Ch. Muhammad Iqbal, J:- Through this application under Section 12 (2) CPC read with Section 151 CPC and Article 269 of the Constitution of Islamic Republic of Pakistan, 1973, the applicant has challenged the judgment dated 03.11.1992 of this Court passed in W.P. No.819/1972 on the ground of fraud and misrepresentation.
2. Brief facts of the case as stated by learned counsel for the applicant are that the respondent / writ petitioner 'The Cooperative Insurance Society Private Limited' a registered corporation was doing composite business of Life Insurance and General Insurance. The respondent / writ petitioner was owner in possession of building bearing No. S-19-R-23 situated at 23-Shahra Quaid-iAzam, The Mall, Lahore vide registered sale deed No.3684 dated 22.04.1964 and Permanent Transferred Deed (PTD) No.434-BM-CSC-S-SET/64 dated 24.12.1964; the Government of Pakistan promulgated the Life Insurance (Nationalization) Order, 1972 on 18.03.1972 (hereinafter referred as the Order, 1972) whereunder the above said property was Nationalized and accordingly its Trustees as well as Sub- trustees were appointed by the Central Government and under Article 5 of the Order, 1972, possession of all the assets including properties of the insurer was obtained through notification dated 27.03.1972.
Being discontented, on 16.06.1972, the General Insurance Department of respondent filed Writ Petition No.812/1972 against the trustees (Life Department of the respondent) without impleading the Central Government through Secretary, Ministry of Commerce, Government of Pakistan, Islamabad and the Controller of the Insurance, Government of Pakistan, Karachi as party. The respondent / Life Department of respondent filed report and parawise comments on 03.07.1972 and on 10.10.1974 filed application (C.M. No.3/1974) under Order VI Rule 17 CPC to incorporate the State Life Insurance Corporation of Pakistan, I. I. Chandrigarh Road, Karachi as respondent in the main writ petition. The said application was accepted on 21.03.1975 but the respondent writ petitioner arrayed the State Life Insurance Corporation of Pakistan as a co-petitioner in the main writ petition in derogation of the said order. On 03.11.1992 with the consent of the counsel of the respondents/ sub-trustees, this Court allowed the main writ petition and declared the letter No.2690 dated 27.03.1972 in respect of the taking over of possession of the suit property as without lawful authority / illegal and remanded both the cases to the Insurance Appellate Tribunal under Section 110 of the Insurance Act, 1938. On the disclosure of the aforenarrated litigation, the application under Section 12(2) read with Section 151 C.P.C and Article 269 of the Constitution of the Islamic Republic of Pakistan, 1973 to set aside the judgment dated 03.11.1992 passed in Writ Petition No.819/1972 on the ground of fraud, misrepresentation and want of jurisdiction and prayed for reversal/setting aside impugned judgment.
The respondent/writ petitioner filed contesting reply of the application under Section 12 (2) CPC controverting the stance taken by the applicant regarding commission of any fraud and misrepresentation and prayed for dismissal of the said application. The applicant also filed rejoinder of the said reply. Hence, this application.
3. Learned counsel for the applicant has argued that the impugned judgment was obtained without impleading the present applicant as party/ respondent rather this Court accepted application under Order VI Rule 17 CPC(C.M. No.3/1974) vide order dated 21.03.1975 whereby the respondent [ writ petitioner] was directed to implead the applicant as party / respondent in the main writ petition but the said order was defrauded by the respondent/writ petitioner by impleading the applicant as co-petitioner in order to conceal the said lis from the applicant and even no information was imparted to it which demonstrate malafide intent of the respondent.
Further submits that the present respondent/ writ petitioner had received a substantial compensation amount of Rs.2,24,478.60/- through a cheque No.CEL957542 dated 15.04.1986 in lieu of the assets of the parent institution. After receiving of the compensation amount, the respondent also instituted Civil Original Suit [No.03 of 1986] for recovery of additional 15% per annum interest along with compensation through Muhammad Hanif Niazi, Advocate. The said suit was dismissed in limine on 07.10.1986 and later on respondent preferred I.C.A No.10 of 1986 which was also dismissed on 13.10.2005. That after having received compensation, the respondent has no right to retain possession of the suit property. In respect of the compensation, the litigation was concealed by the respondent while obtaining the impugned judgment in the writ petition [No.819/1972] from this Court which is amounting to commission of fraud and misrepresentation. As the present applicant neither received any notice from this Court nor from the Insurance Appellate Tribunal, Karachi and nor appeared before the above said fora; Even then the Tribunal dismissed the claim of respondent being not maintainable. That as no counsel of the applicant had ever appeared before this Court and on the basis of fraud and misrepresentation, the impugned judgment was obtained, which is not sustainable and same is liable to be set-aside.
4. Learned counsel for the respondent / writ petitioner has argued the case contending that the application under Section 12 (2) CPC is hopelessly time barred and no fraud has been committed by the respondent; that a counsel of the applicant appeared, filed reply of the main writ petition and also pursued the case before the Tribunal, as such the instant application is mis-conceived and is liable to be dismissed.
5. I have heard arguments of learned counsel for the parties and have gone through the record.
6. Admittedly, the respondent was owner in possession of the suit property bearing No. S-19-R-23 situated at 23 Shahra Quaid-i-Azam, The Mall, Lahore on the basis of registered sale deed No.3684 dated 22.04.1964. The Life Insurance (Nationalization) Order, 1972 was promulgated (through Presidential Order 1972) on 18.03.1972 whereby all the assets of the respondent were taken over. Before marching ahead, it is appropriate to envision and comprehend the scheme of law.
Article 2 (b) & 2(i) of the Order ibid describes definition of 'Assets' as well as that of 'trustee', which are reproduced as under: "assets" includes all rights and powers and all properties, whether movable or immovable, cash balances, reserve funds, investments, deposits and all other interests and rights in or arising out of any such property and the books of account and documents;And definition of a 'Trustee' is as under:- "trustee" in relation to an insurer means the trustee appointed under Article 4 in respect of such insurer and includes a sub-trustee performing the functions of a trustee; Article 3 provides that the Order,1972 shall have effect notwithstanding anything contained in the Provisional Constitutional Order or in any other law for the time being in force and it overrides other laws. Besides this, Article 4 describes that management of the Life Department of respondent vested with the Central Government who shall appoint trustees or sub-trustees to act under the control of the Central Government. Further, as per Articles 5 & 6 of the Order, 1972, possession of the suit property was taken over by the Central Government as the matter with regard to it has also been vested with the Central Government. For ready reference Articles 4, 5, 6 & 7 of the Order, 1972 is reproduced as under:- "4. Vetting of management of insurers in the Federal Government.-- As from the specified date, the management of all insurers transacting life insurance business in so far as the management relates to such business shall vest in the Federal Government and all persons vested with such management immediately before the specified date shall be divested of such management.
5. Appointment of a trustee for managing the affairs of insurer.--(1) The Federal Government may appoint a trustee for the management of the affairs of one or more insurers transacting life insurance business in relation to such business.
(2) Upon the appointment of a trustee under clause (1) in respect of an insurer, the management of the affairs of such insurer in-so-far-as they relate to life insurance business shall vest in that trustee.
(3) The trustee shall act under the direction and control of the Federal Government.
(4) A trustee may be assisted by such sub-trustees as may be appointed by the Federal Government.
(5) A trustee may delegate to a sub-trustee such of his powers under this Order, subject to such conditions, if any, as he may deem fit.
(6) A trustee and a sub-trustee shall receive such remuneration and, save as provided in clause (7), be subject to such terms and conditions of service as the Federal Government may direct.
(7) A trustee and a sub-trustee shall hold office during the pleasure of the Federal Government.
6. Possession of assets relating to life insurance business.--(1) A trustee appointed in respect of an insurer shall take possession of all assets of the insurer in so far as they relate to life insurance business.
(2) Whereas composite insurer has any assets in common use or which cannot be allocated to either life insurance business or any other class of insurance business, the trustee may, if he is of the opinion that the assets are allocable to life insurance business, take possession of those assets.
7. Restriction on transfer of assets.--(1) If a trustee has reason to believe that the constituting the life fund of a composite insurer are not sufficient to meet the liabilities of the insurer in respect of the life insurance, the trustee may apply to the Controller of Insurance to prohibit the insurer from transferring, pledging, hypothecating or in any way directly or indirectly disposing of, or creating a lien in respect of, all or any of the assets of the insurer.
(2) Upon an application under clause (1) the Controller of Insurance may pass such orders as he deems fit: Provided that an insurer aggrieved by the order of the Controller of Insurance may appeal to the Tribunal whose decision on such appeal shall be final."
Meaning thereby, as per the Article 4 of the Order, 1972 the management of respondent vested in the Central Government and under Article 5 of the Order, 1972 the Central Government appointed said management of the respondent as trustee/sub-trustee of the suit property.
7. Now adverting to main controversy, respondent filed writ petition without impleading the applicant as a party; it is pertinent to mention here that the respondent itself filed application under Order VI Rule 17 CPC [C.M. No.3-1974] in order to implead "State Life Insurance Corporation I. I.
Chandrigarh Road, Karachi" as party in the array of respondents in the writ petition which application was accepted vide order dated 21.03.1975 but the name of the writ petitioner was substituted with the name of the applicant whereas the applicant was never made party to the lis as respondent. For ready reference, the memo of parties of the writ petition is scanned as under: Rather record depicts that the memo of parties of the main writ petition was amended by M.
Mahboob Ahmad, Advocate of the respondent by substituting the applicant by applying cutting on the name of respondent / Cooperative Insurance Society of Pakistan and inserting with handwriting the name of applicant/ State Life Insurance Corporation of Pakistan by showing the applicant as petitioner of the main writ petition just to frustrate the imparting of information to the petitioner qua pendency of the lis and cutting the nomenclature of the writ petition. Whereas the applicant was not impleaded as respondent in the main writ petition in terms of order dated 21.03.1975 of this Court. The name of the petitioner as inserted as a petitioner in the writ petition [No.819/1972] which firstly is the violation of the order dated 21.03.1975 whereby application under Order VI Rule 17 C.P.C was accepted. Moreover, as the letter No.2690 dated 27.03.1972 was issued in favour of the applicant then why the applicant challenged the said letter. The respondents malafidely did not mention the petitioner as party/as respondent and fraudulently inserted the name of the petitioner as writ petitioner and for this reason no notice could be issued to the applicant by this Court which shows that the respondents committed fraud and misrepresentation to obtain the impugned judgment from this Court whereas fraud vitiates the most solemn proceedings thus any edifice so raised on the basis of such fraudulent act that shall stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws and ethics. 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 Mst. Nazeeran and others Vs. Ali Bux and others (2024 SCMR 1271).
8. Next, admittedly, respondent had received compensation amount of Rs.2,24,478.60/- through cheque No.CEL-957542 dated 15.04.1986 against an acknowledgement letter dated 26.04.1986 whereafter it also instituted Civil Original Suit [No.03 of 1986] through Mr. Hanif Niazi, Advocate for recovery of additional 15% interest along with compensation. But the said suit was dismissed in limine on 07.10.1986. The respondent assailed the said dismissal order through an Intra Court Appeal (ICA No.10-C of 1986) which was also dismissed on 13.10.2005. Thus, during pendency of the main writ petition on the basis of concealment of the above lis (Civil Original as well as the ICA) the respondent obtained the impugned judgment in the main writ petition through active, deliberate fraud and blatant misrepresentation.
9. Further, it is also an admitted fact that after promulgation of the Order, 1972 the property stood vested with the Central Government and under Section 79 CPC read with Articles 3, 4, 5 & 6 of the said Order, 1972, writ jurisdiction under the Constitution of Islamic Republic of Pakistan, 1973 is barred and but in contravention of the above, this Court without issuance of any notice to the applicant and affording hearing to it passed the impugned judgment. Besides above, even the Insurance appellate Tribunal least bothers to issue and serve any notice to the applicant. There is another material legal flaw that no authorization or resolution of the Board of Directors of the applicant corporation is available on record to file any written statement which was allegedly filed on behalf of the applicant through one Muhammad Arif, Advocate in the main writ petition but as per order dated 23.10.1984, Muhammad Arif, Advocate was the counsel for respondent No.1 & 2/ trustees. In the bottom of the written statement, it is clearly mentioned that the same had been filed on behalf of the trustees and sub-trustees. Original record of Insurance Appellate Tribunal was requisitioned from Karachi which is accordingly available and perusal whereof shows that Muhammad Hanif Niazi, Advocate from Fazle Ghani Khan & Co. Advocates also appeared on behalf of Cooperative Insurance Society of Pakistan / writ petitioner. Power of attorney of Muhammad Hanif Niazi, Advocate filed in English as well as in Urdu are scanned hereunder:- Whereas in the main Writ Petition No.819/ 1972, neither any board resolution on behalf of the applicant nor any power of attorney is available in the original file. All the above facts proved that respondent/ writ petitioner committed misrepresentation and fraud while obtaining the impugned judgment from this Court.
10. So far as the objection of learned counsel for the respondent that the instant application under Section 12 (2) CPC is hopelessly time barred and the applicant was well-aware of the proceedings of the writ petition as well as the proceeding before the Insurance Appellate Tribunal, suffice it to say that, admittedly the applicant was neither arrayed as respondent in the main writ petition nor any notice was ever served upon it and nor any counsel appeared on behalf of the applicant in the writ petition before this Court. After discovery of the fraud on 04.04.2018, the applicant obtained certified copy of the writ petition as well as adverse order and filed the instant application. It is settled law that when order/judgment obtained on the basis of fraud and misrepresentation then no limitation runs against such order/ judgment, thus as and when the said fraud came into knowledge of the aggrieved party, it can avail remedy under Section 12 (2) CPC and as per Article 18 of the Limitation Act, 1908 limitation will start from the date of knowledge of such orders. Reliance in this regard is placed on Shabla and others versus Ms. Jahan Afroz Khilat and others (2020 SCMR 352), Salamat Ali and others versus Muhammad Din and others (PLD 2022 Supreme Court 353) & Mst. Rabia Gula and others versus Muhammad Janan and others (2022 SCMR 1009). Thus as the impugned order was obtained on the basis of fraud and misrepresentation which is void in nature, and against such like illegal order no question of limitation arises and such void order being nullity in the eyes of law is vulnerable to inherent jurisdiction of the Court to be set at naught, as such the same is liable to be ignored and undone accordingly. Reliance in this regard is placed on S. Sharif Ahmed Hashmi versus The Chairman, Screening Committee, Lahore (1980 SCMR 711).
Relevant part of the judgment is reproduced as under:- "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order, regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order...."
The impugned judgment was obtained by the respondent without issuance of notice to the applicant and hearing it as well as through conllusivity of the respondents and the writ petitioner on the basis of consent, thus any order/ judgment / decree obtained without hearing and notice to adverse party would be nullity and no question of limitation would arise. Reliance is placed on Government of Sindh through the Chief Secretary and others versus Khalil Ahmed and others (1994 SCMR 782). Relevant part of the said judgment is reproduced hereunder:- "The impugned decree was passed without hearing and notice to transferee owners whose presence was essential before the Court, as also the decree was passed without express consent and signatures of the representatives of the Government on the compromise application, the decree was nullity and no question of limitation would arise."
Reliance is this regard is also placed on Director General, Multan Development Authority and another versus Nasir Ahmad Tanveer Bajwa (2016 PLC 245) (DB).Furthermore, the Hon'ble Apex Court has also declared that the Superior Courts are not expected to act in aid of injustice and to perpetuate the illegalities or put a premium on ill-gotten gains. Reliance is placed on judgment cited as Messrs Vulcan Company (Pvt.) Ltd., through its Managing Director versus Collector of Customs Karachi and 3 others (PLD 2000 Supreme Court 825). The settled principle of law is that no limitation runs against the void order and the entire superstructure based on the same is to be crumbled down for all intends and purposes and same does not create or convey any kind of right in favour of holder of such order. Reliance is placed on Mustafa Lakhani versus Pakistan Defence Officers Housing Authority, Karachi (2008 SCMR 611).
Relevant part of the said judgment is reproduced as under:- ...void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligation built upon them, must, unless some statute or principle of law recognizing as legal, the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order...
Besides above, any order/ judgment passed without notice or hearing of a party whose presence is otherwise necessary before the Court is nullity in the eyes of law and in such like cases no question of limitation would arise. Reliance in this regard is placed on Mst. Rehmat Bibi and others versus Pannu Khan and others (1986 SCM R 962), relevant part whereof is reproduced as under:- ...that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law, and no question of limitation would arise...
Thus it can validly be observed that no limitation runs against the void order passed without jurisdiction or an order obtained through fraud and misrepresentation as well as through concealment of material facts, thus the instant application is held to be within time and arguments of the respondent's counsel is repelled accordingly.
11. Resultantly, this application under Section 12(2) C.P.C is allowed, the judgment dated 03.11.1992 passed in W.P. No.819/1972 being obtained on the basis of fraud and misrepresentation is set aside C.M. No.2/2018
12. Through this application, the applicant has requested for condonation of delay in filing the application under Section 12(2) C.P.C. For the reasons recorded above, this application stands allowed.
C.M. No.4/2018
13. This application has been filed by one Muhammad Rafique for his impleadment as party in the application under Section 12(2) C.P.C. For the reasons recorded above, this application stands disposed of accordingly.
14. Now adverting to the main lis, the Life Insurance (Nationalization) Order, 1972 was promulgated on 18.03.1972 and under Article 269(1) of the Constitution of the Islamic Republic of Pakistan, 1973, the Order, 1972 as well as all the other laws made between 20.12.1971 to 20.04.1972 were declared to have been validly made by the competent authority and same has protection of the Constitution.
For ready reference, Article 269(1) of the Constitution of the Islamic Republic of Pakistan, 1973 is reproduced as under: "269. Validation of laws, acts, etc.---(1) All Proclamations, president's Orders, martial Law Regulations Martial Law Orders and all other laws made between the twentieth day of December, one thousand nine hundred and seventy one and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), are hereby declared notwithstanding any judgment of any Court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever."
Further under Article 45 of the Order 1972 jurisdiction of this Court is barred. For ready reference, Article 45 is reproduced as under: "45. Bar of jurisdiction.___(1) Except as otherwise specifically provided in this Order, no court, including the Supreme Court and a High Court shall call in question, or permit to be called in question, any provision of this Order or of any rule or order made or anything done or any action taken or purporting to be made, done or taken thereunder.
(2) No court, including the Supreme Court and a High Court, shall grant any injunction or make any order, not shall any such court entertain any proceedings, in relation to anything done or intended or purporting to be done under this Order."
Reliance is placed on the judgments titled as The Chief Settlement Commissioner, Lahore versus Raja Mohammad Fazil Khan and others (PLD 1975 Supreme Court 331), Nawab Syed Raunaq Ali etc. versus Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236), Muhammad Baran and others versus Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 Supreme Court 691) & Sardar Ahmed Yar Khan Jogezai and 2 others versus Province of Balochistan through Secretary, C&W Department ( 2002 SCMR 122). The Hon'ble Supreme Court of Pakistan in a judgment titled as Mansab Ali versus Amir and 3 others (PLD 1971 Supreme Court 124) has held as under:- ...if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction...
15. Moreover, the respondent did not disclose the fact of filing the main writ petition while filing the Civil Original Suit and the subsequent Intra Court Appeal rather through misrepresentation/concealment of significant facts obtained the impugned judgment. It is settled law that party should have come to the Court with clean hands as he who seeks equity must do equity. Reliance is placed on cases cited as Mst. Shahida & Another Vs. Board of Intermediate & Secondary Education, Larkana through Chairman, at Larkana & 5 Others (PLD 2001 SC 26), Rehmatullah and others versus Saleh Khan and others (2007 SCMR 729) & Sayed Abbas Taqi Mehdi Vs. Mst. Sayeda Sabahat Batool & Others (2010 SCMR 1840).
16. The property in question is state property which is admittedly a public asset and the Courts of law are ultimate custodian of the public properties, public interest and while dealing with matters relating to such properties/assets or interests, it is an inalienable obligation of the courts to be extraordinary careful and cautious and assure itself to the extent of certainty that no mischief is being played with the state assets. An unalienable obligation is placed upon the courts to keep abreast itself with law and facts of such cases and when certain material facts unearthed before it then the matter should be decided as per law even without being influenced by respective pleadings of the parties. In this regard, reliance is placed on judgments cited as Al-Shafique Housing Society Vs. P.M.A (PLD 1992 SC 113), Union Council Dhabeji Vs. Al-Noor Textile Mills Ltd (1993 SCMR 7), Multiline Associates Vs. Ardeshir Cowasjee (PLD 1995 SC 423), Provincial Government through Collector, Kohat and another Versus Shabbir Hussain (PLD 2005 SC 337) and Abdul Haq Indher Vs. Province of Sindh (2007 SCMR 907), Taj Muhammad Vs. Town Committee (1994 CLC 2214) and Sindh Peoples Welfare Trust Vs. Government of Sindh (2005 CLC 713).
17. Even otherwise, admittedly after the nationalization of the property, the respondent had received compensation amount whereafter the title of the property stood vested with the applicant as such no lis is alive for further adjudication and it is settled law that such like cases should be burried in the inception to save the precious time of the Courts and public. Reliance is place on case titled as Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708).
18. For the foregoing reasons this Court has no jurisdiction to adjudicate the main petition due to want of jurisdiction, as such the writ petition is dismissed being not maintainable.