S.WAJIHUDDIN AHMED, J.-This Judicial Misc. Application under Section 12(2) CPC has reference to the decree dated 20.09.1989 in Suit No. 369 of 1981, Such suit was one for Specific Performance filed by plaintiff, Abdul Sattar, against defendant Ibrahim Allahrakha Patel. The said Ibrahim A. Patel, during the pendency of the Suit, expired on 29.1.1986 purportedly leaving behind nine (9) legal representatives one of whom namely, Abdullah Patel himself died on 18.02.1986. Amended Plaint in the Suit was filed on 29.05.1986. On 20.09.1988 a compromise decree in the Suit was passed which evidently acknowledged receipt of Rs. 3, 50,000/- by the deceased Ibrahim Patel in his life-time and, upon plaintiffs giving up of a claim of mesne profits and damages, provided for deposit of the balance consideration amount of Rs. 2,75,000/-.
2. The application underr Section 12(2) CPC on which the Judicial Miscellaneous in title is based has been preferred by Badrunnisa and Hussaina Baito, both daughters of Abdullah Patel and Mst. Aisha Bai, widow of Abdullah Patel. Mehar Ali, Ismat Ali and Anwar Ali, all sons of the same Abdullah .Patel, even though impleaded as parties to the suit have also joined with the referred ladies in making the application. In fact it is Ismat Ali who has affirmed to the affidavit in support of the application under Section 12(2) CPC. The application proceeds, on the ground that whereas the three named Ladies were not joined as legal representatives of Abdullah Patel, himself one of the heirs of original defendant Ibrahim Patel, the last three, all sons of Abdullah Patel, were tricked into and fraudulently made to suffer the decree in question. It is said that defendant-judgment debtor Muhammad Amin fraudulently induced the sons of Abdullah Patel to subscribed to an incomplete Vakalatnama of Mr. Ismail Padhi- ar, advocate, representing the such was required to be submitted in a Rent Case against a tenant. Compromise application itself was never signed by any successor of Abdullah Patel, It is consequently urged that if the ladies in question and the three sons of Abdullah Patel had been permitted to duly defend the proceedings the aforesaid consent decree would not have come about. Plaintiff-decree holder in his Counter Affidavit, denying the allegations, maintains that the legal heirs of Abdullah Patel were picked from the list appearing in "Dawn" (Gujrati) dated 21.02.1986 and, if any, omissions occurred the plaintiff was never corrected by those who could easily do so. Defendant-judgment debtor Muhammad Amin in the Objections supported by his own affidavit denies any fraud or misrepresentation. He says that two sons of defendant-Ibrahim Patel namely, Abdullah and Ahmad had already been paid more than their due share of inheritance in the life-time of the propositus and correspondingly executed a Deed ol Relinquishment. He says that the Objectors were fully aware of and subscribed to the proceedings in the suit but did not -make appearance because they had no interest in the matter. Their non- disclosure of Ahmed in the Application it is maintained, demonstrates their clear mala Jides. In their Rejoinder the Objectors urge that Ahmad was only a predeceased son, not entitled to anything.
3. Through an order dated 25.09.1991 my learned brother Komai Mansur Alam, .1..- relying upon Iqbal Sultan VS. Chand Sultan, 1990 CLC 366, postulating that if the Court comes to the conclusion that an application under Section 12(2) CPC is improper, malafide and has been made only to protract the proceedings and in abuse of process of the Court, it can dismiss the same summarily without framing any issue or recording evidence, thought it fit to permit that, subject to further orders, arguments on the application be heard in the first instance, In consonance with MF&JI COMPANY PAKISTAN LIMITED VS. /MAcV: IMAM LIMITED. 1989 CLC 2117, any procedure which satisfies the requirements of the case and which is not otherwise prohibited may be adopted in procSedings under Section 12(2) CPC but in so doing no one should be exposed to any unwarranted prejudice. I have, therefore, heard the learned counsel on this application.
4. Now, in the first place, it is the duty of parties to a suit in terms of Order VII rule 26 CPC where the party is plaintiff and Order VHI rule 13 CPC where it is defendant to submit a statement alongwith the Plaint or the Written Statement, as the case may be, indicating the names and addresses of the persons who in the event of the- death of such a party may be impleaded as legal representatives.
Further, the name and address of the person who, in the event of death of such party shall intimate that fact to the Court and furnish the Court with the names, particulars and addresses of the legal representatives and make an application for the legal representatives to be made parties, is simultaneously to be indicated. To .The extent of such rules the burden of the surviving party in relating to joining of legal representatives of the adversary is made lighter in pending civil proceedings.
5. In the instant case, however, the question assumes a more serious proportion because the dispute raised pertains not to the joinder of any legal representative of the original defendant, Ibrahim Patel but of legal representatives of a legal representative of such Ibrahim Patel who, before being inducted in suit, had himself passed away. Even so, three of his sons were joined but they, in the application, say that power from them was improperly got signed and they never subscribed to the compromise which led to the consent decree in the Suit. These sons of late Abdullah Patel have also associated with their widowed mother, Mst. Aisha Bai all three of whom, admittedly, even though necessary parties to the suit, were not impleaded in it. All such six subscribers to the application maintain that the decree, being based on fraud, is liable to be recalled in exercise of powers of the Court under Section 12(2) CPC. Correspondingly, on grounds already dilated upon, the Decree Holder has urged that the application is calculated only to delay the fruition of the decree and is in abuse of the process of the Court thereby liable to be struck of without entering into the formality of recording of evidence.
6. Indeed, on facts, the salient features of the case are beyond dispute and to that extent no evidence in the case is necessary. If that be so and if upon admitted facts relief, if any, under Secilon 12(2) CPC can be accorded it would be totally unnecessary to add to the bulk of the record and/or to protract the agony of the parlies. As Said in Re MF & JI COMPANY PAKISTAN LIMITED ibid, any lawful procedure, which satisfies the requirements of a given case, which is not otherwise prohibited and which does not expose any person to any unwarranted prejudice may be followed in such matters.
7. As observed earlier, there are certain admitted facts, In the first place, Mehar Ali, Ismat Ali and Anwar Ali, all sons of late Abdullah Patel, were inducted in the proceedings as legal representatives of the latter. All that they say is that their power was obtained in the case fraudulently and the learned advocate, who subscribed to the compromise for them had no authority to do so. In the first place, the story is circumstantially untenable: none of them is alleged to be illiterate and, in fact, Ismat Ali has affirmed to the affidavit in English even though a clause is found added to the affirmation that he is only Urdu knowing. At any event, if one executes an incomplete Vakalatnama one should be prepared to face the consequences. Besides, no details of the tenant or of lljp Rent Case are disclosed which induced the grant of power. Further, for a long time since 29.05.1986 and upto 20.09.1988 when the decree was passed none of them either came forwarded or raised any objection. This Judicial Miscellaneous itself was preferred not earlier than November 22, 1989. Even so, Badrunnisa and Hussaina Bano, daughters of late Abdullah Patel and Mst. Aisha Bai, widow of the same deceased gentleman, it is undisputed, were necessary parties but were hot joined in the suit. According to the Decree Holder such was a direct result, at the minimum, of contributory negligence on the part of the legal heirs of the original defendant as also of the three male applicants referred above, let alone the abstemious conduct of these ladies themselves. Still, being necessary parties to the Us some credence could have been accorded to what they have stated and the mailer may have warranted entertainment of evidence if it was shown that resultant upon the decree any prejudice, was sustained by the Objectors.
8. This raises the crucial question in the case whether upon the foregoing facts, which essentially are admitted, the decree can still be set aside. Section 12(2) of the Civil Procedure Code contemplates that a decree may be set aside through-an application under that provision if it is found to be without jurisdiction or if it has resulted upon the exercise of fraud or making of misrepresentation. These averments in turn should, normally, involve some loss, detriment or prejudice even though that may not be substantial. If there be total want of jurisdiction no damage or injury for recall of the decree may, however, be shown though inconsequential jurisdictional errors such as mere absence of an heir without adverse ramifications need not have the same effect. Likewise, fraud and misrepresentation PER SE may not attract the corrective relief under Section 12(2) CPC and some detriment or disadvantage how-so-ever infinitesimal may be essential. What then is the loss or injury, if any, which the applicants-objectors have suffered?
9. It was conceded at the bar that the original defendant had.Admitted the Agreement of Sale. He had also acknowledged payment of part of the sale consideration of Rs. 3,50,000/-. He had only claimed the balance amount of Rs. 2,75,(XX)/-. There was thus hardly any defence to the suit for Specific Performance filed by the plaintiff. A legal representative, which is introduced in a suit, can only adopt a defence appropriate to such legal representative as is contemplated in Order XXII rules 3 & 4 of the Code of Civil Procedure. Legal representatives are to continue the proceeding from the stage the deceased left it. Pleas in support of a claim or defence, as had irrevocably been taken initially, it would be difficult and in many cases impermissible for the succeeding legal representatives to alter. In support Mr. Mubarak Hussain Siddiqui has cited Lai Hussain Vs. Amir Muhammad Khan, PLD 1972 Lah. 256 and Sardar Ally Vs. Abdul Ghani, PLD 1987 Kar. 58, both of which in turn, are based on serveral pre-independence judgments.
10. Looking at the dispute from this angle it is obvious that the pleas-in defence adopted by the original defendant in the suit and the seller of the property Ibrahim Patel could not be altered by bis legal representatives. Even if, therefore, the present applicants-objectors who have moved this application, were duly defending the suit as a segment of legal representatives of late Ibrahim Patel such would have made no difference to the defence. Accordingly, no useful purpose can possibly be served by recall of the decree even if, in the technicalities of the situation, some misrepresentation or even fraud could be inferred or even proved. Courts of law are expected to redress actual wrongs and not merely assumed ones. Jurisdiction is to be exercised, in principle, to resolve real disputes with a view to vindicate rights and mere academic exercises are to be avoided.
11. There, however, remains one important question and that is the absence of the three ladies aforesaid from the array of defendants, In the result and upon such exclusion, whether contributed to by the legal representatives of the defendant on record or not and whether it follows upon the in-action of these ladies themselves, the fact remains that if not inducted as parties to the suit they would not be able to take benefit of the amount which lies deposited pursuant to the decree in the suit. Like would be the position of Ahmad, a pre-deceased son of Ibrahim Patel, absence of whose heirs from the suit the subsisting legal representatives have themselves now pointed out through clarifying that he and Abdullah Patel had already relinquished their rights of inheritence in anticipation of opening of succession upon conferment of benefits in lieu thereof. While these disputes can only be decided in another jurisdiction, all that is to be assured here is that no heir of Ibrahim Patel is to be exposed to any loss of benefits flowing from the decree in contemplation here. Such outcome obviously calls for some action. Normally a decree in the absence of necessary parlies or want of jurisdiction is to be set aside. Mr. Shabhir Sheikh in support has cited HOSSAIN ALI KHAN VS. FIROZA BEGUM, PLD 1971 Dac. 112 and AFROZ JEHAN VS. NOOR JEHAN, 1988 CLC 1318, which Mr. Mubarak Hussain Siddiqur counters by referring to DINAR TRADING CO. NS. ALLAH BUX, PLD 1965 Kar, 36, and NATIONAL COMMERCIAL BANK LTD. VS. NAZIR AHMAD QURESHI, 1980 CLC 1794, both pertaining to the period preceding the 1980 amendment of Section l2 CPC, through supportive of the propositions discussed in the context of successors in an estate. Be that as it may, remedy under Section 12(2) CPC need not always be in the nature of setting aside of a decree. In appropriate cases where upon the recall of the decree a forcseablc result should follow which may be no different than what can be achieved without setting aside of the decree a rectification or modification can be ordered. Such relief may even be accorded without any elaborate inquiry and concomitant loss of time. In reality Section 12(2) merely postulates an unspecified remedy where a decree suffers from want of jurisdiction or is tainted with fraud or has emerged upon misrepresentation and the Court, therefore, has all available options to fashion relief according to the requirements of a situation. There is no cavil to these conclusions from either side here.
12. Accordingly, through a short order the application was partially allowed and, by consent, the three ladies namely, Badrunnisa, Husaina Bano and Aisha Bai were ordered to be inducted in the Suit as legal representatives of late Abdullah Patel as his two daughters and widow and found be entitled to their due shares of inheritance under such Abdullah Patel according to th rules of Muslim Law. Like would be the position of heirs of late Ahmad since their case is identical. Amended title page of the plaint to follow.
13. In case there be a dispute regarding the entitlements of successors of Abdullah and Ahmad as to actual sharing rights in the estate of Ibrahim Patel or the extent thereof such is a question, which is left open since it can be addressed only in a Succession Matter between relevant persons Accordingly.
Application disposed of.