on the receipt of entire sale consideration.
3. The suit was decreed by a three-line order dated 31.07.1995 passed by learned Civil Judge, Rajanpur in the wake of the alleged consenting statement made by Muhammad Siddique, the defendant.
4. Mst. Parveen Akhtar, respondent No, 3 in the writ petition instituted a petition under Section 12(2), CPC on 26.2.2004 maintaining that the aforesaid judgment and decree dated 31.07.1995 was procured by committing fraud and practising deception and misrepresentation. It was averred by her that her father, namely Muhammad Siddique was 91 years old, a decrepit, who was too weak to walk. He was not in a position to move about, let alone go to Courts, engage a counsel and make a consenting statement. It was emphasized by her that the alleged judgment and decree was passed on 31.07.1995, while Muhammad Siddique, the defendant in the said judgment and decree nassed away on 22.09.1995, that is to say, in less than two months of the conclusion of the proceedings. At the same time, she wondered how a judgment and decree could be passed 24 days after the institution of the suit. It was pointed out that suit was instituted on 7.7.1995, and decreed on 31.7.1995. She went on to allege that upon the demise of Muhammad Siddique on 22.09.1995, a mutation of inheritance No, 1342 was attested in favour of all his legal heirs, including her and her five sisters. In another development, Mst. Asghari Begum, widow of Muhammad Siddique and mother of Mst. Parveen Akhtar died in 1998 and mutation of inheritance No, 1343 was attested in favour of all her legal heirs. It is pertinent to mention that both these mutations related to the suit land, which was decreed against Muhammad Siddique on 31.7.1995. However, some time in 2003, the decree-holders got the afore-mentioned mutations Nos. 1342 & 1343 reviewed, substituting them for mutation No, 2018 dated 20.01.2003, which was attested on the strength of judgment and decree dated 31.07.1995. Alongwith the petition under Section 12(2), CPC a miscellaneous application was also moved seeking to condone the delay, if any. The decree- holders entered appearance and filed reply to the aforesaid petition under Section 12(2) controverting the pleas of Mst. Parveen Akhtar both on the factual and legal plane.
5. Keeping in view the divergent pleadings of the parties, following issues were framed:--- ISSUES:-
1. Whether the petition u/S. 12 (2) of CPC is time-barred? OPR.
2. Whether the petitioner has no cause of action to file the instant petition? OPR.
3. Whether there are sufficient reasons to set aside the ex parte decree dated 31.07.1995? OPA.
4. Relief.
6. Having recorded the evidence of the parties, learned Civil Judge, Rajanpur allowed the petition of Mst. Parveen Akhtar moved under Section 12(2), CPC vide order dated 02.04.2011. A revision petition was filed by the petitioners herein in the Court of learned District Judge, Rajanpur, which was ultimately decided by learned Additional District Judge, Rajanpur, who concurred with the findings recorded by the Court of first instance and dismissed the revision petition vide judgment/order dated 07.01.2012. Hence this writ petition.
7. Learned counsel for the petitioners contended that the petition under Section 12(2), CPC was not maintainable in that decree dated 31.07.1995 was a consent decree; that since Mst. Parveen Akhtar did not implead Mst. Haseena Bibi, Mst. Fatima Bibi, Mst. Zarina Bibi, Mst Sitara Bibi and Mst. Salma Bibi, her sisters in her petition, the petition was improperly constituted and could not be proceeded with in the absence of necessary parties; that when the afore-mentioned sisters of Mst. Parveen Akhtar neither came forward to challenge the decree dated 31.07.1995 nor were made a party to the petition under Section 12(2), CPC moved by Mst. Parveen Akhtar, how could the decree sought to be impeached was set aside as a whole?; that issues were not properly framed, due to which prejudice was caused to the decree-holders and successorsin-interest of the deceased decree- holders; that the petition under Section 12(2), CPC was absolutely barred by time; that presumption of truthness is attached to the judicial proceedings under Article 129 (e) of the Qanun-e-Shahadat Order, 1984. Last but not least, it was urged that both the courts did not appreciate the controversy in proper perspective, and the findings recorded by them are the outcome of misreading and non- reading of the evidence produced by the parties. In short, the learned courts below proceeded on conjectures, presumptions, assumptions and surmises.
8. Learned counsel for Mst. Parveen Akhtar, respondent No, 3 controverted the arguments advanced by learned counsel for the petitioners and supported the orders passed in her favour. It was emphasized by him that the 'orders impugned before this Court are eminently just and are not to be interfered with in the writ jurisdiction, especially when the hands of the petitioners and their predecessors-ininterest were sullied with fraud.
9. Arguments heard and the record appended to the writ petition perused.
10. A few things stand out in this case. The plaintiffs, Muhammad Yaseen deceased and his three brothers instituted a suit for declaration against their real father' Muhammad Siddique, maintaining that he had entered into an oral agreement to sell with them and delivered possession of the suit land measuring 100 Kanals, 12 Marlas to the plaintiffs, but had gone back on his word. A perusal of the plaint, which was produced before the Court of first instance as Exh. A-1 reveals that no date, month or time when the alleged deal was clinched between Muhammad Siddique deceased and the plaintiffs was given in the plaint. Even the sale consideration alleged to have been paid to defendant, Muhammad Siddique deceased was conspicuous by its absence.
Everything relating to the alleged oral sale was vague, indefinite and ambiguous.
' There is no cavil at the proposition that an agreement can be made orally, as was held in Bashir Ahmad v. Muhammad Yousaf through Legal Heir' (1993 SCMR 183), `Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others' (1994 SCMR 2189), and 'Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others' (2003 MLD 131), but if the requisite details about the sale in question are found missing, it would cast grave doubts on the validity of the claim of the alleged vendee.
11. It was averred in paragraph No, 2 of the petition under Section 12(2), CPC that Muhammad Siddique, the alleged judgment-debtor was nonagenarian and he was even unable to move about. Therefore, the question of his engaging a counsel and/or making a statement in the court, and that, too, without being summoned by the Court concerned, did not arise at all. It was asserted further that the impugned decree was passed on 31.07.1995, while Muhammad Siddique, the alleged judgment-debtor passed on 22.02.1995. In other words, he passed within two months of the passing of the alleged decree against him. The answer to these averments is quite stunning, and is worth reproducing hereunder:--- ' The reply of the decree-holders reproduced hereinabove would be regarded as an evasive one, and a Court of law is to draw its own conclusion therefrom. But one thing is absolutely clear that the allegations levelled in paragraph No, 2 of the petition under Section 12(2), CPC were not seriously challenged or denied. Likewise, it was maintained by Mst. Parveen Akhtar in paragraph No, 6 of her petition that upon the demise of her father, Muhammad Siddique and following the death of her mother, Mst. Asghari Begum two mutations of inheritance Nos. 1342 and 1343 were attested on 12.10.1999 and nobody talked of the decree dated 31.07.1995 alleged to have been passed in favour of sons of Muhammad Siddique, thereby depriving of his daughters. The decree-holders replied to the assertions made by Mst. Parveen Akhtar in the corresponding para of their reply as under:- ' The evasive manner in which the decree-holders denied the assertions of the applicant, Mst.
Parveen Akhtar speaks volumes for the veracity of their claim put forward in the suit decreed in their favour vide judgment and decree dated 31.07.1995.
12. A great deal of emphasis was laid by the learned counsel for the petitioners that proper issues were not framed by the Court of first instance, thereby causing prejudice to their case. When questioned as to whether the petitioners herein had moved any application to get the correct issues framed, he answered in the negative. Even otherwise, it is well-established law that when the parties to a /is are alive to the controversy and the contentions raised by either of them, framing or non-framing of a particular issue would be of no consequence. In this respect reference may well be made to the judgments reported as 'Muhammad Akram alias Raja v. Muhammad lshaque'
(2004 SCMR 1130), Eada Khan v. Mst. Ghanwar and others' (2004 SCMR 1524), Laloo and another v.
Ghulaman' (2000 SCMR 1058), 'Muhammad and 9 others v. Hasham Ali' (PLD 2003 SC 271), Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others' (1993 SCMR 2018), and Mehmood Ahmad and 8 others versus Malik Abdul Ghafoor (PLD 2011 Lahore 522).
13. As regards the contention of learned counsel for the petitioners that a petition under Section 12(2), CPC is not competent in respect of a consent decree, suffice it to make reference to the judgment reported as Syed Nizam Ali and 2 others v. Ghulam Shah through Legal Heirs and another' PLD 2000 Lahore 168). This judgment is a complete answer to the contention raised by the petitioners.
14. Learned counsel for the petitioners took a considerable time to emphasis that without impleading the other legal heirs of Muhammad Siddique, the judgment-debtor, the very maintainability of the petition under Section 12(2), CPC was open to question. Although he did not make reference to any law, yet by applying the analogy underlying Order I, Rule 9, CPC read with Section 141, CPC, no suit or proceeding shall be defeated by reason of mis-joinder and non-joinder of the parties. Furthermore, Section 12(2), CPC does not impose any such condition that all the persons interested in getting a must join the proceedings. On the contrary, this allows every person to challenge the validity of the judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction. It has repeatedly been held by the superior courts that even a stranger to a judgment and decree/order may institute a petition under Section 12(2) of CPC. Suffice it to make reference to 'Muhammad Younus v. The State' (1994 SCMR 586). In the instant case, Mst. Parveen Akhtar being a legal heir of Muhammad Siddique deceased was directly affected in the wake of the cancellation of mutations of inheritance Nos. 1342 and 1343 dated 12.10.1999, which were substituted by mutation No, 2018 dated 20.01.2003 on the back of impugned judgment and decree dated 31.07.1995. In the circumstances, even if her sisters were not impleaded by her in the petition under Section 12(2), CPC it would not have rendered her petition incompetent. She had impleaded all the decree-holders as respondents, and was not required to array all the legal heirs of the judgment-debtor as respondents. Moreover; non-impleading of a party is not treated as a compelling reason to dismiss a suit or proceeding. In this behalf, reliance may well be placed on the judgments reported as 'Punjab Board Transport Board through its Chairman, Lahore v. Abdul Ghafoor and 6 others' (PLD 1989 SC 541), 'Rehmatullah and others versus Saleh Khan and others' (2007 SCMR 729 and Mst. Jannat Bibi versus Saras Khan' (2011 SCMR 1460).
15. Learned counsel for the petitioners vociferously argued that on the face of it, the petition was barred by time. His contentions overlooked the sequence of the events, as well as the record appended by him to the writ petition. Exhs. A-5, A-6 and A-7, negate the assertion of the petitioners that Mst. Parveen Akhtar knew about the decree dated 31.07.1995 from day one. The very fact that in the wake of death of Muhammad Siddique and Mst. Asghari Begum, mutations of inheritance Nos.
1342 and 1343 dated 12.10.1999 produced as Exh. A-5 and A-6 were attested in favour of all their legal heirs goes a long way to show that she could not be saddled with the knowledge of the decree in question. Otherwise, mutations Nos. 1342 and 1343 would never have come into existence and attested in favour of all the legal heirs of Muhammad Siddique and Mst. Asghari Begum. It may well be presumed that she jolted into action following the attestation of mutation No, 2018 dated 20.01.2003, whereby earlier mutations Nos. 1342 and 1343 dated 12.10.1999 were cancelled on the strength of impugned judgment and decree dated 31.07.1995. Therefore, the petition under Section 12(2), CPC cannot by any stretch of imagination be regarded as having been filed beyond the period of limitation. It bears repeating that the said petition was made on 26.02.2004. Therefore, if time is to be reckoned from 20.01.2003, the date when mutation No, 2018 was attested by which Mst.
Parveen Akhtar and her sisters were deprived of the suit land that devolved upon them on the demise of their father and mother, the petition under Section 12(2), C.P.C. Was well within time going by Article 181 of the first schedule to the Limitation Act, 1908. There is another dimension to the question of limitation. Fraud vitiates even the most solemn proceedings, as has been held in a plethora of judgments including the ones reported as 'Muhammad Zafarullah through L.Rs, and others' (2007 SCMR 589), Khadim Hussain v. Abid Hussain and others' (PLD 2009 SC 419), Talib Hussain and others v. Member, Board of Revenue and others' (2003 SCMR 549), 'La! Din and another v. Muhammad Ibrahim' (1993 SCMR 710) & The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others' (PLD 1975 SC 331). Although there are judgments in which it has been held that even a void order is to be challenged within limitation, but the preponderance of legal opinion holds that no limitation would run against a void order. In this respect reference may well be made to 'Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi' (2008 SCMR 611), 'Muhammad Aslam Zia and 2 others v. Yousaf Ali' (PLD 1958 SC 104) & 'Faisal Jameel v.
The State' (2007 MLD 355). This is not to say that in this case the judgment dated 31.07.1995 was not challenged within time. As held hereinabove, as and when Mst. Parveen Akhtar learnt of the decree dated 31.07.1995 in the wake of the attesting of mutation No, 2018 dated 20.01.2003, she challenged it within one year.
16. As observed in paragraph 10, the plaint in the suit titled 'Muhammad Yaseen and others v.
Muhammad Siddique' is conspicuously silent on the details as to the oral agreement to sell alleged to have been made in favour of the plaintiffs. So much so that neither the day, date and month, when the oral sale in question was made, were mentioned, nor the sale consideration which the plaintiffs alleged to have paid to the vendor of the suit land was set out. Rather, it was averred in the plaint that the entire sale consideration had already been paid to the vendor, Muhammad Siddique, who was none other than the real father of the plaintiffs. As is amply born out by Exh.A-8, an extract from the register of deaths, the alleged vendor was 91 years old on 22.09.1995 when he passed away. Interestingly enough, the report of his death was made and got entered in Exh.A-8 by Abdul Razzaq, one of the decree-holders and the petitioners herein. Since this fact was not rebutted in the evidence produced by the decree-holders/respondents in the petition under Section 12(2), CPC, the authenticity of Exh. A-8 is not open to question. At this juncture, it needs to be underscored that Abdul Razzaq afore-mentioned appeared as RW-1, but he did not deny the factum of the old age of Muhammad Siddique deceased, his father. His complete silence about this vital information knocks the bottom out of the case of the decree-holders/petitioners herein.
17. It is also hard to reconcile to the fact that at such an advanced age of 91, Muhammad Siddique, the judgment-debtor would have been forced by the circumstances to sell the suit land to his own sons. Apart from the submissions made by respondents seeking to dismiss the writ petition, it cannot be overlooked that there is no proof of the payment of any sale consideration by the plaintiffs/decree-holders to the judgment-debtor, their real father. Under Section 25 of the Contract Act. 1872, no contract, not to mention the contract for the sale of valuable agricultural land can come into being, without the payment of consideration. The same was held in the case reported as Rehmatullah and others v. Saleh Khan and others' (2007 SCMR 729).
' Looking at the question of limitation from various angles, and taking into consideration the fraud committed by the decree-holders, with the blessing of Court concerned, the question of limitation would pale into insignificance.
18. There is a question mark hanging over the maintainability of the suit instituted by the decree- holders. It is well-established law that in case of breach of an alleged agreement to sell, only a suit for specific performance is competent, and a suit in any other form would be incompetent. In this respect, reference may well be made to the judgments reported as 'Ghulam Nabi and others v.
Seth Muhammad Yaqub and others' (PLD 1983 SC 344), 'Muhammad Mansha v. Abdul Karim and another' (2000 CLC 1226), 'Muhammad Yousaf v. Munawar Hussain and 5 others' (2000 SCMR 204).
19. It cannot be lost sight of that the suit instituted by Muhammad Yaseen deceased and others was decreed within a matter of days. To be precise, it was decided wit* 24 days. No doubt, it would always be desirable to decide cases as early as possible, but indecent haste with which this suit was decided could go down in history as a classical case of the delivery of the swiftest justice. It has repeatedly been held by the superior courts that justice should not only be done but appear to have been done. At this stage, it is worth recalling and reproducing an extract from the judgment of the Supreme Court of Pakistan reported as 'Government of Sindh and'others v. Saiful Haq Hashmi and others' (1993 SCMR 956):--- 'According to the well-settled principle, justice is not only to be done but it should be seen to be done. It should he seen to be done by the conduct of theJudge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceedings should demonstrate the integrity, honesty, bona fides is and impartiality of the Judge. As observed Muhammad Hussain Kazi v. Government of the Punjab (PLO 1983 SC 187), "the propriety or impropriety of conduct had to be determined by reference to the officer, his work and duties and the service discipline governing him. In case of a judicial officer the hierarchical arrangement of Courts, the handing down of written judgments and the collection of precedents in law, all control and guide his functioning." The Courts presided over by Judges are institutions which command respect, faith and confidence for implementation of rule of law, justice and equity. If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the judge for behaving in a manner unbecoming of a Judge or a gentleman. Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face.'
20. It is mind-boggling that the impugned judgment dated 31.07.1995 consist of only three lines. On the face of it, it could hardly be regarded as a speaking order, not to mention a standard judgment.
The requisites of a standard judgment have been laid down by this Court as well as the Supreme Court of Pakistan in a string of judgments, including the ones reported as 'Fasih-ud-Din Khan and others v. Government of Punjab and others' (2010 SCMR 1778), 'Government of Pakistan through Director General, Ministry of Interior, Islamabad and others' (2011 SCMR 1), `Abdul Hameed and 7 others v. Abdul Razzaq and 3 others' (PLD 2008 Lahore 1), 'Muhammad Siddiq versus Syed Ali Shah and another' (PLD 1976 Lahore 293) and 'Pakistan