Through this single order, applications under Section 12(2), read with Section 151, of Code of Civil Procedure, 1908 (hereinafter ) and other enabling provisions of law, bearing C.M. No.22-C of 2022 filed in Civil Revision No.73-D of 2011, C.M. No.23-C of 2022 in Civil Revision No.775-D/2010 as well as C.M. No.24-C of 2022 in Civil Revision No.776-D/2010, are being decided. For convenience, the C.Ms mentioned above are collectively referred as "the applications" whereas the Civil Revisions are collectively referred as "the CRs".
2. The applicant, through the applications, has assailed consolidated order dated 27.04.2022, passed in the CRs, on the basis of a compromise arrived between the parties, during the course of arguments. The grounds of challenge are recorded in paragraph No.4 of the applications, inter alia, that no compromise was ever struck between the parties and neither the applicant himself got recorded any statement with regard to alleged compromise nor he authorized his counsel to do so.
During the course of arguments, today, learned counsel for the applicant also submits that even otherwise the compromise has not been recorded in terms of Order XXIII, CPC and hence, impugned order is not sustainable.
3. Arguments heard. Available record perused.
4. At the outset, this Court considers it imperative to determine whether the applications, filed under Section 12(2), CPC, are maintainable in the instant case or not. Section 12(2), CPC postulates a remedy in cases and situations where a decree/order suffers from want of jurisdiction or was tainted with fraud and is result of misrepresentation. It has been noted that the applicant, who was petitioner in the CRs, was duly represented by M/s. Malik Muhammad Latif Khokhar and Sh. Atif Munir, Advocates who were present and argued the matter on 27.04.2022, when the impugned order was passed in the following terms: "2. Today, during the course of arguments finally a consensus inter se the parties developed and as a result thereof respondents No.1 to 3 have chosen to withdraw their original suit (subject of petition in hand whereby Exh. P4 & Exh-P2 qua 100 Kanals were assailed), whereas the petitioner has opted to withdraw tagged C.Rs. No.775-D & 776-D of 2010 arisen out of suits wherein mutations No.461 & 462 were challenged and cancelled by learned Appellate Court below via decisions dated 11.05.2010. It is further agreed inter se the parties that the respondents No.1 to 3 (decree-holders) will be given title as well as possession to the extent of 43 Kanals 10 Marlas comprising square No.79, Killas No.1 to 5 (complete) and rest of the area will be adjusted from abutting killa No.10 on or before 15.10.2022. In case the petitioner fails to comply with said commitment within stipulated period, all these three Civil Revisions will stand dismissed and law will take its own course. The Revenue Officer is directed to give effect of this judgment in Revenue Record by sanctioning new mutations with regard to afore-noted area in favour of ladies-respondents No.1 to 3/decree-holders. All these three CRs stand disposed of accordingly."
(Emphasis supplied)
5. Above referred operative part of the impugned order clearly reflects that terms and conditions of the compromise are clearly stipulated in the said paragraph and hence, the ground that terms of compromise are not recorded in the order in accordance with mandate of Order XXIII, CPC is misconceived. Learned counsel for the applicant further contended that fraud and misrepresentation have been committed in order to procure the impugned order. In this regard, it is imperative to note that the crux of the arguments is recorded in paragraph No.4-a of the applications, in uniform language, which is reproduced hereunder: "4. That petitioner prefers instant application under Section 12(2) CPC inter alia on the following: GROUNDS a) That the order dated 27.04.2022 travels on the premises of some consensus having been arrived at between the parties to the case, however, it is submitted with utmost respect and utter humility that no compromise was ever struck between the parties. It will surely steal eminence that neither petitioner made any statement with regard to alleged compromise nor he authorized his counsel to do so. Moreover, neither the petitioner nor his counsel signed/thumb marked the order sheet in token of their having arrived at some settlement. In fact, after arguments in part, file was kept pending and later on respondents mislead the court in this regard that matter had been resolved between the parties at their own and on the basis of their fraudulent statement, order dated 27.04.2022 was passed. Same is clear pointer of the fact that respondents played fraud with this Hon'ble Court."
(Emphasis provided)
Perusal of above referred paragraph from the applications indicates that, in the instant case, neither assertion for want of jurisdiction has been levelled nor any fraud has been stated to have been played with the Court. Rather, it has been asserted that neither the applicant nor his learned counsel signed/thumb marked the order and in fact the matter was part heard and file was kept pending and later on, respondents mislead the Court. As regards absence of thumb mark or the signatures of learned counsel for the applicant, it is imperative to hold that the same is not a mandatory requirement of the law in such like situation where the party is duly represented by his legal counsel who filed the petition and has been pursuing the same since the filing thereof.
Therefore, this ground does not fall under the purview of Section 12(2), CPC, as sanctity is attached to the judicial proceedings, which takes this Court to examine the last part of the grounds taken in the applications that the matter was part heard and file was kept pending.
6. In so far as the assertion that the matter was partly heard and same was kept pending and later on respondents misled the Court is concerned, needless to mention that elements of fraud or misrepresentation again are conspicuous by their absence inasmuch as the said assertion of the applicant prima facie is against the sanctity attached to the judicial proceedings under Article 129 of the Qanun-e-Shahadat Order, 1984, which has been called in question and said act on part of the applicant is deprecated. The august Supreme Court of Pakistan in a recent judgment passed in case titled "Abdul Aziz Vs Abdul Hameed" (2022 SCMR 842) held that strong presumption of correctness and sanctity of high order is attached to judicial proceedings and records and to outweigh the same, strong and unimpeachable evidence is required, which the applicant remained unable to point out to rebut the said strong presumption. Mere application not supported by any material would not warrant any inquiry or investigation. Even otherwise and for the sake of arguments, if the contentions of the applicant are taken as correct that the matter was part heard, there is no affidavit of either of the two counsel namely, M/s. Malik Muhammad Latif Khokhar and Sh. Atif Munir, Advocates, who represented the applicant on 27.04.2022, annexed with the applications, to substantiate the said assertion/contention. When confronted with, there is no plausible explanation available with learned counsel for the applicant except that since the learned counsel made no statement there was no need of obtaining any affidavit from them. The explanation put forth is neither justifiable under the law nor convincing inasmuch as if the case was only part heard, and the decision came otherwise on some misrepresentation from the respondents' side, it were Muhammad Latif Khokhar and Sh. Atif Munir, learned Advocates who argued the matter and could give a deposition, through affidavit in this regard, which is not available and there is no suggestion that the above referred learned counsel while arguing the matter on behalf of the applicant were motivated by any consideration of fraud, which propels this Court to conclude that the applications in hand lack bona fide and are frivolous, and an aborted attempt to undermine the sanctity of judicial proceedings, which deserves deprecation in the strongest terms possible.
7. Having discussed and dealt with the grounds taken by the applicant in the applications as well as during the course of arguments on his behalf by his learned counsel, this Court intends to examine the matter regarding the tenor of the order that perhaps is the most crucial aspect of the case. While the applicant has stressed hard that the CRs were decided on the basis of the compromise alone through the impugned order, he has ignored second part of the impugned order which deals with merits of the case. Perusal of the operative part reproduced hereinabove not only renders it succinctly clear that a consensus, during the proceedings in the Court, had been developed, inter se the parties, which was clearly reduced therein by this Court that not only the parties, but the Revenue Officers concerned, were also directed to give effect to the compromise in the revenue record by sanctioning new mutations with regard to the property referred to in the operative paragraph in favour of the respondents and in case of failure or refusal to adhere to or "comply with said commitment within stipulated period" by the applicant, all the CRs were deemed to have been dismissed leading to the logical conclusion that decree of the courts below, in favour of the decree-holders/respondents impugned in the CRs, being upheld by this Court. The natural corollary of the impugned order is that the applicant/petitioner is either required to comply with "the commitment" or the CRs stood dismissed. Perusal of the impugned order also shows that the case was fully argued by the parties on merits and it was categorically held by this Court that failure to comply with the commitment within stipulated time would ipso facto result in dismissal of the CRs. Had this not been the situation, this Court would have simply disposed of the CRs in light of the consensus and not dismissed the CRs on merit. Therefore, if the applicant was aggrieved of the impugned order in any manner, he should have assailed the dismissal order.
8. There is yet another aspect of the case, which indicates that the applicant has approached this Court just to linger on the matter after reaching a consensus developed during the course of arguments on 27.04.2022 or in alternate dismissal of the CRs inasmuch as perusal of certified copy of the impugned order appended with the petition reveals that same was obtained on 14.05.2022 and hence, if the case was partly argued and any misrepresentation on part of the respondents triggered the passing of the impugned order as contended through the applications, the applicant should have rushed to this Court immediately through an appropriate application and not waited for more than three months to file the applications under Section 12(2), CPC, on 05.09.2022, which are otherwise patently misconceived. Though this Court is aware of the legal position that limitation provided for filing an application under Section 12(2), CPC is three years from the date of knowledge, the delay in the instant case by the applicant in approaching the Court after obtaining the certified copies is reflective of the conduct of the applicant and indicative of retraction from the commitment made by the applicant recorded in the impugned order. This again brings out the mala fide of the applicant underlying the filing of the applications by tainting the sanctity of the judicial proceedings in such a bald manner, which cannot be countenanced in any manner whatsoever as the same would not only result in undermining the public confidence in the judicial system but also unleash undesirable results.
9. In view of the above, the application bearing C.M. No.22-C of 2022 filed in C.R. No.73-D of 2011, along with connected applications, bearing C.M. No.23-C of 2022 in C.R. No.775-D/2010 and C.M.
No.24-C of 2022 in C.R. No.776-D/2010, are devoid of any merit and hence, dismissed in limine, with cost of rupees one hundred thousand (Rs.100,000/-) to be deposited in the account of dispensary of High Court Bar Association, Multan, within 30-days.