C.M. Nos. 3/2010 & 346/2012 ' This order shall decide Civil Misc. Nos. 3/2010 and 346/2012.
2. The facts in brief are that Niaz Muhammad predecessor-in-interest of applicants in C.M. No, 3/2010 (applicants) was allotted some land by the GHQ. He expired on 21.12.1991. Applicants executed a general power-of-attorney in favour of one Muhammad Sarwar son of Ali Muhammad (attorney) on 26.12.1991. On the same date, they also entered into an agreement with their attorney with the stipulation that the attorney will get the property transferred in the name of the applicants through his own means and will give them a certain share. Thereafter, on 04.01.1992, the attorney entered into an agreement to sell of 7/8th share of the property with his wife Mst. Sheedan for a sum of Rs, 120,000/- out of which he received Rs, 115,000/-as earnest money. Subsequent to this power-of-attorney was cancelled where after, applicants successively executed power-of- attorneys in favour of the attorney on 24.8.1992, 26.03.1994 and 7.8.1996.
3. On the strength of the agreement to sell, a suit for possession through specific performance was filed by Mst. Sheedan, which was decreed on 8.3.1994 on the conceding statement of the attorney.
Thereafter, while cancelling previous power-of-attorneys through registered cancellation deeds, applicants executed a fresh power of attorney in favour of Muhammad Hanif.
4. On 24.4.2000, through the newly appointed attorney, an application under Section 12(2), C.P.C.
Was filed by the applicants before Civil Judge, Kasur against the judgment and decree passed in favour of Mst. Sheedan. The said application was accepted on 30.7.2004 and the judgment and decree was set aside. Feeling aggrieved, Mst. Sheedan filed a revision petition before Additional District Judge, Kasur which was accepted on 5.11.2004 and the order passed by the Civil Judge was set aside. Feeling aggrieved, applicants preferred Writ Petition No, 20203/2004 before this Court, which was dismissed on 27.6.2007 because of non-appearance of the applicants (impugned order). Feeling aggrieved, the applicants simultaneously filed CPLA No, 1395-L/2007 as well as Review Application No, 59/2007. Vide order dated 30.4.2008, CPLA was withdrawn by the applicants.
Thereafter, when the matter was highlighted before this Court in the review application that the applicants simultaneously availed two remedies, on 8.6.2009, applicants withdrew their review application. Against the afore-noted withdrawal, applicants preferred CPLA No, 1416-L/2009, which was also withdrawn on 02.03.2010 on the ground that the applicants will seek their relief by way of filing an application under Section 12(2), C.P.C. Before this Court. Subsequent thereto, on 15.11.2010 Civil Misc. No, 3/2010 (present application) was filed by the applicants on 25.10.2010. During the pendency of the said application, Civil Misc. No, 346/2012 was filed by the respondents for the rejection of the application filed under Section 12(2), C.P.C.
5. Learned counsel for the respondents, at the very outset, has raised the following preliminary objections:--
(a) that the application under Section 12(2), C.P.C. is barred by limitation; and
(b) that in view of the fact that applicants themselves withdrew CPLA Nos. 1395-L/2007 & 1416- L/2009 and Review Application No, 59/2007, therefore, they are debarred from filing the present application.
6. Replying to the above, learned counsel for the applicants submits that the applicants were never intimated that they are required to appear before this Court; the counsel who represented them on the fateful day, i,e, 27.6.2007 when the writ petition was dismissed, was not the counsel for the applicants. Learned counsel has also endeavoured to argue the application on merit, however, he has been asked to first satisfy this Court qua maintainability of this application, for which he relied on the above submissions.
7. We have heard the learned counsel for the parties and have gone through the available record.
8. For better appreciation of the controversy, it shall be imperative to reproduce the impugned order:--- "The perusal of the order sheet shows that repeated orders have been passed by the Court (16.3.2005, 13.1Z2006, 7.5.2007 and 6.6.2007) for the personal appearance of the petitioners, who have failed to enter appearance. On the last date of hearing, i,e, 6.6.2007, a specific date was fixed for this purpose, i,e, today. Even today, none of the petitioners is present in person and no justification is being brought forth for their non-presence. The non-compliance of Court's orders without any lawful justification shows deliberate avoidance to comply with the Court's orders. It is a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, wherein the conduct of the party assumes great relevance and importance. The conduct of the petitioners disentitles them to seek this discretionary and equitable remedy.
' The petition is dismissed accordingly".
' From the afore-noted order, it is clear that on the previous four dates of hearing, specific orders were passed by this Court for appearance of the applicants in person however, none appeared.
The learned Single Judge granted sufficient opportunities to the applicants to comply with the Court's order however, due to non-appearance of the applicants, he was left with no option but to proceed against them and to dismiss the writ. Petition.
9. From the perusal of the order sheet, it has surfaced that Syed Muhammad Kaleem Ahmad Khurshid, Advocate has been representing the applicants. He on 16,03.2005 was instructed to produce the applicants in person whereupon he undertook to do the needful. Subsequent thereto, on 13.12.2006 and 7.5.2007, he appeared himself however the applicants never appeared before the Court. On the fateful day, one Mr. Fazal Elahi, Advocate appeared on behalf of the applicants; he neither got his statement recorded nor did he give any explanation about non-appearance/non- compliance of the orders passed by this Court. As the learned counsel, who appeared on behalf of the applicants neither deposed anything against the applicants nor did he take any action which could adversely affect the rights of the applicants enabling them to approach this Court invoking Section 12(2), C.P.C. Syed Muhammad Kaleem Ahmad Khurshid, Advocate learned original counsel for the applicants was successively intimated by the learned Single Judge starting from 16.3.2005 to ensure presence of the applicants, for which he never offered any explanation. It is not the case of the applicants that they never retained Syed Muhammad Kaleem Ahmad Khurshid, Advocate as their counsel who failed to intimate the applicants to appear before this Court.
10. In order to examine the scope of Section 12(2), C.P.C. It will be convenient to reproduce the said provision:-- "12. Bar to further suit.-- (1) ..........................
(2) Where a person challenges 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."
' From the perusal of the afore-noted provision, it is manifest that the scope of this section is limited and narrow. A judgment, decree or order under this provision can only be challenged, in case it has been passed due to fraud, misrepresentation or want of jurisdiction. From the impugned order, it is clear that the same was neither procured through fraud nor through misrepresentation. It is also not the case of the applicants that the learned Single Judge had no jurisdiction to pass an order dismissing the writ petition on the ground of non-appearance of the applicants.
11. We tend to agree with the submission made by the learned counsel for the respondents that the application order Section 12(2), C.P.C. Is also barred by tame. It is not denied by the applicants that the impugned order was passed on 27.6.2007 against which, applicants have been approaching different forums for the redress of their grievance and ultimately after failing before all forums, on 15.11.2010 preferred the present application. The limitation to file an application under Section 12(2), C.P.C. Is governed by Article 181, Limitation Act, 1908 C.P.C. Which provides for a period of 3 years for assailing an order from the date of the passing of the judgment, decree or order. The applicants did not file any application under Section 5 or 14 of the Limitation Act for seeking condonation of delay.
12. The resume of the above discussion is that impugned order neither fall within the purview of Section 12(2), C.P.C. Nor has been assailed within time therefore C.M. Nos. 346/2012 is accepted, as a sequel to which ,C.M. No, 3/2010 is dismissed, on merits as well as barred by limitation. Civil Miscellaneous .