MUHAMMAD SALEEM JESSAR, J.---- The applicants, feeling aggrieved by order dated 14.10.2016, passed by Additional District Judge, Matiari, whereby applications filed under section 12(2), C.P.C., by the applicants in Civil Appeals No. 10 of 2003 and Civil Appeal No.11 of 2003, were dismissed, have preferred instant revision application.
2. This case has a chequered history dating back to pre-partition days. However , for the purpose of instant matter it would suffice to state that Suit No.199 of 1951 was filed by Abdul Wali, Mst. Naimat, Mir Hassan and Abdul Aleem, all of whom have now expired and are represented by their respective LRs who are joined as respondents in this revision application, for redemption of usufructuary mortgage and for mesne profit s against Tikamdas, Pahlaj Rai, Narain Das, Odharmal, Persumal and Moti Ram. While Tikamdas, who is respondent No.5 in this application, also expired and is represented by his LRs, the remaining persons, who are shown as respondents Nos. 6 to 9, have migrated to India. The learned trial court framed as many as 28 issues and after discussing all the issues decreed the suit as under: "Issue No. 27: In view of my above findings, the plaintif fs are entitled to get the suit land redeemed as the debt has already been discharged and the property be re-conve yed to the plaintif fs. The plaintif fs are also entitled to the declaration as prayed and also to the mesne profits.
The plaintif fs are entitled to the accounts of the mortgaged property and the official receiver is appointed as Commissioner to take accounts and file statement.
Issue No. 28: The suit of the plaintif fs for redemption is decreed with costs as the debt has already been discharged. They may be conveyed the suit land.
The suit for declaration as prayed is also decreed with costs. Preliminary decree for mesne profits is also passed and Of ficial Receiver is appointed as Commissioner to take accounts."
3. The defendants assailed such judgment and decree by filing First Appeal No. 108 of 1960 which was dismissed by District Judge, Hyderabad vide judgment and decree dated 21.10.1961 and 09.11.1961 respectively . The aggrieved party i.e. the defendants assailed the said appellate judgment before this. Court by filing Second Appeal No. 156 of 1961 which also met the same fate as it was dismissed vide judgment dated 13.02.1962. The defendants, still feeling aggrieved, approached the Hon'ble apex Court, however , their Civil Appeal No. K-23 of 1965 was also dismissed by the Hon'ble Supreme Court vide judgment which was reported as Tikam Das and another v. Abdul Wali and others (PLD 1968 SC 241), a copy whereof has been placed on record by Mr. Qamar Mehmood Baig, advocate for respondent No. 1 1(ii).
4. Thus, the controversy agitated by the plaintif fs through Suit No.199 of 1951 culminated in a judgment and decree in their favour , which was upheld upto the Hon'ble Supreme Court and thus attained finality for all purposes and intents.
5. The plaintif fs in the suit i.e. respond ents Nos.1 to 4 herein, filed execution application No. 28 of 1968 for implementation of judgment and decree. Respondents No. 5(c) and (d) filed objection to the said execution application. This execution application was disposed of vide order dated 14.10 .1999 by II Senior Civil Judge, Hyderabad by a detailed order . The objections filed by the above respondents were dismissed. Order dated 14.10.1999 was challenged by DH Khaliq Dino by filing Civil Appeal No.10 of 2003 and by JD Lachmandas and Kirshanlal, both sons of Tikamdas (the original defendant No.1 in the suit) by filing Civil Appeal No.11 of 2003.
However , later on, a joint statement dated 4.2.2006 was filed by the parties to the above appeals on the basis of which the above appeals were disposed of in the following terms: "ORDER February 4, 2006.
This appeal is directed against the impugned order dated 14.10.1999 passed by (Mr. Jalaluddin Soomro), learned IInd Senior Civil Judge, Hyderabad in Execution Application No. 28 of 1968 (F.C. Suit No.199 of 1951 Re: Abdul Wali and others v. Tekamdas-and others). Mr.Hassan Mehmood Baig, advocate for appellants and Mr. Muhammad Yousaf Khan and Mr. Kishanchand, advocates for the respondents present and filed a joint statement and contended that the impugned order passed in execution application be set aside.
In view of joint statement, the impugned order passed in execution application is hereby set aside and civil appeal is allowed and remanded back to the lower Court to decide the same afresh after giving the opportunities to the parties and their counsel as per terms of statement filed by the parties counsel. Hence civil appeal is disposed of accordingly .
6. It may be clarified that though separate orders were passed in Civil Appeals Nos. 10 of 2003 and 11 of 2003, but the wording of the two orders is the same except for the names of the counsel for the parties.
7. The present applicants, who were not party to the proceedings at any stage, filed an application under section 12(2), CPC praying for setting aside the order dated 4.2.2006 passed in Civil Appeals No. 10 and 11 of 2003 on the ground that the same was obtained by fraud and misrepresentation.
8. Objections were filed to the application under section 12(2), C.P.C. wherein the averments made in the said application were denied.
9. The application under section 12(2), CPC was heard and dismissed vide order dated 14.10.2016 and it is against this order that the instant revision application has been filed.
10. The main grounds raised by the learned counsel for the applicants before this Court can be summarized as under: i) That the applicants' are owners of portion of suit land by virtue of registered sale deeds and the respondents have no right, title or interest in the suit land. ii) The learned appellate court exercised jurisdiction not vested in it in dismissing the application under section 12(2), C.P .C. without framing issues of misrepresentation, fraud and collusion. iii) That the applicants purchased the suit land through 11 registered sale deeds and no one disputed the authenticity of the said sale deeds. iv) That the impugned order is result of nonreading and misreading of title documents of the vendors and sale deeds on record. v) That defendants Nos. 5 to 10 have received their land which was attache d by the executing Court after withdrawal of claim of mesne profits by the plaiiiff s / Decree-holders. Therefore, defendants 5(c) and 5(d) they have no right, title or interest in the suit land. vi) That the order dated 04.02.2006 was collusive on the face of it and the learned Appellate Court had the jurisdiction to set aside the same, however , the learned Appellate Court failed to exercise its jurisdiction. vii) That the sale agreement of half share by Abdul Aleem, after assignment of 75 acres to assignee Moula Bux was illegal, void and unauthorized and Suit No.178 of 1968, filed by Ahmed Khan for specific performance of the allege agreement was time barred and not maintainable in view of Execution Application No.28 of 1968 pending in the Court. The decree obtained by Ahmed Khan was void which fact was ignored by the appellate Court. viii) That sale of the suit land by decree holders / assignees to applicants was not disputed by respondents in any manner , therefore, the order dated 04.02.2006 was result of misrepresentation and fraud, therefore, the learned Court was not justified in dismissing the application filed by the applications under section 12(2), C.P. C. as it will cause prejudice to the interest of the applicant. ix) That the respondents, who had not disputed the 11 sale deeds dated 22.4.2000 and the mutation entries dated 28.4.2000 and possession of the applican ts of the suit land, deliberate did not join the applicants as parties in the appeals and obtained the order dated 04.02.2006 through misrepresentation and fraud. Therefore, the same is liable to be set aside. x) That the orders passed by the learned appellate court are based on conjecture and surmises, misreading and non-reading of pleadings and documents on record and are liable to be set aside.
11. In view of the above submissions, learned counsel for the applicant prayed that instant revision application may be allowed and the impugned orders may be set aside.
12. Mr. Qamar Ali Baig, advocate for respondent 11(ii), has mainly submitted that the applicants have got executed registered sale deeds during pendency of execution proceedings, which is illegal. It was also argued that the application under section 12(2), C.P.C. was rightly dismissed as the applicants have no concern with the suit land which was subject matter of a suit to which none of the applicants were a party . He, therefore, prayed for dismissal of the instant revision application.
13. Mr. Ahmed Ali Shaikh and Mr. Ghulam Mustafa Gaho, advocates for respondents adopted the arguments advanced by Mr . Baig and prayed for dismissal of the revision application.
14. Mr. Hakim Ali Siddiqui, learned counsel for respondents No.1(i) and 1(ii), submits that original decree passed in the suit instituted by deceased plaintif f Abdul Wali and others (Suit No. 199 of 1951) was maintained upto the Hon'ble Supreme Court and the judgment of the Honible Supreme Court has been reported as Tiramdas and another v. Abdul Wali and others (PLD 1968 SC 241). Thereafter , execution application was filed by the decree holder before the trial court, which was objected to by the judgment debtors after about 35 years of its pronouncement. Referring to order dated 14.10.1999, passed by 2nd Senior Civil Judge, Matiari, the learned counsel submitted that the same was by filing Civil Appeals Nos.10 of 2003 and 11 of 2003. Per learned counsel since the appeals were against preliminar y decree, therefore, with the consent of the parties, a joint statement was filed before 3rd Additional District Judge, Hyderabad for remand of the case, hence in view of such joint statement, and by consent of the parties, the cases were remanded back to the trial Court. Learned counsel vehemently submitted that the applicants are strangers to these proceedings and have no nexus with the proceedings. Learned counsel submitted that execution proceedings or executing orders are not challen geable. It was further submitted that out of two ingredients which are essential to establish in an application unde r section 12(2), C.P.C., only two have been urged. Learned counsel submitted that the applicants are neither proper nor necessary party to the proceedings as the same attained finality after the judgment of the Hon'ble Supreme Court, referred to above, therefore, their claim is without foundatio n and, the application under section 12(2), C.P.C. was rightly dismissed.
He also submitted that the applicants were well aware of the pending proceedings but they choose to stay away from the same, hence they cannot blame the appellants or the respondents for not joining them as parties nor can they claim misrepresentation or fraud in obtaining the said order . In support of his contention learned counsel relied on certain cases. He submitted that the revision application merits no consideration and is liable to be dismissed.
15. In rebuttal, learned counsel for the applicants, Mr. Parksh Lal, submitted all the ingredients of an application under section 12(2), C.P.C. are mentioned in the application, therefore, the same is maintainable. He submitted that Civil Appeals Nos. 139 of 1999 and 146 of 1999 were returned by means of order dated 04.04.2000 and, thereafter , the applicants purchased the suit land from shareholders of the main decree on 22.4.2000 and later interim order was passed on 08.05.2000, therefore, per learned counsel, applicants are proper and necessary party and had rightly availed their remedy under the law. Learned counsel also relied on certain case law which, if need be, would be discussed at appropriate place.
16. I have heard learned counsel for the parties and have perused the record with their assistance.
17. The main objection raised by learned counsel for respondent 1(i) and (ii) was that since the applicants were strangers to the proceedings, therefore, the application under section 12(2), C.P.C. filed by them was not maintainable. This contention has no force in view of the law laid down by the Hon'ble Supreme Court in the case Khawaja Muhammad Yousaf v. Federal Government and others (1999 SCMR 1516 ), wherein the following passage from the judgment in the case of Ghulam Muhammad v. M. Ahmed Khan and others (1993 SCMR 662) was quoted and it was held as under: "It is obvious that in section 12(2), C.P.C. the Word "Person" and not the judgment-debtor or his successor -in- interest or the word party to the suit have been used, thus, it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-marker has purposely used the word "person". Had the intention of the law [maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the judgment-debtor or his successor -in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor -in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation,. shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents.
We are in respectful agreement with the view taken in the above judgment. If a person is adversely affected by an order or judgment of a Court or Tribun al rendered in a proceeding to which he is not a party and to which proceeding C.P.C. is applicable, he can file an application under section 12(2), C.P.C. for the reason that the word "person" and not judgment debtor or his successor -in-interest or the words party to the suit, have been used as highlighted in the above report."
19. From perusal of the above citation, it is clear that any person, whether a party to the suit / proceedings or a stranger , can file an application under section 12(2), C.P.C. if he can establish that his / her rights have been jeopardized by the decree obtained by the Decree Holder fraudulently or by misrepresentation.
20. Now, I will proceed to examine whether any rights of the applicant have been jeopardized by the decree passed in these proceedings.
21. The case of the applicants is that legal representatives of the Decree Holders, namely , Muhammad Siddique, Abdul Wahid, Mst. Karamat, Mst. Jammu, Mst. Hanifan, Mst. Nasiban, and assignee Maula Bux transferred part of .the suit land viz. survey numbers mentioned in the application in para 6(ii), admea suring 420-09 acres, situated in Deh Sadri, Taluka and District Matiari, to the Applicants Nos.1 to 11 by registered sale deeds and the applicants were put in possession of the above land. The record of right was mutated in favour of the applicants. It was also claimed that the applicants were paying land revenue, Usher and all other charges in respect of the said land. That though the DHs/JDs have knowledge about such purchase of the land by the applicants but they deliberately did not join them as party . It was argued that statement dated 04.02.2006 filed by the advocates of the parties in the above civil appeals was collusive and, therefore, the appellants have obtained the order dated 04.02.2006 through mis-representation, fraud and by suppressing the real facts from the Court as the appeal was time barred and was liable to be dismissed. It was also submitted that the Court had no jurisdiction to allow the appeal on the basis of collusive and fraudulent statement by the parties to the appeal.
22. Execution Application No. 28 of 1968 was filed for execution of the decree which was passed in Suit No. 199 of 1951 As stated earlier , this suit was filed by plaintif fs Abdul Wali and others v. Tikamdas and others . Now, the parties to the execution application are legal heirs of the decree holders and the legal heirs of the judgment debtors as well as legal heirs of assignee. All these parties are directly connected to the suit land in one way or the other .
The learned counsel for the applicants was unable to show as to how any fresh decision on demand will affect the interest of the applicants.
23. It may further be pointed out that the application under section 12(2), C.P.C. was filed by the applicants for recalling order dated 04.02.2016, whereby , on a joint statement by the parties to Civil Appeals Nos.10 and 11 of 2003, the civil appeals were allowed and the matter was remanded back to the lower Court to decide the same afresh. Civil Appeals No. 10 was filed by Khaliq Dino and others, who are legal heirs of the assignee Ahmed Khan, while Civil Appeal No. 11 of 2003 was filed by Ramchand and another , who are LRs of JD Tikamdas, challenging the order dated 14.10.1999, whereby Execution Application No. 28 of 1968 was disposed of and objections to the execution application filed by Ramchand and another were dismissed. Learned counsel was unable to show as to what prejudice was caused to the applicants by recalling the order dated 14.10.1999. There was every possibility that even after hearing the parties, the appellate Court might have remanded the case. The plea taken in the revision application that at the time of execution of the sale deeds on 22.4.2000, no proceedings were pending in any Court of law is not correct as the appeals filed by the respondents were only returned for want of pecuniary jurisdiction, and not dismissed. Even if an suit/appeal is dismissed a prudent person is required to wait for expiry of the period of limitation to assail such decision before the next appellate forum, if any. In case the applicants have entered into any transaction with regard to the suit land with any of the DH / LR of the. DH, it was at their own peril as every person is required to act, prude ntly in order to safeguard his interest as nobody is expected to rely on somebody else to safeguard interest.
24. So far as the order of remand dated 04,02.2006 is concerned, the same was passed on a joint application of the parties to the appeals and through this order the appeals filed were allowed and the case was remanded back to the trial court to decide it afresh. The statement filed in I.C.A. No. 10 of 2003 reveals that .the reason for such joint statement was that the judgment passed by IInd Senior Civil, Hyderabad was not legal and was in conflict with the decree passed by the trial Court, which was, maintained upto the Hon'ble Supreme Court. If the parties to the said proceedings were of such view, then the applicants cannot be allowed to interrupt the course of law. It is an admitted fact that valuable rights of the parties were at stake in the above appeals and they are best judges to protect their rights.
25. So far as the claim of the applicants is concerned, that they have purchased some portion of the suit land, as stated above, since they have purchased the same during pendency of litigation in respect thereof therefore it was at their own peril. Apart from this, (sic).
26. It was argued that the applicants were not made party to the proceedings. It is stated in the revision application that "the respondents deliberately did not join the applicants as party in appeals and obtained collusive orders dated 04.02.2006 through misrepresentation and fraud. In case the grievance of the applicants is that they were not made party to the proceedings, then it was their own fault as instead of waiting for the respondents to have made them party thereto, the applicants themselves should have moved an application to become a party and if they were able to show that they are necessary or proper party , they should have been made a party . It is also stated the respondents had knowledge of ownership of the applicants. Similarly , the applicants were also aware that legal proceedings are pending in the Court and, therefore, they should have been vigilant to protect their rights.
In this regard reference may be made to the case of Dadabhoy Cement Industries Limited v. N.D.F . C. (2002 CLC 166), wherein, at page 181 of the report, following observation was made by a learned Division -Bench of this Court: "Amongst the various essential grounds which a party is required to establish for invoking, the jurisdiction of a Court under section 12(2), C.P.C., one essential ground is that the details of the alleged fraud, misrepresentation or concealment should not have been within the knowledge of a party who complains of fraud, misrepresentation or concealment during the course of proceedings. It is well established principle of law that where the facts on the basis of which the validity of the decree, judgment or final order was questioned on the ground of fraud misrepresentation, an application under section 12(2), C.P.C, on the basis of such assertion would not be sustainable if the same were within the knowledge of the aggrieved party ."
27. In the case in hand, the applicants were well aware that litigation with respect of the suit land is pending but still they did not move an application to join the same and, instead, they are blaming the parties to the proceedings for not making the applicants a party in the proceedings.
28. As regards the objection that the impugned order suffers from non-reading and misreading of the title documents of the vendors and sale deeds on record is concerned, suffice it to observe that neither the same were part of the pleadings nor the same were produced in evidence. Therefore, no question arises of examining the same. He may avail appropriate remedy to enforce his right in respect of his claim which would be decided on its own merits.
29. So far as the three ingredients for invoking jurisdiction under section 12(2), C.P.C., i.e. misrepresentation, fraud and lack of jurisdiction, are concerned, the applicants are not able to prove any one of them. Accordingly , I find no merit in the instant revision application and the same is hereby dismissed along with pending application(s).
The interim order passed earlier on 20.01.2017 is also hereby recalled.