1. ' This revision application preferred under section 115, C.P.C. Is fixed for Katcha Peshi but has been heard with the understanding that it would be admitted and disposed of finally.
2. ' The applicant claims to be the owner of the commercial Plot bearing No,38/C, 24th Street, Phase II (Ext.), Defence Officers Housing Authority, Karachi (hereinafter referred to as the subject property) having purchased the same from one Lt.-Col. Muhammad Ashraf on 19-1-1989. The transfer of the subject property was effected in favour of the applicant through Transfer Order No,DHA/SSI/WL- 5141, dated 9th April, 1992. According to the applicant he has been living in Saudi Arabia for the last several years and is employed there. Around the end of July, 1995, the applicant learnt about institution of Civil Suit No,567 of 1995 for declaration and injunction in the Court of IXth Civil Judge, Karachi (South) in respect of the subject property by the respondent No,l. Such information was received by the applicant on the basis of a letter dated 24th July, 1995 which was addressed to the applicant at his Karachi address by the respondent No,3 and was communicated to him in Saudi Arabia by his brother who lives in Karachi. The applicant, upon receipt of such information came back to Karachi immediately and made inquiry about the matter. The applicant found that the respondent No,1 had filed the above referred suit for declaration and injunction against the applicant and respondents Nos. 2 and 3, with the following prayer:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to pass the following judgment and decree in favour of the plaintiff and as against the defendants jointly severally:--
(a) DECLARATION: ' holding and declaring under the circumstances that the defendants 1 and 2 are liable to effect and finalize the deal of sale with the plaintiff and that none else, but the plaintiff only is entitled to Transfer of Plot No,38/C, 24th Commercial Street, Phase 2, Defence Housing Authority, Karachi, measuring 200 sq. Yards and that the defendants 1 and 2 are legally bound to complete the sale before the defendant No,3, by signing the requisite documents.
(b) INJUNCTION: ' prohibiting and restraiffing the defendants 1 and 2, and persons working for and under them, from encumbering the suit property in any manner, by way of Re-sale etc.;
(c) awarding costs of the suit; and
(d) granting any other relief or remedy."
3. ' The applicant was sued, as per the title of the plaint, through one Shabbir son of Yousuf Abdullah.
4. It was alleged in the plaint that the applicant had entered into agreement for sale of the subject property with the respondent No,1 through his alleged attorney named above; whereafter the respondent No,1 had got a notice published in the daily Dawn dated 3-5-1995 calling for objections.
5. Subsequently, the respondent No,2 purportedly acting as special attorney of the applicant notified loss of the original documents pertaining to the subject property through publication in daily Dawn dated 9-5-1995. It was further alleged in the plaint that the respondent No,1 had learnt about attempts by the applicant and respondent No,2 for sale of the subject property to other parties, and therefore, cause of action had arisen in favour of respondent No,1 for filing the civil suit as above. It was stated in para. Five of the plaint that the respondent No,3 was impleaded as a pro forma defendant and no relief was claimed against it. Such suit was presented in the Court of IXth Civil Judge, Karachi (South) on 15-5-1995. The suit was admitted, registered and notice/summons was ordered to the applicant and respondents Nos. 2 and 3 for 17-5-1995. On 17-5-1995, appearance was entered on behalf of the respondents and the applicant's alleged attorney. On the very date, an application under Order XXIII, Rule 3, C.P.C. Was filed which was signed by the respondents Nos. 1 and 2 apart from the alleged attorney of the applicant. The application was also signed by their respective counsels. The compromise application was in the following terms:-- "The plaintiff and defendants 1 and 2 (defendant No,3 a pro forma defendant, but orders are binding on the Authority) jointly make prayer that this Hon'ble Court may be pleased to decree the suit on the following terms and conditions:--
(1) That the defendants Nos. 1 and 2 (as the owner and attorneys of suit property), shall obtain certified copies of the title documents from defendant No,3 as per rules and against payment of usual costs therefor and deliver the same to the plaintiff within one week;
(2) that within one week from today, the defendants 1 and 2 shall complete and finalize the SALE and all formalities, including to SIGNING before the defendant No,3 as AUTHORITY;
(3) that the defendants 1 and 2 have already received the sale consideration from the plaintiff and do hereby admit and acknowledge receipt;
(4) that the plaintiff and defendants 1 and 2 shall bear their own costs."
6. ' On the next day viz. 18-5-1995, the IXth Civil Judge, Karachi (South) was pleased to decree the suit against the applicant and the respondent No,2 but kept it pending against the pro forma respondent No,3. On 5-7-1995, the respondent No,3 submitted its written statement in the suit and the contents of paragraphs 1 and 6 thereof, being relevant are reproduced as follows:-- "That the contents of para. 1 of the plaint are neither admitted nor denied for want of knowledge.
7. However, it is submitted that as per DHA records the suit Plot No,38/C, 24th Commercial Street, Phase II (Exten.) D.H.A., Karachi, was transferred in the name of Mr. John Paul on 9-4-1992 and Transfer Order was collected by his special attorney namely Dr. M.R. Iqbal on 11-4-1992 on the authority of Special Power of Attorney dated 5-1-1992. Beyond this Special Power of Attorney there is no other General Power of Attorney or Special Power of Attorney in our record in favour of any other person.
6. That as far as the prayer clauses of the plaint are concerned, it is submitted that plaintiff is not entitled to the relief as prayed as he has not made the owner (Mr. John Paul) of the property as a direct party in the suit but D.H.A. Record is silent as far as Attorney of Mr. John Paul is concerned. As such without notice and knowledge of Mr. John Paul any decree would be prejudiced. Furthermore the plaintiff has undervalued the suit. It is therefore, prayed that the plaint of plaintiff be rejected or returned in the interest of justice."
8. ' Quite strangely, on 17-7-1995, an application was filed on behalf of the respondent No,1, under Order XII, Rule 6, C.P.C. With the following prayer:--
(a) allow the plaintiff to notify in daily DAWN, the factum of decree in his favour inviting objection from John Paul or successors, if any; as suggested by Defence Housing Authority as defendant No,3; and
(b) then upon their admission, an order be passed that (i) D.H.A. At cost supply C.D.C. Of the suit property to defendant No,2 and (ii) complete all formalities of transfer in favour of plaintiff."
9. On 26-7-1995, the application under Order XII, Rule 6, C.P.C. Seems to have readily been granted in the following terms:- "This order will dispose of plaintiff's application under Order 12, Rule 6 read with section 151, C.P.C.
10. Moved against the remaining defendant No,3 on 19-7-1995. The matter then was fixed on 24-7-1995 for hearing of injunction application therefore notice of application under disposal was also sent for 24-7-1995 but on 24-7-1995 until 2-00 p.m. None appeared for Defence Housing Authority. It would be relevant to record that on 18-5-1995 that matter was compromised between the plaintiff and defendants 1 and 2 who were the main contesting parties. Accordingly the Defence Housing Authority has to furnish certified true copies of all relevant documents to the defendant No,2 who is the Special Attorney of the defendant John Paul, the owner "allottee of suit property on record".
11. ' On 5-7-1995 the D.H.A. Filed its counter-affidavit and written statement as pro forma defendant and admittedly stated that D.H.A. Will abide by the orders of this Court. However, D.H.A. Requested for proper notice to John Paul and on this basis the application under disposal was moved. The plaintiff has already notified in daily DAWN dated 19-7-1995 inviting objections from John Paul or his successors to the decree or transfer of suit property in the name of plaintiff Irshad Ali. On 24-7-1995 no such objections were filed.
12. ' The application of the plaintiff is allowed with no order as to costs. The pro forma defendant D.H.A.
13. Will furnish C.T.C. To defendant No,2 Younus Motiwala on cost who will on behalf of John Paul complete other formality before D.H.A. Today the counsel for plaintiff filed statement stating that in view of compromise, the injunction application has become infructuous. Then application as such is dismissed and the suit disposed of accordingly.:'
14. ' In the meantime, on 24-7-1995, the respondent. No, 3 sent a letter to the applicant, as mentioned hereinabove.
15. ' After learning about the said events, the applicant filed application under section 12(2), C.P.C., on 9-8-1995 praying for setting aside the above-referred compromise decree and permission to contest the matter by filing written statement. The diary sheet shows that on 8-8-1995 notice of the application under section 12(2), C.P.C. Was ordered for 15-8-1995. On 19-8-1995 an application under Order XIX, Rule 2, C.P.C. Was filed on behalf of the respondent No, 1 seeking cross- examination of the applicant alleging that the applicant had shifted to Korea about four years prior to such date and the application under section 12(2), C.P.C. Had been filed through impersonation.
16. A further prayer was made in the application for directing the applicant to produce in Court all the original documents in respect of the subject property. Counter affidavit in reply to the application under Section 12(2), C.P.C. Was also filed by the respondent No, 1 stating therein the same facts as were contained in the application under Order XIX, Rule 2, C.P.C. On 3-9-1995, the learned Civil Judge framed the following issues for adjudication:-- "(1) Whether the plaintiff has obtained the decree dated 18-5-1995 through fraud, misrepresentation by way of cheating. What so its effect?
(2) Whether the application under section 12(2) is maintainable on account by impersonation as defendant No, 1?
(3) What should the order be?
17. ' The order dated 3-9-1995 passed by the learned Civil Judge was challenged in revision and by judgment dated 14-12-1995, the matter was remanded by the learned District Judge, Karachi (South) directing the Civil Judge to frame the following additional issues in order to arrive at just and fair conclusion:-- "Whether the Court has pecuniary jurisdiction to try and entertain the suit?
18. ' Whether the suit is maintainable in law?"
19. ' After remand, as above, the applicant examined himself and was duly cross-examined by the counsel for the respondent No, 1 . During his deposition, the applicant produced in Court, the original documents of title which the alleged attorney had misplaced and also produced his two passports issued on 12th June, 1988 and 12th December, 1992 respectively. The applicant also produced service record of his employment in Saudi Arabia and the letter dated 24-7-1995 sent by the respondent No, 3 apart from some other documents. In his deposition the applicant stated that he had never executed any general power of attorney in favour of Shabbir Hussain nor was aware of the alleged sale agreement purportedly executed by him on 24-4-1995 in favour of respondent No,
1. In his cross-examination, it was denied by the applicant that he had agreed to sell the subject property to one Mian Pervez Akhtar on 2-10-1990 and had further executed a general power of attorney in favour of his nominee, Shabbir Hussain. It was also denied that he had given the entire file containing the original documents pertaining to the subject plot to Mian Pervez Akhtar or any one else. It appears that the respondent No, 1, who alone contested the application under section 12(2), C.P.C., examined one Sohail Akhtar son of the above-named Mian Pervez Akhtar. It was deposed by the said witness of the respondent No, 1, that the subject property was owned by his late father by virtue of sale agreement dated 2-10-1990 executed by the applicant and that the applicant after giving general power of attorney to one Shabbir Ahmed had gone away to South Korea without handing over the Transfer Order issued in the year 1990. During the cross- examination, the witness denied any knowledge of sale of the subject property in favour of the respondent No,1 by the above-referred Shabbir Ahmed and deposed that he came to know ,about such sale after 7-11-1994 when his father Mian Pervez Akhtar expired. While stating further that the respondent No, 2 had not paid anything to the witness and other legal heirs of Mian Pervez Akhtar, he confessed that no action was taken by them against the respondent No, 2 either.
20. ' On 19-3-1996, the IXth Civil Judge, Karachi (South) dismissed the application under section 12(2), C.P.C. By holding that the decree dated 18-5-1995 passed in the suit had not been obtained through fraud or misrepresentation or by way of cheating. It has further been held that he as a Civil Judge, II Class, had pecuniary jurisdiction in the matter and the suit itself was maintainable in law.
21. ' The learned counsel for the applicant has urged before me that the signatures on the sale agreement allegedly executed by the applicant on 2-10-1990 and on the power of attorney dated 29-12-1990 had been forged and the respondents Nos. 1 and 2 had fraudulently obtained the decree, in the absence of the applicant, seeking to deprive him of the subject property which belongs to him. The learned counsel referred to various entries about his arrival in Pakistan and departure for Saudi Arabia. Relevant in the context are entries appearing at pages 20 and 23 of the passport issued on 12th June, 1988. It appears that on 29-10-1990, the applicant had arrived in Pakistan but had left for Saudi Arabia on 27-11-1990. NO other entry in the passport of the applicant indicates that he was in Pakistan on any of the relevant dates particularly on 2-10-1990 and 29-12- 1990. Moreover, contrary to the requirements of section 17 of the Registration Act, the general power of attorney, containing power to sell, which had allegedly been executed by the applicant on 29- 12-1990 in favour of Shabbir Ahmed, is not registered. The exceptional and unusual haste which is quite evident culminating in compromise decree on the 3rd day of institution of suit which was the first date of hearing and the events that followed in quick succession are impracticable except in collusive proceedings. The compromise application submitted on 17-5-1995 does not contain even reference to the admitted amount of the balance sale consideration of Rs,1.1 million out of the total consideration of Rs,1.4. Million. The expansion of the scope of suit through order dated 26-7-1995 passed on the application under Order XII, Rule 6, C.P.C., in the absence of any admission in tacit terms, can hardly be termed as lawful and creates serious doubts about bona fides on the part of those who were party to the compromise. The above facts and circumstances lead me to inescapable conclusion that fraud has been committed in obtaining decree for transfer of the subject property in favour of respondent No,
1. The resort to legal proceedings was apparently calculated to circumvent the non-registration of the power of attorney allegedly executed by the applicant on 29-12-1990. The evidence which has been produced by the applicant clearly shows that the respondents Nos.1 and 2 in collusion with other have tried to take undue advantage of the absence of applicant from the country and for achieving their illegal objectives, had first tried to obtain duplicate copies of the title documents and then .Acting in league with each other, had succeeded in obtaining the decree dated 18-5-1995 through fraud and misrepresentation. I have serious reservations about the conduct of the Civil Judge, who speaking the least, has failed to exercise due care to check commission of fraud which was quite manifest. It shall be desirable on the part of the Member of Inspection Team attached to this Court, to examine the record any if my doubts are found correct, put up the matter before the Hon'ble Chief Justice for appropriate disciplinary proceedings against those responsible for the lapses.
22. ' The learned counsel for the applicant has also urged that the suit before the learned Civil Judge was not maintainable in its present form. The learned counsel for the applicant contends that the prayer made in the plaint which has been reproduced hereinabove, would show that instead of filing suit for specific performance, declaration was sought to the effect that the applicant and the respondent No,2 were liable 'to effect and finalize' the sale favouring the respondent No,1 and such prayer was wilfully made to bring the suit within the pecuniary jurisdiction of Second Class Civil Judge. According to the learned counsel, assuming without conceding that the alleged sale agreement was executed, a suit for specific performance alone could have been filed. In support of his submission he has relied on the judgment in the case of Zafar Ahmed v. Mst. Hajra Bibi, reported in PLD 1986 Lahore 399, wherein after referring to a number of judgments, a learned Single Judge of the Lahore High Court has observed that a vendee under an agreement of sale does not acquire any right, title or interest in immovable property entitling him to any legal character in terms of section 42 of the Specific Relief Act and the proper mode of redress could only be a suit for specific performance of the alleged agreement; resultantly a suit for, declaration of title was found as not maintainable. The learned counsel for the applicant has further relied on judgment reported in 1993 SCMR 710 (Lal Din and others v. Muhammad Ibrahim) and another judgment reported in 1994 SCMR 782 (Government of Sindh and others v. Khalil Ahmed and others) to support his submission that a decree obtained through fraud is void and no party should be allowed to take advantage of his own wrong. Such proposition is quite established, since fraud vitiates the most solemn proceedings and undoubtedly every representation made to a Court which is deliberately false amounts to a fraud. After incorporation of section 12(2), C.P.C., a decree obtained by making wilful misrepresentation and/or passed on the basis of void agreement can validly be challenged before the Court which passed such decree. In the present case. As already observed, the agreement to sell and general power of attorney, dated 2-10-1990 and 29-12-1990 had been forged during the absence of the applicant from the country and all subsequent documents based on the above- referred forged documents are equally void. On behalf of the respondents Nos.1 and 2 Mr. G.
23. M.Saleem, argued that the objection relating to pecuniary jurisdiction can be urged only by a party to the proceedings and a stranger thereto cannot maintain such objection during proceedings under section 115, C.P.C. He has relied in support of his above submission, upon judgment in case of Samiullah v. Mansoor Ali, reported in 1987 CLC 2157 and Ali Muhammad Brohi v. Haji Muhammad Hashim 1983 CLC 2052. In the first case it was found that the applicant before the High Court was not adversely effected by the order passed by the Civil Judge, Faisalabad and despite finding the suit to be beyond the pecuniary jurisdiction of the Civil Judge, dismissal of application under section 12(2), C.P.C. Was not interfered with. In the second case Mr. Justice Saleem Akhtar (as his Lordship then was) had refused to set aside a consent decree in exercise of power under section 12(2), C.P.C. Where the plaintiff/applicant had failed to establish case of misrepresentation, concealment and fraud in obtaining such decree.
24. In the present case, however, the respondents Nos.1 and 2, as has been found by me, had succeeded in obtaining the decree dated 18-5-1995 on the basis of void agreement and were guilty of deliberate misstatement amounting to fraud. I may also observe that no objection was taken before me with regard to maintainability of the present revision application on account of concurrent jurisdiction vesting in this Court and the District Court.
25. ' The learned counsel for the applicant rather submitted that the injustice caused to the applicant has resulted in the decree dated 18-5-1995 and this Court must intervene in the matter and the applicant may not be forced into further litigation before the subordinate revisional forum.
26. The impugned order does not take into consideration any of the aspects noted hereinabove and the learned Civil Judge has proceeded under a misconception about the burden of proof. The impugned order evidently suffers from the illegalities, as above and cannot be maintained. The applicant is entitled to grant of the relief sought through his application under section 12(2), C.P.C.
27. The respondent No, 2 also supports the case of the applicant.
28. ' In the circumstances, the impugned order dated 19-3-1996 passed by the IXth Civil Judge, Karachi (South) in Suit No, 567/1995 is set aside. As a result the application under section 12(2), C.P.C. Filed by the applicant is granted and the decree dated 18-5-1995 is also set aside. The respondent No,1 shall bear costs of the proceedings throughout.