' Shah Khawar, J.--Through this judgment, we intend to dispose of C.M. No. 1383-C of 2013 (application under Section 12(2) of CPC), C.M. No. 1385-C of 2013 & C.M. No. 1386-C of 2013.
2. Before adverting to the application under Section 12( CPC filed by the petitioner against the judgment and decree dat 24.01.2001 passed by learned Division Bench of this Court, it will appropriate to have a glance over the back ground of the case.
3. The Lahore Diocesan Trust Association Limited '(Churc Missionary Society), through Rev. Earnes Tak, Clerk in Holy Orders, Mission Road, Lahore/Respondent No. 1 filed a suit against one M Irene Wahab, for possession in respect of Christ Church's Vicar known as "Kothi Padri Sahib" L.M.Q Road, Multan measuring kanals and 10-marlas, together with the Pastor's Banglow Sery Quarters, Godowns and other buildings whole comprising of 11-Roo one Drawing Rooms. 04-Verandas, 02- Kitchens, 02-Bathrooms and 0 Latrines. It was contended in the suit that suit property known "Kothi Padri Sahib" was attached to the Church and was Tru Property. It was occupied by late Cannon Bashir Ahmad Malik w was priest Incharge of the Church with permission of the plainti Bashir Ahmad Malik retired on 30.06.1970 but on account of h service he was allowed to continue the possession of the property wit the condition that he would run Sunday Services. The said Bash Ahmad Malik died in 1973 leaving behind a widow and a daught Mrs. Irene Wahab/Respondent No.
1. After the death of widow Bashir Ahmad Malik; her daughter/Respondent No. 2 was asked t vacate the premises but she refused to handover the property to th plaintiff; hence, the suit.
4. Respondent No. 2/Mrs. Irena Wahab contested the suit alleging therein that the suit was barred by jurisdiction as well as b Order 2 Rule 2 of CPC; it was barred by time and was not properly valued for the purpose of Court fee and jurisdiction. On facts Respondent No. 1 alleged that her possession over the suit property and perfected entitled being adverse to that of Respondent No.2.
5. Keeping in view\the divergent claims of the parties, twelve issued were framed. The parties adduced oral as well as document evidence in support of their claims. Vide judgment. And decree date 20.10.1990, the suit was decreed in favour of the Respondent No.1.
6. Feeling aggrieved the Respondent No. 2 filed R.F.A. No 72/1990 which was dismissed by this Court vide judgment date 24.01.2001. Leave to appeal before the Hon'ble Supreme Court o Pakistan was also dismissed on 15.05.2001.
7. The present petitioner filed an application under Section 12(2), CPC before the learned Senior Civil Judge, Multan against the judgment/decree dated 22.10.1990, passed by the learned Senior Civil Judge, Multan. The said application was dismissed by the learned senior Civil Judge, Multan on 31.07.2013 on the ground of in competency of the Court hence, this C.M.No. 1383-C/2013 has been ed before this Court dated 09.09.2013 (Application under Section (2), CPC ). Respondent No. 1 filed reply to the CM.No. 1383/2013 in F.A.No. 72/1990- by raising preliminary objections and contested the e on facts. In preliminary objections the petitioner No. 1 claimed t the petition under reply is hopelessly barred by limitation; that no id or legal resolution as required by law has been appended; that no arguments as to support the claim of the petitioner of its being a istic person have been filed; that no address of registered office of petition is mentioned; that after passing of judgment/decree dated 01.2001, passed in R.F.A.No. 72/1990 and endorsed by the August Supreme Court of Pakistan vide judgment dated 15.05.2001, the Judgment/decree dated 22.10.1990 has attained finality. It was further tended that earlier, vide order dated 02.11.2005 a learned divisional Bench of this Court has dismissed CM.No. 1555/2005 in .A No. 72/1990, an application under Section 12(2), CPC filed by e Daniel Altaf. He then filed Civil Petition No. 2743/2005 before the gust Supreme Court of Pakistan, which was dismissed as not passed.
8. The petitioner in the instant CM /application under Section (2), CPC has contended as under:-- "that it is an admitted fact that the disputed property originally belonged to the Church Missionary Society (CMS-E), incorporated in England, which was merged into the Church Missionary Trust Association (India) as described earlier, in pursuance of the Indian Church Act, 1927. The promulgation of Indian Church Act 1927, dis-soluted the legal union between the Church of England and the Church of England in India, After the independence of Pakistan, the Church Missionary Trust Association (CMTA), India was renamed into the Church Missionary Trust Association (CMTA), Pakistan on 07-10-48. Since its birth that happened on 18th February, 1928, the petitioner's Association (CMTA) had become the exclusive and sole owner/trustee of all the programs, assets and properties of CMS-E, CMTAL-E and CEZ-E, The Hon'ble Courts remained unaware of this fact and fell into error as the fake CMTAL, London & Respondent No. 1 have no title or concern over the properties of the Church Missionary Society (CMS-E) after th promulgation of India Church Act, 1927, and this fact was kept in the dark by the Respondent No. 1, hence was ignored by the Honble Courts. ' that according to the revenue record the original owner/trustee of the disputed property was the Church Missionary Society (CMS-E) incorporated in England, and Respondent No. Deceitfully presented himself as owner/trustee of the dispute property and got decreed the suit for possession from the Courts through concealment and on the basis of fake fabricated transfer deed, which is rootless, fictitious, & forged document and has no effect upon the rights o petitioner. ' that the learned trial Court neither inquired into the authenticity & genuineness of the documents produced by the Respondent No. 1 nor recorded any evidence for ascertaining the correctness & genuineness of the documents/transfer deed which were produced by the Respondent No. 1 and were manipulated & prepared to grab the properties and the assets of the petitioner's Association for illegal personal gains. - ' that the pleadings & record of trial Court revealed that the Whole matter was conducted in a slipshod manner without application of judicial mind, while the Respondent No. 2 remained silent during litigation regarding, the ownership of the deputed property, which adversely affected the petitioner's legal rights/ownership."
9. We have given our conscious consideration to the arguments advanced by learned counsel for the parties and perused the record.
10. Admittedly the suit was filed by Respondent No. 1 against Respondent No. 2 which was decreed vide judgment and decree dated 22.10.1990 by the learned Senior Civil Judge, Multan. Feeling aggrieved Respondent No. 2 filed R.F.A No. 72/90 which was dismissed on 24.01,2001 and same was affirmed by the Hon'ble Supreme Court of Pakistan vide its judgment dated 05.05.2001. Respondent No. 1 got possession of the suit property through Bailiff of learned Executing Court, Multan on 18.08.2008. Throughout this period, the present petitioner did not figure out and remained in deep slumber.
11, The petitioner has relied upon an Instrument of Transfer from one trustee to another made on 05.05.1956 by Church Missionary Trust Association Limited of London, a company incorporated in England under the Companies (Consolidation) Act 1909. Though its attorney Reverend Mr. R.W.F.
Wootton Clerk in Holy Orders residing t Gujranwala, Pakistan whereby the Lahore Diocesan Trust association Limited was appointed as the Trustee. The petitioner has filed copies of Jamabandi for the year 1951-52 in support of his version and a certificate issued by Provincial Assistant Registrar Joint Stock companies Sindh, Karachi dated 21.04.2011, confirming that M/s church Missionary Trust Association is registered vide registration dated 21.08.1928 as joint stock company.
' On the other hand, Respondent No. 1 has annexed certificate f Incorporation dated 22.12.1942 No. 105 LR of 1942-43, issued by registrar/Joint Stock Company Punjab and Assistant Registrar /S/Companies Lahore, last Certificate of incorporation dated 1.06.2012 registered by Registrar J/S/Companies, City District Court, Lahore, memorandum of Association, Articles of Association in accordance with the Companies Act, 1913, certificate of Transfer of properties from the Church Missionary Trust Association to respondent No. 1, power of Attorney dated 14.04.1955, a schedule of properties under the control of Respondent No. 1 which finds mentioned at Sr.No. 37 and Instrument of Transfer dated 05.05.1956.
13. This is an admitted fact that ever since the passing of udgment/decree dated 22.10.1990 by the leaned Senior Civil Judge, Multan, litigation remained pending between Respondent No. 1 and Respondent No. 2, till the decision of the Hon`ble Supreme Court of Pakistan which finally affirmed the judgment/decree passed under challenge. Even after the restoration of possession of the disputed property in favour of Respondent No. 1, it could not be believed that the petitioner remained unaware of litigation inter-se Respondent Nos. 1 & 2.
14. The copy of proclamation in the daily "Pyara Watan" dated 10.08.2012 enclosed by the petitioner reveals that the petitioner had entered into agreement of lease with one Dr. Muhammad Ahsan, ought to be registered before the Sub-Registrar, Multan and objections were invited. Question arises that, when the disputed property had already been restored in favour of Respondent No. 1 on 18.09.2008 through the Bailiff of the Executing Court, then how the petitioner was competent to execute the agreement of lease in favour of Dr. Muhammad Ahsan? We are of the firm view that even being in the knowledge of the above litigation, the petitioner tried to lease out the disputed property to one Dr. Muhammad Ahsan and due to the vigilance of Respondent No. 1, the petitioner did not succeed in the same and filed the. Instant CM/application under Section 12(2), CPC.
15. One of the grounds of present CM. Has been that the petitioner was a necessary party to the main suit filed by Respondent No. 1 who in a deceitful manner did not implead the petitioner as a defendant. Conversely, Respondent No. 1 contended that since the petitioner had nothing to do with the disputed property and moreover the petitioner had no nexus with the same, so question of impleading him as party did not arise.
16. Before parting with the judgment in the instant case it is necessary to understand the spirit of Section 12(2) of CPC which is reproduced herein under: "Section 12(2)CPC "where a person challenged the validity of a 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."
In the instant CM. The petitioner has assailed the judgment and decree having allegedly procured by Petitioner No. 1 on the basis of fraud and misrepresentation. To establish these ground, the petitioner was required to prove the following aspects:--
(i) the fraud and misrepresentation was procured during the proceedings in the Court;
(ii) alleged fraud included untrue statements by Respondent No. 1 who did not believe to be true and has committed active concealment of facts;
(iii) judgment was obtained on the basis of forged documents;
(iv) the decree was collusively obtained.
' None of the above important ingredients have been met by the petitioner. Admittedly the suit for possession filed by Respondent No. 1 was emphasizely contested by Respondent No. 2, up till the Hon'ble Supreme Court of Pakistan and nowhere, Respondent No. 2 questioned the ownership of the disputed property having vested in the name of Respondent No.
1. Moreover, the possession of the disputed property was procured by Respondent No. 1 through a Bailiff appointed by the learned Executing Court.
17. The application in hand has been filed improperly and is based upon mala fide in order to protract litigation, that is why we are not inclined to further proceed with the matter by way of framing issues. Such practice will be a practice in futility and to frustrate the ' decisions passed by the learned trial Court, this Court and above all, the Hon'ble Supreme Court of Pakistan. The petitioner could not make out a case of fraud and misrepresentation having committed by Respondent No.
1. Reliance could be placed on Mst. Nasir Khatoon's case [2003 SCMR 1050]. It is held by the Hon'ble Supreme Court of Pakistan that the Court having-seized of an application under Section 12(2), CPC is not bound to frame issues, where the applicant could not meet the criteria for filing such application. This view has also been endorsed in Dadabhay Cement's case [PLD 2002 (SC) 500].
18. The logic of incorporation of Section 12(2), CPC in the statute is that in case, decree has been procured due to fraud, misrepresentation and without jurisdiction, then there is no need to file a fresh suit but to assail the same by way of filing application in the Court, which has finally passed the decree. In Section 12(2), CPC word used "a person" has wider implications. This has been deliberately used by the legislature on the notion that if a decree has been procured collusively, any person having knowledge of the same who is aggrieved, can challenge the same by way of filing application in C, the Court, having passed the decree, to ensure that fraud and misrepresentation may not attain perpetuity.
19. We have noted with great concern that it has become a common phenomenon that after a decree has attained finality, the losers through other persons, not party to the proceedings, file such applications to frustrate the due process of law, arrived at by the competent Courts of law.
Cognizance in applications under Section 12(2), CPC must be taken after due diligence and not in a casual manner. In case, where from the contents of application under Section 12(2), CPC, the Court's arrive at a conclusion that the application has been filed just to protract trial, it must be nabbed from the bud.
20. Our view is also supported by the fact that previously, this Court vide order dated 02.11.2005 passed in CM.No. 1555/2005 in R.F.A.No. 72/1990 has dismissed application under Section 12(2), CPC filed by one Denial Altaf which was assailed by him in CP.No, 2743/05 before the Hon'ble Supreme Court of Pakistan and the same was dismissed as withdrawn.
21. For what has been discussed above, we do not find any force in the instant CM. Which is hereby dismissed.
C.M. Dismissed.