1. ' This application has been filed by the Chairman, Board of Trustees of the Abandoned Properties, constituted under the Abandoned Properties (Taking Over and Management) Act, 1975 (Act XX of 1975) and the Administrator of Abandoned Properties Karachi, under Section 12 (2), C.P.C., for setting aside the judgment and decree dated 11-12-1988 and 9-1-1989, respectively passed in Suit No,329/88 on the grounds that the same have been obtained by the Plaintiff by fraud and misrepresentation and that this Court had no jurisdiction to grant the said decree.
2. ' Briefly, the facts are that Abdul Aziz Khan Niazi (hereinafter to be referred to as the Plaintiff) filed the above suit against Mrs. Salma Rehman and Abdul Faiz Nabi Bux (hereinafter referred to as the Defendant and Attorney respectively), for specific performance of contract. According to the Plaint, the Defendant' Was allotted Plot No,6, Street No,7 (Shalimar), Islamabad, by the Capital Development Authority, Islamabad. The said Defendant appointed Abut Faiz Nabi Bux as her Attorney under the General Power of Attorney, registered on 13-5-1970, with the District Registrar, Dacca. The said property was purchased by the plaintiff through that Attorney of the Defendant under an agreement dated 23-7-1970 for sale consideration of Rs25,000. According to the Plaint, sale could not be finalised and, therefore, two agreements for renewal of sale were executed on 12- 7-1978 and 17-2-1988, between the plaintiff and the said Attorney. Since the Defendant and the Attorney neglected to perform their part of the contract, the Plaintiff filed the suit. The said Attorney filed Written Statement for self and on behalf of the Defendant in which he admitted the claim of the Plaintiff. The Plaintiff filed application under Order 12, Rule 6, C.P.C., and the suit was decreed accordingly. The case of the Applicants is that the Defendant was the resident of erstwhile East Pakistan and had submitted an application to the Capital Development Authority, Islamabad, from Dacca for allotment of a plot and the said plot was allotted to her in the year 1966. After the fall of Dacca, the defendant ceased to be the citizen of Pakistan. On promulgation of Act XX of 1975, the said plot became abandoned property and was declared as such under Section 11 of the said Act, by Notification dated 3-3-1976, published in the Gazette of Pakistan dated 5-7-1976.
3. ' The Applicants have submitted that the plaintiff knowing the fact that the property was an abandoned property had suppressed the above fact and obtained decree by fraud. The Defendant was resident of Dacca but the plaintiff did not mention such fact in the plaint. It is also stated that although the agreement was allegedly executed on 23-7-1970 yet no steps were taken by the plaintiff to get the plot transferred in his favour and the suit was filed after more than 18 years.
4. According to the Applicants, the remedy was available to the Plaintiff to approach the Tribunal for confirmation of sale but they avoided to do so and filed the suit which was barred under Section 23 of the aforesaid Act.
5. ' The Plaintiff in reply to the application under Section 12 (2), C.P.C. Has filed his objections/counter- affidavit in which he has raised the following pleas:- Property was purchased by the Plaintiff on 23-7-1970, and, therefore, the provisions of the said Act are not attracted as the said Act applies to such properties which are purchased after 16-12-1971.
6. According to the Plaintiff, the sale had stood finalized on 23-7-1970, and the Defendant stood divested of all her rights in the said property.
(ii) The Defendant was not resident of erstwhile East Pakistan but was' resident of territories now forming part of Pakistan. It is simultaneously stated that she was a British National, born in Scotland, and that she has now returned to her place of birth. She had shown the address of Dacca only to facilitate early allotment of the plot in question.
(iii) The transfer was not effected in the records of the Authority because of the War that broke out between India and Pakistan. Since the allottee was in Scotland, it was not possible for he to personally appear before the Authority which according to the plaintiff was mandatory requirement.
(iv) The Notification under Section 11 of the said Act is ultra vires being against the injunctions of Holy Quran and Sunnah.
7. ' I have heard Mr. Hisamuddin, learned Advocate for the Applicants and Mr. Zahid Hussain Burhani for the Plaintiff.
8. ' The learned Advocate for the Applicants has contended that the plot in question , was allotted to the Defendant in her capacity as resident of erstwhile East Pakistan. In her application for transfer of the plot, she has described herself as resident of Dacca, giving her address as c/o Dacca Steam Laundry & Dry Cleaning Limited and the communications were carried out between the allottee and the Capital Development Authority, Islamabad, at the above said address. The General Powqof Attorney describes her as resident of 78, Bama Charan, Chakraverty Road, Dacca, East Pakistan. In the agreement she has been described as resident of Dacca Steam Laundry and Dry Cleaning Limited, 2, Gulistan Buildi,ig, Jinnah Avenue, Dacca, and the new address is that of Chakraverty Road. The Plaintiff while filing the suit concealed the above facts and even the Dacca address of the Defendant. In the plaint, her address has been described as resident of Edinburgh, Scotland, (U.K.) through her Attorney/Agent, Abul Faiz Nabi Bux. The Plaintiff did not go even so far as to disclose to the Court that the Plaintiff was resident of Dacca.
9. ' The Applicants had issued Notification under Section 11 of the said Act as the property in question was owned by a citizen of Pakistan, domiciled in the territories which immediately before the 16th day of December, 1971, constituted the Province of East Pakistan and after the fall of Dacca, had ceased to be the citizen of Pakistan and as such the Defendant was specified poison. Under Section 3 of the said Ordinance, the property, therefore, came to the vested and shall be deemed always to have vested in the Federal Government on or from the 16th day of December, 1971. It is urged that the suit was therefore, barred under Section 23 of the said Act which provides that no Court shall grant any injunction or make any order, nor shall any Court entertain any proceeding, in relation to anything done under the said Code.
10. ' Had the Plaintiff disclosed the above facts to the Court instead of suppressing them and misrepresenting the facts, this Court would not have granted the decree.
11. ' The learned Advocate for the Plaintiff repeated the submissions as were made in the objections and relied on the cases of Mohammad Rafiullah v. The Board of Trustees for Abandoned Properties and another, reported in 1978 MLD 558, on the proposition that where the agreement between the parties was executed before the specified date i.e. 16-12-1971, and part whereof was acted upon by delivery of possession, such property cannot be deemed as abandoned property and Maudood Ahmed Farooqui v. Amina Fabrics and two others PLD 1983 Kar. 176 on the proposition that the property in order to be held as abandoned property must be shown to have belonged to a specified person. He also contended that application under Section 12 (2), C.P.C., is not maintainable as such application can be filed only by a party to the suit and not strangers, as the Applicants are. He placed reliance on the case of Marium and five others v. Haji Ali and three others PLD 1985 Kar.
12. 705.
13. There can be no cavil on the proposition that only such property can be declared as an abandoned property which is owned by a specified person and also to the proposition that any property validly acquired from a specified person before 16-12-1971, cannot be subjected to the provisions of the said Act.
14. ' The facts of the present case are altogether different. The application has been filed. Under Section 12 (2) C.P.C of the ground property in question. It is not a document whereby merely a right has been created to obtain execution of another document with, when executed, would create or assign the right, title or interest in the property in favour of the plaintiff. The mere reservation for executing documents for purpose of effecting transfer or mutation in favour of the Plaintiff in the records of Capital' Development Authority, does not change the nature of the instrument in question. A similar question had come up before the Hon'ble Supreme Court in the case of Fateh Muhammad and others v. Suba Khan 1989 SCMR 1574. The document before their Lordships was worded as agreement of sale but the words "absolutely sold" used therein were found to have their own significance and from the reading of the document as a whole, in the context that the oral sale having been completed the vendor had promised that the mutation in the Revenue Record would be got sanctioned by him within the specified time; the agreement being to the above effect only, it was not an agreement of sale and consequently their Lordships observed that if it was to be treated as the deed of sale itself, then the question would arise regarding registration thereof. The only difference between the aforesaid reported case and the case in hand is that instead of promising to execute the document for mutation of the property in the Revenue Records, the defendant undertook to execute any document, required for transferring the said property in favour of the plaintiff in the record of Capital Development Authority.
15. The said document which is being relied upon by the Plaintiff, is not registered and although it purports to convey property of the value of Rs,25,000, it does not bear the requisite stamp duty.
16. ' It is clear from above that the document though termed as an agreement of sale, in effect is a sale-deed, whereby all the rights and interest in and title to the property in question have been conveyed to the Plaintiff and the Plaintiff himself also does not interpret the said document otherwise. Treating the said document as such, the effectiveness thereof is to be judged.
17. ' Section 17 (1)(b) of the Registration Act, 1908, provides that such non-testamentary instruments which purport to operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property shall be registered.
18. Section 49 of the Registration Act, 1908, specifically provides that no document required by Section 17 to be registered shall affect any immovable property comprised therein, unless it is so registered.
19. ' Thus on the reading of the aforesaid two sections, it becomes very clear that no rights in the property in question have been conferred or passed.
20. ' The property in question, therefore, continued to vest in the specified person, the defendant, till the time it came to be vested in Federal Government under the provisions of Act XX of 1975; and as such the argument of the learned Counsel that the property having been acquired by the Plaintiff on 23rd July, 1970, i.e. Before the crucial date as specified under the Act, would not have been treated as abandoned property, is of no substance.
21. ' With regard to the other submission of the learned Counsel that section 11 of the said Act is against the injunctions of Holy Qur'an and Sunnah, was not substantiated by any arguments in addition to the mere assertion. It is not necessary to go into the details of the above submission particularly having found that the said agreement being ineffective sale-deed, having not been registered, transferred no rights in the property in question to the Plaintiff.
22. The preliminary objection raised by the learned Counsel for Respondent with regard to the locus standi of the Applicants to file this application as they were not party to the suit, is also misconceived. Section 12' (2) of the Code of Civil Procedure provides that when a person challenges the validity of the 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 passes the final judgment, decree or order and not by a separate suit.
23. ' The legislature has used the word 'person' and not party. The words 'a person' will include any person irrespective of the fact whether he is a party to the suit or not. If the Legislature intended to provide such remedy only to the parties to the suit, it would have used the words 'a party' in the said provision, instead of 'person'.
24. ' This question came up for consideration in the case of Choudhry Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586 which report is also published in 1984 SCMR 586. Their Lordships with approval reproduced the exposition of the aforesaid provisions of law in the case of Abdur Raoof and others v. Abdur Rahim Khan PLD 1982 Pesh. 172 which reads as under:- "It is obvious that in section 12 (2), C.P.C. The word 'person' and not the judgment-debtor or his successor-in-interest or the words 'party to the suit' have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word `person'. Had the intention of the law- maker been to restrict the right of filing the application under section 12 (2), C.P.C. Only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned Counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit,' although his rights may have been jeopardized by the decree obtained by fraud of misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."
25. ' In view of above legal position, with great respect, the rule laid down in the case of Marium and 5 others (supra) cannot prevail.
26. ' The above are the reasons for the short order announced on 10-91991, whereby the application under Section 12 (2), C.P.C. Was granted.