ORDER RASHEED AHMAD RAZVI, J.- This petition under Section 12(2) C.P.C, has been filed by the petitioners who claims to be the lawful and bona fide owner of the House No. A-355, Block-D, North Nazimabad, Karachi (hereinafter referred to as suit property). In this petition, it is prayed by them that the judgment and decree dated 28-01-1992 in Suit No. 313/1991 passed by this Court be recalled/set aside/reviewed on the ground that the same Was obtained by misrepresentation, fraud and concealment of facts.
2. The present petition was filed on 1-8-1996, the first opening day of this Court after summer vacations, while the impugned judgment/decree was passed on 28-1-1992. Admittedly, the instant petition is filed after a lapse of more than 4-1/2 years, therefore, Mr. Zafar Alam Khan was asked to satisfy the Court on the question of limitation. It is settled law that for filing an application under Section 12(2) C.P.C., it is Article 181 of the Limitation Act. 1908 which governs such cases and which provides filing of such application within three years from the date when the right to apply accrues.
In reply, Mr. Zafar Alam Khan has stated that firstly, the present petitioners were not parties to the original, suit and. Secondly, they came to know about the ihstant decree from a letter dated 15-2- 1996 addressed to them by one Assistant-Director-II (N.N.K.D.A.) who refused to mutate the K.D.A, record in respect of suit property on the ground that one Rasheed Ahmed Butt, who was plaintiff in the original suit, has filed a decree claiming his ownership. It is further stated by Mr. Zafar Alam Khan that the copy of decree filed before the K.D.A, shows the number of Suit as 313/1989 instead of 313/1991 and, therefore, it took further period of 4/5 month's'to locate the case file. According to the learned counsel, the time would run from the date of knowledge i.e. 15.2.1996. He further asserted that when admittedly the petitioners are in physical possession of the suit property still no attempts were made for its vacation by the respondents who had opportunity to inform the petitioners earlier about the suit and decree passed. On the question of limitation, reliance is placed by the learned counsel on the cases Muhammad Iqbal and another v. Muhammad Alamgir and others > 1G90 SCMR 1377). Mst. Amtul Kabirand others v. Safia Khatoon and others (1991 SGMR 1022), Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCM R 917) and Mst. Kubra Begum and others v. Mst. Shad Begum and others (1993 SCMR 1096). There is no cavil to this proposition that Article 181 of Limitation Act applies to a petition under Section 12(2) C.P.C,
3. In the instant case, the respondents (plaintiff and defendant of the Suit) failed to file any objections or opposition to this petition. There is no denial to the fact that the petitioners came to know about the impugned judgment/decree through the K.D.A, letter dated of 15-2-1996. The allegation that the petitioners are in physical possession of the suit property much earlier that the date of suit has gone unrebutted. Therefore, in . Such circumstances, I am inclined to take the date 15-2-1996 as the date from where the time started running for filing petition under Section 12(2)
C.P.C. I am also of the view that where a petitioner was party to a suit, himself or through his representative, then the time for the purpose of limitation is to be reckoned from the date of such judgment/decree or from the date of knowledge when he came to know about fraud or misrepresentation. But where a person who was not a party1 to the suit, as of instant case, then the period of three years will start running from the date of the knowledge of such judgment/decree. It is observed that the burden would be upon such person who pleads ignorance about passing of judgment/decree against his interest and who pleads that his case falls in the second category as mentioned above. The petitioners, in the present proceedings, have successfully established that for the first time they came to know about the impugned decree on 15-2-1996, therefore, this petition is within time.
4. Coming to the facts of the case, respondent No. 1 namely Rasheed Ahmed Butt, who is former husband of Saadia Suyen, respondent No. 2. Filed a suit (Suit 313/91) for declaration and possession before this Court against his former wife claiming, inter alia, that the suit property' which was purchased in October, 1985 was from his sources and that defendant No. 2 who is now respondent No. 2 in these proceedings was merely a benami owner. In the said suit, he admitted his marriage with her as well as divorce which took place on 15-3-1988. It is pertinent to note that in the plaint, the plaintiff/respondent No. 1 alleged that the defendant No. 2/respondent No. 2 had neither any source of income nor she had brought any money from China. At the same time, he has admitted in para 6 of the plaint that she opened an Acupuncture Clinic in the suit property and was running the same. Mr. Zafar Alam Khan has rightly pointed out that this is a mutually destructive plea.
Whoever, the respondent No. 2/defendant No. 2 could not be served in the suit as admittedly she went back to People's Republic of China after dissolution of her marriage with the plaintiff and at the time of filing of suit she was not in Pakistan which fact was concealed by the respondent No. 1/plaintiff. The fact, that the respondent No. 2/defendant No. 2 was not in Pakistan and some other person was occupying the suit property is also supported by the postal remarks appearing on the envelope through which summons of the suit were returned unserved and also from the bailiffs reports. It was under these circumstances that this Court refused to grant relief of possession to the respondent No. 1/plaintiff. It would be advantageous if the relevant portion of the impugned judgment dated 28-01- 1992 is reproduced:- It is the case of the plaintiff that the property at which the defendant has been residing was purchased in the name of defendant with the funds of the plaintiff and that the transaction was a Benami one. Since none has appeared to dispute that proposition such has to be accepted. At the same time according to the Bailiffs report somebody else is in current occupation of the property and if he be a tenant even if of the ostensible owner such tenant may not be evicted except in due course of law. Subject to this and subject to the rights of any third party in actual possession the suit of the plaintiff is decreed as prayed but the decree shall carry no costs." (underlining is mine).
5. I have heard Mr. Zafar Alam Khan. Advocate for the petitioners.
None has appeared for respondents, although respondent No. 1/plaintiff was served and he has engaged advocate Mr. Syed Ishtiaq Ali Kanhorvi of Karachi Division who filed his Vakalatnama on 11-11-1996. This Vakalatnama is signed by Rasheed Ahmed Butt. I have compared his signatures on this Vakalatnama as well as on the plaint in Suit No. 313/91 and found both the signatures to be same and appear to be executed by one and the same person. Respondent No. 2/defendant could not be served through ordinary course, therefore, substitute service was ordered by publication of summons/notices in newspaper daily 'Dawn' dated 25-11-96. Summons/notices sent through foreign post to the respondent No. 2/defendant were returned unserved. However, the said respondent was duly served by publications the daily newspaper. All these newspapers, unserved envelopes and bailiff's reports are available on case file. As a result of all the above-noted efforts, the sendee of summons/notices on respondents were held good. Even today, none has appeared on behalf of respondents. Therefore, I was left with no option but to hear Mr. Zafar Alam Khan who was insisting to proceed with the case. In these circumstances, I had taken up hearing at 12:30 p.m.
6. It is contended by Mr. Zafar Alam Khan that the petitioners are lawful and bona fide owners of the suit property as they have purchased the same from respondent No. 2/defendant through a registered sale deed dated 2-1-1991 which is Annexure 'A' to the petition. It is further contended that since January, 1991, the petitioners are physically occupying the suit premises which was in the knowledge of respondent No. 1/plaintiff who had 'filed the suit on 4-3-1991 but he did not implead the present petitioner. Even on the day when the judgment/decree was passed i.e. On 28-1-1992, the plaintiff concealed this fact. In support of his plea that the respondent No. 2/defendant was not a simply household lady but was a working woman and was earning more than her former husband, the learned counsel for the petitioner has filed several document alongwith this petition to show that She was running an Acupuncture Clinic and was having a full-fledged up-to-date clinic. Learned counsel for the petitioners further submitted that she obtained loan from National Bank of Pakistan after mortgaging her suit properly and hypothecation of stocks lying in the said clinic which further indicates that the total valuation of all these goods and other household articles was worth Rs.5,00,000/- approximately in the year 1986. Mr. Zafar Alam. Advocate argued that by concealing these material facts and through means of misrepresentation, the respondent No. 1/plaintiff has obtained judgment and decree dated 28-01-1992. By playing fraud upon this Court Which is liable to be set aside.
7. I have gone through the contents of the plaint is Suit No. 313/1991 as well as contents of the instant petition and the documents filed therewith. In the suit, the plaintiff has alleged that after dissolution of barriage in the month of June, 1988, the defendant was still in occupation of the premises.. It is pertinent to note that in the application filed under Order V. Rule 20, C.P.C. (CMA- 4045/1991) in Suit No. 313/1991, the plaintiff had admitted in para 3 of the affidavit that it is very difficult to get the defendant served with summons through normal course since she had left/abandoned the jurisdiction of this Court and that she cannot be served except through substitute means. He further admitted in the said affidavit that he is not aware of -the whereabouts of the defendant. Marriage between plaintiff and defendant was dissolved in the year 1988 while suit was filed after a lapse of nearly 4 years. No explanation was offered for such delay. It appears that the suit was filed when apparently the defendant, who was Chinese by nationality, left this country. In such circumstances, it was incumbent upon the plaintiff to assertion as to who is in possession of the suit premises and what is the status of such occupier. But he made no efforts to do the same. Publication of summons in the suit was effected in a newspaper daily Morning News' dated 28-9-1991 which has insignificant circulation. All, these circumstances indicate that the plaintiff, for fraudulent motives concealed the most relevant and material facts from this Court and by misrepresentation and concealment succeeded in obtaining judgment and decree. All these elements constitute fraud which vitiates the most solemn proceedings.
8. I have gone through the documents filed with the petition. The petitioners have purchased the suit property through .a registered sale deed much prior to the date of suit and are occupying the same under the said sale deed. They cannot be deprived of their rights through judgment/decree obtained by misrepresentation and fraud. In these circumstances, I set aside the judgment/decree dated 28-01-1992 passed in Suit No. 313/1991.