1. ' This revision application has a chequered history. The point of law involved is very simple but in order to appreciate the implications of the orders dated 30th March,1980 recording the compromise of the parties and the later order dated 9th February,1981 reopening the case and setting the case for rehearing of the appeal which stood disposed of by order dated 30th March,1980 narration of some facts would be necessary.
2. The dispute in these proceedings relates to Quarter No,J-103, situated at Korangi Township, Karachi. It was allotted to the respondent Sher Afzal and he was the undisputed owner of the quarter by virtue of the order of allotment dated 26th February,1960.
2. ' The applicant before me somehow came in possession of the quarter when Sher Afzal had gone to Peshawar. On return from Peshawar Sher Afzal, requested the applicant to vacate the quarter but the latter refused to leave. Thus, the litigation for possession of the quarter started. Several suits and counter-suits were filed by and against the applicant. But an important development was that Sher Afzal from henceforth was represented by a duly constituted attorney namely Zamarrud Begum in all the actions and counter-actions. I will refer to this lady as the objector. Finally Suit No,1853 of 1975 out of which the present revision application has arisen came to be filed in the Court of XXI Civil Judge, Karachi. The relief claimed in this suit was possession of the quarter. This suit was filed by Sher Afzal through objector/Zamarrud Begum as attorney of Sher Afzal. The General Power of Attorney in favour of objector was executed by Sher Afzal in Peshawar and was registered in the registry of Peshawar. Para. 15 of this power-of-attorney runs as under:- "15. This power-of-attorney is IRREVOCABLE and shall be binding on me until it is revoked by joint written consent of my said Attorney and myself."
3. ' On the strength of this power-of-attorney the Suit No,1853/75 was filed for possession of the quarter in the Court of the XXI Senior Civil Judge First Class at Karachi. On 3rd January, 1980 this suit was decreed in favour of the plaintiff. Against this decree the applicant filed an appeal being Appeal No,69 of 1980 in the Court of VIth Additional District Judge at Karachi. Notice of this appeal was issued to the respondent/Sher Afzal. Objector/Zamarrud Begum filed counter-affidavit on behalf of respondent through her counsel and also filed the power-of-attorney in her favour. The counter-affidavit was filed in reply to the application for stay of execution of decree dated 3rd January,1980. For hearing of this stay application 23rd April, 1980 was fixed. On 22nd March, 1980, Sher Afzal/ respondent is alleged to have executed another power-of-attorney in Peshawar in favour of his brother Syed Mubarak Shah. He also revoked the authority of the previous attorney namely Zamarrud Begum, who in the meantime was in the process of executing the decree of possession passed in Suit No,1853/75 by the XXIII Civil Judge IInd Class Karachi on 30th January, 1980.
4. ' The new attorney armed with the newly-executed power in his favour rushed to Karachi, engaged a counsel and applied for pre-dating the hearing of the case which as stated earlier was fixed for hearing before the learned VIth Additional District Judge for hearing of the stay application filed by applicant in his appeal against the decree of ejectment dated 30th January,1980.
5. ' The hearing was anti-dated and on 30th March, 1980 an application under Order XXIII, rule 1 read with section 151, C.P.C. Was moved before the learned Additional District Judge praying that:- "It is submitted on behalf of the parties that the parties above-named have compromised outside the Court whereby the plaintiff/respondent has sold the house in dispute (Viz: Qrt. No,J-103, Korangi Township, Karachi) for a consideration of Rs,12,000 realizing the full and final value of said house and as such after purchase the defendant/appellant has become lawful owner (photo copy of the Sale Agreement enclosed and marked "A").
2. That in consideration of the compromise arrived at between the parties the plaintiff/respondent hereby withdraws the Suit (S.No,1853/75 of the Court XXIII Civil Judge, Karachi) and the defendant/appellant does not claim any cost.
6. ' It is, therefore, prayed that the Suit (No,1853/1975) may be dismissed as withdrawn with no order as to costs."
7. ' This application was signed by the applicant here (Appellant before the Additional District Judge) his counsel, the newly-appointed attorney of plaintiff/respondent and a new Advocate who was engaged by the new attorney.
8. ' The learned VI Additional District Judge, Karachi passed short order which is as follows:- "Appellant present in person, One Syed Mubarak Shah present for respondent. He has produced power-of-attorney. Counsel for both parties are present. This compromise application is filed by all of them and duly bears their signatures and are present. They admit the contents to be true and correct, hence the appeal stands disposed in terms thereof with no order as to costs." Thus the matter ended in a compromise. So far so good. But fresh trouble started when on 13th April,1980 the old Attorney Zamarrud Be um who was all along prosecuting the case filed an application for setting aside the order dated 30th March,1980 and praying for a rehearing of the appeal on merits.
9. The supporting affidavit filed alongwith this application disclosed the grounds on which the rehearing of the case was desired. Some important averments made in this affidavit are necessary to be considered at this stage and I produce them for ready reference:- "6. That I submit that the power-of-attorney granted to me by the respondent Sher Afzal was a registered document and was for consideration and that I have been since 1964.
7. That I submit that the power-of-attorney executed by the respondent in my favour was available on record in original which contains that the same could not be cancelled by the respondent alone unless a written consent has been obtained from me. Since the respondent has in collusion with the defendant illegally and unauthorisedly executed a power-of-attorney in favour of Mubarak Shah who is also a brother of the appellant, a notice of the compromise application should have been issued to me to put my case before this Hon'ble Court.
11. That I submit that since the quarter in dispute had already been sold by me prior to the alleged cancellation of the power of-attorney the respondent Sher Afzal had no authority to execute any document whatsoever in favour of any person in respect of the quarter in suit and as such the alleged attorney Syed Mubarak Shah had no authority to compromise and/or sell the quarter in suit to the appellant under the fake power-of-attorney."
10. ' It may be noted that the deponent Zamarrud in para. 1 above has asserted that the power conferred under the document dated 10th June,1975, was a case of "agency coupled with interest."
11. She further attacked the order dated 30th March,1980 on the ground that it was obtained at the instance of Mubarak Shah who was a faked attorney. She also stated that her power could not be cancelled by Sher Afzal or in any case the cancellation was ineffective because she had already sold out the quarter to some third party and the cancellation has thus became meaningless.
12. ' The learned Additional District Judge issued notices of this application to "all parties concerned including attorneys also counsel."
13. ' After hearing the parties the learned Judge passed an order on 9th February, 1981 in which he held: "....In para. 5 she has stated that she was not given any notice of the compromise application filed by the plaintiff. So the main contention of the respondent is that fraud has been played on Court as the concerned parties were not heard and Sher Afzal had not given any power-of-attorney to any one else." The learned Judge, on the allegations, that the order dated 30th March,1980 was obtained by fraud and misrepresentation "reviewed" and set aside the order of this Court accepting the compromise and fixed the appeal for re-hearing on merits."
14. ' The applicant in this revision naturally felt aggrieved against this order dated 9th February,1981 and moved the learned Additional District Judge to review this order. But by an order dated 5th April,1981 this request was turned down and the order of rehearing of the appeal remained undisturbed.
15. ' The applicant, has, in the circumstances filed this revision and the learned counsel who has argued for the applicant has raised the following contentions.
(1) That the order dated 30th March,1980 recording the compromise is a final order and the learned Judge after having disposed of the appeal by this order cannot reopen and rehear the appeal.
(2) That the respondent in whose name the proceedings were being conducted, was competent to revoke the authority of the agent which he did and indeed published this revocation in the daily 'Inqilab', Peshawar. That there was no bar in his way to change an attorney and appoint a new attorney in place of Zamarrud Begum. That this is what he has done and the compromise filed by the new attorney Mubarak Shah is with full consent. Concurrence and approval of the principal namely the respondent Sher Afzal.
(3) That if the former attorney, Zamarrud has any grievance, the same is against the principal which cannot be agitated in these proceedings.
16. ' Mr. Abrar Hasan, learned counsel for the respondent has vehemently argued the case and tried to meet the attack of the learned counsel for the applicant by saying that order dated 30th March,1980 is based on fraud and was passed without notice to the attorney, Zamarrud Begum. It has no legal sanctity and the learned Judge has rightly set it aside. Indeed the learned Judge by rehearing of the appeal had done no more than to rectify a wrong which is being perpetuated on the basis of an order which was passed on the basis of fraud which Sher Afzal has played by revoking the authority of Zamarrud Begum which he could not do as it was an irrevocable power.
17. ' In support of this contention the learned counsel has relied on a case reported in PLD 1975 SC 331.
18. His main emphasis was on the following passage in which their Lordships, after reviewing the law have expressed their own opinion at page 345, note "C".
19. "It seems to us that while there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power of every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu re-call or review an order obtained from it by fraud."
20. The learned counsel contends that the alternative remedy of getting rid of this order by filing a suit is no longer available to him because of the amendment of section 12, C.P.C. Subsection (2) of section 12 which has been added by amending Ordinance X of 1980 is as follows:- "12 (2). Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
21. ' The contention of the learned counsel has great force but before the order dated 30th March,1980 is struck off on the plea of fraud, the big question will have to be answered who has played fraud and on whom? Fraud is not a phoenix to raise its head and undo any thing valid or invalid or irregular.
22. ' The question that falls for determination is whether on 30th March,1980 when Mubarak Shah moved the application for compromise did he do it will authority be obtained from the respondent Sher Afzal or he made a misrepresentation before the Court representing himself to be an attorney which he in fact was not and by making such misrepresentation got away with the order in collusion with the plaintiff. The answer to this question is provided in unambiguous terms by the objector Zamarrud Begum herself in several paras. Of the affidavit dated 13th April, 1980. The following admission is noteworthy:- "7 Since the respondent (Sher Afzal) has no collusion with the defendant illegally and unauthorisedly executed a power-of-attorney in favour of Mubarak Shah who is also a brother of the appellant, a notice of the compromise application should have been issued to me to put my case before this Hon'ble Court."
23. ' It is evident that the objector Zamarrud Begum has accepted that Mubarak Shah was a duly- constituted attorney. Her grievance is that the respondent (whom she represents) was in collusion with the Applicant Mehboob Shah, and has compromised with the latter without taking her in confidence. In projecting such a plea and in such a form the learned counsel ignores the fact that he is swinging with a pendolum between two conflicting claims. The learned counsel is representing none other than Sher Afzal respondent and yet he is making an allegation of questionable conduct against the respondent. Suppose instead of sending his attorney to conclude a compromise and file the same in Court, Sher Afzal himself had showed up in Court to sign and file the compromise where would the learned counsel stand in such situation. Again, suppose the appellant had withdrawn the appeal or chosen to remain absent allowing the appeal to be dismissed in default without seeking concurrence of the objector where would be the question of notice to the objector.
24. ' The pleas raised by objector Zamarrud Begum are not pure questions of law. They are questions of facts or mixed questions of law and facts to be raised and resolved by Sher Afzal, Principal and Zamarrud Begum his agent. This is a dispute inter se. It does not fall within the ambit of the litigation between the applicant and the respondent Sher Afzal. In my opinion the entire text of the power-of-attorney executed by Sher Afzal the mutual and reciprocal obligations of each party i,e, Sher Afzal and Zamarrud is not being adjudicated in these proceedings, nor indeed the two are before the Court. Sher Afzal the real respondent remains absent in spite of Court notice to him.
25. ' If the order dated 30th March,1980 is allowed to be struck off on the allegations made by the objector Zamarrud Begum it would amount to burden the execution of this document with liabilities and obligations without giving him an opportunity to put up his side of the story. Even if he turns up it is debatable whether such a controversy can be permitted to be included in the appeal before the District Judge.
26. The above discussion would show that the grievance of the objector howsoever genuine and weighty it might be cannot be permitted to cloud the outcome in the appeal before the District Judge which has been concluded by the order dated 30th March,1980.
27. ' In this view of the matter I do not see the justification for revising the order dated 30th March,1980 which attained finality the moment it was signed and pronounced. Nor can it be said to be voidable or tainted with fraud or misrepresentation as all the signatories of compromise application were fully competent to do what they did on that day. It is not the case of the objector that Mubarak Shah was not the duly constituted Attorney of Sher Afzal or he has misused or exceeded the mandate that was given to him by his principal Sher Afzal. The crux of the objection of Zamarrud is that she has been let down and bypassed by Sher Afzal. I am afraid this grievance is not justiciable in the appeal before the District Judge. It would require fresh pleadings, additional issues and a totally fresh approach to the case. The remedy of the Attorney against her Principal lies somewhere else and not within the light frame of the suit between present applicant and respondent Sher Afzal.
28. ' This revision therefore is allowed with costs. The order dated 9th February, 1981 for rehearing the appeal is set aside and the earlier' order of 30th March,1980 stands.