' CH. MUHAMMAD IBRAHIM ZIA, J.---This appeal by leave of the Court has arisen from the judgment of the High Court dated 5-10-2012, whereby the appeal filed by appellant herein has been dismissed.
2. The necessary facts giving rise to this appeal as narrated are that the appellant herein moved an application under section 12(2) of the Civil Procedure Code, for setting aside the judgment and decree dated 28-2-2006 passed by the learned District Judge, Mirpur. According to the averments made in the application, the plaintiff and predecessor of defendants Nos.1 to 7 are closely related to each other. The plaintiff was settled abroad for his livelihood. The appellant herein averred in the application that he is owner of 36 kanals 11 marlas land in survey No. 188, renumbered as 136, situated at village Lehri, which was awarded in his absence and the plots were marked for allotment. When the appellant came back in 2003, the predecessor of the defendant-respondents obtained fraudulently copy of his identity card for preparing the power of attorney so that civil cases in respect of the awarded land could be prosecuted. It is further mentioned that the predecessor of the respondents fraudulently obtained the power of selling the land on his behalf and transferred 16 kanals land through an agreement in his favour on 28-8-2003. The power of attorney was recalled by the appellant on 30-8-2004.
3. The predecessor of the defendant-respondents herein filed a suit for specific performance of the contract dated 6-9-2004. The appellant contested the suit by filing written statement and executed a power of attorney in favour of Muhammad Haneef who also deceived the plaintiff and moved an application on 28-2-2006 before the Court stating therein that the parties have negotiated a compromise and on the basis of said compromise a decree was passed in favour of predecessor of respondents on 28-2-2006. An application for correction of decree was also filed at the same time which was corrected accordingly and a decree was passed to the extent of, 14 kanals, 3 marlas vide order dated 12-5-2006. The predecessor of the respondents got the land de- notified but the land measuring 36 kanals which was in the ownership of the appellant was not de- notified in his name rather the predecessor of the respondents obtained the same in his favour.
The appellant has alleged that as the power of attorney was cancelled therefore, the agreement to sell, judgments and decree of the Court below are illegal, inoperative and against the rights of the appellant.
4. The defendants-respondents also filed an application under Order VII, Rule 11 of the Civil Procedure Code, on 13-12-2010. They also filed objections and prayed for vacation of the stay order.
The trial Court after necessary proceedings, vide order dated 2-2-2011 rejected the application on the ground of limitation. The appellant feeling aggrieved challenged the order passed by the trial Court through an appeal before the High Court which also met the same fate through the impugned judgment, hence, this appeal.
5. Mr. M. Riaz Tubassam, Advocate, the learned counsel for the appellant argued the case at some length. He discussed in detail merits of the case and submitted that the compromise-decree was obtained on the basis of fraud. He submitted that the decree has been passed on the basis of admission by an incompetent person. The appellant was abroad and he came back in November, 2010. He got knowledge of this fraudulent compromise and immediately challenged the same by filing application under section 12(2), of Civil Procedure Code, before the competent Court. The Court has wrongly declared the application as time barred and rejected the same under the provisions of Order VII, Rule 11 of the Civil Procedure Code. He further submitted that the compromise decree was passed on the so-called power of attorney, whereas the said power of attorney was already revoked on 23-8-2004. Therefore, the attorney was not competent to file compromise in the year 2006. The whole proceedings are based upon fraud. He also stressed that the technicalities should not be hurdle in administration of justice and the adjudication of matters on merits for the ends of justice is necessary.
6. Conversely, Raja Khalid Mehmood Khan, Advocate, the learned counsel for the respondents strongly opposed the appeal on the ground that the application filed by the appellant under the provision of section 12(2) of the Civil Procedure Code, was hopelessly time barred. This fact does not require any further proof as the same has been admitted and established from the documents produced by the appellant himself. He further submitted that the appellant has changed his stance. He has now taken the stand that he was abroad but no such thing has been mentioned in the application under section 12(2) of C.P.C. He further submitted that the appellant has taken contradictory stand as he himself has placed on record the certified copies of the application filed in the Court on 24-2-2006 which clearly speaks that he got knowledge of the suit and the proceedings on 22-2-2006. Thus, limitation starts running from this date. He further referred that the appellant participated in the proceedings and filed objections on the application for interim relief, hence, the written statement is signed by him and his counsel. The Courts below have rightly dismissed the application being time barred under the provisions of Order VII Rule 11 of Civil Procedure Code, on the basis of due appreciation of the material produced by him.
7. We have heard the arguments of learned counsel for the parties and also perused the record.
The moot point in this case which requires resolution is question of limitation for filing the application under section 12(2) of Civil Procedure Code. Both the parties have admitted that the prescribed limitation for filing the application is 3 years. The appellant filed the application on 10-11- 2010 wherein' he has prayed for cancellation of the judgment and decree dated 28-2-2006. He has averred in the application that 'by practicing fraud the proceeding of the suit and the decision/decree was kept out of his knowledge. It is also averred in the application that he has demanded the respondents to get cancelled the judgment and decree themselves but they have refused few days earlier, hence, he has approached the Court. On the application filed by the respondents for rejection of the application under the provision of Order VII Rule 11 of Civil Procedure Code, the trial Court rejected the application filed under section 12(2), C.P.C., being time barred. The trial Court observed that the appellant has failed to satisfactorily explain the cause of delay. The findings recorded by the trial Court have been upheld by the High. Court through the impugned judgment.
8. No doubt, under, the statutory provisions of section 18 of the Limitation Act, in case of fraud, limitation starts running from the date when it first comes into knowledge of the party. But in the instant case, although the appellant has alleged fraud but amazingly he himself has placed on record the documentary proof which speaks that he was not only having knowledge of the proceedings in the suit but also fully participated the same:
9. In the trial Court, along with his application filed under section 12(2), C.P.C., he has also produced copies of the written statement signed and filed by him. Same like the objections on the application for interim relief were also filed. Over and above, he has also produced a certified copy of the application dated 22-2-2006 presented before the trial Court on 24-2-2006 which reads as follows:- {{URDU TEXT}}
11. The copy of this application even has been filed before this Court which is available at page 22 of the paper book marked as annexure P/6. The learned counsel for the appellant has owned the same as filed by a duly authorized attorney. The contents of this application clearly speaks that the appellant petitioner got knowledge of the compromise on 21-2-2006. It is further averred in the application that the plaintiff of the suit retracted from the contract, therefore, proceedings in the suit should be kept in abeyance. Thus, according to record produced by the appellant it is clearly established that he participated in the proceedings of the suit. He got knowledge of the compromise filed by the alleged attorney on 21-2-2006 but despite this he has not approached the Court within prescribed limitation. In view of this record, the Courts below have not committed any illegality. The application has been rightly dismissed being time barred.
12. So far as the contention of learned counsel for the appellant that the technicalities should not be hurdle in administration of justice is concerned, has no substance. In the case' in hand it is not mere a technicality when by efflux of time, valuable rights have been accrued to the other party due to carelessness and negligence of appellant, the same cannot be set at naught. The appellant according to his conduct, despite participating in the proceedings, having full knowledge of the proceedings and compromise, slept over his right being negligent, does not deserve for any condonation of delay. Therefore, finding no force, this appeal stands dismissed. No order as to costs.