1. This order will dispose of C.M.A. No.2896 of 1995 in Suit No.230 of 1992, C.M.A. No.2898 of 1995 in Suit No.231 of 1992, C.M. A. No.3000 of 1995 in Suit No.252 of 1992 and C.M. A. No.3002 of 1995 in Suit No.253 of 1992 respectively. The background of the matter is as follows: Admiralty suits bearing Nos.230/92, 231/92, 252/92 and 253/92 were filed in the Court and the prayer of each of the suits is as under: Admiralty Suit No 230/92
(a) For a decree in the sum of Rs.89,19;596 with mark-up @ 16 % per annum on the decreed amount from the date of the institution of the suit till realisation.
(b) For the issuance of a warrant for arrest of the vessel m. v. "I. VAN" before judgment to be taken into custody of this Hon'ble Court as security for payment of the decreed amount and if the said is not paid, the same be realised out of the sale proceeds of the defendant No. 1.
2. Admiralty Suit No.231/92:
(a) For a decree in the sum of Rs.29,94,861 with mark-up @ 16% per annum on the decreed amount from the date of the institution of the suit till realisation.
(b) For the issuance of a warrant for arrest of the vessel m. v. "I. VAN" before judgment to be taken into custody of this Hon'ble Court as security for payment of the decreed amount and if the said is not paid, the same be realised out of the sale proceeds of the defendant No. 1.
3. Admiralty Suit No.252/92:
(a) For a decree in the sum of Rs.27,50,160 with mark-up @ 16% per annum on the decreed amount from the date of the institution of the suit till realisation.
(b) For the issuance of a warrant for arrest of Vessel m. v. "I. VAN" before judgment to be taken into custody of this Hon'ble Court as security for payment of the decreed amount and if the said is not- paid, the same be realised out of the same proceeds of the defendant No. 1.
4. Admiralty Suit No.253/92:
(a) For a decree in the sum of Rs.27,50,160 with mark-up @ 16 % per annum on the decreed amount from the date of the institution of the suit till realisation.
(b) For the issuance of a warrant for arrest of Vessel m. v. "I. VAN" before judgment to be taken into custody of this Hon'ble Court as security for payment of the decreed amount and if the said is not paid, the same be realised out of the same proceeds of the defendant No. 1.
5. This Court while hearing C.M.As. Nos.547/92, 549/92, 623/92, 625/92 passed an elaborate order. The concluding para. Of which reads as under: "The plaintiffs having established prima facie claim, as above, to damages from the defendants, tile defendant No. l vessel is liable to be arrested. The orders arresting the ;:vessel are, therefore, hereby confirmed but it will be free to leave upon furnishing security for a total amount of Rs.4,966,104 which is made up of the amounts claimed by the plaintiffs, respectively, in all the suits for difference in market price; Rs.267,320, on account of cargo claims and Rs.11,02,500 on account of demurrage. The plaintiff's interest in the last two amounts will be to the extent of the cargo of each of them. The total amount of security to be furnished is, thus, Rs.6,335,924."
6. On 29-3-1993 draft issues were submitted on behalf of the parties by consent the same were adopted by the Court. The learned counsel for the plaintiff filed application under Order 23, Rule 1 read with section 151, C.P.C. Mentioning therein that accordingly a bank guarantee was furnished by ANZ Grindlays Bank on behalf of the defendants on 10-5-1992. That apart from the above suit certain other disputes are also pending in arbitration in London. That the parties have now resolved their disputes out of Court and it has been agreed that the suits as well as the arbitration will be withdrawn and none of the parties to the suits or the arbitration proceedings will have any claim of any nature whatsoever against the other parties. The Court on 24-12-1995 passed the following order: "Learned counsel for the plaintiffs has filed today an application under Order 23, Rule 1 read with section 151, C.P.C. Seeking withdrawal of the suit. Learned counsel for the defendants has no objection. The application is granted and the suit stands disposed of as withdrawn.
7. The bank guarantee furnished by the defendants is discharged and the bank guarantee be returned to the learned counsel for, the defendants.
8. On 31-12-1995 while hearing of C.M.A. No.2896 of 1995 this Court passed the following order: Mr. Khalid Anwar, Advocate for the plaintiff.
1. Granted subject to all just exception.
9. 2.Mr. Khalid Anwar states that after disposal of this suit on 28-12-1995, they have discovered that the fax message purportedly sent by M/s. Newman Clarkson & Co. Ltd. Dated 22-12-1995 was a forgery and that no payment was received by the said M/s. Newman Clarkson & Co. Ltd. The learned counsel prays for an order restraining the defendant from encashing the Bank Guarantee.
10. Order accordingly."
11. I have heard Mr. Khalid Anwar, learned counsel for the plaintiffs arid Mr. Mansoorul Arfin, the learned counsel for the defendants.
12. Mr. Khalid Anwar, the learned counsel for the plaintiff has contended that on December 28, 1995 it was found that fax message purportedly sent by Newman Clarkson & Co. Ltd. Dated December 22, 1995 stating that they have received a bank draft in the sum of US $ 1000,000 was a forgery and that no payment have been received by Messrs Newman Clarkson & Co. Ltd. And that order of withdrawal of the suits/discharge of the guarantee was procured by means of fraud. Learned counsel has referred para.2 of the plaint which is as follows: That the plaintiff, alongwith other importers imported from the United Kingdom (U.K.) a consignment consisting of 12600 M/tons shredded scrap iron and steel fully described in the Invoice dated 17-12-1991 attached herewith. The Shippers M/s. Newman Clarkson & Co. Ltd., Furnace Farm, Colemans Hatch, Hartfield, East Sussex TN7 4EH England (U.K.) shipped on board the vessel (defendant No.1) (previously known as "EX-GIOVANNAS") in good order and condition at South Sheilds U.K. The said consignment for delivery to the plaintiff at Karachi, and the Master as agent of the owner issued a prepaid Bill of Lading Nos.001 and 003 dated 16-12-1991.
13. Learned counsel for the plaintiffs has referred to the various Annexures ' A' to N' filed with the application and specifically the wording of Annexure ' A' is as under: "------.As a sign of good faith Owners London lawyers will hand over personally a bank draft of USD 20000 to Mr. Vayani at their offices simply against his written confirmation of this agreement, and the balance of USD 55000 immediately the suits are withdrawn and the guarantee released. "
14. The actual wording of Annexure ' C' is as under: "If this is the case, owners want to know whether payment can be made totally to Majeed Vyani in London and what arrangements you intend to make to release the guarantee bearing in mind the Court is closed for winter vacations. "
15. The relevant portion of Annexure ' D' is as under:
(a) A bank draft in the sum of US $ 100,000 in favour of Messrs Newman Clarkson & Company Limited to be handed over to the said Company.
(b) A letter from the owners to the arbitrators as per draft attached
(c) Admiralty Suits Nos.230, 231, 252 and 253 of 1992 to be withdrawn by my clients with the consent of your clients with a specific order being obtained from the Court that the bank guarantee to stand discharged and confirming that none of the parties to the suits and/or arbitration proceedings and/or otherwise have any claim of any nature whatsoever against each other.
(d) The above to be completed by December 31, 1995.
16. I further confirm that it is possible to obtain such an order during the winter vacations since a vacation judge is normally available in the Sindh High Court. The presence of the owner's lawyer will however be required to confirm the above terms of withdrawal.
17. I suggest that if the above is acceptable to the owners a bank draft in the sum of US dollars one hundred thousand be handed over to Messrs Newman Clarkson & Company Limited under intimation to me. In the event that the bank draft is handed over forthwith I will be able to withdraw the suits on Sunday, December 24, 1995, which is a working. Day in Pakistan."
18. The wording of Annexure ' F is as under: "We have received a bank draft, payable to ourselves, in the sum of US $ 100,000, from Solicitors acting on behalf of the Owners of the above vessel, Won Shipping Inc.
19. We are instructed that this payment is in full and final settlement of all contentious matters between the Owners and the Receivers/Charterers, currently proceeding in Karachi and London.
20. We are further advised that this settlement is made on the clear understanding that Admiralty Suits Nos.230/231/252 and 253 of 1992 in Karachi are to be withdrawn and that a specific order be obtained from the Court discharging the bank guarantee on December 24, 1995, and that none of the parties have any further claims of any nature against one another.
21. We shall hold the draft pending receipt of your confirmation that the foregoing arrangements have been satisfactorily concluded, which we understand must be completed within December 31, 1995.
22. The relevant wording of Annexure ' L' is as under: "Please understand that at no time have we received a draft from Won Shipping. Please also understand that the fax purporting to have been sent by Robert Abel Smith is a forgery," and The relevant portion of Annexure ' N' is as under: "We confirm we have never had instructions to prepare a banker's draft and hand same over to Newman Clarkson & Co. Ltd. Nor only instructions are as advised to you and the tribunal to prosecute the arbitration. "
23. They remain our instructions until counter-manage.
24. Mr. Khalid Anwar, the learned counsel has contended that forgery is carried on through the fax message and the facts of the case are not denied in the counter-affidavit filed by Giles de Bertodano to this C.M.A. That fraud is established beyond any reasonable doubt. That no power of attorney is filed in the suits. That counter-affidavit is sworn in United Kingdom of Great Britain and Northern Ireland which is barred under Rules 52 and 53 of the Sindh Chief Court Rules (O. S.) and provisions of which are as under: "52. The Registrar, Appellate side, the Registrar (O.S.) the Deputy Registrar, the Official Commissioner, the Nazir, the Deputy Nazir and the Sheristedars on the original and Appellate sides shall be ex officio Commissioners for taking affidavits in respect of matters and causes to be instituted or instituted in the Chief Court.
53. Every affidavit shall be entitled in the suit or matter in which it is sworn or affirmed; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively and that there are other plaintiffs or defendants as the case may be.
25. According to Mr. Khalid Anwar a perusal of the document clearly shows that oath was administered by the Third Secretary, High Commission for Pakistan to Giles de Bertodano. He has also referred section 139 of C.P.C. Which reads as under: Section 139. Oath on affidavit by whom to be administered.--In the case of any affidavit under this Code--
(a) any Court or Magistrate, or
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the Provincial Government has generally or specially empowered in this behalf, may administer the oath to the deponent."
26. Mr. Khalid Anwar, the learned counsel has also stated that High Commission of Pakistan does not take responsibility of the documents that in law this counter-affidavit has no legal value. Mr. Shaiq Usmani has refused to act as counsel for the defendant. This statement at Bar was made by Mr. Khalid Anwar during the course of the arguments. Mr. Khalid Anwar has referred (1) Saifur Rehman and others v. Haider Shah and another (PLD 1967 SC 344), (2) Muhammad Idris Khan v. Haji Erfanuddin (PLD 1958 Dacca 132), (3) Mst. Safia Bibi v. Mst. Aisha Bibi (1982 SCM R 494) (4) Ghulam Muhammad v. M. Ahmad Khan and others (1993 SCM R 662), (5) Sultan Mir and others v. Umar Khan and others (1992 SCMR I;06), (6) Abdur Rahim v. Sirajuddin and others (1992 SCM R 1741), (7) Syed Ghulam A.I Shah v. The Deputy Commissioner and Incharge, Settlement Call, Sangar and others (1984 CLC 1729).
27. Mr Mansoorul Arfin, the learned counsel for the defendants has contended that objection on behalf of the plaintiffs that counter-affidavit is not sworn before the Registrar or other Officers as required under the Sindh Chief Court Rules (O.S.) is -not tenable. Mr. Mansoorul Arfin has referred Pakistan Code, Volume II page 25, The Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. It is, however, pertinent to reproduce section 3 of the Act and in view of the provisions of this Act the counter-affidavit to C.M.A. 2896/95 filed by Giles de Bertodano is attested by Khalid Mahmood, Third Secretary of the High Commission of Pakistan as such objections raised by Mr. Khalid Anwar are not sustainable. Miss Sofia Saeed daughter of Muhammad Saeed has filed affidavit in this Court stating therein that she is attorney of defendant No.2 in the matter and as such she is well conversant with the facts of the suits. That application filed by the learned counsel for the plaintiff under Order 23, Rule 1, C.P.C. Does not bear the signature of the learned counsel for the defendant.
28. That no decision was announced by the Court as such no fraud was committed. That name of solicitor is not mentioned in Annexure ' E' . That letter does not speak of US $ 100,000. That affidavit of Robert Abel Smith is not filed. That for comparison of the signature there is no material before the Court. That there is no proof that letter is not signed by Robert Abel Smith. That burden of proof is on the plaintiff to prove that the letters are not signed.
29. Mr. Mansoorul Arfin, the, learned counsel for the (1) Abdul Ghani v. Haji Saley Muhammad (PLD 1960 Kar. 594) defendants has referred (1-A) Messrs Gammon-Laytonm, Karachi v. Secretary of State for the United States of America (PLD 1965 (W.P.) Karachi 425), (2) Messrs Conforce Ltd. v. Syed A.I Shah and others (PLD 1977 SC 599), (3) Pehalwan Khan v. Mrs. Najma Mujtaba (1986 CLC 1735), (4) Allah Wasaya and others v. Irshad Ahmad and 4 others (1992 SCM R 2184), (5) Lal Khan v. Additional District Judge, Jhelum and others (1993 CLC 731), (6) Mst. Mulia v. Partab (AIR 1924 Nag. 325).
30. It would be advantageous to reproduce section 12(2) of the C.P.C. Which says: Section 12(2).--Where a person challenges the validity of a 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 passed the final judgment, decree or order and not by a separate suit." '
31. I would like to discuss the authorities cited by the learned counsel for .The plaintiffs.
(1) In the case of Saifur Rahman (PLD 1967, SC 344) the Hon'able Supreme Court observed: "---.The term 'fraud' in this section has to be interpreted in a liberal sense as including any improper means resorted to for preventing execution. It covers not only deceit but also circumvention."
(2) In the case of Muhammad Idris khan (PLD 1958 Dacca 132) the learned Judges observed as follows: "No order obtained by practising fraud on the Court and on the parties should be allowed to stand on record. If it be allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances."
(3) In the case of Mst. Safia Bibi (1982 SCM R 494) the Hon'ble Supreme Court has held: "We have again heard arguments today. Learned counsel for respondent No. l has contended that although allegation of misrepresentation has been made against Abdul Khaliq, who acted as attorney of the petitioner-appellant at the time of the disposal of the writ petition by the High Court, his client, that is, respondent No. l is not at fault and further that if an enquiry had been held the said respondent would have brought on record certain more facts and would also have relied on the law of agency."
32. Section 12(2) of the Civil Procedure Code reads as follows: "12(2).---Where a person challenges the validity of a 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 -passed the final judgment, decree or order and not by a separate suit."
33. The forequoted provisions were newly-added by an amendment through an Ordinance in March, 1980. The High Court passed the first order in October, 1980. The amendment, it appears, was not published in the journals within reasonable time. This, it further appears, seems to be the reason why the learned counsel failed to bring it to the notice of the learned Judge when the application is strengthened by the fact that the provisions of the Civil Procedure Code (unamended) were mentioned in the application submitted by the appellant in the High Court, it cannot be denied that mention of a wrong provision of law in an application would not deprive the Court of the power and jurisdiction if otherwise the same is available under the law."
(4) In the case of Ghulam Muhammad (1993 SCM R 662) the learned Judge of the Supreme Court held: "Before the amendment of section 12, C.P.C. And incorporation of subsection (2) therein, the validity of judgment, decree or order procured by practising fraud and misrepresentation, could be challenged through a suit. The availing of this remedy was quite encumbersome. The institution of the suit resulted in a fresh round of litigation between the parties or between the persons adversely affected by such decree and the decree-holder. Such suit was not necessarily heard by the same Court which passed the decree and could be laid down before any Court of competent jurisdiction.
34. Further, the ultimate decision of the suit entailed a fairly long time. During, the pendency of the suit invariably the proceeding as to the execution of the decree remained stayed. Subsection (2) of section 12 enacted by virtue of Ordinance 10 of 1980 expressly ordains that the validity of judgment and decree obtained by fraud and misrepresentation can be assailed through an application to the Court, which passed the final judgment, decree, order and not by a separate suit. Seemingly, two-fold purpose is sought to be achieved by the amending provision, firstly for jurisprudential point of view it is the obligation of the Court on whom the fraud is practised to undo the fraud. Such application lies before the Court passing the final judgment, decree or order. Since on appeal or revision, against the judgment, decree or order, obtained by fraud, the matter is re-opened before the Appellate or Revisional forum, as the case may be, the application has to be filed before the higher Court seized of such matter. Secondly by conferment of the remedy through a 'simple application, the litigating party is to a large extent, saved from the hardship and encumbersome procedure involved in prosecuting a suit and the delay in the final decision thereof. It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record -evidence if the facts of a particular so demand. So far as the instant case is concerned, undoubtedly, the respondents placed on the High Court's file an affidavit in support of their application but as stated in the impugned judgment the appellant did not file any reply to the application controverting the facts stated therein. There was thus no occasion for framing the issues. Had the appellant filed a counter---affidavit, he could well request the Court for permission to cross---examine respondent No.2, and lead other evidence to rebut the contents of the affidavit. We have gone through the High Court's record and noticed that at no stage the appellant asked for permission to produce evidence. The High Court was thus, not wrong in relying upon the respondent's affidavit. No exception, therefore, can be taken to the procedure followed by the High Court in deciding the application. The fact that the revision will be re-heard and the appellant, or for that matter respondents Nos.5 to 7 will have an opportunity to persuade the High Court that no fraud was committed, is another factor to dissuade us from interfering with the impugned order."
(5) In the case of Syed Ghulam A.I Shah (1984 CLC 1729) the learned D.B. Of this Court was pleased to observe: "...There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court. Or Tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a Tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud.
35. I would also like to discuss the authorities cited by Mr. Mansoorul Arfin, Advocate:,
(1) In the case of Abdul Ghani (PLD 1960 (W.P.) Karachi 594). His lordship Wahiduddin Ahmed, J. (as he then was) has held: "It, however, appears to me that a decision =cannot be considered on merits unless and until it is based on consideration of some evidence on the question under consideration because if this view is not accepted the observations of their lordships of the Privy Council in the abovementioned case will have no significance. Their Lordship's observations 'that he (defendant) was treated as though he had not defended and judgment was given upon that the defendant had not chosen to defend is not a judgment on merits."
36. This authority is quite different and distinguishable from the facts of the present case. The matter reached before this Court in Civil Revision Application wherein Haji Saleh Muhammad, the opponent, on 17th January, 1955 obtained an ex parts decree for a sum of Rs.1,387.50 in Suit No.17043/S from the District Court of Colombo under the Summary Chapter on the basis of a cheque dated 21st January, 1954 drawn on behalf of Messrs A. R. Dada & Company, Colombo on Eastern Bank, Limited Colombo in his favour against the petitioner and one Abdul Rehman Muhammad Ishak as partners of the said partnership business. In my humble view this authority is not helpful to the case of Mr. Mansoorul Arfin because the plaintiff has filed this application as stated hereinabove in a suit which was decided by this Court in its original jurisdiction and application under section 12(2), C.P.C. Is filed and according to learned counsel for the plaintiff fraud has been committed by the defendants not only with the plaintiff but with the Court also, as such this authority is not applicable to the facts of the present case.
(2) In the case of M/s. Gammon-Layton, Karachi (PLD 1965 (W.P.) Karachi 425), the facts of this case are that defendant entered into a contract No-S. 195-FBO-100 dated June 28, 1957 with the plaintiffs (Messrs Gammon --Layton for the Construction of the U.S. Embassy Office Building, Warehouse and Garages at Karachi. After this work was completed its possession was handed over to the defendant who was in its occupation. Some dispute arose between the parties in respect of the claim of the plaintiff with the result that it invoked the arbitration clause of the contract agreement and appointed Mr. Manzar-e-Alam as Arbitrator but the defendant failed to appoint its nominee.
37. Defendant appeared before the Arbitrator under protest and claimed sovereign immunity but Mr. Manzar-e-Alam proceeded with the arbitration and made his award and filed application in the Court under section 14(2) of the Arbitration Act with a request that the award be made the rule of the Court. The defendant raised the plea that Secretary of State for the United States of America, the defendant is entitled to sovereign immunity i.e., "Protective Umbrella". In this background of the matter the learned Judge Kadir Nawaz Awan (as he then was) overruled the objection and was pleased to order that award be made rule of the Court. The facts of this case are quite different from the facts of the present case and is not applicable to the present case.
(3) In the case of Messrs Conforce Ltd. (PLD 1977 SC 599), the observation of the Hon'ble Supreme Court is as follows: "------.Be this as it may, this second application was not maintainable, but as the petitioner had also invoked the provisions of this section, cannot be invoked to defeat the provisions of Civil Procedure Code nor can they be invoked to further injustice or to condone gross negligence.
38. Therefore, this second application was only fit to be dismissed and was dismissed, and no exception can be taken to the order of the High Court in dismissing the Revision of the petitioner. "
39. As already pointed out hereinabove, the plaintiffs have filed application under section 12(2), C.P.C.
40. Giving full background of the fraud allegedly to have been committed by the defendants.
41. Therefore, this authority has no relevancy whatsoever with the facts of the present case.
(4) In the case of Pehalwan Khan (1986 CLC 1735), First Rent Appeal was filed in this Court under Sindh Rented Premises Ordinance which was allowed by this Court. The facts of this authority have no relevancy with the facts of the present case.
(5) In the case of Allah Wasaya and others (1992 SCM R 2184), the facts of this case are that Khuda Bakhsh respondent No.4, Hassan Bakhsh, predecessor-in-interest of appellants 1 to 5 and Mukhtar Ahmad appellant No.6 purchased land measuring 54 Kanals 3 Marlas vide Mutation No.347 for a sum of Rs 54,000 from one Hafeez Ahmed which gave rise to a pre-emption suit filed by Irshad Ahmed Mst. Faiz Illahi and Sultan Ahmed respondents 1 to 3.
42. Mukhtar Ahmad was shown as minor and Khuda Bakhsh was appointed as guardian ad item for him. The suit was contested by the defendants and they in their written statement denied the superior right of pre-emption of the plaintiffs/pre-emptors and claimed to have purchased the suit land for a sum of Rs.82,000. During the course of proceedings an offer was made by the plaintiffs/pre-emptors that Khuda Bakhsh defendant No. l states the exact amount spent by him on the purchase of the suit land through or on the Holy Qur'an, they are ready to accept the same as sale consideration. Khuda Bash defendant No.1 accepted the offer and by taking oath on the Holy Qur'an stated that the defendants had spent Rs.81,700 on the acquisition of the suit land through purchase. He also accepted the superior right of pre-emption of the plaintiffs/pre-emptors on account of their being collaterals of the vendors. On the basis of this oath the suit of the plaintiffs/pre-emptors was decreed vide judgment and decree dated 18-5-1986 in lieu of Rs.81,700.
43. Thereafter Allah Wasaya and other appellants filed an application under section 12(2) of C.P.C. On 30-9-1987 challenging the judgment and decree dated 18-5-1986 on the ground of fraud and collusion on the plea that specific permission of the Court on behalf of the minor was not secured according to law and that Hassan Bakhsh had already died prior to the offer of oath and his heirs having not been brought on the record the decree obtained on the strength of oath was as a result of collusion between the plaintiffs/pre-emptors and Khuda Bakhsh defendant/respondent. In this background the Parties contested the matter and the Hon'ble Supreme Court was pleased to dismiss the appeal. The facts of this case in my humble view are also not attracted to the present case.
(6) In the case of Lal Khan (1993 CLC 731), the facts of this authority are also not favourable to the case of the defendant because in the case in hand learned counsel for the defendant was present who endorsed his no objection for allowing application of plaintiff filed under Order 23, Rule 1, C.P.C.
44. And consequently the same was granted by the Court. Therefore this authority is also not applicable to the present case.
45. The learned counsel has also referred an Indian authority Mst. Mulia (AIR 1924 Nagpur 325). In this case the learned Judge has held that a Court cannot invoke its inherent jurisdiction where there is a provision, in the Code which would meet the necessity of the case. This authority in my humble view is not attracted in this case because application filed by the learned counsel is under section 12(2), C.P.C. Alleging fraud to have been committed by the defendant with the plaintiff and the Court.
46. I have gone through the material placed with the case and the orders of this Court dated 30-4- 1992 under which orders arresting the vessel were confirmed and securities from the defendants were called for. The learned counsel for the plaintiff filed application under Order 23, Ruse 1, C.P.C.
47. Referred hereinabove alongwith the order. The relevant portion of the order is an follows which has already been reproduced in the earlier part of the judgment.
48. "....Learned counsel for the defendants has no objection. The application is granted and the suit stands disposed of as withdrawn." prima facie; clearly shows that suits were withdrawn by the plaintiffs in pursuance of the agreement arrived at between the parties outside the Court which is mentioned to the application referred hereinabove. Thereafter when Mr. Khalid Anwar filed this C.M.A. Notice was served on Mr. Shaiq Usmani who appeared for the defendant in Court and stated that he may be discharged from appearing on behalf of the defendants and accordingly Mr. Shaiq Usmani was discharged by the Court. Mr. Khalid Anwar stated at the bar during the course of the argument that on account of fraud so committed by the defendants Mr. Shaiq Usmani did not want to appear on behalf of the defendants in this matter.
49. The provisions of section 12(2) referred hereinabove are clear where the Court is authorised to allow remedy on an application by the Party alleging fraud, misrepresentation whereby filing of separate suit is not necessary. The material filed by the learned counsel for the plaintiff specifically Annexure 'M' . The alleged document of fraud proves that actually fraud has been committed not only with the plaintiffs but also fraud is committed with the Court. Apparently there was no reason for the plaintiff to withdraw the suits when under orders of the Court defendants have submitted securities before the Nazir of the Court, application and order of the Court referred hereinabove in the earlier part of the order shows that plaintiffs on the understanding and the settlement arrived at between the parties outside the Court was a compelling factor which compelled the plaintiffs to withdraw the suits otherwise it does not appear to a common sense that without any proper understanding and without having any settlement with the defendants the plaintiff could have withdrawn the suits, logically the plea that fraud is not committed and that plaintiffs have withdrawn the suits on their own accord does not appear plausible. The contention of Mr. Mansoorul Arfin that plaintiffs are required to file separate suit for their grievance if any is also not tenable. Section 12(2), C.P.C. Has been introduced in the statute in order to simplify the matter and if any fraud or forgery is committed the party can move the Court without filing separate suit which sometime becomes encumbersome for the party and in the multiplicity of the suits so much time is consumed. The counter-affidavit filed the Giles de Bertodano to this C.M.A. Is not denying the facts. It is fact that fax messages are not denied in this counter-- affidavit. However contention of Mr. Khalid Anwar that this counter-affidavit is barred by Rules 52 and 53 and section 139, C.P.C. Is not tenable in view of the provisions of section 3 of Act No.XXI of 1948 referred hereinabove. The contention of Mr. Mansoorul Arfin that application filed by the plaintiff under Order 23, Rule 1, C.P.C.
50. Does not bear the signature of the learned counsel for the defendants is not tenable because order of the Court clearly shows that, order was passed in presence of Mr. Shaiq Usmani, the learned counsel for the defendant who raised no objection and thereafter application was granted. The contention of Mr. Mansoorul Arfin that no decision was announced by the Court as such no fraud was committed is also not sustainable. Application was filed in the Court and the learned Judge in presence of the learned counsel for the defendants allowed the application. Application itself shows that there was some understanding between the parties outside the Court and in pursuance of the same the suits were withdrawn. The contention of Mr. Mansoorul Arfin that affidavit of Robert Abel Smith is not filed and that there is no material for comprising the signature of Mr. Robert Abel Smith is also not sustainable. The provision of section 12(2) referred hereinabove lays down that the validity of a judgment, decree or order on the plea of fraud, misrepresentation, is challenged the same can be decided by the Court who has passed the order. In this matter also the orders allowing withdrawal of the order was passed by this Court and Mr. Khalid Anwar has rightly approached this Court. I have gone through the authrorities referred by Mr. Khalid Anwar are very much relevant aria applicable to the facts of the present case.
51. I have gone through the material placed with the matter, considered the case-law, discussed hereinabove and most respectfully I follow the same. Upshot of the above discussion is that I allow these applications as prayed with no order as to costs.
52. Consequently the interim orders dated 31-12-1995 are hereby confirmed. Order accordingly.