1. ' Through this application under section 12(2), C.P.C. Filed on 17-12-1999 applicant Mirza Mustafa Ali Baig through his wife and next friend Mrs. Nuzhat Mustafa has prayed that judgment and decree dated 7th April, 1991 in Suit No,321 of 1976 Zafarul Hassan Qureshi v. Messrs Pakistan Tobacco Company Limited and others so far it relates House No,A/91, Block No,1, admeasuring 240 Sq. Yds., situated in Gulshan-e-lqbal, Karachi, be set aside having been obtained by the plaintiff/deceased respondent No,1 behind the back of the applicant, without his knowledge and through misrepresentation which has resulted in depriving the rights and title of the applicant in respect of the above referred house which according to the applicant was gifted to him by original owner late Sirajul Hassan through an oral gift made on 5-9-1975, a photo copy of which has been placed on record as Annexure 'A'.
2. ' It is the case of the applicant that initially the house in question was let out to him by late Sirajul Hassan at a monthly rent of Rs,4,000 in the month of March, 1975. The applicant/tenant had paid a sum of Rs,1,600 being rent for four months commencing from March 1975 to June 1975 and also an amount of Rs,800 as deposit which was to be refunded at the time of vacating the house in question. According to applicant, late Sirajul Hassan issued such receipt dated 18-8-1975. A photo copy whereof has been placed on record as Annexure 'B/1'. The applicant further claims to have paid the monthly rent for the months of July and August 1975 for which late Sirajul Hassan had issued two rent receipts dated 18-7-1975 and 18-8-1975. Photo copies of the said receipts have also been placed on record as Annexures 'B' and 'B/1'. According to the applicant he started running school within the knowledge of late Sirajul Hassan who also displayed deep interest in the educational institution being a philanthropist and having humanitarian sentiments. Since late Sirajul Hassan was issueless and his wife had already expired during his lifetime hence he had gifted the house in question to the applicant. The applicant further claimed to have raised construction on the first floor from his own funds and in support of his ownership produced copy of the form PT-13 issued by the Excise and Taxation Department as Annexure 'D'. He has also placed on record Photostat copies of eighteen receipts of P.T.-10 from 1979 onwards in order to show that he has been paying the taxes to the Excise and Taxation Department (Annexures 'E/1' to 'E/18').
3. Photostat copies of bills from KMC and KW&SB for the years 1976 and onwards have also been produced as Annexures 'F/1' to 'Ff7'. The case of the applicant is that by now it is a full-fledged Secondary School being run under the auspices of 'Nuzhat Mustafa Education Society (Registered)".
4. He has also filed photostat copies of registration certificate of the school and various letters from the Directorate of School Education Karachi from 12-12-1981 upto 21-3-1998 as Annexures 'H/1' to 'H/8'.
5. ' According to the applicant he came to know about the impugned judgment and decree on 20-11- 1999 when his Advocate appeared before the Assistant Registrar/Nazir of this Court in pursuance of some directions/notice. At that juncture it transpired that a suit was filed for Administration and Accounts by plaintiff Zafarul Hassan who claimed himself to be brother of deceased Sirajul Hassan, in respect of the properties belongings of his deceased brother Sirajul Hassan, which included House No,A/91, Block No,1, Gulshan-e-Iqbal, Karachi. As per averments made in the application it is the case of the applicant the decree in that suit was obtained by late Zafarul Hassan without impleading the applicant as a party to the suit and without his knowledge in order to defeat the right and title of the applicant in respect of the house in question.
6. ' After service of summons objections to the application were filed by Saeedul Hassan Qureshi son of late Zafarul Hassan Qureshi (Plaintiff/Respondent No,1) on his behalf as well as on behalf of the other legal-heirs of respondent No, 1 . Objections and counter-affidavit were also filed by respondent No,6 Mst. Saeeda Begum who is sister of late Zafarul Hassan. It has been contended by the said objectors/contestants that application under section 12(2), C.P.C. Is not maintainable according to law. It is barred by limitation having been filed much beyond the period prescribed for the same as the decree was passed on 7-4-1991 whereas this application has been filed on 17-12- 1999. While denying the various contentions raised in the application it has been categorically pleaded that facts have been misstated. School was started after the death of late Sirajul Hassan.
7. No gift was ever made by the said deceased in favour of the applicant. The contention that the applicant that he was unaware of the litigation between the legal-heirs of late Sirajul Hassan is false and stands belied from his own statement recorded before Official Assignee of this Court on 15-1-1989 and 6-2-1989 in which he has stated to be a tenant in respect of the house in question and having made a last payment of rent to late Sirajul Hassan in hospital in presence of Mst.
8. Saeeda Begum and further admitted to have stated before the Nazir of this Court that he was prepared to deposit amount of Rs,51,450 in Court on account of rent due upto September 1984, in instalments after deducting the expenses incurred by him. The objectors have, therefore, contended that the applicant and his wife being tenants of the premises in question are estopped from raising any such plea and cannot be allowed to set-up a new case by falsely claiming to be the owners of the property. It has also been contended that no gift was ever made in favour of the applicant by late Sirajul Hassan and the applicant wants to usurp the rights of the true owners of the property.
9. ' Despite several chances given, the applicant or his wife/next friend failed to file any rejoinder.
10. However, on 8-3-2001 affidavit-in-rejoinder was filed by Mirza Mujeeb Ali Baig son of Mirza Mustafa Ali Baig stating therein that his father is seriously ailing at City of Dallas in Taxas State U.S.A. And that his mother has also fallen ill there who was looking after her husband. He has further stated that after conveying the contents of the counter-affidavit and objections to his mother and under her instructions he was filing the rejoinder. He stated that the contents of the application filed in Court under section 12(2), C.P.C. Are correct and the contents of the objections/counter-affidavit on behalf of the objectors are incorrect and contrary to the facts.
11. The learned counsel for the parties neither suggested any issue nor requested the Court for recording of evidence and desired to argue the matter on the material available on record. Even otherwise, I am of the view that it is not always necessary to frame issues or to record evidence in every case under section 12(2), C.P.C. More particularly when the parties themselves did not make any such request and the matter could be decided on the basis of the material available on record. This view finds support from a number of decisions made by the apex Court. Right from the cases of (i) Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334; (ii) Mst.
12. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696 and (iii) Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 this view is being taken throughout. Even, in a recent pronouncement of the Hon'ble Supreme Court in the case of Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 it has been held by their Lordships as under:- "...S.12(2)---Allegation of fraud and misrepresentation, determination of---Investigation into question of fact---Framing of issues---Scope--- Determination of such allegations ordinarily involved investigation into a question of fact and in such case an inquiry is ordinarily to be held to decide the matter---Court is not under obligation in every case to frame issues, record evidence of the parties and follow the Procedure prescribed for decision in a suit---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 the Court may in its discretion adopt any mode for its disposal."
13. ' The learned counsel for the applicant has mainly contended that the Muslim Law permits transfer of properties through oral gifts and the same are to be acted upon. In support of his contention the learned counsel has refied upon the case of Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another PLD 1998 Karachi 291 I am in respectful agreement with the said view taken by a Division Bench of this Court and there is no cavil with this proposition that Muslim Law permits making of gifts orally, but it does not mean that mere saying that a particular property was orally gifted by a deceased particularly under the circumstances as existing in this case, should be taken as gospel truth. Admittedly, the applicant who was inducted as a tenant in the house in question by late Sirajul Hassan shall always be deemed to be so, unless otherwise proved through substantial evidence. Mere payment of the utility bills in his name by an occupant does not make him owner of the property. Some judicial or administrative order based on substantial proof of the ownership is equired for the purpose and mere insertion of name of a person in the column of owners in utility bills does not mean that he has become owner of the property. If any such proposition is given any weight, it shall become highly dangerous as any tenant of a property managing entries in the utility bills by fair or foul means shall start claiming to be owner as against the real owner. Hence the bills and the PT-I form produced by the applicant cannot lend any support to his case. Furthermore, the applicant cannot get out of his own statement recorded before the Official Assignee of this Court on two different dates. Had there been any gift in his favour, he would have stated such fact during his statement. It shall be beneficial to produce his statement, a certified copy whereof has been placed on record alongwith the objections/counter-affidavit of respondent No,6 and has gone unchallenged, uncontroverted and unrebutted, which reads as under:-- {{TABLE}} "Name: Mirza Mustafa Ali Beg, Father's Name: Mirza Mehmood Ali Beg.
14. Caste: Mirza.
15. Address:-- 91/A Block-I, G. Iqbal -24 .
16. On S.A. To, {{TABLE}} ' Mr. Zafarul Hassan Oureshi.
17. ' I am tenant in respect of House No,91/A, Block-I, Gulshan-e-lqbal. I had taken this house on rent from late Sirajul Hassan who was my landlord. I am paying Rs,400 p.m. As rent since then. I had obtained this house for the purpose of residence as well for running a school. In one room I am residing with my family. In other room I am running a School in the name of N.M. Secondary School.
18. I was paying rent to late Sirajul Hassan. The last payment was made to him in the hospital in the presence of his sister Mst. Sayeeda Begum. I am occupying the premises since then.
19. ' Cross to Mr. A.R. Mirza.
20. ' I am occupying this house since March 1975. It is not a fact that this school was started after the death of Sirajul Hassan. This house was in the name of his wife Mst. Fazilatunissa whose name plate is still there.
21. ' Cross to Mr. Khawaia Advocate Nil.
22. R.O.S. A.C. (Sd.)
23. OFFICIAL ASSIGNEE 15-1-1989.
24. (Sd.)
25. Mirza Mustafa Ali Beg.
26. ' Re-examination to Mr. G.Muhammad Advocate ' I have no written permission from Sirajul Hassan for running School in the part of the house. It is not correct that Sirajul Hassan had given me this house for residential purpose only at a rate of Rs,400 p.m. I can produce same of the rent receipts which were given by Sirajul Hassan. I had stated before Nazir of this Court that I am prepared to deposit amount of Rs,51,450 in Court on account of rent upto September, 1984 in instalments after deducting the expenses incurred by me.
27. R.O.S.A.C. (Sd.)
28. OFFICIAL ASSIGNEE 6-2-1989."
29. It has been rightly argued by the learned counsel for the respondents that apart from merits of the case, this application is hopelessly time-barred. Under Article 181 of the Limitation Act, the maximum time limit provided for filing such applications is hree years. The contention of the applicant that he was unaware of pendency of the suit between the legal heirs of late Sirajul Hassan in respect of the property in question stands contradicted and belied by his own statement as referred to above made by him as a witness in such dispute. The plea that the applicant was unaware of any such litigation and that he came to know about the impugned judgment and decree only on 20-11-1999 is a false and concocted plea which has no legs to stand.
30. The upshot of the discussion made above is that the applicant has no case on merits. He has also not approached the Court with clean hands and within the time prescribed by the law hence this application under section 12(2), C.P.C. Appears to be malicious in nature and no other view can be taken that it has been filed to usurp and grab and property 'which is in possession of the applicant as a tenant and he wants to take undue advantage of the litigation between the legal heirs of late Sirajul Hassan. The application is dismissed with special compensatory costs of Rs,20,000 (Rupees twenty thousand) to be paid by the applicant to the legal heirs of Respondent No,1, and the respondent No,6 half and half.
31. Application . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.