1. ' By a common order in this case I propose to dispose of J.M. Nos.30/97, 31/97, 32/97, 33/97, 34/97, 35/97, 36/97, 37/97, 40/97, 41/97, 42/97, 43/97 38/97, 39/97, and 44/97.
2. ' Through these applications under section 12(2), C.P.C. Applicants seek to set aside the decree dated 29-4-1997 in Suit No,785 of 1996 pursuant to judgment of the same date. The main contention. Of the applicants is that this decree has been obtained through fraud and misrepresentation by plaintiff in the said suit, the name of the plaintiff being Izzat Khan. The applicants themselves are the tenants of the property which is the subject matter of the said suit.
3. The plaintiffs contend that in the year 1968 Suit No,43 of 1968 was filed by one Mst. Shaikha daughter of Ahmed Bakar in the Court of 10th Civil Judge, find Class, Karachi in which the plaintiff in Suit No,785 of 1996 was a defendant. In the said suit, the plaintiff herself had prayed for a declaration that she bears no liability for the expenses for the registration of the property in dispute i,e, No, BR/10/10/493 known as Shaikha House situated at Ramchander Temple Road, Karachi and that the said expenses are to be borne by the defendant, Izzat Khan as per sale agreement dated 9-3-1959 and further that the said sale is completed with registration. Apparently the defendant initially did make appearance in this suit but later they failed to appear and consequently, this suit proceeded ex parte and was finally decreed. Later another lady by the name of Mst. Shaikha daughter of Ahmed Al-Baqar filed Suit No,312 of 1969 in the Court of IIIrd Civil Judge, First Class, Karachi on 20-2-1969, against Izzat Khan and Mst. Shaikha daughter of Bakar, the plaintiff in Suit No,43 of 1968. It appears that there were two ladies with the name of Mst. Shaikha with minor difference in the spelling of their father's name, who claimed ownership of the property in dispute.
4. Through this suit the second Mst. Shaikha sought to set aside the decree in Suit No,43 of 1968 on the grounds that it was obtained through fraud and misrepresentation. This she did because at that time section 12(2) had not been introduced in the C.P.C. This suit i,e, 312 of 1969 too was decreed ex parte on the basis of an affidavit in evidence of one Mr. Sardar Muhammad Burni, the Attorney of the plaintiff, filed on 25-2-1969 i,e, only five days after the presentation of the suit. What is extremely interesting and significant is that judgment in this suit is dated 3-1-1969 i,e, to say that the judgment was delivered even before the suit was presented or the affidavit in evidence filed.
5. ' After about 25 years of the initial litigation between the parties, Suit No,785 of 1996, which is under challenge in these proceedings, was filed on 11-8-1996 by the same Izzat Khan as plaintiff No, 1 and Mst. Shaikha daughter of Muhammad Bakar (the first Mst. 'Shaikha) as plaintiff No,2 against the Province of Sindh, the Assistant Commissioner, South, Karachi and one Ch. Muhammad Siddique son of Muhammad Yousuf. Through this suit the plaintiffs in effect sought the cancellation of the sale-deed of which the beneficiary was Ch. Muhammad Siddique through Attorney Shafat Ali Khan in respect of property in dispute. It may be advantageous here to reproduce the prayer in this suit:- -
(i) Declare the Deed of Conveyance registered vide Registration No,2953 at pages 158 to 163 in Volume 1327 of Book No,1 Addl. Dated 9-6-1965 in respect of property bearing No, RB/10 /10 /493 , Shaikha House, situated at Ramchandra Temple Road, Karachi as illegal, and of no legal effect.
(ii) Declaration that the plaintiffs are owners of the property bearing No . RB/10/10/493 , Shaikha House, situated at Ramchandra Temple Road, Karachi.
(iii) Direct and order the Deputy Commissioner South, Karachi, to enter the names of the plaintiffs in the record of rights and other relevant departments as owners Of the property bearing No, RB/10/10/493 , Shaikha House, situated at Ramchandra Temple Road, Karachi.
(iv) Any other relief deemed just and proper.
(v) Defendants to bear costs.
6. ' This suit also proceeded ex parte except for a brief appearance by the representative of defendant No,3 at one stage. Since none of the defendants subsequently made any appearance and the Province of Sindh also declined to contest the suit at public expenses, the judgment dated 29-4-1997 was pronounced. Operative part of the judgment is as under:-- "In the circumstances, where neither anybody has turned up to raise a plea in defence nor to cross-examine the plaintiff in respect of the assertion in his affidavit of ex parte proof, I am constrained to accept his version as correct and would decree the suit to the extent that the sale- deed purported to be registered at No,2953 of pages 158 to 163, Volume 1327 of Book-I Additional dated 9-6-1965 is void as against the plaintiff and of no legal effect. Consequently, Revenue Offices will perform their lawful duties accordingly . "
7. ' The main grievance of the applicants is that because of this judgment and decree in Suit No,785 of 1996, Izzat Khan plaintiff No,1 in this suit has begun to assert himself as the owner of the property in question and is demanding payment of rent by the applicants, which according to them he is not entitled to it in view of the fact that this decree in Suit No,785 of 1996 had been obtained through fraud and misrepresentation inasmuch as the setting aside of the decree in Suit No,43 of 1968 by judgment in Suit No,312 of 1969 gives no locus standi to the said Izzat Khan in respect of this property.
8. ' In so far as the law on the subject-matter is concerned the basic ingredients of section 12(2) C.P.C.
9. Are:-
(I) The judgment sought to be set aside must be of the same Court;
(II) The judgment/decree must have been obtained through fraud or misrepresentation or want of jurisdiction;
(III) The application must be filed by a person who has been affected by the judgment though not necessarily a party to the original suit or a successor-in-interest; ' The first two ingredients are gleaned from the provision itself. Whereas the third ingredient has been extracted from various authorities emanating from superior Courts on this point. The most significant of which is 1984 SCMR page 586. In my view it would be necessary for all the three ingredients to be present for an application to be maintainable under this provision.
10. ' In so far as the first ingredient is concerned there is no doubt that in this case it is the judgment of this Court which is under challenge, hence this ingredient is adequately fulfilled. As to the second ingredient, though there are copious allegations of fraud by the applicants against the said Izzat Khan, the plaintiff No,1 in Suit No,785 of 1996 and counter-allegations by Izzat Khan against the applicants but all these allegations relate to the period prior to filing of Suit No,785 of 1996. In our society currently the tendency to blame each other of fraud is endemic. More often than not fraud in common parlance in our society means the inhabitation of one party's interest due to the act of another. Consequently, when one alleges fraud here it does not mean that one had done something which is against the principles of morality but that one has done something against the interest of the person who has alleged fraud. Surely this was not the definition of fraud and misrepresentation that the law makers had in mind when they introduced section 12(2) in C.P.C.
11. The intention of the legislature in introducing this amendment was to prevent unnecessary litigations arising from a concluded legal proceedings. But instead of having the desired effect, I am constrained to observe, this provision has led to an increase in litigations inasmuch as almost every other decree is now being challenged under this provision either directly by one of the parties or through a proxy. Such was obviously not the intention of legislature when this provision was introduced. Indeed the current practise is a mockery of the laudable objectives for which the provision came into effect. There is no doubt, that a decree of a Court must have sanctity once it has obtained finality even though such a decree may be ex parte or a compromise decree and it is only when there is fraud and mis-representation on the face of the record so apparent and manifest that even a person with a rudimentary knowledge of law would be able to observe that such fraud has taken place that the application under section 12(2) should be allowed to proceed further. In fact what I wish to emphasise is that this ingredient of the provision must be very strictly construed.
12. ' In so far as this case is concerned, the arguments of the applicants has been entirely built upon the fact of setting aside of the decree in Suit No,43 of 1968 through a ex parte decree in Suit No,312 of 1969. However, a perusal of the pleadings in this case and the decree, as I have stated above, clearly indicates that there is something amiss here because the judgment in Suit No,312 of 1969 pre-dates the presentation of the suit and the filing of the affidavit in evidence. What then must the Court do? What inference should be drawn from the legal proceedings in the lower Court? Even a cursory examination of the pleadings in Suit No,43 of 1968 would reveal that this suit had been filed with the specific purpose of obtaining the ex parte decree and thereby lending legitimacy to the sale agreement referred to in the plaint. It would appear that from the very start the plaintiffs in question had no intention or even inclination that the suit would be contested. In fact it was planned that it would not be contested. Equally doubtful are the antecedents and the intention of those who filed Suit No,312 of 1969 seeking to set aside the decree in Suit No,43 of 1968 inasmuch as it is obvious that the decree was either procured or the suit in all probability was never filed. It is, therefore, best if in the consideration of these applications, both these proceedings in the lower Court are ignored.
13. ' The only legal proceedings in this long and arduous litigation that can be relied upon or considered is Suit No,785 of 1996 in this Court. In so far as the proceedings in this suit are concerned, there is nothing to indicate that there was any fraud or misrepresentation resorted to by the plaintiffs or any other party. Nor is there any disregard of the procedure of the Court in the proceedings. Nor indeed any direction has been given in the judgment that would in any way benefit or inhibit any of the parties involved except Ch. Muhammad Siddique, The defendant No,3 in the said suit. Considering that the said defendant who is directly affected by the said judgment has taken no steps to appeal from the judgment nor has he adopted any other measure to protect his rights, it is obvious that he has accepted the judgment and, hence the pronouncement of the Court with regard to cancellation of the sale-deed in his favour has become unassailable.
14. ' In so far as the third ingredient of section 12(2), C.P.C. Is concerned, it is an admitted position, as admitted by the applicants in one of their counter affidavits, that they are the tenants of the property in question. By virtue of being tenants in the normal circumstances a tenant would not be effected by the determination of title to the property because the tenant is only obliged to pay rent to the landlord, whosoever it may be; he cannot question as to who is the owner of the property. To that extent a tenant will not have any 'locus standi in a suit that determines the title to the property of which he is a tenant. However, I am informed that in this particular property, the tenants are in occupation on the basis of "PAGRI" and consequently the ownership of the property, that they occupy, greatly interested them and they would be directly affected if a person is declared an owner if he is not in fact the owner. "Pagri" may be a despicable thing but nevertheless one cannot close one's eyes to the fact that it does exist and the system that is followed in a property in occupation on the basis of "PAGRI" is well known and well accepted. Consequently, due consideration has to be given to this fact and thus I hold that while tenants of a property would, not have locus standi to file the application under section 12(2), C.P.C. Against a decree declaring the title or ownership of the property, the occupants of the property on the basis of "PAGRI" would have such right. Consequently, in this case I would hold that the applicants have the locus standi to file these applications.
15. ' Having debated in detail the three essential ingredients of section 12(2) of C.P.C. It would be advantageous to consider the judgment and decree under challenge itself to see as to how the applicants are affected by this judgment. The prayer in Suit No,785 of 1996 has already been produced above and it would show that plaintiff in the suit, namely, Izzat Khan had prayed for three things. Firstly the cancellation of the Conveyance Deed in favour of Ch. Muhammad Siddique.
16. Secondly, declaration that the plaintiff i,e, Izzat Khan was the owner of the property and thirdly, that the Deputy Commissioner, South, Karachi be directed to enter the name of Izzat Khan in the records of rights. However, the learned Single Judge deciding this suit has only allowed the first prayer of the plaintiff, Izzat Khan and has declared that the Conveyance Deed in favour of Ch. Muhammad Siddique was void and of no legal effect The judgment does not, as contended by the applicants, declare the said Izzat Khan as the owner of the property. I, therefore, do not see as to how the rights of the applicants as tenants are affected by this judgment. The reference to Revenue authorities in the judgment would also relate to their duties with regard to cancellation of the lease deed. It appears their fear arises out of the manner in which the decree is worded but in view of my observations above such fear would appear to be ill founded and misconceived. The result of the above discourse is that, I find that these applications have no merit and are accordingly dismissed.
17. ' I would, however, note with considerable distaste the cavalier manner in which the two ex parte judgments have been passed by VII Civil Judge, First Class at Karachi at the time, in Suit No,43 of 1968 (presented on or about 18-1-1968) and by III Civil Judge, First Class at Karachi at the time, in Suit No,312 of 1969 (presented on 20-2-1969). I would, therefore, recommend that if these judicial officers are still in service an enquiry be instituted against them. Let this order be placed before the Honourable Chief Justice to obtain necessary approval.