MIRZA VIQAS RAUF, J. The petitioner, being aggrieved of a consent decree dated 28th July, 2017 passed in a suit for specific performance, instituted by respondent No.1 against respondent No.2, moved an application under Section 12(2) of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "CPC"), seeking annulment of said judgment and decree. The application was resisted by the respondents, who submitted their reply however, by way of order dated 22nd September, 2018, the application was dismissed. The petitioner, feeling aggrieved, though filed a revision petition before learned Additional District Judge, Rawalpindi but that too was dismissed through judgment dated 21st October, 2019 hence this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. Facts in brief, forming background of this petition, are that respondent No.1 instituted a suit for specific performance on the basis of an agreement to sell dated 14th March, 2013 against respondent No.2 and later on respondent No.3 was also impleaded amongst the defendants.
During pendency, respondent No.2 conceded the claim of respondent No.1 and got recorded his statement, as a sequel of which, suit was decreed by way of judgment dated 28th July, 2017. The petitioner then moved an application under Section 12(2) of CPC, seeking annulment of the decree on the ground that it is outcome of fraud and misrepresentation. The application was resisted by the respondents and ultimately it was dismissed concurrently.
3. This petition was admitted for regular hearing by way of order dated 10th December, 2019 and notices were issued to the respondents. By way of order dated 18th January, 2024, respondents No.1 & 2 were proceeded against ex-parte and as a sequel, this petition was listed out for hearing today.
4. Heard, record perused.
5. A wade through record reveals that claim of respondent No.1 hinges upon agreement to sell (Ex.P1), purportedly executed by respondent No.2 in his favour, being attorney on behalf of respondent No.4 through deed of attorney bearing No.2072 dated 16th September, 2010 (Mark-PA); perusal whereof reveals that it was executed by the petitioner and one Muhammad Younas in favour of respondent No.2 and not respondent No.4. It clearly evinces from the deed of attorney that it was executed by the petitioner and Muhammad Younas, being members of respondent No.4-Society for the purpose of execution of registered sale deeds/mutations in favour of members, who were though allotted plots but not transferred in their names. Strangely enough, respondent No.2, claiming himself to be the attorney of respondent No.4-Society entered into sale agreement with respondent No.1 for which he was not vested with any authority, either by respondent No.4-Society or the petitioner.
6. There is yet another important aspect. One of the executants of the deed of attorney Muhammad Younas passed away on 22nd May, 2014. Section 201 of The Contract Act, 1872 deals with the situation where agency would stand terminated. For ready reference and convenience, same is reproduced below:- 201.Termination of agency.- An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent-dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.
In the case of IMAMN DIN and 4 others versus BASHIR AHMED and 10 others (PLD 2005 Supreme Court 418), while outlining the scope of Section 201 of The Contract Act, 1872, Supreme Court of Pakistan has held as under:-
6. Learned counsel for the appellants has contended that the power of attorney was jointly executed by three persons and two had already died, therefore, agency would be deemed to have come to an end in terms of section 201 of the Contract Act, 1872. We may point out that the above provisions cannot be pressed into service in the present case as nothing was brought on record to show that the other two executants of the power of attorney died before or that after the confirmation of allotment of land or at the time of sale, they were joint owners of the property, therefore, the agency if any on behalf of Tulli, would not be terminated by reason of death of other two executants of documents. Be that as it may, no flexible rule can be laid down that when more than one persons jointly appoint a person as their agent, the death of one would result termination of the authority of the agent not only with regard to the deceased but also on behalf of the others.
This question is to be determined in each case on the basis of intention of the parties in the light of terms of the instrument and since the agency under the power of attorney is different to that of other contracts therefore, the agency of power of attorney cannot be stricto senso, adjudged on the touchstone of the principles applicable to the contracts.
7. In somewhat similar circumstances, learned Single Bench of this Court in the case of SITARA and others versus SOHRAB and others (PLD 2014 Lahore 179) held as under:-
9. Another important aspect, which escaped notice of both the courts below, is that while filing application under section 12(2) of C.P.C. the petitioners took the stance, in clear cut words, that one of the principals, namely, Ahmad alias Ahmad Bakhsh died on 3-4-1981 and after his death the said Hassan Ali Shah was no more his attorney. The said stance of the petitioners was not rebutted in clear cut words rather when cross-examined on this point, Sohrab, one of the decree holders (RW- 1) showed his lack of knowledge about death of said Ahmad. According to section 201 of the Contract Act, 1872, the agency between the parties comes to an end inter alia on the death of either principal or the agent and in the event of death of the principal the power of attorney comes to an end. Insofar as the case in hand is concerned, according to death certificate Muhammad Ahmad alias Ahmad Bakhsh died on 3-4-1981 and said Hassan Ali Shah despite knowing this fact that after his death he was no more his attorney, proceeded to collude with the respondents and filed consenting written statement on behalf of a dead person while showing himself as his attorney. This is a classical example of fraud not only with the parties concerned but also with the Court.
After having an overview of the above noted principles of law, it can be observed without any hesitation that when deed of attorney was executed by the petitioner alongwith Muhammad Younas, who passed away on 22nd May, 2014 much prior to the recording of the statement by respondent No.2, being attorney, such statement would be unauthorized and of no avail.
8. It appears from the record that during proceedings in the suit, initially on 24th October, 2016, respondents No.1 and 2 got recorded their statements that they entered into a compromise through deed (Mark-A) and they have no objection on decision of the suit in terms thereof. The proceedings were however adjourned for procuring attendance of respondent No.3, who ultimately was proceeded against ex-parte vide order dated 11th November, 2016. Later on, on an application under Order I Rule 10 of CPC, respondent No.4 was impleaded as party amongst the defendants. In this backdrop, statement of respondent No.2 was again recorded, being attorney on behalf of respondent No.4-Society and ultimately, suit was decreed ex-parte vide judgment dated 28th July, 2017. Feeling aggrieved, the petitioner moved an application under Section 12(2) of CPC but it has concurrently been dismissed which, in the circumstances, is quite strange. I am constrained to observe that in the light of facts, noted hereinabove, respondent No.2 was not vested with any authority to enter into agreement to sell with respondent No.1, either on behalf of the petitioner or respondent No.4-Society and even he was not authorized to record any statement resulting into decreeing the suit. It was thus clearly a case of misrepresentation but both the courts proceeded to dismiss the application under Section 12(2) of CPC.
9. Sub-Section (2) of Section 12 of CPC was initially not the part of said provision. It was inserted through Ordinance X of 1980 so as to provide a remedy to an aggrieved person to challenge the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which passed the final judgment, decree or order. The object of Sub-Section (2) of Section 12 of CPC, apparently, was to enable a court to nullify its own judgment, decree or order obtained by practicing fraud, misrepresentation or suffering with parent illegalities on account of lack of jurisdiction. No procedure has been prescribed for determination of such application nor any separate remedy is indicated against such determination, however, by virtue of Section 141 of CPC, a procedure prescribed for suits is to be followed. It is thus left upon discretion of the court, seized with the application, either to decide it summarily or after framing of necessary issues, which always dependent upon peculiar facts and circumstances of each case. In other words, Section 12(2) of CPC empowers a court, who passed the judgment, decree or order to scrutinize it if it is outcome of fraud, misrepresentation or lack of jurisdiction and to annul it by its own.
10. There is no cavil that ordinarily this Court restrains itself to interfere with the concurrent findings of the courts below, while exercising constitutional jurisdiction but this is not an inflexible and absolute rule. The Courts exercising constitutional jurisdiction cannot shut its eyes to confirm the findings of the courts below merely on the ground that those are concurrent. Even if there are concurrent findings but tainted with patent illegalities, there is no embargo to set the same at naught in exercise of constitutional jurisdiction as the Court cannot perpetuate a wrong as a part of policy.
11. For what has been discussed above, instant petition is allowed and findings of the learned Additional District Judge as well as learned Civil Judge Class-I, Rawalpindi rendered through judgment dated 21st October, 2019 and order dated 22nd September, 2018 are set aside, being illegal and unlawful. As a consequence, the application under Section 12(2) of CPC, moved by the petitioner shall sand accepted, with no order as to costs.