1. ' This is an application under section 12(2), C.P.C. moved by the 3 daughters of respondent No,6 and arises out of the judgment in Suit No,80 of 1986 and it is fixed for admission. Counsel of respondent No,1 Bank is present on pre-admission notice.
2. ' The facts leading to the filing of this application are that M/s. United Bank Ltd. (respondent No,1) had filed a suit against M/s. Starlite (Pvt.) Limited (respondent No,2) and its partners (respondents Nos.3 to 5) for the recovery of Rs,17,21,159.75 which respondent No,2 had obtained as a loan.
3. Respondent No,6 (who was impleaded in the suit as defendant No,5) stood guarantee for the recovery of the loan and mortgaged his property (being Industrial Plot No,B.S.15, Block 1, K.D.A.
4. Scheme No,16, Federal 'B' Area, Karachi) in favour of the plaintiff Bank. M/s. Starlite Ltd., and its partners as well as their guarantor were all proceeded against ex parte because in spite of service they did not appear before the Court to contest the suit and as a result the same was decreed ex parte on 16-9-1987. However, much before this date the present applicants, who are the daughters of the guarantor Syed Muhammad Afzaal (defendant No,3 in the suit and respondent No,6 in this application) moved an application under Order I, rule 10, C.P.C. for being impleaded in the suit on the ground that the property mortgaged by their father in favour of the Bank was actually their property and their father had already gifted it to them much prior to the date when it was mortgaged and, therefore, they were interested in the result of the suit and, therefore, a necessary party. This application was also dismissed on the same date (16-9-1987) but by a separate order in which this Court agreed with the counsel of M/s. United Bank Ltd. and held that the registered gift deed executed prior to the mortgage in favour of the Bank notwithstanding, the applicants had approved of the security being furnished by their father on the strength of this property which approval was evident from the fact that all the title deeds in respect of the property were in the possession of their father and even otherwise the circumstances of the case led to that conclusion and also on the ground that the said gift was gratuitous transaction and on its very face appeared to be collusive between father on one side and his daughters on the other. The applicants did not file any appeal or revision petition against either the judgment and decree passed in the suit or against the order dismissing their application under Order I, rule 10, C.P.C. The matter stood concluded on that stage when the present application under section 12(2), C.P.C. was moved by the applicants on 9-9-1990, i.e. after more than 3 years when the suit was decreed and their application under Order I, rule 10, C.P.C. was dismissed. In this application the stand taken by the applicants is that their father had access to the title documents of this property and had fradulently removed those \documents from their possession and in this fraudulent act he was assisted not only by the partners of M/s. Starlite (Pvt.) Ltd. but also by the Bank. It is further averred by the applicants that their father was an old and ailing person and was incapable of realising the consequences of the fraud he was committing on his daughters or else he would not have committed the same.
5. ' Annexure T is the "Memorandum of Confirming Deposit of Title Deeds" executed by the father of the applicants. Annexure 'K' to the plaint is the General Power of Attorney executed by him on 30th December, 1982, in favour of the Bank and in respect of the mortgaged property. It is duly attested by partners Faqir Muhammad Ahmed Dyer and Imtiazuddin and it is a registered document as well. Annexure 'D' to the counter-affidavit filed by the plaintiff-Bank in respect of application under Order I, rule 10, C.P.C. is "Permission to mortgage/assign" dated 9-9-1982 given by the Directorate of Land Management of K.DA. It is in respect of the mortgaged property and it shows that, notwithstanding the gift of the property in favour of the applicants, which was effected in 1968, the property still stood in the name of respondent No,6/defendant No,5 (Syed Muhammad Afzaal) and it was at his instance that this permission to mortgage the property was given to him. The applicants had placed on record the registered gift deed of 22-6-1968 alongwith their application under Order I, rule 10, C.P.C.
6. ' Learned counsel of the applicants states that the "Search Certificate" issued by the office of the Sub-Registrar 'T' Division (respondent No,7) did not disclose that this property stood gifted in the name of the applicants even though this certificate is for the period from 1964 to 1976. This certificate is dated 7-8-1982. Learned counsel argued that this certificate was obtained fraudulently, both by the borrowers and lenders and also by the guarantor and such fraud was practised with the collusion of respondent No,7, the Sub-Registrar. So, according to the learned counsel of the applicants, the judgment and decree had been obtained by the plaintiff-Bank on the basis of the following fraud practice upon the respondents:---
(1) Their father, in collusion with the Borrowers and the Bank, surreptitiously removed the title deeds from their possession and mortgaged them with the Bank.
(2) The Sub-Registrar of documents also colluded with them and gave an incorrect Search Certificate showing that this property was not 'transferred by the said father in favour of his daughters by way of gift. After hearing the learned counsel of the applicants, it appears to me that the applicants have not made out any case for maintaining this application under section 12(2) of C.P.C.
7. An application under section 12(2), C.P.C. is governed by Article 181 of the Limitation Act which provides a period of 3 years from the date on which the right to file the application accrues to the applicants. Now, the applicants came to know about this property having been mortgaged by them in favour of the Bank on 6-12-1986 the bailiff of this Court pasted on the said building a notice as regards the grant of injunction restraining them from in any way alienating the property (as per para. 9 of Application under section 12(2), C.P.C.) As such this application could have been filed up to 5th December, 1989. Since it was filed on 9-9-1990, it is barred by time and, therefore, liable to be dismissed on that account.
8. ' Even on merits, learned counsel for the applicants did not make out a case even for the admission of this application. I have no doubt in my mind that the entire transaction of gift was fraudulent and respondent No,6 Syed Muhammad Afazal had neither any intention of gifting this property to his daughters nor in fact he did gift the same. The applicants have filed copy of the registered gift deed alongwith their application under Order I, rule 10, C.P.C. as well as with this application and it is apparent from it that the applicants had not accepted the gift because the acceptance is itself signed by the donor himself. The applicants nowhere figure in the execution of the gift deed. The gift was, therefore, defective for want of acceptance by the donee. It appears to be fraudulent because the donor had no business to sign acceptance of the gift on behalf of the donee. Besides, permission Letter of K.DA. (referred to above) clearly shows that the property had never been mutated in the name of the donee so far as the record of the K.D.A. is concerned. The property was allegedly gifted as long ago as 1968 and although it would not be necessary to get it mutated in the name of the donees, there is no earthly reason why the donees would have not got the property mutated in their name for full 14 years if in fact the property had been gifted to them and if this gift had been acted upon and the property mutated in the name of the applicants, the K.DA. would have permitted respondent No,6 to mortgage the same in favour of the Bank and if this letter of permission dated 9-9-1992 (Annexure 'D' to the counter-affidavit of the Bank of application under Order I, rule 10, C.P.C.) had not been issued by the K.DA. there was no question of the Bank accepting the said property as security for the loan. In fact, the failure of respondent No,6 to get the alleged gifted property mutated in the name of the donees in the record of K.DA. goes to show that, firstly, respondent No,5 had no intention to gift the property to his daughters and the gift deed was executed by him only for such ulterior and nefarious purposes and, secondly, that the alleged donees had not even an inkling of the alleged gift and they have been only brought into the picture to frustrate the Bank and its efforts to recover the amount of loan.
9. ' Learned counsel of the applicants laid much emphasis on the fact that the Search Certificate given by the Sub-Registrar did not disclose the existence of the gift deed and this amounted to fraud but the circumstances show that this Search Certificate was the result of collusion between the borrowers and its guarantor since the Bank could not have acted against its own interest in any way facilitating the procurement of this Search Certificate.
10. ' Learned counsel of the applicants has relied upon a number of reported judgments in support of the case of the applicants. 1986 CLC 1052 Muhammad Latif v. The Board of Revenue is on the point of the applicability of Article 181 of the Limitation Act on applications under section 12(2), C.P.C. I am also of the same view as held above. In the case of Qazi Muhammad Naeem v. Qazi Fazlur Rehman 1987 SCM R 618 it was held that when a decree was obtained by concealing the true facts and by misrepresentation, then the provisions of section 12(2) of C.P.C. were attracted. In this judgment it was found that the plaintiffs had obtained the preliminary as well as final decree by concealing the true facts and by misrepresenting the factual position. Now, learned counsel of the applicants could not show what concealment of facts or misrepresentation of facts was committed by the Bank while obtaining the decree in the suit. The Bank had brought the suit on the basis of clear facts which were that respondent No,2 (of which respondents Nos.3 to 5 were partners) had borrowed a sum in excess of Rs,12 lacs and respondent No,6 had mortgaged this property in their favour as security for the same. These are the hard facts and I do not find any misrepresentation or concealment in so far as the averments made by the Bank in its plaint are concerned and these facts are not denied by the applicants. If their father committed fraud upon them, they may have a cause of action against him but the fraud of their father does not entitle them to bring this application under section 12(2), C.P.C. for frustrating the decree obtained by the Bank in the suit.
11. This judgment has no relevancy whatsoever in the present suit. The third judgment relied upon by the learned counsel of the applicants is the case of Fayyaz Khan v. Jamshed Ali Khan 1988 SCM R
145. This judgment, again, stipulates the commission of fraud or misrepresentation or concealment of facts on the part of the plaintiff and I have already observd above that the learned counsel for the applicants has not been able to. show that the respondent-Bank had committed any of these acts while suing the borrowers and their guarantor for the recovery of the loan amount. Learned counsel for the applicants had also relied upon a judgment reported as AIR (sic) PC 108 Kalachand Banerjee v. Jaggannath Marwari but I fail to see how this judgment could have been considered to be even remotely applicable to the facts of this case since the only relevant point decided in this judgment is that a person, who applies to be made a party in the suit but was refused, is not bound by the decision of the suit. So what? Even so, such a person, if he is interested in the result of the suit and is thereby adversely affected, he still is entitled to appeal against it, notwithstanding the fact that he was not a party in the said suit and this position is so well-settled that I need not refer to any authority in support of it. The applicants were present in the Court when the suit was decreed on 16-9-1987 and when, also, their application under Order I, rule 10, C.P.C. was dismissed and they did not seek any remedy thereafter until after the lapse of 3 years.
12. ' I may here also refer to certain other judgments on which learned counsel of respondent has relied. First is 1986 M LD 531 Abdul Ghani v. Shaikh Inayatullah. The point decided in this judgment is that an application under section 12(2), C.P.C. cannot be sustained on the basis of fraud or misrepresentation or concealment of facts unearth and practised, not before the High Court itself, but before some other forum. This judgment would show that this application under section 12(2), C.P.C. cannot be maintained because the applicants do not allege any commission of fraud in this Court by any of the respondents. A similar view is held in the record judgment relied upon by the learned counsel of the respondent-Bank, which is 1987 CLC 1501 Nat Khan v. Muhammad Rafiq in which it is held as follows:-- "The provisions of section 12(2), C.P.C., as held in Rehmatullah v. Ali Muhammad 1983 SCM R 1064, would not apply in the present case as the alleged fraud or misrepresentation was not committed in connection with the proceedings of the suit."
13. ' It may be noted that this application under section 12(2), C.P.C. is based on almost exactly the same facts as were averred by the applicants in their application under Order I, rule 10, C.P.C., which was, as we have already noted above, dismissed on 16-9-1987 and thus the present application is nothing more than the duplication of the same proceedings and, therefore, this application would attract the decision in the case of Ghulam Sarwar v. Muhammad. Hussain 1987 SCM R 1440. The facts of that case were that an application under Order 9, rule 13 having been dismissed, the defendants had filed an application under section 12(2), C.P.C. and it was held that bilis exercise only amounted to application of proceedings already concluded by the dismissal of application under Order IX, rule 13. The facts of the present case are slightly different from this reported judgment inasmuch as what was earlier dismissed was not an application under Order IX, rule 13 but one under Order I, rule 10, C.P.C. but this difference hardly makes any difference and the observations of the Hon'ble Court in this judgment are fully applicable to the present case.
14. ' This brings us to the decision of the question as to whether the application under section 12(2), C.P.C. can be decided without admitting it for regular hearing and in this regard my attention is brought to the case of Iqbal Sultan v. Chand Sultan reported as 1990 CLC 366, in which it is held that when it is clear that an application under section 12(2), C.P.C. is, on its very face, improper, mala fide and having been made only to protract the proceedings and to abuse the process of the Court, it can be dismissed without framing any issues or recording any evidence. In fact, this is not the only judgment on the point and there is a plethora of reported cases in support of this view and in fact there can be no other view because if every application under section 12(2), C.P.C. were to be decided after framing issues and recording evidence, however improper or mala 'fide it appears on its very face with no doubt left of it having been made with the sole purpose of protracting the proceedings and to abuse the process of the Court, there would be no need to litigation and every defeated litigant would come forward and move an application under section 12(2), C.P.C. and sit for case and mock the judicial process of the Court.
15. For the above noted reasons I find no merit in this application and dismiss it in limine.