Ch. Muhammad Iqbal, J. Through this writ petition, the petitioners have challenged the validity of order dated 13.12.2008 passed by the learned Civil Judge, Liaquatpur who dismissed the application under Section 12(2) C.P.C. filed by the petitioners and also assailed the order dated 14.12.2010 passed by the learned Additional District Judge, Liaquatpur who dismissed the revision petition of the petitioners.
2. Brief facts of the case are that Sher Muhammad (predecessor of petitioners No.1 to 4), Muhammad Sharif (predecessor of petitioners No.5 to 10), Bashir Ahmad and Muhammad Hanif (respondents No.33 & 34 respectively) were real brothers who alongwith one Jind Wada filed a suit for declaration with consequential relief of possession against the respondents/defendants and contended that Muhammad Sharif and Hussain Bukhsh etc., predecessor-in-interest of the respondents/defendants, sold land measuring 405 Kanal 10 Marla to one Fateh Din in 1954 against consideration and handed over possession to him and in this regard mutation No.15 was entered and sanctioned. In 1959, out of the total land, Fateh Din sold land measuring 203 Kanal to Muhammad Boota, predecessor-in-interest of the petitioners/plaintiffs and one Jind Wada as per shares 4/5 & 1/5 respectively and after receiving consideration, handed over possession to them. In this regard, mutation No.31 dated 27.11.1959 was also entered and sanctioned. Fateh Din died issueless. The predecessor of plaintiffs also owned some land in Lahore, as such, he gave the suit land on lease {{URDU TEXT}} to one Allah Bukhsh on 16.03.1961 and shifted to Lahore. Plaintiff Jind Wada also leased out his share of the suit land to one Ghulam Farid. The defendants No.9 to 18 illegally and forcibly took possession of the suit land from the lessees and with connivance of revenue officials, got cancelled mutation No.15 on 16.06.1967 and procured mutation No.53 dated 19.12.1969 in respect of the suit land in their favour. The plaintiffs challenged the validity of the mutation No.53 in the aforementioned suit. During the pendency of the suit, Bashir Ahmad and Muhammad Hanif (respondents No.33 & 34) murdered their real brothers Sher Muhammad and Muhammad Sharif (predecessors-in-interest of the petitioners), all of them were the plaintiffs in the suit. Jind Wada also died during that period. The said suit was dismissed on 16.09.1991. Appeal thereof was also dismissed due to non-prosecution on 08.03.1993.
The petitioners, being legal heirs of Sher Muhammad and Muhammad Sharif filed an application under Section 12(2) C.P.C. on 01.01.1999 for setting aside the judgment & decree dated 16.09.1991 on the ground that they were not aware about the pendency of the suit. That after the death of their predecessors, the petitioners were neither summoned nor were represented through any counsel in the proceeding of the suit. That even some of the petitioners were minor at the time of decision of the case. That the respondents, with collusion of the surviving plaintiffs i.e. Bashir Ahmad and Muhammad Hanif, committed fraud with the petitioners and obtained the decree from the Court.
The respondents hotly contested the application.
The learned Civil Judge, Liaquatpur framed issues, recorded evidence of the parties and finally dismissed the application under Section 12(2) C.P.C. vide order dated 13.12.2008. Being dejected, the petitioners filed a civil revision which was also dismissed by the learned Additional District Judge, Liaquatpur vide order dated 14.12.2010.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. Issue No.1 is the core issue in this case, which is reproduced as under: "Whether the judgment & decree dated 16.09.1991 was obtained through fraud and misrepresentation and is liable to be set aside? OPA"
To dislodge the onus of the above issue, one of the petitioners namely Mst. Sughra widow of Muhammad Sharif appeared as A.W.1 and deposed that her husband Sharif as well as her brother- in-law Sher Muhammad (both brothers) were murdered by their real brothers, Bashir and Hanif (plaintiffs No.2 & 3), due to some dispute of land and a criminal case was registered against them; that at that time, her eldest son was aged about 8 years; that a compromise was effected between the complainants and the accused party with the stipulation that culprits would quit the village; she further deposed that her husband used to look after the suit land; that her husband never told anything about pendency of the suit; that she neither engaged any counsel, nor imposed any thumb impressions on the documents in this regard; that the legal heirs of Hakim Bibi (petitioner) also did not engage any counsel in the said suit; that fraud has been committed with them. In cross examination, she deposed that: {{URDU TEXT}} Muhammad Asif (A.W.2) deposed that he is 29 years old; that at the time of murder of his father, he was aged about 8 years; that his younger brother Qasim was aged about 5 years, Amjad was aged 3 years; Azam was aged about 1-1/2 years whereas Nazim was born after death of his father; that after the death of his father, he came to the suit land about 8 years ago upon which he came to know that the respondents / defendants had got decreed suit in their favour by producing unknown persons; that they never filed any appeal in Rahim Yar Khan; that his mother, aunt and his brothers, had neither filed any appeal nor imposed thumb impressions; that they did not imposed any thumb impression in the original suit; that his uncles who killed his father had committed fraud in connivance with defendants. In cross examination, he deposed that: {{URDU TEXT}}
5. Conversely, respondents produced in evidence Rafiq Bajwa, Advocate (R.W.1) who deposed that in 1991, he was doing practice at Rahim Yar Khan; that he filed appeal titled Hakim Bibi etc. Vs. Fateh Muhammad etc. and all the appellants gave him power of attorney; that he filed appeal on 15.10.1991. He did not pursue the said appeal which was dismissed on 28.03.1993 due to non- prosecution as well as non-deposit of process fee. During cross examination, he deposed that: {{URDU TEXT}} Riaz Ahmad (R.W.2) during cross examination, deposed that: {{URDU TEXT}}
6. Admittedly, Sher Muhammad (predecessor of petitioners No.1 to 4), Muhammad Sharif (predecessor of petitioners No.5 to 10), Bashir Ahmad and Muhammad Hanif (respondents No.33 & 34 respectively) were real brothers who alongwith one Jind Wada filed a suit against respondents.
During the pendency of the suit, the predecessors of the petitioners were murdered by their brothers namely Bashir Ahmad and Muhammad Hanif and the motive of the occurrence was the dispute of some land. As evident from the evidence available on record, the children of both the murdered persons were minors at the time of occurrence and their family members had no knowledge regarding the pendency of the suit. The trial Court, in such circumstances, should have procured the attendance of the legal heirs of the deceased persons before proceeding any further but no such effort of the trial Court is evident from the record. In the suit, one Muhammad Saleem Patwari / Record Keeper (P.W.1), Allah Bukhsh (P.W.2) and Muhammad Boota (P.W.3) were produced who are neither the concerned persons regarding the suit nor the petitioners gave any authority to them to appear. Further, the plaintiffs or their successors could not appear in evidence as PWs in the main suit, as such the testimonies of PW-1, 2 and 3 have no value in the eye of law. All the proceedings prove that the respondents in connivance with each other and on the basis of fraud and misrepresentation managed dismissal of the suit. The alleged counsel who filed appeal on behalf of the petitioners, appeared on behalf of the respondents as R.W.1 which fact alone proves that he was managed by the respondents. It is a classic example of commission of fraud with the petitioners (Parda Nasheen ladies & minors) by the respondents with their inter se collusiveness. All these proceedings show the commission of fraud by the respondents and it is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws. Reliance in this regard is placed on cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Sindh Irrigation and Drainage Authority Vs. Government of Sindh and others (2022 SCMR 595).
7. The petitioners No.1, 5, 10, 11 & 14 are women folk who are claiming that respondents with inter se collusiveness obtained the impugned judgments & decrees and in such like cases, the Courts must be extraordinary careful in the trial proceeding as well as while passing the orders, judgment & decree and also to protect the legal rights of the women folk who unfortunately are usually deprived of their legal rights more particularly from their inheritance share in estate left by their predecessors. Reliance in this regard is placed on case cited as Abdul Hameed through L.Rs. and others Vs. Shamasuddin and others (PLD 2008 SC 140). Furthermore, as the rights of minors were involved in the suit land, as such, the trial Court being legal guardian was under obligation to demonstrate extraordinary care and caution to safeguard the rights of minors while proceeding with the suit. The Hon'ble Supreme Court of Pakistan in a recent pronouncement cited as Muhammad Amjad Khan Afridi and others Vs. Shad Muhammad and others (PLD 2022 SC 27) held that it is duty of the Court being custodian to safeguard the rights of the minors and the courts are to realize that a minor litigant is under their protection, and it is primary duty of the courts to watch over minor's interests and ensure that he is duly represented or defended in the proceedings before Court. For reference, relevant portion of the judgment (supra) is reproduced as under: "6. The provisions of Order 32 of the CPC, which advance the mandate of Article 25(3) of the Constitution, are to be interpreted and applied with a dynamic and progressive approach to achieve the object for which they have been made, that is, the protection of the rights and interests of the minors. The Courts are to realize that a minor litigant is considered to be under their protection, and primarily it is their duty to watch over his interests and ensure that he is duly represented and defended in the proceedings before them. That is why, despite appointment of a guardian ad litem, no agreement or compromise can be entered into on behalf of the minor by that guardian without leave of the Court. The Court is to see vigilantly the conduct of the guardian ad litem in representing and defending the minor, and to remove him if he fails to do his duty by acting in a manner that is detrimental to the interests of the minor. Where there is no other person fit and willing to act as guardian for the minor, the Court is to appoint any of its officers to be such a guardian. Order 32 of the CPC, thus, visualizes no such occasion where a minor defendant can be proceeded against ex parte.
7. In Fauzia Parveen case, a four member Bench of this Court while maintaining the orders of the courts below setting aside an ex parte decree passed against the minors, observed: A fact noted by the District Judge as well as by the High Court which was by itself considered sufficient to set aside the ex parte decree was the fact that respondents 3 and 4 were admittedly minors at the relevant time. They were proceeded against in the litigation through their guardian Mst. Musarrat Begum respondent No.2 who was their mother. It is also an admitted fact that Mst.
Musarrat Begum had defaulted in putting in appearance on her own behalf and on behalf of these minor respondents whom she was required to represent under the orders of the Court. It was, therefore, a case where the guardian had been negligent and had defaulted in representing and protecting the interest of the minors. Rule 11, Order XXXII, C.P. C. requires that "where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit." The same rule goes beyond further to prescribe "where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place".
In this case, the guardian had failed to do her duty and was liable to be removed and substituted by the Court. As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not. We are therefore, in agreement with the view taken by the two Courts at this omission to ensure proper representation of the minors was material factor to be taken note of while considering the application for setting aside the ex parte decree."
The aforesaid material factual and legal aspects have not been considered by the learned Courts below who as a routine matter decided the issue against the petitioners. The Hon'ble Supreme Court of Pakistan in a case cited as Syed Sharif ul Hassan through L.Rs. Vs. hafiz Muhammad Amin and others (2012 SCMR 1258) has held that justice at no cost be allowed to fall prey to the procedural technicalities which should be ignored if these tend to create hurdle in the way of justice.
8. Furthermore, the respondents never appeared in the witness box to controvert the serious allegations of fraud, misrepresentation and forgery alleged by the petitioners in their application under Section 12(2) C.P.C. and the same are reiterated in 12 testimonies by A.Ws which fact also support the allegations of the petitioners. Reliance is placed on a latest pronouncement of the Hon'ble Supreme Court of Pakistan cited as Misbah Khanum Vs. Kamran Yasin Khan and another (2022 SCMR 1629).
9. In view of above, it can conveniently be observed that the petitioners successfully proved their assertions through concrete, reliable and convincing oral as well as documentary evidence which material facts have not been taken into consideration by the two courts below who by committing misreading and non-reading of the evidence, illegally decided issue No.1 against the petitioners, as such, the findings of the learned Courts below on said issue are hereby reversed and this issue is decided in favour of the petitioners and against the respondents.
10. As regard the issue No.2, "Whether the petition is time barred?", the learned Civil Judge, Liaquatpur decided the said issue in favour of the petitioners. The respondents did not challenge the said findings whereas the learned revisional Court, without any just reason, decided this issue against the petitioners. It is settled law that if a party does not assail adverse finding on an issue, it attains finality. Reliance in this regard is placed on cases cited as Khairati and 4 others Vs. Aleem- ud-Din and another (PLD 1973 SC 295) and Government of N.W.F.P through Chief Secretary and others Vs. Muhammad Zaman and others (1996 SCMR 1864). Therefore, the findings of the learned revisional Court on issue No.2, being against the record, are also reversed.
11. As discussed above, the decisions of the learned Courts below suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such, the same are not sustainable in the eyes of law and are liable to be set-aside and this Court is well within jurisdiction to reverse the illegal and perverse concurrent findings. Reliance is placed on the cases titled as Nazim-ud-Din & Others Vs. Sheikh Zia-Ul-Qamar & Others (2016 SCMR 24).
12. Resultantly, this writ petition is allowed, the order dated 13.12.2008 passed by the learned Civil Judge, Liaquatpur and the order dated 14.12.2010 passed by the learned Additional District Judge, Liaquatpur are hereby set aside and by accepting the application of the petitioners under Section 12(2) C.P.C., the judgments & decrees dated 16.09.1991 and 08.03.1993, passed by the learned Courts below are also set aside. Consequently, the suit for declaration filed by the predecessors of the petitioners shall deem to be pending before the learned trial Court who shall decide the same afresh strictly on merits and in accordance with law. Both the parties are directed to appear on 02.11.2022 before the learned District Judge, Rahim Yar Khan who shall entrust the case to a court of competent jurisdiction for its disposal as per law. As the matter belongs to oldest category cases, as such, the learned trial Court is directed to decide the same positively within six months under intimation to the Deputy Registrar (Judicial) of this Court. No order as to costs.