The petitioner through this Constitutional petition has assailed the judgment and decree dated 25- 4-1999 passed by the learned Additional District Judge, Ferozewala whereby the judgment and decree dated 22-10-1992 passed by the learned Civil Judge, Ferozewala was set aside.
2. Brief facts giving rise to this Constitutional petition are that the petitioner owned land measuring 171 Kanals and 9 Marlas situated in Chak No, 39/UCC, (abutting the G.T. Road) Ferozewala District Sheikhupura respondent No,1 claimed that the petitioner had executed an agreement to sell for the sale of above-mentioned land in his favour on 28-1-1979 for a total consideration of Rs,1,10,000 out of which Rs,1,00,000 was allegedly paid as earnest money and the remaining amount of Rs,10,000 was to be paid at the time of registration of the sale-deed. On 24-6-1980 he filed a suit for possession through specific performance of the agreement in the Court of learned Civil Judge Ferozewala. No process was issued in the case but on 27-7-1980, Mr.Abdul Karim Kirala, Advocate filed memo. of appearance on behalf of the petitioner. Thereafter, he filed a consenting written , statement in the Court. Accordingly the trial Court decreed the suit vide judgment dated 25-9- 1980. It was mentioned in the judgment that the statement of the petitioner/defendant had- been recorded but according to the petitioner's learned counsel no such statement exists on the record: On 29-6-1983 respondent No,1' sold land measuring 10 Kanals for Rs,5,90,000 in favour of respondent Nos,2 and 3. On 5-7-1993 the petitioner filed an application under section 12(2) of the C.P.C. for setting aside the decree dated 25-9-1980. This application was accepted on 22-10-1992.
Respondent No, 1 filed a revision petition, which was returned to the District Courts after amendment in the law. It was entrusted to the learned Additional District Judge, Ferozewala, who accepted the same vide his order dated 25-4-1995. It may be mentioned here that during the pendency of the petitioner's application under section 12(2) of the C.P.C., respondent No,1 had filed an application for producing the expert to verify the petitioner's signatures borne on the written statement as well as on his power of attorney in favour of Mr.Abdul Karim Kirala, Advocate. The application was accepted on 244-1989 but no expert was produced till the decision of the suit.
2. The petitioner's learned counsel contends:-
(i) That the decree dated 25-9 1980 was obtained by respondent No,1 through fraud and mis- representation. Initially no process was issued to the petitioner. who was impleaded as defendant in the suit. There was no statement made by him before the Court though it was so mentioned in the order passed by the learned trial Court.
(ii) That there is no independent evidence to prove that the petitioner had received the sale consideration of Rs,1,00,000 at his house.
(iii) That the petitioner never engaged Mr. Abdul Karim Kirala Advocate as his counsel, who was actually a friend of Munir Ahmad, respondent No,l.
(iv)That the trial Court had rightly set aside the decree on the petitioner's application under section 12(2) of the C.P.C. and the Revisional Court wrongly set aside the same without any legal, or. factual justification.
(v)That the petitioners highly valuable property was wrongly shown to have been sold for a meagre amount of Rs,1,10.000 although respondent No,1 himself had sold 10 Kanals of land for a sum of Rs,5.90,000 in the year, 1983.
(vi)That the law favours adjudication on merits.
2-A The petitioner's learned counsel has referred to Para. 9 of the judgment dated 22-10-1992 passed by the learned Civil Judge. It is mentioned therein that the balance amount of Rs,10,000 was paid to the petitioner in the office of Mr.Abdul Karim Kirala, Advocate on 17-9-1980 vide a receipt written by the said Advocate.
However, it was not produced in evidence. It is also mentioned that the Vakalatnama (Exh.A.W-8) in favour of Mr.Abdul Karim Kirala Advocate was signed by Ch. Rehmat Ali Advocate as well, Ch. Rehmat Ali Advocate was not produced as a witness. It was brought in evidence that - respondent No,1 had contracted three marriages. Mr.Abdul Karim Kirala. Advocate was a witness of Nikahnama (Exh.A-12) dated 8- 9-1979 regarding marriage of respondent No,1 with Mst. Jamila Begum. He was also a counsel for Respondent No,1 in 3 or 4 cases. Subsequently, he filed a suit in the year 1993 for permanent injunction against the petitioner. The plaint in the said suit was exhibited as Exh.A-15. In this suit, it was nowhere mentioned that Munir Ahmad, Respondent No,1, had any title in the suit land on the basis of the impugned decree. It is also noteworthy that in this suit the written statement on behalf of the petitioner was, filed by Mr. Aslam Khalid Advocate, a junior of Abdul Karim Kirala, Advocate. It was established that the plaint and written statement were written by the Clerk of Mr. Abdul Karim Kirala, Advocate. On the basis of all these facts, the trial Court, held that there was collusion between respondent No,1 and Mr. Abdul Karim Kirala. Advocate to deprive the petitioner of his valuable land. Munir Ahmad R.W.7 stated that Mr.Abdul Karim Kirala, Advocate was an accused with him in an anti-corruption case. He further stated that he had no connection with Muhammad Yousaf and Anwar Munno but both of them are marginal witnesses of the alleged agreement to sell. Muhammad Anwar was produced as R.W.5 to prove the execution of the agreement. He appears to have a shady character. He admitted that he was an accused in case/challan (Exh.R.W.5/.1): was convicted in a case under sections 468/424/17 of the P.P.C. and was an accused in case under section 307 of the P.P.C.. which was pending. He further admitted that Mr.Abdul Karim Kirala, Advocate was his counsel. He adds that had the petitioner been present in the office of Mr.Abdul Karim Kirala Advocate then he Could have been produced in the Court and his statement could have been recorded. In that eventuality there would have been hardly any occasion to file a memo. of appearance. Instead the Advocate could have obtained a power of attorney and filed the same in the Court. The petitioner's learned counsel relies on Mumtaz Bibi and others v. Ghulam Akbar (PLD 1995 Pesh. 81) to urge that there was no earthly reason to deviate from the normal procedure laid down in the C.P.C. Also relies on Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782) to urge that it was essential to have the statement of the petitioner recorded keeping in view the huge interest involved in, the matter.
3. On the other hand, learned counsel for respondent No,1 submits that the witnesses produced by the petitioner, A.W1 to A.W.7, are not independent. They are either interested or their evidence is merely hearsay. The petitioner while appearing as A.W-8 himself admitted that he had signed the Vakalatnama and written statement: that respondent No,1 had obtained permission of the Court to produce expert evidence but the present petitioner went in revision against the said order, therefore, respondent No,1 could not produce the expert evidence and that after the decision of the trial Court the petitioner withdrew the revision petition. As regards the question that without issuance of any process how the petitioner came to know about the institution of the suit, the learned counsel for respondent No,1 explains that the contesting parties are inter-related and had restored to the mode of transfer of title through Court decree in order to avoid expenses involved on the registration of the sale-deed; that the same mode of consenting statement was resorted to and the decree was passed in another suit for permanent injunction filed by the respondent No,1 against the petitioner; that in that suit Mr, Abdul Karim Kirala, Advocate became counsel for the plaintiff/respondent No,1 and his junior Mr.Rehmat Ali. Advocate appeared on behalf of the defendant/petitioner. The said decree dated 18-1-1983 has not been challenged; that before sale respondent No,1 got advertisement published in the newspaper (Exhs.R/1 and 2) in daily"Jang" and "Mashriq" for sale of the land; that the trial Court decided the case on the basis of the evidence of respondent No,1 and not on the basis of any independent evidence produced by the petitioner; that the alienation of 10- Kanals made by respondent No,1 cannot be challenged in the application under section 12(2) of the C.P.C.;that the sale was registered on 24-11-1981 and presumption of truth is attached to a registered sale-deed; that the petitioner had failed to discharge the onus of Issue No,1, He relies on:
(1) The Chief Settlement Commissioner. Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
(2) Jam Pari v. Muhammad Abdullah. (1992 SCMR 786) and
(3) Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782). to urge that the revisional Court has exercised the jurisdiction after evaluating the entire evidence; therefore, the view of the Court cannot be substituted in writ jurisdiction.
4. Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney General, who is present on Court's call on behalf of respondent Nos,2 and 3 contends that the respondents have bonafidely purchased 10 Kanals of land without notice of any defect in the title of respondent No,1. They had purchased that land for a huge amount of .Rs,5,90,000 in good faith; that they could not be impleaded as respondents in the application filed by the petitioner under section 12(2) of the C.P.C.
5. After , hearing the learned counsel for the parties and perusing the material on the record, I find that the trial Court had judiciously exercised its, jurisdiction and passed a well-considered judgment, which did not require any interference in the exercise of revisional jurisdiction by the learned Additional District Judge. The exercise of revisional jurisdiction was not justified merely because two views were possible on appraisal of the evidence on the record. The revisional jurisdiction is essentially meant to correct jurisdictional defects or material irregularities in the judgment of the lower Court. In the present case there is nothing to show that the trial Court had exercised the jurisdiction not vested in it by law or had failed to exercise a jurisdiction so vested in it or had acted in the exercise of its jurisdiction llegally or with material irregularity. The subject- matter of the dispute revolves around a fairly being tract of land measuring 171 Kanalas and 9 Marlas. The petitioner has claimed to be a lawful owner of the said land and asserted that Respondent No,1 had colluded with Mr.Abdul Karim Kirala, Advocate to deprive him of the ownership of the land. The trial Court had rightly given weight to the fact that no summon or notice was issued to the petitioner in the suit filed by respondent No,1 and that it was not believable that after filing the suit the plaintiff/respondent No,1 had personally gone to the house of his opponent (i,e, the petitioner) and informed him about the institution of the suit. He also noted that while appearing as R.W-7 Munir Ahmad, respondent No, 1, stated that when he went to the house of the petitioner, the petitioner told him that he would get the sale-deed registered in his favour. The view of the trial Court that if the petitioner had agreed to have the sale-deed registered, then there was no occasion for respondent No,1 to file a suit for specific performance the agreement. The trial Court also considered that had the petitioner consented to transfer the land then he would have personally appeared before the Court and made a statement in favour of the plaintiff/respondent No and -got the suit decreed is favour Mr.Abdul Karim, Kirala, Advocate appeared as R.W.6 and stated that the petitioner was present in his office on the very firstly date when the suit was filed.
Had it been so, then there was no occasion for him to file a memo. of appearance on behalf of the petitioner. In the normal course. the learned counsel ought to have obtained a power of attorney from the petitioner and filed the same in the Court. Keeping in view the evidence on the record the trial Court recorded a finding of fact in these words, "this proves that respondent No,1 has concocted a story and actually petitioner was neither aware of the pendency of the suit nor was served upon personally". The trial Court has also given weight to a very important fact that the suit-land was shown to have been purchased by respondent No,! for Rs,1,10,000 in the year 1980 although its market value was not less than Rs,2/2-1/2 lacs per Acre. In this connection the trial Court has referred to the oral evidence of the petitioner's witnesses whose testimony was supported by sale-deeds Exh. A/8 to Exh.A/11. It is noteworthy that respondent No,1 himself sold land measuring 10 Kanals to PTCL on 29-6-1983 for Rs,5,90,000. Therefore, it cannot be accepted that the petitioner had sold his entire land measuring 171 Kanala and 9 Marlas in January, 1979 for a small amount of Rs,1,10,000. The trial Court did not believe that the balance amount of Rs,10,000 was paid by respondent No,1 to the petitioner on 17-9-1980 vide a written receipt, executed by Mr.Abdul Karim Kirala, Advocate. The alleged written receipt was never produced in evidence.
6. I have gone through the lengthy Para. 9 of the judgment of the trial Court, which contains a number of other reasons justifying his findings on Issue No,1 that the decree dated 25-8-1980 was result of fraud, misrepresentation and collusion (between Munir Ahmad, respondent No,1 and Mr.Abdul Karim Kirala, Advocate). The Appellate Court did not meet the reasoning advanced by the trial Court and proceeded to give his own reasons for coming to a different conclusion. The Appellate Court gave considerable weight to the petitioner's admission that the Vakalatnama bore his signatures. The Appellate Court failed to consider that the petitioner had never admitted that he had engaged Mr.Abdul Karim Kirala, Advocate in the suit for specific performance of the contract and, instructed, him to file a consenting written statement. In fact the tenor of the petitioner's statement is that he had given a Vakalatnama and a few other papers signed by him in connection with another case but Mr.Abdul Karim Kirala. Advocate wrongly used the said papers for passing of a consent decree in the suit for specific performance of the contract filed by respondent No, l. The Appellate Court has also passed an elaborate judgment but unfortunately had proceeded on the wrong assumption that there was. "an admitted written statement". of the present petitioner. The statements of contesting parties show that both of them have been engaging Mr.Abdul Karim Kirala, Advocate in different cases. The petitioner stated that on the death of his father he had litigation with his in-laws at Ferozewala in which he had engaged Mr.Abdul Karim Kirala, Advocate as his counsel. He further stated that the said cases had been continuing during the period from 1968 to 1976-1977. He further stated that in all the cases he as well as his sister had been appointing Mr.Abdul Karim Kirala, Advocate as their counsel and that for the said case he had signed a power of attorney and some blank papers in the year 1977. He further stated that on 28-1-1979 Munir Ahmad, respondent No,1, got a false Iqrarnama prepared in collusion with Mr.Abdul Karim Kirala, Advocate and then obtained a false and fraudulent decree on 25-9-1980. If his statement is read as a. whole, then it is decipherable that he has nowhere admitted that he had appointed Mr. Abdul Karim Kirala. Advocate as his counsel in the suit for specific performance of the contract filed by respondent No,1 and instructed him to submit a consenting written statement on his behalf. The evidence on the record also shows that respondent No,1 had contracted three marriages and Mr. Abdul Karim Kirala, Advocate was a witness of Nikahnama dated 8-9-1979 (Exh.P-12) regarding his marriage with Mst. Jamila Bibi.
Mr.Abdul Karim Kirala, Advocate was a counsel for respondent No,1 in four cases. At one stage he filed a suit in the year 1993 for permanent injunction against the petitioner' but plaint (Exh.A-15) does not show that respondent No,1 had any title in the suit-land on the basis of the impugned decree. The above evidence shows that Mr.Abdul Karim Kirala, Advocate has close links with respondent No,l. In the light of the evidence on the record the trial Court had rightly held that the petitioner had never engaged Mr.Abdul Karim Kirala, Advocate as his counsel in the suit filed by respondent No,1 for specific performance of the agreement and that the impugned decree was result of fraud, misrepresentation and collusion between respondent No,1 and Mr. Abdul Karim Kirala, Advocate.
7. Now I may advert to the judgment relied upon by the respondent's learned counsel. In the case of Raja Muhammad Fazil Khan and others it was held that an order obtained by fraud was voidable and not void, at the instance of any party adversely affected by it. The petitioner is certainly an aggrieved party as he was deprived of his landed property measuring 171 Kanals, 9 Marlas through the impugned decree dated 25-9-1980. The learned counsel for respondent No,1 has cited the above judgment primarily to show that the application filed under section 12 (2) of the C.P.C. by the present petitioner was barred by limitation and that the principle that no limitation runs against the void order/judgment is not applicable in the case. Firstly, the petitioner had not challenged the judgment/decree solely on the ground that it was vitiated due to fraud. He had asserted that it also suffers from misrepresentation and collusion between respondent No,1 and Mr.Abdul Karim Kirla, Advocate. Therefore, a decree, which suffers from fraud, misrepresentation and collusion, is void and not merely voidable at the instance of the aggrieved party. So far as the question of limitation is concerned, this was decided against respondent No,1 by the trial Court and was not agitated before the revisional Court which held in Para. No,22 as under:- "So far as the question of limitation is concerned that has not been argued and contested on behalf of the revision petitioner (respondent No,1), so I hold that the application is otherwise within time".
Therefore, respondent No,1 cannot be allowed to raise this point during the course of hearing of the present petition. In the case of Jam Pari (supra), it was held that the revision jurisdiction was primarily meant for correction of errors in the order made by the subordinate Court and that finding of fact was not open to revision unless it was shown to be based on no evidence of suffering from any non-reading or misreading of evidence. The same judgment has been relied upon by the petitioner's learned counsel to urge that the finding of fact, recorded by the trial Court after proper appraisal of evidence was not open to challenge before the revisional Court. I also agree with the contention raised by the petitioner's learned counsel that the trial Court had carefully scrutinized the entire evidence and rightly recorded a finding of fact that the impugned judgment and decree was the result of fraud misrepresentation and collusion. The revisional Court failed to meet the reasoning advanced by the trial Court and illegally reversed its judgment in revision. In the case of Khalil Ahmad and others (supra) it was held that where a party to an agreement deceitfully agreed to transfer property owned by the third party without latter's knowledge the agreement being fraudulent and void, no bar of limitation could successfully be pleaded against the aggrieved party. This judgment goes in favour of the petitioner so far as the question of limitation is concerned. In this case the Honourable Supreme Court has clearly held that, a judgment obtained through fraud is void and not voidable as held in the case of Muhammad Fazil Khan and others (supra).
8. For the foregoing discussion, I hold that there was no legal infirmity or jurisdictional defect in the judgment dated 22-10-1992 passed by the trial Court as so as to justify interference by the learned Additional District Judge in exercise of revisional jurisdiction under section 115 of the C.P.C. The Revisional Court had acted illegally and arbitrarily by ignoring material D evidence on the record and drawing wrong conclusion therefrom. Hence this petition is accepted, the impugned judgment/decree dated 25-4-1995 passed by the Revisional Court is declared to be without lawful authority and of no legal effect and that of the trial Court dated 22-10-1992 is restored, leaving the parties to bear their own costs.