FAHIM AHMED SIDDIQUI, J.---This order disposes of the instant application, wherein the applicants prayed to invoke section 12(2), C.P.C. for setting aside the judgment and decree dated 24-04-2014 passed by this Court in Civil Suit No. 567 of 2014. According to the applicants, the private respondents have obtained the said judgment and decree by playing fraud, misrepresentation and concealing the real facts from this Court.
2. Factual matrix of the case is that the predecessor-in-interest of the applicants namely Ghulam Mustafa son of Haji Hakeem Ahmed holder of old NIC No. 502-09-128234 expired on 29.04.1993, owned an immovable property i.e. a double storey Bungalow measuring 600 square yards bearing Plot No. C-65, Block-H, North Nazimabad, Karachi (hereinafter referred as 'subject property'). Subsequently , he orally gifted the subject property to his real son namely Ahmadullah Hussain on 20.11.1991, which was confirmed by acceptance and taken over possession by Ahmadullah Hussain. Later on, the subject property was transferred in his name and letter of transfer/mutation No. KDA/ LS-II/NN/92/356 dated 04-05-1992 was issued. The said Ahmedullah Hussain expired on 21-03-2000 (hereinafter referred as 'deceased') as issueless. The deceased during his lifetime has executed a General Power of Attorney (hereinafter referred as 'GPA') dated 21-03-1994 in favour of one Ghulam Rasool to do things as mentioned in the GPA. The said attorney rented out the subject property to respondent No. 2 and his brother namely Javaid Pasha. The tenants continued to pay rent to the said attorney till the month of May 2000. The deceased being issueless has left behind the following legal heirs:
(a) K. M. Abdul Khaliq son of Moin-ud-Din (cousin of deceased)
(b) Mst. Karim-un-Nisa widow of Feroz Hussain (cousin of deceased)
(c) Mst. Khadija Begum widow of Hashimatullah (cousin of deceased)
3. The above legal heirs were linked with the deceased through their mother Hajira Bibi widow of Moin-ud-Din and daughter of Haji Hakeem Muhammad Ahmed, as such the said Hajira Bibi was the real sister of the Late Ghulam Mustafa (father of the deceased) Subsequently , K.M. Abdul Khalique also expired and left behind the applicants as his surviving legal heirs. 'Accordingly , the legal heirs of the deceased Mst. Khair-un-Nisa and Khadija Begum have already been expired while the rest of the legal heirs executed the Relinquishment Deed dated 12.04.2008 in favour of the applicant No. 1 (widow of K.M. Abdul Khalique), as such applicant No. 1 issued a public notice in daily newspapers and claimed ownership of the said property . She also filed an SMA in this Court as petitioner; wherein as per direction of this Court, KMC (Land Management) submitted various documents including record of Suit No.567/2014 and the compromise decree passed in the said suit. It appears to the applicants that the respondent No. 2 filed a suit against the respondent No.1 being an attorney of the father of the deceased on the basis of a Sale Agreement dated 19-07-2013 under an unregistered GPA. As soon as, the applicants came to know about the said collusive suit, they filed the instant application to challenge the said judgment and decree with a prayer of setting aside the said judgment and decree.
4. Respondents were served through bailiff but they did not receive the notice personally; as such notices were published in the daily "Express" but they remained absent. Since the respondents remained reluctant to appear and preferred to mark themselves indifferent; therefore, the learned counsel for the applicants was directed to address the Court.
5. Mr Abdul Kadir Khan, learned counsel for the applicants, has described the entire background and then but forth his case. He submits that the predecessor in interest of the applicants expired on 29.04.1993 and the factum of his death is proved through the receipt of the graveyard (Page No. 25). He points out that Late Ghulam Mustlafa was the owner of the subject property , which was gifted by him his real son Ahmedullah Hussain (deceased) through a Gift Deed (Page No.27) and subsequentl y the property was mutated in his name and he expired issueless on 21- 03-2000. According to him, the said deceased executed a registered GPA in favour of Ghulam Rasool, who rented out the subject property to Naveed Pasha and his brother Javed Pasha (respondent No. 2). He submits that since the deceased was issueless; therefore, the applicants are the legal heirs of the deceased through the grandmother of the applicants Nos. 2 to 5 namely Hajira Bi. who was the sister of Ghulam Mustafa and paternal aunt (Phophi) of the deceased. He added that the said Hajira Bibi was the mother of the father of the applicants Nos. 2 to 5.
According to him, all the documents of the subject property including the death certificates of the predecessor-in- interest and others are in possession of the applicants. He submits that the fact of getting judgment and decree through fraud and misrepresentation has come to the knowledge of the applicants when SMA was filed. He points cut that the said suit was decreed against a dead person, while the GPA allegedly executed in favour of respondent No. 2 is unregistered and a fabricated document. He further submits that the sale agreement is shown to be executed by the said alleged attorney after the death of the father of deceased.
According to him, from the face of the record, fraud and misrepresentation are established; therefore, the judgement and decree are liable to be set aside along with all the superstructure built upon them. In support of his contentions, he relied upon Maqsood Ahmed and others v. Salman Ali (PLD 2003 Supreme Court 31), Siraj Din and others v. Ghulam Nabi and others (PLD 2003 Supreme Court 159), John Paul v. Irshad Ali and others (PLD 1997 Karachi 267), Muhammad Rafique through LRs v. Meraj Din through LRs (2006 YLR 1453(2)) and Muhammad All Zubair v . Sabira Khatoon (2017 YLR 138 ).
6. I have heard the arguments and have gone through the entire material placed before me. As far as the relationship of the applicants with their predecessor in interest is concerned, there is no denial of the same.
Besides, there is no reason to disbelief the same as all the property documents are in possession of the applicants including the death certificates of all their elders up to the predecessor in interest. Even they are in possession of the proof of burial of the deceased. It is the case of the applicants that their grandmother is the paternal aunt of the deceased and she was the sister of the father of deceased i.e. Ghulam Mustafa, the original allottee of the subject property . In these circumstances, the efforts of the applicants to dispute the judgement and decree are comprehensible.
7. Now come to the important question, which pertains to the playing fraud and misrepresentation in getting a decree in Civil Suit No. 567 of 2014. The suit was filed by the respondent No. 1 against the respondent No. 2. The shit was presented on 08-04-2014. The suit was come for an initial hearing on 09.04.2014 when notice was issued to the defendant (respondent No. 2) and the interim relief was given and the matte r was adjourned for 22-04-2014.
On 22.04.2014, the case was discharged ; as such on 23-04-2014 an urgent application along-with an application under Order XXIII Rule 3 was filed and matter was ordered to be fixed on 24-04-2414. On 24- 04-2014, the suit was decreed on the basis of compromise. It is really astounding that within a fortnight period from institution to disposal, the entire suit was disposed of. I am of the view that the A hasty manner in which the suit was proceeded and decreed; itself is sufficient to throw cloud of doubt upon the decree. It is surprising that the defendant has agreed to plaintif f contention on the very first date of hearing. If the parties are so close in respect of their dispute that it was resolved on the very first date then why the plaintif f bothered to file suit.
8. Although, to attract fraud and misrepresentation regarding Suit No.567 of 2014, the hastiness of the suit itself is a good ground but there are some other aspects, which also require consideration. It is alleged in the plaint of the suit that the plaintif f of the suit (respond ent No. 1) entered into a sale agreem ent with the defendant through attorney Naveed Pasha (respondent No. 2), who was allegedly attorney of the father of the deceased (i.e. Late Ghulam Mustafa son of Haji Hakeem Muhammad Ahmed). The photocopy of GPA annexed with the plaint is an unregistered GPA, in which the signatures of witnesses were also missing. It is worth noting that the said plaintif f B (respondent No. 1) entered into a sale agreement with the defendant (respondent No. 2) on the basis of an unregistered GPA, which means prima facie; the sale itself is dubious and it was a collusion suit. It is apposite to mention here that the alleged GPA was shown to be executed on 10-01-1991 by the Late Ghulam Mustafa, who died on 29.04.1993, while the said sale agreement was shown, to be executed on 19-07-201 1 by the alleged attorney . If for arguments sake, the alleged GPA is considered as a gospel truth, the purported GPA suffered vainness as the same becomes a useless paper since the death of the principal, the agency becomes terminated according to section 201 of the Contract Act, 1872. The same ratio has already been adopted by this Court in a case reported as Muhammad All Zubair v . Sabira Khatoon (2017 YLR 138 ).
9. Nevertheless, it is not out of place to mention here that the GPA is not only an unregistered document but also it does not carry the signatures of witnesses. The alleged GPA is neither registered nor the requisite stamp duty, according to the Stamp Act, was paid on it. In this respect law is very much clear regarding the GPA as per provision of section 17(b) of the Registration Act, 1908; it is mandatory that the same should be a registered document, as such no sanctity is attached to the unregistered GPA. In this respect, reliance may be placed from a case of this Court reported as Zafarul Islam v . Mrs. Azra Malik (PLD 1991 Karachi 377 ), where it is held as; "If a power of attorney purports to create right, title, or interest. whether vested or contingent, of the value of one hundred rupees or upward to or in immovable property , it requires compulsory registration under section 17(b) of the Registration Act besides payment of duty under Stamp Act."
10. It is also a matter of record that in the purported GPA, the attesting witnesses are also missing. As per provision of Article 17 of the Qanun-e-Shahadat Order , 1984, a document which proposes to create financial or future obligation requires to be witnessed by at least two male witnesses. The gravamen of the charges levelled against the respondents is that they entered into sale agreement on the strength of the power of attorney , which is apparently not only obnoxious instrument on the face of it but the same lost its validity after the death of the principal and it is done so with an intention not only to cheat the actual owners of the subject property but they also played a glaring fraud to this Court. Non-appearance of the respondents Nos. 1 and 2 in this case fortifies the act of defrauding and misrepresentation by them and attracts the presumption that the same was done intentionally and with clarity of mind, which makes it a criminal folly on their part also for which the applicants are at liberty to take action, if advised so.
11. In these circumstances, it can be safely held that the said GPA is a false and fabricated document, which was created with an ill design of usurping the subject property of the deceased and as such depriving the actual legal heirs from their valuable rights in respect of the said property . In this position of affairs, I allow the instant application and set aside the judgment and decree dated 24-04-2014 passed in Civil Suit No. 567 of 2014 with cost of actual litigation to be recoverable from both or any of the private respondents. Although, it is not necessary but for the sake of clarification, it is observed that all the superstructure (if any) built on the basis or force of the aforementioned judgment and decree are also fallen to ground.