' WAJIHUDDIN AHMED, J.---C.M.A. No, 1938 of 1982 is an application under section 12(2) read with section 151, C.P.C. It is moved by the defendants Nos.1 and.
2. The facts pertinent to this application are somewhat complex. The present suit was filed for declaration and injunction by the plaintiff against the Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Chairman, Evacuee Trust Property Board and the Deputy Commissioner (East), Karachi. The suit proceeded on pleas that the plaintiff abovenamed obtained, on 99th years' lease, Survey Nos.2, 3, 4, 5, 6 and 7, Deh Soangal, Taluka and District Karachi, from one Baba Birpuri, since deceased for a consideration of Rs,1,66,000, as per registered sale-deed, dated 15-12-1965. On payment of full consideration towards the lease money, the referred lessor, Baba Birpuri, passed on the possession of the relevant survey numbers to the plaintiff in June, 1966. Since, allegedly, mutation of the property could only be had subject to the issuance of the "No-Objection Certificate" from the Deputy Administrator, Evacuee Property Trust Board, Karachi, plaintiff availed the services of one Hari Ram Vishenmal Sanyasi, Chela of Baba Birpuri, aforesaid, whose name was coming down as owner of such survey numbers. An application, dated 8-10-1974, of the plaintiff to the Deputy Administrator, Evacuee Trust Property Board, Karachi was forwarded to the Chairman, Evacuee Trust Property Board by the addressee upon which the Chairman, Evacuee Property Trust Board, allegedly, passed orders to the effect that his department had no objection to grant thereof, as the Evacuee Property Board Trust, never exercised any control or management of the lands mentioned in the plaintiff's application, dated 8-10-1974, and N.O.C., as described in such order, dated 15-10-1974, was allegedly, issued to the above-said Chela of Baba Birpuri, who allegedly, in order to grind his own axe, suppressed the facts from the plaintiff and, as such, mutation proceedings were held up, of which the Administrator, Evacuee Trust Property Board, was said to have taken advantage, and started making inroads on the plaintiff's land. The plaintiff, resultantly, filed Suit No,929 of 1978 against the Administrator, Evacuee Trust Property Board, Karachi, in the Court of the Ist Civil Judge, First Class, Karachi. During the proceedings in such suit, the referred Chela of late Baba Birpuri came forward, as an intervenor, and filed the N.O.C., he had collected on the basis of alleged authority from the plaintiff. However, such N.O.C. Was not accorded due consideration by the Administrator Evacuee Trust Property Board, Karachi, and the matter was referred back to the Chairman, Evacuee Trust Property Board, who, per his alleged order, dated 23-8-1978, directed that the record be checked to ascertain as to whether the N.O.C. Was issued, after due enquiry. An alleged report of the Litigation Branch was appended to the plaint, dated 5-10-1978, marked as Annexure "A", in which it was said that "from the perusal of the petition, it has been noticed that the letter said to have been issued by the office of the Deputy Administrator on 23-10-1974 had stated that No-Objection Certificate relating to Nos.2, 3, 4, 5, 6 and 7 of Deh Soangal had already been issued to the addressee". Thereafter, parenthetically, it was stated that before the Chairman, Evacuee Trust Property Board, the Deputy Administrator had also moved the Federal. Government for vacating the stay but the Joint Secretary to that, Government did not accede to the request. Hence he was made a party to the suit. Then the plaintiff went on to say that she had been running from pillar to post to get justice for the last 15 years. In frustration she also appealed to the President and Chief Martial Law Administrator of Pakistan to have justice done to her, who referred the matter to the Deputy Commissioner (East) Karachi but the latter expressed his inability to do anything in the matter, as the record shows that the lands, subject-matter of the suit, were entered as the property of Pinjraport Trust, Karachi. Consequently, the plaintiff was advised to approach the Administrator, Evacuee Trust Property Board, Karachi, which was maintained to amount to side-tracking the issue.
Plaintiff thus pleaded that there was grave disparity in the stands taken. The Chairman, Evacuee Trust Property Board, was the sole authority in all Evacuee Property matters in Pakistan, while his subordinate was refusing to carry out his orders. Hence the suit. Cause of action for the suit was alleged to have arisen on 11-10-1979 on the refusal of the defendants to mutate the name of the plaintiff in the record of rights. By way of reliefs. Declaration was sought that the N.O.C. Issued by the Chairman, Evacuee Property Trust Board, dated 10-10-1974, to the plaintiff and subsequently ratified by the defendant No,2, Chairman, Evacuee Trust Property Board on 15-10-1974 was valid, subsisting and enforceable and that in the light of the directions and order of the Chairman, Evacuee Trust Property Board, dated 15-10-1974, the N.O.C. Issued by him be held good and enforceable in law. Permanent Injunction, restraining the defendants, etc. Was sought not to give effect to any further orders in any manner whatsoever till the final disposal of the suit. Residuary prayer was for any other relief as the Court may deem fit.
3. The defendants, even though served, did not put in appearance with the result that on submission of an Affidavit in evidence of one Izzat Khan son of Abdullah Khan, as attorney and Perokar of the plaintiff, the matter was taken up ex parte and, on 25-8-1980, decreed as such by my learned brother Saeeduzzaman Siddiqui, J.
4. Subsequently, an application for setting aside of the ex parte decree was moved but, per order, dated 3-5-1982, passed by my learned brother Nasir Aslam Zahid, J., was dismissed, on the finding that not only the defendants were grossly negligent, negligence even on the part of their learned counsel was all too evident. An appeal was taken to a Division Bench of this Court, which having been numbered as H.CA. 59 of 1982 was dismissed. Petition for leave to appeal bearing C.P.S.LA.
No,531/K of 1984 also met the same fate.
5. In the meantime, while the application for setting aside of the ex parte decree was pending, the above-said application C.MA. No,1938 of 1982, under section 12(2) read with section 151, C.P.C. Was filed. It was attempted to be argued by the substituted counsel for the defendants Nos.1 and 2 but such an attempt was disallowed, as reflected in the order, dated 12-5-1982 in the following words:- "It may be mentioned here that Mr. M.G. Dastgir, learned counsel for the defendants Nos.1 and 2 wanted to address his argument on the question that the ex parte decree had been obtained by fraud. I did not allow him to address arguments on this point. I find that on behalf of the defendants Nos.1 and 2 C.MA. No,1938 of 1982 has since been filed on 4-5-1982 under section 12(2) read with section 151, C.P.C. For setting aside the ex parte decree or the ground of default and misrepresentation. The said application will be dealt with on its own merits."
6. Such application under section 12(2), C.P.C. Inter alia, came up for consideration on the original side of this Court on 12-8-1985 and my learned brother Nasir Aslam Zahid, J. Passed the following order:-- "Before directing evidence to be recorded in this matter, I would like the learned counsel to argue the question of maintainability of the present application."
7. Later, this application remained part heard, as Mr. Justice Nasir Aslam Zahid was firstly, posted at the permanent Sukkur seat of this Court and, subsequently, joined as Secretary of the Ministry of Justice and Parliamentary Affairs, Government of Pakistan.
8. In due course, I heard this application but, in consonance with order, dated 12-8-1985, only on the question of maintainability and reserved orders.
9. Now, in the application under section 12(2), C.P.C. And the affidavit in support thereof it is maintained that the matter pertains to more than 71 acres of land which vest in the Federal Government and are under the management and control of the Evacuee Property Trust Board. It is said that prior to the institution of the above suit, the plaintiff had filed Constitutional Petition No,65 of 1976 in respect of the same land. Such petition was heard by a Division Bench of this Court and dismissed, per order, dated 6-2-1976, holding that the present plaintiff could not claim any right, title or even interest as lessee of the land in question on the basis of the lease-deed since such deed was not registered, as required by law. Copies of such petition as well as order thereon have been filed. It is next urged that the plaintiff, thereafter, filed an application, dated 19-10-1977, before the Chairman, Evacuee Trust Property Board, defendant/Judgment-Debtor No,2 herein, for direction to the Administrator, Evacuee Trust Property, Southern Zone, Karachi, not to interfere in the enjoyment of peaceful possession of the plaintiff of the land in suit. Such application was heard by the defendant/Judgment-Debtor No,2, who per order, dated 31-1-1979, found that the plaintiff had no right or title in the property in question nor Baba Birpuri, under whom the plaintiff claimed; had any authority to lease out the disputed property to her, since such property belongs to Pinjrapore Trust and its control vests with th6 Evacuee Trust Property Board. With the application under section 12(2), C.P.C. a copy of such application before the Chairman, Evacuee Trust Property Board together with order thereon have been placed on record. It is then said that the plaintiff abovenamed, on or about 7-2-1979, filed a revision application under section 17 of Act XIII of 1975 before the Federal Government against the orders last mentioned, which at the time of the filing of the application under section 12(2), C.P.C. Was pending disposal. A copy of such revision application is also brought on record. It is urged in the affidavit in support of the pleas under section 12(2), C.P.C. That all such facts were concealed from this Court at the time of the institution of the suit nor were the same brought to the notice of the Court at the time of passing of decree, dated 31-8-1980, whereupon is based the contention that if such facts were on record, there could not have been passed a decree in favour of the plaintiff, since the plaintiff has no right title or interest in the land in question and succeeded in obtaining that ex parte decree, solely, on the basis of fraud and misrepresentation. Express reliance is placed for further details as to facts on the affidavit, dated 21-3-1982, submitted by Akhlaq Ahmed Khan, Legal Assistant in the office of the Deputy Administrator, Evacuee Trust Property, Karachi, earlier submitted alongwith the application under Order 9, Rule 13 read with section 151, C.P.C.
10. Counter-affidavit to such application was filed by Izzat Khan son of late Abdullah Khan, attorney and husband of the plaintiff and in this counter-affidavit, the pleas are that the application is barred by time, that the allegations that the decree was obtained by fraud and misrepresentation are misconceived and vexatious, that the defendants avoided to contest the suit, designedly, with a view to await the outcome of its result, and that even High Court Appeal No,59 of 1982, against the order, dated 12-5-1982, stood dismissed vide judgment, dated 27-8-1984, thereby closing the Chapter for good. As to the order passed in Constitutional Petition No,65 of 1976, it is said that the same was not relevant to the claim in suit, as that petition pertained to the issue of public notice by the Administrator, Evacuee Trust Property Board, and does not cast doubt or cloud on plaintiff's title to suit lands but, as to the title of the lesser (Baba Birpuri), the order in the petition opined that it was for him to seek a declaration from a competent Court of law, if so advised. It is maintained that application under section 12(2), C.P.C. Is a clumsy attempt to side-track the issue for setting aside of the ex parte decree, as on the pleas raised in such application, that decree could not be set aside.
11. In reply, Abdul Aleem Ansari, Deputy Administrator (Land), Evacuee Trust Property, Karachi, submitted an affidavit in rejoinder. The allegations in the counter-affidavit are denied therein. As to the pending Revision application before the Federal Government against the order of the Chairman, Evacuee Trust Property Board, dated 31-1-1979, it is said that during the intervening period, the same was withdrawn by the present plaintiff and stood disposed of in terms of order dated 15-5-1982. He has denied that either the Federal Government or the Evacuee Trust Property Board or any other functionary has issued any No-Objection Certificate to Mst. Mobeena Begum, the plaintiff herein, in respect of the land, in suit, as alleged in the plaint, and the plaintiff has been challenged to produce the original copy thereof before the Court to determine the authenticity of the same. It is claimed that in view of a large number of documents as well as of decisions of various Courts, upto the level of the Supreme Court of Pakistan, the lands in dispute vest in the Evacuee Trust Property Board, Government of Pakistan and that the plaintiff has no right to deal with the same. In support are referred and filed some documents including orders, in Constitutional Petitions Nos.990 of 1963 and D-484 of 1979.
12. The contentions from the side of the plaintiff, questioning the maintainability and competence of the application under section 12(2), C.P.C. Are several-fold.
13. It is urged firstly, that enactment of section 12(2), C.P.C. Does not constitute a departure from the law, which prevailed in the context of recall of decrees on the basis of want of jurisdiction or fraud at the time of the promulgation of such provision, which came about as a result of the Code of Civil Procedure (Amendment) Ordinance, X of 1980. It is pointed out that sections 40, 41, 42, 43 and 44 of the Evidence Act, 1872, applied on the subject till the date of the referred promulgation and the limitations for recall of decrees, as based on such provisions, etc. Would still apply to proceedings governed by section 12(2), C.P.C. Aforesaid, For this contention, Mr. Muhammad Ali Sayeed relies on Logadapatti Chinnayya v. Kotla Ramanna 19 Indian Cases 579, where a Division Bench of the Madras High Court observed that an unsuccessfully party cannot be allowed to get round the rule of res judicata and to prove that the judgment was wrong, because the Court came to a wrong conclusion on the evidence before it and that fraud to vacate the judgment must be extraneous of everything, which has been adjudicated upon; Janki Kuor v. Lachmi Narain and others 30 Indian Cases 789, declaring that a suit brought to set aside a decree in a previous suit on the ground that the decree had been passed in contravention of the pleadings in that suit is barred by the principle of res judicata and that, similarly, a suit to set aside a decree on the ground that the same was obtained by perjured and false evidence, is not maintainable; Kadirvelu Nainar v. Kuppuswami Naicker AIR 1919 Mad. 1044, incorporating the opinion of a Full Bench of the Madras High Court that no suit can be instituted to set aside a decree on the ground that it was obtained by perjured evidence; Pannalal Kuthari v. Tara Kanta Karmakar and others 63 Indian Cases 778, reporting that a suit to set aside ex parte decree obtained in another Court, on the ground that the same was obtained fraudulently, cannot succeed unless it is proved that there was fraudulent suppression of summons or that the claim of the respondents was false and false to their knowledge; Mahadeb Prosad Kanaria v. Mahabir Prosad and another AIR 1923 Cal. 569, wherein a Division Bench of the Calcutta High Court opined that an incomplete statement of a proposition of law in the plaint does not constitute fraud on the part of the plaintiff, where the decree came to be passed ex parte, unless it is shown that there was fraudulent suppression of summons; Punjab Commercial Syndicate and another v. Punjab Cooperative Bank, Limited and others AIR 1926 Lah. 96, holding that even an ex parte decree cannot be reopened except on the ground of fraud, as an extrinsic collateral fact vitiating the proceedings, in which the decree was obtained and it not sufficient to allege that it was obtained on perjured evidence in relation to a false claim; Mukhtamala Dasi. v.
Ram Chandra De and others AIR 1927 Cal. 84, observing that an ex parte decree could not be set aside on the mere ground that it was obtained through the aid of perjured evidence and that something more should be proved in support of the allegations of fraud and it must be shown that fraud was practised in relation to the proceedings in Court and the decree had been procured by practising fraud of some sort upon the Court and Sher Bahadur and others v. Muhammad Amin and others AIR 1920 Lah. 569 laying down that the mere fact that a party has suppressed important evidence or has relied upon perjured evidence in the case and has, thereupon obtained a decree in its favour cannot be the basis of a subsequent suit which is brought for a declaration that the previous judgment was null and void and was of no legal effect. To this may be added the opinion of Sir Lawrence Jen Kins and Nenda Kumar Howladar v. Ram Jiban Howladar 41 Cal. 990 where, on a careful examination of English authorities, he came to the conclusion that general allegations of fraud cannot sustain a cause for setting aside of a prior judgment for which it was essential to show as to how, when, where and in what way fraud was perpetrated.
14. Now, all these cases proceed in the context of the rule that litigation between the parties must rest a some point of time and that parties are not permitted to raise the same questions, over an over again, in different sets of proceedings, solely, by resorting to the contrivance of a fresh suit, based on a supposed exercise of fraud by an adversary. In laying down dicta to this effect, Courts were not unmindful to situations, where a party may have been enabled to steal a. March over the other by advancing false pleas or adducing perjured evidence, all of which in relation to such proceedings could be dealt with, in the same round of litigation by way of review, appeal or revision and, once the matter had come to rest, no reopening of the controversy through a fresh suit at the instance of the unsuccessful litigant was found to be permissible, except in the rarest of cases. This approach to the problem, inter alia, rested on the limited scope of reopening of the controversy on judicial precedents embedded in the common law, that fraud vitiated all proceedings howsoever solemn, augmented by section 9 of the Code of Civil Procedure, conferring jurisdiction on Civil Courts pertaining to disputes of a Civil nature, sections 42, 54 and 55 of the Specific Relief Act concerning decrees of declaration and Injunction together with the rules of evidence as to relevancy of previous/judgments, incorporated in sections 40, 41, 42, 43 and 44 of the Evidence Act, 1872, all of which provisions do not seem to have been expressly adverted to in the referred case- law. At any event, The ambit and scope on such premises was limited. Even so, if it could be shown that summons were suppressed or tendering of evidence was precluded by exercise of fraud or that fraud was practised on the Court, as distinguished from that on the adversary, the case could reopen on the basis of a fresh suit, questioning the decree so obtained on the ground of fraud. In such situation as well, it would appear that the rule and concept of fraud in the context of ex parte proceedings even where the default of appearance is uncondonable, is different and, was different than as against cases where parties had litigated, at arms length, and had full opportunity of counteracting the pleas and evidence of one and another. In such cases of ex parte decree where the plaintiff advances pleadings in a circuitous or inconsistent manner, suppressing or twisting facts, as distinguished with law, or referring to material, which is irrelevant, and suppressing that which is relevant or even vital and then, on account of his adversary remaining unrepresented, proceeds to obtain a decree on mere affidavit or even uncontested evidence, recorded in Court, and, irrespective of failure in getting the ex parte orders recalled for want of sufficiency in cause, it is subsequently shown, as could be done under the old law by filing a fresh suit for recall of decree on the basis of fraud that, this was how such decree was obtained, it surely cannot be questioned that the fraud as may have been practised, came to be directly practised on the Court, for the Court could never have come to decree, the earlier suit had relevant facts, which were twisted, suppressed or otherwise ill projected were in its full view. There seems to have been no difference in the then state of law in such matters and there is none now that questions pertaining to fraud on the Court could be reopened and can be reopened now, without recourse to the later development of law, which will be examined below. Needless to say, that fraud is a very serious thing. It vitiates proceedings of the most solemn character. In the dispensation then prevailing a trial Court may competently have set aside or recalled the decree even of a Superior Court, if it was shown that such came to be obtained by use of fraud. Similarly, a decree so tainted could have been ignored and refused to be acted upon by the very Court which passed it. Thus, in Grindlays' Bank Limited v.
Murree Brewery Company Limited and another PLD 1954 Lah. 745, Muhammad Munir, C.J.
Speaking for a Division Bench of the Lahore High Court, observed that a Single Judge of the Court, hearing a review application, in a situation where the other member of the Bench could not sit in the case due to motives of delicacy, could recall an earlier order of the Division Bench, if fraud was shown to have cropped up, in obtaining such order.
15. Discussed above was the position of law as it prevailed prior to the introduction of section 12(2) in the Code of Civil Procedure which, as seen, came to be introduced through the Code of Civil Procedure (Amendment) Ordinance, X of 1980. With the insertion of section 12(2) in the Code an entitlement to challenge the validity of a judgment, decree or order, on the pleas of fraud, misrepresentation or want of jurisdiction, by way of an independent civil suit has been taken away and where a person challenges such validity on such grounds, that can only be done by making an application to the Court, which passed the fmal judgment, decree or order as the case may be.
16. In consequence of this legislative development remedy of suit, in relation to the referred grounds, having been expressly barred to that extent, those matters stand excluded from the pale of section 9 of the Code of Civil Procedure which provision, subject to the Code, confers jurisdiction on Civil Courts to try all suits of a Civil nature, excepting suits of which their cognisance is either expressly or impliedly barred. Next while under the earlier dispensation there was some doubt that a suit could lie on the basis of a decree having been obtained by use of misrepresentation such doubt stands clarified may even removed, and an application, under section 12(2), C.P.C. For recall, would lie even though the ground of attack is limited, merely, to a plea of misrepresentation.
Needless to add that, primarily, distinction between fraud and misrepresentation is one of knowledge and intention, for whereas fraud proceeds on the basis of a fact or assertion or omission to assert such fact, with knowledge as to its falsity, in the context of misrepresentation the assertion or its omission may lack both knowledge or intention. Another, distinction lies between the law, as now enacted, and that which prevailed earlier to such enactment, in that the technical difficulties in the way of an aggrieved person regarding the manner, form or frame of the suit as controlled, inter alia, by sections 42, 54 and 55 of the Specific Relief Act etc. Have been done away with and it is without any trammels of technicalities in procedure that an application on the referred grounds can be made and thereupon the relevant Court is free to adopt such procedure, as may be just and proper, to embark upon an enquiry whether or not the questioned judgment, decree or order suffers from fraud, misrepresentation or want of jurisdiction. This is, undoubtedly, a salutary change and is entirely in consonance with the pristine concepts of Islamic jurisprudence, which contemplates and envisages that justice is eternal and a Court of law is always competent to reconsider and recall its order, once it is shown that miscarriage of justice has resulted upon an act, of commission or omission, either on the part of a litigant or even of the Court itself where for instance, a jurisdictional error happens to have crept in, Accordingly, little room now remains for any technicalities in relation to the matters covered by the insertion of section 12(2) ibid. Yet another aspect which, conveniently,, may be dilated upon here, is the repeal of the Evidence Act, 1872, and its substitution by the Qanun-e-Shahadat, 1984 and the effect of either. As seen above, a good deal of reliance in the context of recall of decrees on grounds of f fraud, previously, used to be based on sections 40, 41, 42, 43 and 44 of the Evidence Act, 1872, which provisions now stand substituted by Articles 54, 55 56, 57 and 58 of the Qanun-e-Shahadat, 1984. While there is hardly any difference between the cited provisions in the two enactments, pertaining to the relevancy of decisions in previous litigations, effect or binding nature thereof and exceptions thereto, the difference seems to lie in the applicability of the two enactments and whereas the Evidence Act, 1872 before its amendment through Ordinance 27 of 1981 had limited applicability, such scope was first enlarged, following upon Ordinance, 27 of 1981 and has further been broadened in the new statute namely, the Qanun-e-Shahadat, 1984. None of this broading of scope appears to effect proceedings under section 12(2), except to the extent that Qanun-e-Shahadat, 1984, would also apply to proceedings under section 12(2), C.P.C. Much like the way the same applies to proceedings in a suit, properly so termed. As to relevancy, as well, the quoted Articles would apply. However, and this is important, in so far as conclusive nature of a previous judgment, decree or order is concerned, as reflected, inter alia, in Article 55 of the Qanun-e-Shahadat, 1984, such conclusiveness would stand conditioned upon the determination of an application under section 12(2), if any, in the same way and to the same extent as that would be, if a review was sought or an appeal or revision was preferred. In other words, finality would enure only in so far as the other provisions of the Code go but not under section 12(2) ibid and the adjective "final" in that subsection itself would also have those limited implications. To put it differently, no amount of finality either under the Code or under the Qanun would be of any consequence vis-a-vis an application under section 12(2), competently filed, and even that limited version of finality shall disappear, once the final judgment, decree or order, as the case may be, is varied, deviated from or recalled on a successful determination of proceedings following upon the making of an application under section 12(2) of the Code.
17. Further, in so far as misrepresentation; as distinct from fraud and collusion, is now a fresh and independent cause of action under section 12(2), C.P.C. That provision, being substantive in nature, would prevail over the technicalities in the quoted Articles of the Qanun-e-Shahadat, 1984, and an aggrieved person, seeking to set aside a judgment, decree or order, on the ground of misrepresentation, would not be precluded by any impediment in the referred Articles of the Qanun-e-Shahadat, which as said earlier, being only procedural in nature, must give way and yield to the substantive right under statute which, in the instant case, is section 12(2), C.P.C.
18. The question germane to this controversy, however, is whether, prima facie, on the basis of pleas advanced, questions giving rise to a cause for setting aside of the decree, on grounds of fraud, misrepresentation or even want of jurisdiction, emerge so as to permit this application to go for further and a more detailed examination of the question. The pleas advanced in support of the application are that the lands in dispute were part and parcel of the compensation pool, as finally determined by the Supreme Court of Pakistan in Madhavji Dharasi Bhai v. Karachi Panjrapore Association PLD 1957 SC 83, which, in itself, is an exhaustive judgment in relation to the properties falling in the Pinjrapore Trust, under which the plaintiff, in substance had claimed. It has, further, been pointed out that following upon the enactment of th e Evacuee Trust Properties (Management and Disposal) Act XIII of 1975 PLD 1975 Central Statutes 79) such lands came to be supervised and controlled by the Evacuee Trust Property Board. A follow up of the above Supreme Court decision in Re: Pinjrapore Association is duly reflected in several reported decisions out of which, as to such details as regards lands, parties and entitlements some are Tikamdas Hiranand v. Divisional Evacuee Trust Committee PLD 1968 Kar. 703 and Tirathdas Kapoomal Lakhiani v.
Divisional Evacuee Trust Committee PLD 1976 Kar.
954. It is, also, urged that the plaintiff decree-holder concealed from this Court at the time when the Court was called upon to decree the suit ex parte that a previous Constitutional Petition No,C.P.
No,65 of 1975 stood dismissed between her and, more or less the same parties, this Court holding that the predecessor of the present plaintiff decree-holder had no title, in respect of the self-same lands to pass to any body. Plainly, it could be an obligation of the present plaintiff to make a disclosure of such a final order, which, apparently, on the authority Asif Jah Siddiqui v. Government of Sindh PLD 1983 SC 46 may have operated as res judicata, though, at this stage, I am not inclined to invoke any such rule. Still, the fact remains that just as there is the decree in the present suit, which the defendants assail through this application, there is a subsisting order in the Constitutional jurisdiction of this Court, final in itself, which it was the duty of the plaintiff to assail and which it did not question and, therefore, for the purposes of determining the question of fraud or want of jurisdiction, both such orders shall have to be placed side by side and seen, so as to ascertain as to what is the precise effect of either and as to how they reflect on each other. In addition, it has also been urged that an application was moved by the present plaintiff in respect of the same controversy, which was agitated in this suit before the Chairman, Evacuee Trust Board and that application was dismissed. Revision was preferred against the order of dismissal and was pending till 15-2-1982, when it was withdrawn by the present plaintiff and none of these facts, which could have been relevant as regards ouster of jurisdiction under a special law, were placed for consideration before this Court at the time when it came to pass the decree. Besides, as seen above, there were decisions of the Superior Courts, themselves binding in nature, pertaining to the same properties, which, ex facie, were held back from the Court, at the time of passage of the decree in this case. First of these, as referred, is the Supreme Court decision in Madhavji Dharagi Bhai v. Karachi Panjra Pore Association PLD 1957 SC 83. Then are the cases reported as Tikamdas Hiranand v. Divisional Evacuee Trust Committee PLD 1968 Kar. 703 and Tirathdas Kaloomal Lakhiani v. Divisional Evacuee Committee PLD 1976 Kar.
954. Next is the dismissal order dated 26-12-1975 of C.P. No,768 of 1975: Shri Mahant Baba Mangalpuri v. Government of Pakistan. Yet another is a similar in limine dismissal of Shri Mahant Baba Monobhagir Mangalgir v. Divisional Evacuee Trust Committee and others Writ Petition D-484 of 1979 on 20-10-1981, involving the same Trust and inter alia, the same properties. Such dismissal was made by a Division Bench of this Court of which my learned brother Saeeduzzaman Siddiqui, J.
Who passed the decree in this suit, happened to be a party. There seem to have been many other proceedings, apparently, having bearing on the present suit, enumeration whereof is not necessary at this stage but the very existence of the same makes it requisite that the pleas of the applicants under section 12(2) should be subjected to closer and detailed examination. Not only that these were relevant decisions and should have been brought to the notice of this Court, some such are also duly reported dicta and can be taken judicial notice of under the relevant Articles of the Qanun-eShahadat. These have been brought to the notice of the Court now and, prima facie, it would seem that the defect of the same should be considered and adjudicated upon in the context of the application under section 12(2), C.P.C., as that would be pertinent to the controversy, based on alleged fraud misrepresentation or even want of jurisdiction in the context of the decree in the suit.
19. The second objection raised for the respondents against the application is that these very questions were also raised in behalf of the application under Order 9, Rule 13, C.P.C. And since that matter stands finally decided the same controversy cannot be agitated under section 12(2), more so because in the affidavit in support of the application under section 12(2), C.P.C. The applicants have expressly sought reference to the affidavit filed with the application under Order 9, Rule 13, C.P.C. It is urged and in support is cited the Supreme Court order in Ghulam Sarwar v. Muhammad Hussain 1987 SCMR 1440 that the proceedings under Order 9, Rule 13, C.P.C. And under section 12(2), C.P.C. Involve distinct remedies and there is to be no duplication of either. On the facts of that case, an ex parte decree was sought to be set aside on the ground of fraudulent service of summons and that plea was rejected on elaborate examination involving even recording of evidence.
Subsequently, the same question was raised in an application under section 12(2), C.P.C. Together with a denial of the agreement on which the suit came to be decreed. The Supreme Court declined interference, on the dismissal of the application under section 12(2), as the same plea had stood disproved in the context of the application under Order 9, Rule 13, C.P.C. And the second round did not arise as that could be decided in the suit had the party chosen to defend it. The distinguishing aspect of that case lies in the subsistence of an identical ground for both the successive reliefs.
Such ground was vital to both the proceedings and its failure in one necessarily reflected in the other. Respectfully, subscribing to the Supreme Court observations, I would humbly venture to think that the rule laid down is only this; when a ground equally relevant to two distinct sets of proceedings is capable of full examination and determination in either proceedings and is so examined and determined in one, no duplication of the same is merited in the other. However, at the same time, it is not inconceivable that only part of the grounds may be common to the two sets of proceedings and not only that but such grounds may only be incidentally relevant in the context of one set of proceedings but be vital for another and, if that be so, it cannot be doubted that mere existence of such common grounds would not preclude one or the other remedy. Law on occasions provides several distinct remedies to an aggrieved person in a given state of circumstances. Some of such remedies may exclude the other or others and, at the same time, some remedies may even be common. Thus, where a judgment or decree is appealed against a review under Order 47 of the Code of Civil Procedure would not lie but there, is authority in support of the proposition that in cases where a review application is preferred earlier, such application does not become incompetent if, subsequently, an appeal is also filed. Similarly, revisional jurisdiction under section 115, C.P.C. Is invocable (Ally where an appeal does not lie to the revisional Court but there is authority in favour of the proposition that where an appeal lies but to a different Court, a revision in the relevant Court may be competent. Likewise, Constitutional jurisdiction under Article 199 is not attracted where there are alternative adequate remedies available to an aggrieved party but in cases where such an alternative remedy is not as efficacious, speedy or inexpensive, constitutional jurisdiction may yet be invoked. I believe that I would be spelling out the law correctly when I say that where, in a given case, a party is able to establish a prima facie case under section 12(2), C.P.C. For recall of a judgment decree or order it may, simultaneously, when appropriate or relevant, also invoke the jurisdiction of the Court for setting aside the same decree, if obtained ex parte, where sufficient cause for so doing is available. Obviously, if one of such remedy succeeds the other would automatically subside in the wake of such success but where one of the remedies fails, the other would still remain available if otherwise competent, and, subject to above, merely because there is an element of commonness to some extent in the grounds may not be relevant. Thus, for the purposes of setting aside an ex parte decree all that is relevant for the applicant is to show that he was prevented by a sufficient cause, for making due appearance in Court, when the ex parte decree came to be passed. Merits of the case are really not relevant and their relevancy, if at all, is only in the context of the gravity of prejudice caused and not otherwise.
Thus, merely because a party fails to establish sufficient cause and thereby also fails in having the ex parte decree set aside, should not preclude the same party from showing, in another jurisdiction that the decree was obtained fraudulently or on making of misrepresentation or for want of jurisdiction, since these grounds in fact, may only be remotely relevant for the purposes of Order 9, Rule 13, C.P.C. Indeed, if any more reason on the question was necessary, the same was furnished by the order of my learned brother Nasir Aslam Zahid, J., when that learned Judge, as adverted to above, at the time of dismissing the application under Order 9, Rule 13, C.P.C., declined to consider the pending application under section 12(2), C.P.C. And left that matter open, to be taken up at the appropriate time. Such observation or permission has not been appealed against or set aside either in the judgment of the Division Bench or in the Order of the Supreme Court of Pakistan, where such order was, successively, taken. Indeed, it would appear that the objection, on such basis may not be entertainable in this Court at all.
20. Thirdly, by way of objection, it is urged that it is only against a final judgment, decree or order that an application under section 12(2), C.P.C. Lies and since such final judgment or decree, in this case, is that of the Supreme Court of Pakistan, an application under section 12(2), C.P.C. Would be competent only in that Honourable Court and not elsewhere and, in so far as the decree of this Court came to be merged in the final order of the Supreme Court, the pending application under section 12(2), C.P.C. Would stand abated and can no longer be considered. The argument, on the face of it, appear to be attractive. However, in the first place there was a reservation in the order of this Court, with regard to the consideration of the application under section 12(2), C.P.C. At a later stage and that reservation was not retracted even in the Supreme Court of Pakistan and, therefore, by necessary implication, such reservation subsists and is a part of the Supreme Court order and in considering the application under section 12(2), C.P.C. This Court would be doing no more than giving effect to the order of the Supreme Court itself. Even otherwise, I am not impressed by this argument, as it is raised in the context of an order passed under Order 9, Rule 13, C.P.C. If anything, it is only that order, that is to say, an order refusing to set aside the ex parte decree for insufficiency of cause, that has assumed finality and, at that, at the level of the Supreme Court of Pakistan. Such controversy is not being sought to be reopened at all. No argument has been raised and none is being entertained here in the context of the sufficiency of cause or otherwise of setting aside the ex parte decree. That is final. What is being questioned here is the decree itself, which has never been appealed against and became final at the stage of this Court on the original side alone. Therefore, if there is a restriction of reopening of a controversy under section 12(2), C.P.C. In that Court alone, which passed the final judgment, decree or order, the applicants are not seeking to do anything otherwise.
21. Taking up now, the arguments in support of the application under section 12(2), C.P.C. It has been urged for the applicants that, in view of M.L.R. 57 of 1983, the decree that was passed by this Court has become ineffective and cannot be enforced in view of the promulgation of such M.L.R. I am afraid, I cannot say anything on the question, one way or the other, and it will be for the Court to consider at the time when the application under section 12(2), C.P.C. Comes up for consideration whether or not M.L.R. 57 aforesaid can be attracted in the context of this application.
22. Then, it has been urged for the applicants that the parties to the decree were not properly arrayed and that due relief was not sought against the real parties. Besides, no relief was or could be sought against the defendant, Chairman, Evacuee Trust Board, in view of section 14 of the Evacuee Trust Properties Act, XIII of 1975, and, now, it has been shown that the No-Objection Certificate, allegedly, issued by such Chairman, basis/foundation of the cause of action, was never issued and even though challenged in these proceedings none is forthcoming. In other words, such defending party was not pro forma at all. If this were so, and, prima facie, it seems to be that way, such exercise may have ingredients of fraud about it. In that case, on proof, the rule laid down by the Supreme Court in Jalaldin v. Asghari Begum 1984 SCMR 586 may very well apply.
23. It is next urged that the decree, assailed, is a nullity and need not even be set aside. Mr. Choudhry Fazal Hussain for the defendants-applicants would want me to refer to Yousuf Ali v.
Muhammad Adam Zia PLD 1958 SC 104 and Khuda Bux v. Khushi Muhammad PLD 1976 SC 208 on the point. I am afraid it is too early to make any such observations. All this must await due conclusion of these proceedings and it is then alone that relevancy of such references can be examined.
24. At this stage, all that I can opine is that there are fair questions in this application, which would require detailed examination in due course.
25. With these observations, I am of the view that the application under reference is, prima facie, competent and should come up, in the ordinary course, for consideration and disposal according to law.