' Brief facts of this case are that the petitioner being the father along with mother, brother and sister of deceased Ibrar Hussain Shah, who died on a road accident, filed a suit for the recovery of damages to the tune of Rs,312,000 under Fatal Accident Act, 1855 detailed as under:-- ' Damages under Fatal Rs,162,000 Accidents Act; ' Love and affection Rs,100,000 ' Mental shock Rs,50,000 Total Rs,312,000
2. According to the contention of the petitioner the suit was contested by the Respondent who was represented by three counsel but due to non-cooperation the suit was finally decreed as ex pane on 8-3-1988. The respondent/defendant did not file an appeal against the said decree but filed an application under section 12(2), C.P.C. Challenging the impugned decree before the , learned Executing Court on the basis of fraud, misrepresentation and want of jurisdiction on 30-5-1989.
3. The respondent contended in the petition under section 12(2), C.P.C. That he was never served with any notice or summons, never appeared in the Court, did not engage any counsel and the written statement was produced by some other person by impersonating him in the Court. The application under section 12(2), C.P.C. Was contested by the petitioner while filing a written reply on 25-7-1989. The following issues were framed:
(1) Whether this Court, lacked jurisdiction to pass the impugned decree? O.P.A.
(2) Whether the petitioner was not properly served? O.P.A.
(3) Whether the impugned decree was got through fraud misrepresentation? 0.P.A.
(4) Whether the application is barred by law? O.P.R.
(5) Whether the application is not maintainable in its present form? O. P.R.
(6) Relief.
4. The applicant appeared as A.W.1 and produced Exh.A/1, the registration certificate of Company which owned the truck, partnership deed Exh.A/2 and transfer order of truck Exh.A/3 and a copy of registration book of the truck Exh.A/4. The petitioner/respondent produced Kh. Ahmad Noor, Advocate as R.W.1 Muhammad Tufail, R.W.2 and himself appeared as R.W .3
5. The application under section 12(2), C.P.C. Was accepted by the learned Civil Judge, on the basis of fraud and collusion vide impugned order and decree, dated 18-1-1993 and the judgment and decree of the trial Court, dated 8-3-1988 was reversed. This impugned order, dated 18-1-1993 is under challenge in the instant Civil Revision.
6. The contention of the learned counsel for the petitioner is that the impugned order, dated 18-1- 1993 is passed on the basis of conjectures as the case of the petitioner was not duly considered by the learned trial Court in its true perspective. The evidence and material on record was misread, misappreciated and misconstrued and thus the impugned order is suffering from serious illegalities and infirmities as it could not set aside the judgment and decree of the learned trial Court which was well reasoned and presumption of truth was attached to the judicial proceedings taken in the main suit which stood unrebutted by any cogent, independent or any substantive or reliable evidence by the respondent No, 1 . The learned Court of Mr. Muhammad Riaz Chopra, Civil Judge, Lahore had no jurisdiction to set aside and nullify the elaborate and legal judgment and decree, dated 8-3-1988 after a period of five years, as the correctness and validity of the judgment and decree, dated 8-3-1988 had borne out from the record of the suit and proceedings recorded therein and the evidence produced by the petitioner. Respondent No,1 had filed a written statement in the Court along with the list of his legal representatives. Vakalatanama was duly executed by defendant No,1 in favour of Kh. Ahmad Noor, Advocate and it was very much on the record. He appointed another Advocate Mr. Hamid Ullah Niazi. His Vakalatnama was also on the file. The said Court vide order, dated 28-2-1992 accepted the application by summoning the three Advocate of respondent/defendant. The proceedings show that the case was duly represented by Mr. Hamid Ullah Niazi, Advocate and his Vakalatnama was very much on the record which was subsequently removed to cause loss to the petitioners. The application under section 12(2), C.P.C. Had the same address of respondent No,1 as in the main suit. The correctness of his address was never challenged by the respondent/ defendant. The respondent/defendant was duly served and the order-sheet, the written statement Vakalatnama, list of legal representatives, the cross- examination conducted by his counsel on the witnesses of the petitioner, all establish that the respondent had been appearing after due service in the Court and had contested the suit. The record has also established that Vakalatnama on behalf of defendant No,1 was submitted by Kh.
Ahmad Moor, Advocate in the first instance. Defendant No,2 was proceeded ex parte. Kh. Ahmad Noor, Advocate subsequently submitted his Vaklatnama on behalf of defendant No,2 and filed an application for setting aside the ex parte proceedings. The written statement filed by the respondent/defendant No,1 had his signatures which could be easily compared from the signatures on the Vakaltnama as both were the same. The finding of the learned Civil Judge that these are different is absolutely wrong. He further contended that from time to time the respondent No,1 used to appear in the Court and give instructions to his counsel to cross-examine the witnesses. The engagement of the counsel by the respondent was established from the record. The formulation of issue No,2 that whether the petitioner was not properly served did not even arose and as such this issue could not be involved in the proceedings of a petition under section 12(2), C.P.C. As preponderance of evidence clearly established that the respondent No,1 had filed mala fide, false and totally incorrect petition under section 12(2), C.P.C. The finding on Issue No,2 is wrongly decided by the learned trial Court. Further contended that the learned Civil Judge grossly erred in setting aside the judgment and decree, dated 8-3-1988 after it had attained finality and no appeal or petition under Order IX, Rule 13, C.P.C. Had ever been filed. The scope of petition under section 12(2), C.P.C. Was not properly considered and construed by the learned Civil Judge while passing the impugned order as no fraud could be involved in the suit which was defended by the respondent/defendant himself and through his counsel on the basis of Vakalatnama and written statement filed in the learned trial Court. The learned trial Court had failed to give proper consideration to the material circumstances and judicial record of the suit which had direct bearing on the decision of the alleged fraud. Therefore, in absence of an independent evidence on fraud or misrepresentation the petition under section 12(2), C.P.C. Was to be dismissed by the learned Civil Judge. The finding of the learned trial Court on Issue No,1 regarding jurisdiction was wrongly construed by him as the decree, dated 8-3-1988 was passed on merits by a Court which had full jurisdiction to pass the, same in accordance with the law. It would never be set aside on the plea of misjoinder of parties; when the onus of proof on issues Nos.1 to 3 was on respondent No,3 and the record had established that the respondent No,1 had taken a totally false plea which was not corroborated by the independent evidence. As Kh. Noor Ahmad, Advocate was also his co- villager residing at the same place at Sharaqpur. When the application under section 12(2), C.P.C.
Was dismissed for non-prosecution respondent No,1 appeared in support of restoration of the application and admitted that in all of his cases Kh. Noor Ahmad was his counsel and also admitted that he had engaged three counsel in the suit. Even the learned trial Court ignored that from which source respondent No,1 had information and knowledge about the decree, dated 8-3- 1988 and filed the application under section 12(2), C.P.C. He also did not challenge the addresses.
7. The learned counsel for - the respondent submitted that the plaintiff filed a suit for the recovery of damages under Fatal Accident Act, 1855. He also demanded the damages in the sum of Rs,1,50,000 for love and affection. He was asked to pay the court-fee and by virtue of not paying the court-fee he relinquished his claim for love and affection and the case was only under the Fatal Accident Act and it was bad for misjoinder and non joinder of necessary parties and merited dismissal. Moreover, the original plaint did not disclose individual liability of the defendants and the defendants are registered as a Company, therefore, the instant suit was liable to be rejected under Order VII, Rule 5, C.P.C. The brothers and sisters of the deceased had no locus standi to file the present suit, therefore, the suit to their extent was liable to be dismissed. As under the Fatal Accident Act only the parents, wife, children, father and mother can recover the damages, in deceased case he was unmarried, therefore, only his father and mother could get the damages.
He further submitted that the petitioner was never served with any notice or summons, never appeared in the Court and the decree was obtained by fraud and through impersonation. No counsel was engaged by the petitioner nor any written statement was submitted by him. Moreover, the respondent was only one of the shareholders, therefore, he had no individual liability against the present petitioner. The summons were sent to him in Sharaqpur but it was never mentioned on the summons that which Sharaqpur as there were two Sharaqpur in Sheikhupura. One Sharaqpur is now called Kot Abdul Malik. Even the summons were sent through the Process Server to be served upon the respondents when he was present before a Court of Magistrate. It bore the Nishan-Dahi of the petitioner. And Kh. Ghulam Muhammad as witnesses. The summonses were shown to be refused by the respondent No,1 but the learned Court without holding an inquiry and without examining the Process Server could not publish a citation. Reliance was placed on Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153. Mirza Farooq Beg v.
Muhammad Kashif Kamal Siddiqui 1987 CLC 516, Mian Shabbir Ahmad and another v. Muhammad Iqbal and 5 others 1991 CLC 1830 (Lahore)) and Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah and others 1993 M LD 889. He further contended that the total record is silent about the presence of respondent No,1 in the Court and it is clearly established that the impugned judgment and decree was obtained by fraud and misrepresentation and therefore it is rightly set aside by the learned trial Court under section 12(2), C.P.C.
8. Learned .Counsel for the petitioner submitted that the truck was taken by the petitioner individually and in the Superdari application Atta Rasul has written that he is the owner of the Truck.
'The Criminal proceedings were going on in the Court of the learned Magistrate about the same accident. The respondents were present before the learned Court. The summons were issued for the next date of hearing and the Process Server took them, which were refused by the respondents and since the respondents have not challenged the factum of substituted service nor alleged that the report of the Process Server was mala fide, therefore, the examination of Process Server was not necessary. He relied on Banakar Basappa and another v. Hansaji Gulabchand Firm AIR 1936 Mad.
660, Ramazan and another v. Ilahi Bakhsh and others PLD 1958 (W.P.) Lah. 455 and S.R. Nawaz and another v. Mirza Nasir Ali PLD 1962 (W.P.) Lah.
185.
9. I have heard the learned counsel for the parties at length and carefully perused the record.
10. It is clearly borne out from the record that the issues were formulated on 16-5-1984. P.W.1 Allah Ditta was cross-examined on 15-9-1985. P.W.2 Muhammad Tufail was also cross-examined. P.W.3 Record-Keeper appeared but the respondent/ defendant absented. The evidence was recorded on 3-11-1985. He was not cross-examined. Ex parte proceedings were ordered on 3-11-1985. The application was given on behalf of the respondent/defendant for setting aside ex parte proceedings on 10-12-1985. It was accepted on the statement of the learned counsel for the plaintiff subject to costs of Rs,100 P.W.5 Sher Muhammad was cross-examined. P.W.6 was the plaintiff. On 7-7-1986 the respondent/defendant again absented and was proceeded ex parte. The case was adjourned for the next date. On 3-9-1986 an application for setting aside ex parte decree was given on behalf of the respondent/defendant. It was accepted subject to costs of Rs,100 on the statement of the learned counsel for the plaintiff. The cost was paid. On 6-12-1986 the defendant's counsel appeared. The case was adjourned to 4-3-1987, 3-5-1987, 4-7-1987 and on 13-9-1987 he again absented. Ex parte proceedings were ordered against him. On 8-10-1987 ex parte evidence was recorded and the case was again adjourned to 5-11-1987, 8-12-1987, 21-12-1987, 21-1-1988, 15-2- 1988 and finally on 8-3-1988 the ex parte judgment and decree was pronounced by the learned ,trial Court. The petition under section 12(2), C.P.C. Was given by the respondent on 30-5-1989. On 24-1-1991 it was dismissed for default, On 15-6-1991 an application for restoration was given. On 14- 7-1992 the application was , restored and thereupon the respondent admitted that he had engaged three counsel. It is particular to mention that the petitioner also gave an application under section 151, C.P.C. That till the final decision of the Petition under section 12(2), C.P.C. The operation of the impugned judgment and decree may be suspended. This application was dismissed on 13.-12,1990 by the learned Civil Judge, Lahore being Without force. Atta Rasul as A.W.1 has admitted that he had appointed three lawyers. He also admitted that the name of the Company is Malik Atta Rasul & Co. The other co-partners are his nephews and Malik Ghulam Mohayyuddin is his relative. He, however, did not admit that he gave the Superdart application and he gave the written statement and Exh.R.l is signed by him and that the written statement Exh.R.2 had his signatures. He did not admit that he gave two times application for setting aside ex parte proceedings and that the witnesses were cross-examined upon his instructions. He also admitted that he did not appeal against the impugned judgment and decree. He gave.. An application under section 12(2), C.P.C. He also showed his ignorance that the power of attorney. Of Kh. Ahmad Noor, advocate is on the file of Ghulam Sarwar. He admitted that he gave a statement in the restoration application. R.W.1 is Kh. Ahmad "Noor, Advocate.. He admitted that Exh.R.1 is his Vakalatnama and the name of Atta Rasul is written on this Valcalatnama and he had filed the power of attorney on behalf of Ghulam. Rasul. Which is. Exh.R.5 and he also filed a written statement Exh.R.2 and this written statement had his' signatures and on this written statement on two places the name of Atta Rasul is written. He, however, admitted that Haji Atta Rasul did not came to engage him. His driver came and Atta Rasul did not appear along with him in the Court but he did not remember whether he appeared in his absence. He also admitted that the word Atta Rasul is written on the title of Vakalatnama Exh.R.l and the signatures at the bottom are from one pen and ink and the writing is same. In the restoration application Muhammad Ashraf son of Muhammad Shafi appeared on behalf of the respondent and he admitted that he had been pursuing the case for the last three years. The case was in the Court of Sh. Ahmad Farooq. He went to the lawyer for 2/3 times. The lawyer told him that the suit is dismissed and he told him to inform his owner who was away in the business dealing and I informed him through telephone. He engaged another lawyer and gave an application through Mr. Abdul Hafeez and is pursuing the case himself and for the last three years he had been pursuing the case. Haji Sahib did not give him the power of attorney. He gave power of attorney to Mr. Nadar Khan, Advocate and told him that I am his Clerk and he did not remember whether there was another counsel prior to Mr. Nadar Khan. He only knew Nadar Khan and Abdul Hafeez. The Judge never asked him to produce Haji Sahib. However, the lawyer told him to produce Haji Sahib in the. Court of Sh. Ahmad Farooq. He never recorded his presence. The counsel used to.
Appear. Haji Atta Rasul as A.W.2 admitted that:-- {{URDU TEXT}}
11. 'It is surprising that the learned trial Court was very much within the knowledge that the judgment and decree, dated 8-3-1988 was not appealed against by the respondents. All the mixed questions of facts and law which are available in appeal about the non-joinder and misjoinder of parties are not available under the petition under section 12(2), C.P.C. There the parties have to prove the allegation of fraud, misrepresentation, collusion or lack of jurisdiction. The finding on issue No,2 was not called for by the learned trial Court while deciding the petition under section 12(2), C.P.C.
12. So far as the allegation of fraud and misrepresentation is concerned it is borne out from the record that the suit did not run uncontested. Many times it was adjourned to many dates mentioned above. The application for restoration of the case was given from time to time. It was admitted by the respondent that he had engaged three counsel namely Mr. Nadar Khan, Mr. Abdul Hafeez and Kh. Ahmad Noor and so far as Haji Hamid Ullah Niazi is concerned it is established from the record that he was appearing as a counsel. Up to this time there is nothing on the file that all these Advocates who were appearing on behalf of the respondent/defendant had been guilty of misconduct while impersonating the defendant and he had neither proceeded against them for professional misconduct nor any action was taken against the aforesaid counsel who were appearing on behalf of the defendants without any authority nor even any proceedings under Order IX, rule 13, C.P.C. Were adopted. The counsel were admitted to be engaged by the defendants, written statement bore the signatures of the respondent/defendants, issues were framed, the witnesses were cross-examined and no independent evidence was present to prove the impersonation or fraud or collusion as alleged by the respondent/defendant in petition under section 12(2), C.P.C. The respondent's case was that due to non-service of summons he was impersonated in the trial of the main suit and it is surprising that wherefrom the learned trial Court gathered on got the evidence that the defendant was really impersonated and fraud, misrepresentation or collusion was exercised upon him by the adverse party. Therefore, it is established that the learned Court while deciding the petition under section 12(2), C.P.C. Has misread, misappreciated and misconstrued the evidence on record.
13. So far as the contention of the learned counsel that the Process Server was not examined, therefore, no substituted service could be effected upon the parties that he was impersonated in the trail of the suit by lawyers. The Respondent's case is entirely on the other footing. Even otherwise he has not challenged the factum of substituted service, therefore, the examination of Process Server was not necessary. The stance taken by the learned counsel that the respondent does not bear individual liability stands refuted by recovery of vehicle through Superdari application where the respondent has asserted his ownership over the truck.
14. Moreover, the damages under the Fatal Accident Act does include the damages for love and affection too, therefore, the suit is rightly decreed by the learned trial Court.
15. In view of what has been discussed above the Revision petition is accepted, the order, dated 18- 1-1993 passed by the learned trial Court is set aside.
16. No order as to costs.