MUHAMMAD SALEEM JESSAR, J.---In the first instance we would like to dispose of application filed by respondent No.7 under section 12(2), C.P.C., whereby she has made following prayer: "It is respectfully prayed on behalf of the Respondent No.07 that this Honourable Court may be pleased to set- aside the Order dated 30.08.2016 passed in the above mentioned petition, as the same have been obtained by the Petitioner by way of fraud and through misrepresentation of facts, considering the following grounds inter alia."
2. Brief facts, relevant for the disposal of instant application, are that the Petitioner 'Mir Mohammad Raza Talpur filed the present petition stating therein that he is an unmarried person and is working as an agriculturist. One Mst. Syeda Sehar Jafferi (respondent No.07) had entered her name and status at NADRA office as unmarried under token No.04, ID No.502271002553 dated 6th December 2012. On 9th October 2013 she had applied for 'B' Form before the NADRA office vide token No.48 ID No.103611035083 for entering the name of one Baby boy which request was declined by respondent No.5 for the reason that according to the relevant data marital status of minor's mother and father was shown as 'unmarried' on 11.10.2013. Thereafter, she had obtained a marriage registration certificate showing her marriage with the petitioner on 17.09.2011 and date of entry and issuance of the said marriage was shown as 31.12.2012. It is further averred by the petitioner in the memo of petition that the concerned Union Council issued a certificate that the marriage registration certificate, birth certificate of child etc: are fake and forged and that the Union Council has also issued a public notice to this effect in Daily Sindh and Daily Riasat, dated 23rd January 2014. It was further stated that Nikah Registration Certification as well as National Identity Card of Nikah Khuwan namely Rustam Ali were also forged and bogus as he himself had given such statement in writing and denied to have performed the Nikah between petitioner and Mst. Sehar. Besides, the Assistant Executive Engineer WASA who allegedly attested CNIC Form of respondent No.7 showing her marital status as 'married' with petitioner also declared in his letter that such attestation is also false and fake. The petitioner further asserted that on 23.10.2013 respondent No.7, Mst. Sehar, had applied for issuance of her CNIC showing her marital status as 'married' with Petitioner vide ID No.103611035-382 Token No.66.
3. According to the petitioner, as soon as he came to know about such fraud allegedly committed by Mst. Sehar Jafferi with active assistance of NADRA Officials, specially respondent No.5, he moved an application to the Incharge NADRA Office, Hyderabad on 27.01.2014 which was neither responded nor any action was taken in this regard. Thereafter, he served a legal notice dated 5th February, 2014, upon the respondents through his counsel asking them to clear the status of the petitioner, but since the respondents were in connivance with her therefore, they did not take any serious action except replying that through their letter dated 14th February, 2014 that the action will be taken after receipt of comments from the concerned department, but no any action has been taken. The petitioner further stated that although the NADRA authority being public functionary is required to discharge their duties strictly in accordance with the law but what they have done with the citizen of Pakistan petitioner that they have failed to discharge their duties and functions. He, therefore, prayed for issuance of direction to NADRA authorities to dispose of his grievance by blocking CNICs of Mst. Sehar and restoring her original status as 'unmarried', while erasing name of the petitioner as her husband and permanently rejected the 'B' Form applied by her. He also prayed for initiating departmental disciplinary proceedings against the concerned officials who are involved in the alleged fraud and forgery with directions to refer the matter against them to FIA and NAB authorities.
4. It seems that instant petition was filed on 06.03.2014. Initially in the petition only 6 respondents. i.e. NADRA authorities/officials and Federation of Pakistan were arrayed. However, Order dated 11.05.2016 shows that after more than two years and two months, learned counsel for the petitioner sought permission of this Court to file amended title impleading Mst. Sehar (Respondent No.7) as a respondent in this petition. Accordingly, on 16.05.2016 amended title was filed showing Mst. Sehar Jaffri as Respondent No.7. Vide order dated 24.05.2016 notice was ordered to be issued to the newly added respondent Mst. Sehar for 30.8.2016. However, there is no indication in the case file that the said notice had been served upon respondent No.7, nor the concerned bailiff returned the notice, as is evident from the endorsement of the office. However, on the next date order under challenge dated 30.08.2016 was obtained.
On the said date besides, learned counsel for the petitioner, advocate for NADRA as well as learned Standing Counsel were present in Court; however, neither respondent No.7, nor her representative or counsel was present, obviously for the reason that the notice was not served upon her. The said order is reproduced hereunder for the sake of convenience: "Learned Counsel for petitioner submits that petitioner will be satisfied if official respondents may be directed to decide his application along with relevant documents in view of Section 18 of NADRA Ordinance, 2000, to which learned Counsel for respondents undertakes to decide same, if petitioner moves such application within two weeks' time.
Considering the above circumstances, instant petition stands disposed of. However, petitioner may approach to respondents within two weeks and respondents will decide his application along with relevant documents strictly within four weeks."
5. Thereafter, the petitioner filed contempt application (M.A. No.16188/ 2016) against Deputy Director Operation NADRA which was followed by several applications seeking urgent hearing by the petitioner. Thereafter, on 25.10.2018 respondent No.07 filed listed application under Section 12(2), C.P.C. disclosing therein following facts: "1. That, the petitioner having mala fide intentions at his part did not impleaded the Respondent No. 07 as party in the above mentioned petition.
2. That, this Honorable Court passed an order dated 11.05.2016 in which the petitioner was bound to implead the respondent No. 07 as respondent and file amended Title as a result of which the petitioner in compliance of the order dated 11-05-2016 impleaded the respondent No. 07 in the array of respondents and so also it is stated that this amended title was filed on 14.05.2016.'
3. That, it is pertinent and crucial as well to mention here that while impleading the respondent No: 07 in the array of respondents committed fraud and caused misrepresentation of facts as the address of the respondent No: 07 which was mentioned in the amended title is not correct and the petitioner had inserted the address of his own house or his own house or his any relatives that is to the greater extent is identical to the address of the petitioner.
4. That the respondent No. 7 was not served with any notice of this Honorable Court at her correct and true address and the order dated 30-08-2016 passed by this Honorable Court is tantamount to pass the order without being heard or in absence of the respondent No. 07.
5. That, the respondent No. 07 has been deprived of using her fundamental rights as her CNIC has been blocked by the official respondents as a result of the order dated: 30-08-2016 which was obtained fraudulently and through concealment facts.
6. That, the instant petition was filed by the petitioner stating therein that respondent No. 07 is not the real wife of the petitioner. It is pertinent to mention here that this type of disputes a (are) resolved after recording of proper evidence for which the petitioner did not knock the door of the family courts and preferred to file instant petition with unclean hands which is bad in law.
7. That, as and when the respondent No. 07 came to know that her CNIC has been blocked, she contacted with NADRA officials whereupon she was informed that the CNIC of the respondent No. 7 has been blocked under the orders of the Honorable High Court.
8. That, the respondent No. 07 has already filed a suit for dissolution of marriage by way of Khulla and Recovery of Dower and Maintenance under Family Suit No. 908/2018 before the Honorable Civil/Family Court, 12th Hyderabad which is pending till today.
9. That, the Respondent No. 07 is facing great irreparable loss and injury due to blockage of CNIC in all manner."
6. We have heard learned counsel for the parties and have perused the record available on the record.
7. The main plea raised by respondent No. 7 in support of her application under Section 12(2), C.P.C. is that while filing amended title the petitioner deliberately playing fraud and misrepresentation disclosed incorrect address of respondent No.7 as she was not residing at the said address, rather the said address was that of the petitioner himself or the address of one of his relatives which was identical to the address of the petitioner.
According to her, she was not served with the notice and it was only at a subsequent stage when her CNIC had been blocked that she came to know about filing of instant petition by the petitioner. She has further stated that she has already filed Family Suit No.908/2018 for dissolution of marriage by way of Khula and Recovery of Dower and Maintenance in the Court of before 12th Civil/Family Judge, Hyderabad which is still pending. Along with the listed application she has also filed copy of plaint of the said family suit and vide Statement dated 14.5.2019, her counsel has filed certain other documents including copy of written statement filed by the petitioner in the said family suit, copy of application for rejection of plaint, counter affidavit to such application, Order dated 17.12.2018 dismissing the said application, application under section 14 of the Family Court Act challenging the aforesaid order by the petitioner and Objections filed by respondent No. 7 against the said application.
8. The petitioner has also filed counter affidavit to application under section 12(2), C.P.C. wherein he has laid main stress on the fact that he had given correct address of respondent No. 7 while filing amended title in this petition as the said address was mentioned in her own CNIC No.41303-2234110-6, therefore, the plea raised by her regarding filing of her incorrect address in the amended title by the petitioner has no legs to stand.
9. In deciding the instant application, the conduct of the petitioner right from the beginning is to be minutely examined. From the perusal of the record it transpires that this petition was filed by the petitioner on 06.3.2016, and in the petition main grievance of the petitioner was against respondent No.7, Mst. Sehar Jafferi, to the effect that by playing fraud and manipulating fake and bogus documents, she had obtained her CNIC showing her marital status as 'married' with petitioner vide ID No.103611035382 Token No.66 and that she had also applied for issuance of 'B' Form of the minor showing the petitioner as minor's father which is factually false and incorrect as she is, at all, not his wife. Despite this fact, very strangely the petitioner did not implead respondent No.7 as a party in the instant petition although in case ultimately .his petition would have been allowed, the only A party/person who would have been adversely affected, was respondent No.7 and none else. However, when the petitioner realized the fact that even in case his petition might be allowed, this legal defect of non-impleading mainly adversary/affectee i.e. respondent No.7, might create problems for him in future and the order of granting his petition might be set aside on this ground, on 11.05.2016 petitioner's counsel sought permission of the Court to implead Mst. Sehar Jafferi as a respondent in this petition and on 16.05.2016 he filed amended title impleading her as respondent No.7. However, instead of getting respondent No.7 served with the notice during the long interning period of more than three months between 24.5.2916 to 30.8.2016, on the very next date i.e. 30.8.2016, all of a sudden his counsel made statement that the petitioner will be satisfied if official respondents are directed to decide his application, although no such application was pending at that juncture as the said order dated 30.8.2016 shows, "learned Counsel for respondents undertakes to decide same, if petitioner moves such application within two weeks' time." (emphasis is supplied for sake of convenience).
This all shows something fishy on the part of the petitioner. It is not understandable when on the last date of hearing i.e. 11.5.2016 the petitioner himself sought permission of the Court to implead Mst. Sehar Jafferi as a respondent in the petition and on 16.5.2016 he had also filed amended title impleading her as respondent No.7, then as to why he did not make efforts to get the notice served upon her and instead all of a sudden showed his willingness and satisfaction upon disposal of petition in case direction is issued to NADRA Authorities to dispose of his application which was not pending at that time and was filed subsequently after passing of the order.
10. The mala fide on the part of the petitioner is also strengthened from other factors. For instance, after filing of amended title, the notice was ordered to be issued to respondent No.7 on 24th May, 2016, however, the said notice was got issued on 18th July, 2016 i.e. after about two months and then despite lapse of about one and a half month till 30th August, 2016 neither the said notice was got served upon respondent No.7, nor even any intimation was given by the concerned bailiff which is evident from the endorsement of the office, "Notice issued to newly added respdt. No.7 through bailiff not returned as yet."
11. It is also worthwhile to point out at this juncture that, the petitioner in his counter affidavit filed by him against the instant application under Section 12(2), C.P.C., has not specifically denied the fact of filing suit for dissolution of marriage by respondent No.7, nor has taken a plea that the said document is a forged one. Even while in paras 28 to 36 of his written statement filed in the said family suit he had stated that the plaintiff in the said suit i.e. respondent No.7 herein by practicing fraud and forgery had obtained her CNIC showing her marital status as 'married' with the petitioner, yet in para 37 he categorically stated "The address mentioned by the plaintiff is incorrect and liable to be verified by the concerned SHO." This supports the plea of respondent No.7 that in the amended title the petitioner had shown her incorrect address.
12. Even otherwise, by virtue of principles of natural justice and rule audi altram partem coupled with the provisions of Section 24-A of the General Clauses Act, it was the vested right of respondent No.7 to be provided sample opportunity to place her case and view point before the Court as it was only she, who was to be adversely affected by the order dated 30.8.2016 which has been called in question through instant application under Section 12(2), C.P.C.
13.In view of the above, listed application under Section 12(2), C.P.C. filed by respondent No.7 is allowed as prayed. Consequently, the order dated 30.08.2016 is set aside and the petition is restored to its original position as it was before the passing of order dated 30.8.2016. Respondent No.7 may file her reply/objections to the memo of petition within four weeks of the passing of this order and thereafter the office may fix this petition in Court for further process. Meanwhile, NADRA authorities are directed to immediately restore the position in respect of data of respondent No.7 in their record as it was immediately before passing of the order dated 30.8.2016 and place such report on record within one week of the passing of this order.
14. M.A. No.16188/16: This is an application moved by the petitioner for initiating contempt proceedings against alleged contemnor namely, Raja Farukh, Deputy Director Operation NADRA for alleged non-compliance of order dated 30.8.2016. As the order dated 30.8.2016 which is the subject matter of instant application for initiating contempt proceedings against the alleged contemnor, has already been set aside having been obtained by fraud and misrepresentation, instant Misc. Application has become in fructuous and is dismissed accordingly.