' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners/Province of Punjab etc. Have challenged the judgment and decree dated 11-2-2012 passed by learned Additional District Judge, Khushab whereby appeal filed by the petitioners was dismissed and the order dated 26-11-2010 passed by the learned trial court whereby the application moved under Order IX Rule 13 of the C.P.C. For setting aside ex parte decree was dismissed as well as ex parte judgment and decree dated 9-4-2008 passed by the learned trial court whereby suit for declaration filed by the respondents-plaintiffs was decreed.
2. As in this matter public property is involved, therefore, I have heard learned counsel for the parties exhaustively with regard to dismissal of appeal as well as application for setting aside ex parte decree. After hearing learned counsel for the parties with regard to the order dated 26-11- 2010 whereby application for setting aside ex parte decree was dismissed as well as the appellate order dated 11-2-2012 whereby appeal was dismissed, I have also heard learned counsel for the parties on the ex parte judgment and decree dated 9-4-2008.
3. Petitioners/Judgment Debtors on 6-6-2008 filed an application for setting aside ex parte judgment and decree dated 9-4-2008. Reply was filed. Learned trial court recorded the evidence and vide order dated 26-11-2010 dismissed the application on the ground that no sufficient cause has been shown as well as the application was time barred. Petitioners preferred an appeal against the said order before the learned District Judge, Khushab, which was entrusted to the learned Additional District Judge, who vide judgment dated 11-2-2012 agreeing with the findings of the learned trial court dismissed the appeal. Hence, this civil revision.
4. I have heard learned counsel for the parties at full length and gone through the record as well as pleadings and the findings of courts below.
5. In the litigation public property is involved and in the cases where public properties are involved, the court is required to be more conscious and careful in dealing with the matters. As it is a common phenomena that the officials of the Government Departments do not perform their duties to safeguard the interest of the Province of Punjab as well as the Federation and when in this application fraud and connivance of the decree-holders with the officials of Judgment-Debtor Department has been alleged, more care was required but I have noticed that both the courts below having technically dealt with the matter have dismissed the application for setting aside the ex parte judgment and decree and the appeal. I am of the view that the findings of both the courts below are not sustainable under the law as the same have been recorded on the basis of technicalities only. As the public property is involved, therefore, technicalities cannot come in the way of justice, when a matter was re-opened before the trial court in shape of application for setting aside the ex parte decree, the court was having jurisdiction to look into the objections raised by the applicant/judgment debtor with regard to sustainability of judgment and decree, therefore, the judgment passed by the learned appellate court dated 11-2-2012 whereby appeal has been dismissed and the order of learned trial court dated 26-11-2010 whereby application for setting aside the ex parte decree has been dismissed are not sustainable under the law, therefore, both these judgment/order are set aside.
6. As I am dealing with the matter, in the jurisdiction vested in this Court under section 115 of the C.P.C. And in my view it is a fit case for exercise of jurisdiction vested in this Court under section 115 of the C:P.C. After scrutinizing the complete record there was a way before this Court to remand the matter to the learned trial court after setting aside the ex parte decree for re-determination but keeping in view the time already consumed in the litigation which is spread over a period of more than two decades, it is in the interest of the justice as well as the parties that this. Court should exercise jurisdiction vested in it and decide the matter on merits otherwise it is possible that two more decades may be consumed before reaching the matter for final hearing before this Court, as the evidence of the plaintiffs-respondents is available on the file, therefore, I have heard learned counsel for the parties on merits also.
7. The merits of the case are that on 16-6-1992 plaintiffs-respondents filed a suit for declaration and permanent injunction that a declaration be granted that plaintiffs are in possession as well as using the property and defendants are bound in accordance with the order No, DGH/ADT/JBD- 74/884-85 dated 5-11-1981 issued by the office of Housing and Physical Planning Department, Lahore to get lease purchase agreement completed and subsequently after completion of conditions transfer the suit property in favour of the plaintiffs and a permanent injunction was also sought that defendants be restrained from transferring the suit property in the shape of plots.
Written statement was filed by the defendants, wherein it was specifically pleaded that the property "Kothi No, R-II was allotted to Messrs Zafar Saleem and Brothers Limited in the year 1953 and it was cancelled through letter No, 6090 dated 11-3-1961 by the Chairman, TDA and period of filing of appeal for the restoration of the same wa: 30 days which was never filed and further that the plots mentioned as Nos. 6, 11, 12 and 17, Block-B, Mandi Town, Johar Abad were never allotted to Messrs Zafar Saleem and Brothers Limited, original plots i,e, Nos. 6, 11, 12 and 17 are no more in existence as same have been bifurcated in small plots. Possession of the plaintiffs was also denied.
Record shows that P.W.1 Arif Hussain appeared on behalf of the plaintiffs as their Attorney who is real brother of the original plaintiff Khalid Hussain to prove the case and produced the documentary evidence in his statement.
8. Learned Additional Advocate-General argues that the plaintiffs claim the suit property on the basis that due to some arbitration proceedings plots in dispute were transferred in the name of the original plaintiff Khalid Hussain from the name of Messrs Zafar Saleem and Brothers Limited. The Award has been produced as Exh.P.7 and the decree dated 18-10-1981 whereby award has been made rule of court has been produced as Exh.P.8. Learned A.A.-G. Argues that Attorney of the present plaintiffs who appeared as P.W.1 in case in hand, has been shown as Attorney of Messrs Zafar Saleem and Brothers Limited in the Arbitration Award Exh.P.7 and on the other side his real brother Khalid Hussain the original plaintiff is the other party, that documen is also fraudulent one and further that the proceedings of arbitration where the Province of Punjab was not a party and admittedly at that time none of the parties to the arbitration proceedings was owner of the suit property, therefore, making the Award rule of court is visibly fraudulent one and further that all the documents produced by the plaintiffs except the certified copies of the judicial record are not admissible under the evidence as the same have not been proved. Further that the alleged order of allotment of alternate plots and the other documents are not from the record of the defendants- petitioners and same are forged and fictitious one; furthermore these documents have not been proved by the plaintiff as genuine documents, therefore, prays for setting aside the impugned judgment and decree and dismissal of the suit filed by the respondents.
9. Learned counsel for the respondents has supported the judgment and decree passed by the learned trial court but stated that when in the written statement the documents have not been specifically challenged and possession slip has also not been challenged in the written statement and further that there was a dispute with regard to the payment of transfer fee of the alternate plots with the department only and no more dispute was between the plaintiffs and defendants, therefore, plaintiffs filed a suit which has been rightly decreed.
10. I have heard learned counsel for the parties at length and gone through the record.
11. In a suit for declaration the plaintiff is required to prove a case pleaded by him by producing cogent and convincing evidence and in a suit a decree which can be granted by a court is with regard to the preexisting right of a party and through a decree granted under section 42 of the Specific Relief Act a new right cannot be created in favour of a party. I have gone through the pleadings wherein the claim of the original plaintiff that he is in possession and using the property and on the basis of alleged order mentioned in the head-note of the plaint issued by the Housing and Physical Planning Department defendants are bound to get the lease purchase agreement completed and thereafter in compliance of the conditions transfer the property in favour of plaintiff.
' As I have noted that plaintiff was required to prove a case pleaded by him. I have noticed that the claim of the petitioners is based upon the Arbitration Award dated 12-10-1981 and interestingly the application under sections 14 and 17 of the Arbitration Act was filed on 12-10-1981 in the court and court on 18-10-1981 made the Award as Rule of Court, only the Award as well as decree sheet has been produced as Exh.P.7 and Exh.P.8 and according to this decree the learned Civil Judge has declared that on the basis of Award the applicant i,e, Khalid Hussain the present plaintiff has been declared as owner of the subject matter of the arbitration proceedings which are Plot Nos. 6, 11, 12 and 17 situated in Block-I3, Mandi Town, Johar Abad, Khushab and this petition was against Messrs v. Zafar Saleem and Brothers Limited as well as Ch. Muhammad Aslam son of Sher Baz the alleged arbitrator. No arbitration agreement has been produced neither the statement of the arbitrator nor judgment has been produced. Even otherwise admittedly at that time none of the parties to the arbitration proceedings was owner of the suit property and Province of Punjab has not been arrayed as respondent in the application or the arbitration proceedings nor the Housing and Physical Planning Department under whose management the suit property situates and further interesting point which the learned A.A.-G. Has highlighted is that in the Award the real brother of Khalid. Hussain plaintiff of present suit as well as applicant of the arbitration proceedings, Arif Hussain was shown as Special Attorney of Messrs Zafar Saleem and Brothers Limited. The name of Messrs Zafar Saleem and Brothers Limited shows that it is a limited company and a limited company can appoint a person to act on behalf of the company through resolution. No record is available on the file and further interestingly the said Arif Hussain appeared as a sole witness and Attorney on behalf of the plaintiffs in suit in hand as P.W.1. It seems that whole story revolves around this Arif Hussain. At one stage he performs as General Attorney of Messrs Zafar Saleem and Brothers Limited and the rights of Messrs Zafar Saleem and Brothers Limited have been shown to have been transferred through arbitration proceedings and the arbitration proceedings started on 12-10-1981 and ended oh 18-10-1981 within a period of six days and in case in hand he appeared as attorney of the plaintiff. Further documentary evidence whereby through Exh.P.3 on 14-10-1981 Rs,1640 have been shown to have been paid in the Government Treasury with regard to the portion of price of original land by Messrs Zafar Saleem and Brothers Limited and further a sum of Rs,500 was paid as a fine for restoration of Bungalow R-II, Johar Abad on 14-10-1981 through Exh.P.4 and further the payment of Rs,8662 as interest with regard to Plot Nos. 6, 11, 12 and 17. That amount has also been paid on behalf of Messrs Zafar Saleem and Brothers Limited. How astonishing that when an arbitration Award dated 12-10-1981 was in favour of present plaintiff how Messrs Zafar Saleem and Brothers Limited paid the amount on 14-10-1981. Further I have noticed that the alleged Exh.P.6 possession slip does not show the date of possession, which was the only fact to be noted in the slip. The power of attorney on behalf of plaintiff Exh.P.1 has allegedly been prepared in United Kingdom. It has not been authenticated by the Consulate General and in accordance with Article 95 of Qanun-e-Shahadat Order, 1984 this document has no evidentiary value and the P.W.1 appeared on the basis of this power of attorney produced the same in his statement. Further that the document Exh.P.2 on the basis of which plaintiffs have tried to establish whole of their claim first in favour of Messrs Zafar Saleem and Brothers Limited and afterwards in favour of original plaintiff, this document has also been produced in the statement of P.W.1, which is allegedly an order passed by the Assistant Director, Thal Housing and Physical Planning Department, Lahore dated 12- 6-1980. This order is not per se admissible. No record has been requisitioned and it is categorically denied by the learned A.A.-G. Assisted by the officials present in Court that no such record is available in their office and said order is forged one. Same is the position of Exh.P.6 the possession slip as well as document Mark-A. The official in attendance stated that the original Bungalow R-II was measuring 01 Acre whereas suit plots consist upon 4 Acres 2 Kanals and 14 Marlas, which have been bifurcated in small plots and scheme was prepared for auctioning the same as the plots but due to the litigation in hand the same are still vacant and in possession of the petitioner department.
12. Learned counsel for the respondents argues that when whole of the amount has been paid in the Government Treasury, the allotee becomes the owner. Conversely, learned AAG while referring "Mst. Zulaikhan Bibi through L.Rs, and others v. Mst. Roshan Jan and others" (2011 SCM R 986) argues that fraud vitiates the proceedings, the august Supreme Court of Pakistan has held as under:- "It is by now a settled proposition of law that fraud vitiate all proceedings"
' Fraud is visible from the proceedings as neither the payment was made nor the original Kothi was ever restored. It is further noteable that the original Kothi in favour of Messrs Zafar Saleem and Brothers Limited was cancelled vide. Order No, 6090 dated 11-3-1961 by the Chairman, TDA and according to law the period of appeal was 30 days and there was complete silence in between 11- 3-1961 and 12-6-1980 when the plaintiffs claimed an order of alternate plots in favour of Messrs Zafar Salem and Brothers Limited which has otherwise not been proved. There is no date of filing of appeal nor there is any record of the appeal when the period of limitation of appeal was 30 days and further that other missing link is that when the original Kothi was cancelled by the Chairman and now this order has been shown to have been passed by Assistant Director, Housing and Physical Planning Department, it is also noteable that after the order of cancellation by the Chairman, TDA what is the legal value of the order which has otherwise not been proved to have been passed by Assistant Director Housing and Physical Planning Department.
13. As I have noticed that all the proceedings are visibility fraudulent when after the cancellation of the original allotment is favour of Messers Zafar Saleem and Brothers Limited there is complete silence of 19 years and after that on the basis of a forged document claiming that the payment has been made that payment has no value in the eye of law, therefore, case-law relied by learned counsel for the respondents-plaintiff's is no helpful for them. In my view prayers made in the plaint cannot be granted in a declaratory suit. As the plaintiff was asking for performance of some acts and duties, therefore, a direction given by the learned trail court through the ex parte decree that defendant Nos.2 and 3 to issue conveyance deed in favour of the plaintiff was not in the jurisdiction of the learned trail court.
14. In this view of the matter, instant civil revision is allowed, the learned trial court was absolutely having no jurisdiction to pass a decree in favour of the plaintiffs, same s set aside and the suit filed by the plaintiffs stands dismissed.