MUHAMMAD NOOR MESKANZAI, C.J.---This petition callsin-question the legality and validity of the judgments and decrees dated 19th May, 2009 and 6th October, 2009, respectively passed by learned Senior Civil Judge, Gwadar and learned Additional District Judge, Gwadar, whereby; the suit and appeal filed by the petitioner were dismissed.
2. Facts of the case, in brief, are that the respondent No.1 and predecessor of respondents Nos. 2a to 2d namely Mst. Eiddan Bibi filed a suit for declaration, permanent injunction and cancellation of Khatooni and Khewat No. 103/103, Khasra No.159, known as Tamboli, measuring 183-23 Sailaba situated at Mouza Dhoor Ghatti, Tehsil Gwadar against the petitioner and others. After institution of the suit, notices were issued to the defendants. In response to the notice one Pindok (attorney for petitioner), appeared and expressed his no concern with the property-in-dispute and the trial court decreed the suit in favour of plaintiffs, vide impugned judgment and decree dated 19th May, 2009.
3. When the petitioner came to know about this fraudulent proceedings and the decree she filed an application under section 12(2), C.P.C. which was dismissed by trial Court. Similarly, the revision petition filed before District Judge was also dismissed; hence the instant constitutional petition has been filed.
4. Learned counsel for petitioner contended that a collusive civil suit was filed by respondents Nos.1 and 2 against the petitioner; Mst. Mah Bibi and Mst. Mah Khatoon daughters of Peeri. The suit was decreed on the very next date by the trial court on the ground that the defendants have withdrawn from any entitlement in the disputed property. According to record two attorneys on behalf of the defendants appeared and filed affidavits on behalf of defendants stating therein that the defendants have got no right in the disputed property. The affidavits so filed culminated in drawing the decree dated 3rd August, 1999. The defendants being ladies were unaware of any such suit/proceeding or filing of power of attorney on their behalf. Similarly, they were ignorant of any alleged affidavits. However, in the year 2008 a complaint was filed by one Ashraf son of Hussain against the sons of petitioner/defendant. Through these proceedings it surfaced that a case has been filed and a decree has been obtained fraudulently by the plaintiffs. The learned counsel maintained that this fraud was played and practiced upon the court by said Ashraf with connivance of the so called attorneys of the defendants, because he is a beneficiary of this decree.
He invited our attention to a sale deed executed by the respondents Nos.1 and 2/plaintiffs of Civil Suit No.37/1999 on 8th January, 1999 and thereby contended that according to this sale deed the property-in-question was sold out by the plaintiffs to said Ashraf in lieu of Rs.208,100/-. According to learned counsel, to be benefited the fruit of sale deed, he managed the suit with connivance of Haji Muhammad Kareem, fake and forged power of attorneys were manipulated, frivolous and forged affidavits were filed that is why no execution application was filed for execution of decree.
Learned counsel stated that upon coming to know this fraudulent transaction, the petitioner filed an application under section 12(2) read with Order IX, Rule 13, C.P.C. and 151, C.P.C. He submitted that the plaintiffs filed their rejoinder to the application and expressed their ignorance regarding institution of the suit and the proceeding so carried out. The learned counsel submitted that the courts below illegally dismissed the application without applying judicial mind. There was no written statement on behalf of defendants nor the attendance of the defendants was procured.
The suit was filed on 29th July, 1999 and got decreed on 3rd August, 1999. The learned counsel stated that in view of the sale deed, the plaintiffs could not have filed the suit because they could not be treated to be owner of the property as the property was sold to Ashraf son of Hussain, who is the signatory to power of attorney executed by the plaintiffs in favour of Haji Muhammad Kareem, the alleged attorney for the so called plaintiffs. The learned counsel stated that question of limitation does not arise for the simple reason that a fake and forged plaint was filed on forged signatures. The trial court was bound to have procured the attendance of the defendants in order to ensure as to whether this is the real position and picture that has been placed and portrayed before it. The fundamental rights of the defendants have been done away through practicing fraud upon the court; therefore, the application could not have been dismissed on the point of limitation.
Furthermore, limitation runs from the date of knowledge, the moment the petitioner came to know, she filed the application. Replications to applications filed by plaintiffs clearly establish the fraud so practiced upon the court because both the plaintiffs have categorically expressed their ignorance regarding filing of suit by them, rather they conceded to the application filed by the petitioner.
Similarly, the rest of the two defendants also conceded to the position set by the petitioner in her application under section 12(2), C.P.C. Learned counsel stated that the Vakalatnama filed before this court contains signature of one person without ascertaining the name of respondents and no power of attorney was placed on record showing the status of the signatory and his relationship with the respondents Nos.1 to 6.
5. Learned counsel for respondents opposed the submissions of learned counsel for petitioner by maintaining that no fraud was practiced, the defendants executed power of attorney which was duly singed by them and verified by the competent authorities and the trial court was having no option except to entertain the affidavits so filed by the defendants. Secondly, the application was filed at a belated stage, so it was rightly dismissed.
6. We have heard the learned counsel for the parties and have gone through the available record.
Perusal of record reveals that the plaintiffs filed Suit No.37/1999 against the defendants i.e. petitioner, respondent No.1 and predecessor of respondents Nos.2a to 2d. Notices were issued and on the next date of hearing attorneys for the defendants appeared before the trial court and filed affidavits allegedly signed by the defendants, deposing therein that the deponents have got no right in the disputed property. The trial court decreed the suit. Admittedly, no written statement was fired before the trial court; however, question arises if the defendants were ready to forego and withdraw from their propriety rights at the very first date of hearing then what was the necessity for filing of the suit. Secondly, the trial court did not take pain to ensure as to whether the defendants have really signed the affidavits and executed the power of attorneys in favour of the attorneys.
Surprisingly, the order passed by the trial court does not disclose the name of attorneys. It was inevitable upon the court to have procured the attendance of defendants in order to satisfy its conscious regarding the affidavits filed in the court, which were affecting the rights of the defendants, who were duly recorded owners and share holders being close relatives of the plaintiffs. Thirdly, the copy of the sale deed annexed with the petition showing sale of the disputed property in the month of January, 1999 does not entitle the plaintiffs to seek a declaration for ownership in favour of the plaintiffs, because they have allegedly sold the property. Fourthly, the rejoinder to the application filed by both the plaintiffs are of high value and could have never been ignored by both the lower forums. For the sake of convenience relevant portion of the replication is hereby reproduced as under: "1-. That the replying respondent has no knowledge regarding institution of referred suit land as well as suit. Contents of Para No.1, of applicant(sic) are admitted to extend of descriptions/boundaries of suit land. The answering respondent/ plaintiff never filed any suit before learned predecessor court Qazi court Gwadar and nor appointed/empowered any body as attorney to file or institute suit before any competent court of law. However, the answering respondent/plaintiff acknowledged after registration/filing of application titled cited above. It is further submitted that the answering respondent/plaintiff sold her only two acres landed property situated at Mouza Dhoor Ghatti Gwadar with one namely Ashraf Hussain son of Hussain Ashraf, he may be fraudulently filed a suit by means of misrepresentation.
2. that the answering respondent/plaintiff also has no knowledge about services of summons or court proceedings as the answering respondent/plaintiff described above that the plaintiff never institute any suit anywhere."
Similarly, the plaintiff filed reply/rejoinder to application and expressed their ignorance regarding filing of suit and power of attorney, which reads as under: "1. That the replying respondent has no knowledge regarding institution of referred suit land as well as suit. Contents of Para No. of applicant (sic) are admitted to extend of descriptions/boundaries of suit land. The answering respondent/ plaintiff never filed any suit before learned predecessor court Qazi Gwadar and nor appointed/empowered any body as attorney to file or institute suit before any competent court of law. However, the answering respondent/plaintiff acknowledged after registration/filing of application titled cited above. It is further submitted that the answering respondent/plaintiff sold her only two acres landed property situated at mouza Dhoor Ghati Gwadar with one namely Ashraf Hussain son of Hussain Ashraf, he may be fraudulently filed a suit by means of misrepresentation.
2. that the answering respondent/plaintiff also has no knowledge about services of summons or court proceedings as the answering respondent/plaintiff described above that the plaintiff never institute any suit anywhere."
7. We are constrained to observe that had the lower forums been vigilant, attentive, careful and conscious of the facts of the case and alive of legal position, they would have not dismissed the application filed under section 12(2), C.P.C. By now, it is settled principle of law that fraud vitiates any proceeding how so ever solemn it may be. The view stands fortified by the dictum laid down by the Hon'ble Apex Court in the judgment titled as 'Talib Hussain and others v. Member, Board of Revenue and others' reported in 2003 SCM R 549 (relevant at page-553), wherein it has been observed as under: "It goes without saying that as far as fraudulent transaction is concerned it has no foundation to stand and whenever such transaction is declared null and void then the whole series of such order along with superstructure built upon it is bound to collapse. Reference in this behalf may be made to the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104). It would also not be out of context to note that fraudulent transaction is considered to vitiate even most solemn proceedings as it has been held in the judgments (1) Ghias-ud-Din v. lqbal Ahmad and 5 others (PLD 1975 Lahore 780), (2) Lal and another v. Muhammad Ibrahim (1993 SCMR 710), (3)
Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782), John Paul v. Irshad Ali and others (PLD 1997 Karachi 267), (5) Mst. Sarwari Begum v. Atta-ur- Rehman (1997 CLC 1500) and (6) Muhammad Yaqoob v. The State (1997 PCr.LJ 1979)."
8. The material available on record leaves no room for doubt that the decree has been obtained by mis-representing the facts, practicing fraud upon the court and, as such, is ab initio void, therefore, no limitation runs against such order. Since the decree has been passed without lawful authority and is result of practicing fraud upon the court, as well as, plaintiffs and defendants, therefore, the delay was/is legally condonable because the moment the petitioner/applicant came to know about the decree, she challenged the same.
Moreover, there is no material on record to show that the petitioner/applicant after coming to know about the decree kept quite and mum. With the result, the petition is accepted and the impugned judgment and decree dated 19th May, 2009 passed by learned Senior Civil Judge, Gwadar and judgment and decree dated 6th October, 2009, passed by learned Additional District Judge, Gwadar, are set aside and resultantly, the judgment and decree dated 3rd August, 1999, passed by Qazi, Gwadar are also set aside. The suit shall be treated pending before the trial court, who shall summon the parties and after obtaining written statements shall proceed with the matter and decide the same in accordance with law. The parties to bear their own costs.