The facts of the case are that the applicant Mst. Nek Bibi, widow of Shahswar was found entitled to the transfer of shop No. 18/C, Grain Market, Haroonubad, Tehsil Fort Abbas, District Bahawalnagar by the Settlement Authorities. This order was assailed by the respondents through writ petition No. 2071/11 of 1963-- in the High Court. The applicant was shown as respondent No. 4 therein and her address was given as resident of Dhab Wazirke Tehsil Minchinahad, District Bahawalnagar. It is admitted that the respondents arc nephews of the applicant being sons of her real sister.
According to the applicant her address being incorrect she was never served upon and the respondents through fraudulent means got the ex parte order dated 12-5-1965 from my learned brother Mr. Justice (Rtd.) Muhammad Fazle Ghani Khan.
2. According to the applicant, after obtaining the said order, the respondents contacted Khushi Muhammad her, tenant and informed him that the case had been remanded by the High Court to the Settlement Authority and requested him that he should cooperate with them and should not tell the applicant anything about the order of the High Court. Khushi Muhammad, however, informed Ghulam Muhammad, real brother of the applicant, on 17-6-1966 about the said order, who went to the Settlement Department at Bahawalnagar in order to get some information in this regard. There he was told that writ petition No. 2071/11-63 had been filed by the respondents in the High Court. He, therefore, came to Lahore for the purpose of obtaining a copy of the order allegedly passed in favour of the respondents. He made an application for this purpose on 18-6-1966. Since the copy of the order was not made available for some days he, therefore, enagaged a counsel on 23-6-1966 and as such inspected the relevant file on 24-6-1966. According to the applicant it was on that dale that her brother, who is her attorney also, came to know, for the first time, that the respondents had got an ex parte order against her by giving her incorrect address where she never resided. According to the applicant, the process-server made a false report on the notice, issued to her in the writ petition, to the effect that she was searched and it was found from the witnesses of the locality that on coming to know of the notice she had absconded and, therefore, copy of the notice had been affixed at her residence. The applicant has placed on record affidavits Annex `XII and `XIII' sworn in by Muhammad Yar and Muhammad Abbas respectively. They have been shown by the process-server to be the alleged attesting witnesses of his report on the notice.
It is clearly stated in the affidavits that the report of the process-server is false and that they were never contacted in this respect by him. They have further stated that the applicant permanently resides at Haroonabad. Nothing has been brought on record in rebuttal of the said statements nor the authenticity of same has been challenged. It is, however, admitted by the respondents that Muhammad Yar is closely related to them.
3. The learned counsel for the applicant has vehemently argued that the respondents have obtained the impugned order in their favour by playing fraud on this Court inasmuch as the correct address of the applicant was not given with the object of obtaining an ex parte order.
4. The learned counsel for the contesting respondents has argued that the review application is time-barred. It is, argued that Ghulam Muhammad, real brother and attorney of the applicant, was informed about the order of the High Court on 17-6-1960, but the application was filed on 18-7-1960 whereas it should have been filed within twenty days from the date of the order. It is further argued that in view of the provisions of Order XLII, Rule 5, C.P.C. This Court has no jurisdiction. The learned counsel has also argued that the address of the applicant as given by the respondents in the writ petition was the same which was given in the Settlement Appeal as well as the Revision and, as such, there was no fraud or misrepresentation on their part to obtain ex parte order.
5. The Revision Petition filed before the Settlement Commissioner, Bahawalpur, shows the address of the applicant to be "House No. 59, Dhab Wazir, Tehsil Minchinabad, District Bahawalnagar." It was filed by the respondents against her. Certified copy of the grounds of revision has been tiled by the applicant as Annex `X'. Certified copy of the review application filed by the respondents against the order dated 3-7-1901 of the Settlement Commissioner, Bahawalpur, has been filed as Annex `XI', which shows the address of the applicant, "C/o Kanda Grain Merchant, Grain Market, Haroonabad, Tehsil Fort abbas, District Bahawalnagar". The alleged attesting witnesses, namely Muhammad Yar and Muhammad Abbas, as mentioned above, in their affidavits have clearly stated that the applicant resides at Haroonabad and not at the address given in the writ petition. Muhammad Yar is admitted by the respondents to be their close relation. Nothing has been brought on record to show any hostility between them, rather, on the contrary, the applicant in the review application has alleged that the names of the said two persons were mentioned as attesting witnesses on a false report because of their relationship with the respondents. It is also not possible that the respondents being so closely related to the applicant did not know that her real brother, Ghulam Muhammad, was her attorney who had been pursuing all the matters on her behalf. If she had been impleaded as respondent in the writ petition through her brother, showing his, address therein, the situation may have been different. In the present case, the address of the applicant as given in the writ petition has been vehemently alleged to be incorrect and false. The respondents have not brought on record anything to show that the applicant actually resides at the given address while on the contrary, as discussed above, they themselves have been showing her address as that of, Grain Market, Haroonabad and Muhammad Yar and Muhammad Abbas their relations, have also admitted her residence there. In the circumstances it can be safely held that the address of the applicant given in the writ petition as resident of Dhab Wazirke, Tehsil Minchinabad. District Bahawalnagar is incorrect.
6. The alleged service of the applicant in regard to the proceedings of the writ petition, effected by the process-server is also proved to have not bcc n effected by the affidavits referred to above.
The circumstances show that the applicant was never served upon in relation to the said proceedings and the report about her service was false. This being the position her absence from the Court was not deliberate and was due to the circumstances discussed above.
7. With regard to the limitation point, the record shows that the relevant tile was inspected on 24-6- 19(x) and thereafter the necessary steps were taken to file the review application. From this point of view the application may be within time. However, according to law if an order has been procured by means of fraud or misrepresentation then question of limitation would not be involved in such cases as fraud vitiates even most solemn proceedings. Reliance in this respect can be placed upon Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others, PLD 1970 Lahore 614. Punjab Province v Federation of Pakistan PLD 1956 FC 72 and Grindlay's Bank Ltd. v. Murree Brewery Co, Ltd. PLD 1954 Lahore 745. In the first mentioned case, the order of Assistant Collector sanctioning the mutation was set aside by the Collector in revision under section 164 (2) of West Pakistan Land Revenue Act, 1')07, on the ground that the mutation itself was procured by fraudulent means. The order of the Collector was challenged on the plea that the application before the Collector having been Filed beyond the prescribed period of limitation (ninety days) merited rejection. It was held by a Division Bench of this Court that no question of limitation arises in law. An order, however, independent the tribunal or authority making it and however exclusive its jurisdiction, is a nullity if it be proved that it was obtained by fraud and in appropriate cases it is the duty of the authority that has seisin of the case to recall suo motu an order procured by fraud. It was further held that even the proceedings that follow from an order obtained by fraud are void.
8. The circumstances of the case, as discussed above, show that the wrong address of the applicant was deliberately given in the writ petition by the respondents in order to procure ex parte order. They being closely related to the applicant cannot be believed to be not knowing her correct address. Even before my learned brother Faz Ghani Khan, J., who accepted their writ petition by his impugned order on 12-5-1%6 the respondents did not deny that the applicant was in possession of the residential portion of the property. Their contention was that she had nothing to do with the commercial portion, which was in their occupation. They also showed the address of the applicant in their review application before the Settlement Commissioner as, c/o Kanda Grain Merchant,Grain Market Haroonahad, Tehsil Fort abbas. They have not been able to explain it is to why they omitted to show the same address in the writ petition. In the circumstances the conclusion is irresistible that this was done deliberately in order to pocure an ex parte order.
The moment it is found that an order has been procured by fraud or misrepresentation, it is within the inherent powers of this Court to set aside the same under section 151 C.P.C. Reference in this respect can be made to Asghari All Mollah v. Surabindu Sell and others PLD 1968 Dacca 498 and Kartik Mondal alias Kartick Chandra Mondal v. Sreemati Pagali Dasi and others PLD l 1969 Dacca
456. In the former case, the sale of the property by auction was in contravention of the order of the executing Court. The contention was that Korsha Jote right belonging to the respondent in the High Court, in the plot in question was never ordered to be sold but by means of interpolation m the records of the case, his right and interest in the land was also sold out. The High Court in, the circumstances, held that the Court was quite competent to exercise its inherent power and to set aside the sale if it was satisfied that it was bad by practice of fraud on the Court. In the present case, since injustice has been done to the applicant by preventing her from appearing in the Court at the time of the hearing of the case, therefore, this injustice can be rectified by invoking the provision of~ section 151, C.P.C. A Court has got the power of reviewing its own order on proper cause being shown and there arc cases in which the Privy Council had allowed execution proceedings to be re-opened in review on the ground that there wits no proper representation of the party affected. This being t the position in law, limitation would not stand in the way of the applicant, if it is,' proved that the order in question was procured by misrepresentation and by j practising fraud on Court.
9. The next question to be examined is whether this Court has got jurisdiction in view of the provision of Rule 5 of Order XLVI1, C.P.C. The said rule reads as follows: "Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other Judge or Judges of the Court shall hear the same".
10. In Birkeshwar Narain Singh and another v. Ganesh Prasad Singh and another AIR 1933 Patna 433 similar objection was raised. In that case the impugned order had been passed by Mr. Justice Sir Jawala Prasad, who continued to be attached to the High Court of Patana at the tune when the application for review was presented. Thereafter the learned Judge went on leave and meanwhile review application was fixed for hearing. The objection was repelled by the High Court on the ground that Mr. Justice Sir Jawala Parsad was absent on leave for more than six months since after the filing of the application and was not likely to come back from leave six months more and, therefore, the case could be heard by another Judge. The circumstances of the present case before me are better than the one referred to above. In the present case the learned Judge himself has admitted the review application for hearing and, he is now obviously precluded from hearing the same on account of his resignation.
11. The learned counsel for the contesting respondents has relied upon Jagat Chanandra Acharji, etc. v. Syama Charan Bhattacharjee etc. AIR 1919 Calcutta 1033 and Shee Prakash Singh v. The State of Rejasthan and others AIR 1900, Rajasthan 72 (V 37 C 18) in order to press his contention further with regard to the jurisdiction of this Court. I am afraid, none of the authorities relied upon hold him in this regard. The facts of the first case are that Justice Holmwood and Justice Chapman constituting a Division Bench heard second appeals under Order XLI, Rule 11, C.P.C. And dismissed them. After that Justice Chapman took a month's leave immediately before the long vacation and while he was away applications were made to Justice Holmwood for review of the judgments which had been delivered by him alongwith Justice Chapman. Justice Holmwood heard the applications and dismissed them. It was held by the High Court in the circumstances of the case that Justice Holmwood acted with jurisdiction in view of the provision, of Rule 5 of Order XLVII, C.P.C.
Such circumstances do not exist in the present case.
It is interesting to notice that in the authority referred to above another case on the similar point, Kailash Chandra Somaddar v. Revati Mohan Roy (1917) 41 I.C. 183 has been referred to. In that case the matter was initially decided by Teunon and Smither, JJ. Justice Smither at that time was acting as a .Judge of the Court, but thereafter his officiating period came to an end and he left the Court and ceased to be a member of the same. Thereafter an application was made to Teunon, J., for review of' the judgment delivered by him and Smither, J., and he alone dealt with the same. An appeal was filed against the decision of Teunon, J. That appeal came up for hearing before Woodroffe and Mookerjee. JJ., who came to the conclusion that no appeal was competent against the said order on the ground that if they heard the appeal from the decision of Teunon, J., they would in fact be hearing an appeal from the decision of two Judges because after Smither, J., had ceased to be a member of the Court Teunon, J., represented the Court which had been constituted by two Judges. After referring to this case their Lordships of the Calcutta High Court in the authority relied upon observed that they were in agreement with the judgment of Woodroffe and Mookerjee, J., but that judgment did not cover the case before them, because Chapman, J., did not cease to be a member of the Court nor was he, in the words of Rule 5, precluded by absence or other cause for a period of six months next after the application from considering the decree to which the application referred. The observations of the learned Judges support the applicant m the present case. Mr. Fazle Ghani Khan J., having ceased to be a member of this Court is precluded obviously for a period more than six months from considering the order to which the applicant refers and, as such, the present Court is competent to decide the matter.
The circumstances of the latter case relied upon by the learned counsel for the respondents are that one of the learned Judges of the Bench, who granted the review application in that case, was not the same who had decided the appeal. The appeal was heard by two Judges while the review was heard by one of the said two Judges and a third Judge and the Judge not participating in the hearing of the review application was still a member of the Court and was not precluded from hearing, by his absence or other similar cause for a period of six months after the application for review was presented. It was held that such procedure was illegal on the plain wording of Order XLVII, Rule 5, C.P.C. The circumstances of the case and the findings therein do not support the respondents, rather, on the contrary, they support the applicant. The learned Judge who passed the impugned order in the present case is obviously precluded from hearing the case being no more a member of this Court.
12. As a result of the above discussion, the review application is accepted and the impugned judgment dated 12-5-19(6, passed m Writ Petition No. 20/I/R-63 is hereby set aside as having been procured by fraud and misrepresentation. The office: is directed to fix the said writ petition for final hearing in the next month. The costs of the application will be borne by the respondents.
H.B.T./N-287/L