1. ' This petition titled as Judicial Miscellaneous Application is preferred under section 12(2), C.P.C.
2. Seeking reversal of order, dated 26-9-1997 and restoration of Suit No,21 of 1996 for regular trial. The plaintiff is stated to have filed Suit No,21 of 1996 on 14-1-1996 through his Attorney Major (Retd.)
3. Muhammad Afzal Khan, inter alia for specific performance of Sale Agreement dated 17-8-1995 in reiation to Property bearing No,16C, Lane No,15, Peninsula Commercial Area, Phase-VIII, Defence - Housing Authority, Karachi. On 6-2-1997, the plaintiff was directed to deposit the balance sale consideration amount of Rs,9,50,000 with the Nazir of this Court. It may be noted that the sale consideration, according to the plaint, was settled at Rs,19,0,000 our of which a sum of Rs,1,00,000 had been paid, as advance. The balance amount of sale consideration was subsequently, deposited with the NaZir through Demand Draft dated 24-5-1997. On 24-9-1997, three applications appear to have been filed through another counsel, purportedly on behalf of the plaintiff. The first application, C.M.A. No,6209' of 1997 was urgent hearing; the second application, C.M.A.. No,6210 of 1997 was for refund of Rs,9,50,000. In favour of Depositor, Attorney of the plaintiff on the ground of proposed withdrawal of the suit; and the last application, C.M.A. No,6211 of 1997, -was moved under O.XXIII, rule I, C.P.C. For unconditional withdrawal of the suit. The last two applications bore endorsement of no objection, by the learned counsel' for the defendants. The three applications came up for orders before my learned brother Rasheed Ahined Rizvi, .1y on 26-9-1997 and were granted in the following terms: "1 Granted.
4. 2 and 3. C.M.A. 6211 of 1997 has been, filed under O.XXIII, rule 1, C.P.C. Seeking unconditional leave to withdraw this suit. This application is signed by the plaintiff as well as his counsel. Mr. Munirur- Rehman, has also put his no objection in writing on this application. Accordingly; this application is granted by the consent and the suit is dismissed as withdrawn with no order as to costs. C.M.A.
5. No,6210 of 1997 is another application filed by the plaintiff seeking refund of Rs,9,50,000. Which was deposited by him under this Court order being the balance sale consideration. Mr. Munir- urRehman waives notice of this application and extends his no objection. By consent this application is also granted and the Nazir is directed to .Refund the said amount to the plaintiff on strict identification: [eitiphasis supplied!: ' Pursuant to the said order., the Nazir had issued Cheque dated 2-10-1997 for Rs,9,50,000 in favour of the above-named attorney of the plaintiff. Mawr (Reid.) Muhammad Afzal Khan.
6. ' On 3-11-1997, the plaintiff applicant came up with the present proceedings under section 12(2):- C.P.C. Contending that above-named Major Retd.) Muhammad Afzal Khan had been dismissed from the service of plaintiff's propriety and a notice to that effect had been published in the daily DAWN.- date the balance amount of sale consideration was deposited by the plaintiff through Demand Draft: the plaintiff had informed his counsel, Mr. Farooq H. Naeq, through letter, dated 23- 7-1997 that the attorney, Major (Retd.) Muhammad Afzal Khan, was no more associated with his business concern; the three applications including the one for withdrawal of the suit were filed without the instructions of plaintiff; and the attorney, Major (Retd.) Muhammad Afzal Khan, had, fraudulently, received refund of Rs,9,50,000 from the Court. None of the parties have led any evidence and arguments have been heard.
7. ' The learned counsel for the applicant/plaintiff, Mr. Imtiaz Ahmed Ansari, has urged that the order, dated 26-9-1997 passed in Suit No, 21 of 1996 was obtained by practising fraud and on the basis of misrepresentation to the effect that Major (Retd.) Muhammad Afzal Khan had continued to be the attained of the plaintiff. It is further urged that the order, dated 26-9-1997 had required the Nazir to refund the amount of Rs,9,50,000 to the plaintiff upon strict identification whereas the payment was made in favour of the said attorney, Major (Retd.) Muhammad Afzal Khan. It is further contended that the sum of Rs,1,00,000 admittedly received by the defendants, has not been paid back to the plaintiff and the defendants have appropriated such amount unauthorisedly. The learned counsel for the applicant has referred to order in the case of Abdul Sattar and others v. Ibrahim and others (PLD 1992 Kar. 323) to contend that in exercise of power under section 12(2), the Court can modify the decree and grant adequate relief without formally setting aside the decree, itself.
8. The scope of proceedings under section 12(2), C.P.C. Is confined to fraud practise upon the Court, itself, and obtaining an order or decree through misrepresentation. A Civil Court is also empowered to recall and set aside an order passed by it without jurisdiction under the provisions of section 12(2), C.P.C. I have noticed that the plaintiff, in the present case, has alleged fraud and misrepresentation by its own attainey and the counsel. The plaintiff has not questioned the position that Major (Retd.) Muhammad Afzal Khan was his attorney and that the proceedings in Suit No,21 of 1996 were filed through him in such capacity. Although I have noticed that copy of Powerof- Attainey is not available on the file in Suit No, 21 of 1996, nothing turns on that in view of the acknowledgement by the plaintiff/appellant of the status of Major (Retd.) Muhammad Afzal Khan as his attorney. The Power-of-Attorney granted to Major (Retd.) Muhammad Afzal Khan is not stated to have been revoked at any stage and mere dismissal of the attainey from the employment of plaintiff or his business concern did not have the effect of revocation of Power-of- Attorney. The attainey of the plaintiff ' had, lawfully, represented the plaintiff from the very inception of proceedings and nothing had been placed on record to indicate that the authority of the attorney had ceased to be operative. The plaintiff was, admittedly, aware of the present proceedings and had failed to take any steps to revoke the authority of the attainey. The position, indeed, would have been different if the Power-of-Attorney had been revoked and information to such effect had been placed on the record of this case. In the absence of above, the above- named attainey could, . Lawfully, apply for withdrawal of the suit and seek refund of the money, deposited by the plaintiff. No fraud or misrepresentation was, thus, practised upon Court so as to vitiate the order passed in Suit No, 21 of 1996. The plaintiff/appellant can pursue his remedy, independently, against the persons who had, allegedly, defrauded him. The plaintiff/applicant is, therefore, not entitled to the relief, sought in the present proceedings. The application, in the circumstances, is dismissed.
9. ' Before parting with the case, it may be observed that in view of the specific order passed on 26-9- 1997, directing the Nazir to refund the amount to the plaintiff on strict identification the Nazir ought to have insisted for production of Power-of-Attorney or a Letter of Authority. However, no illegality appears to have been omitted in making payment to the Attorney through whom the proceedings, itself, were filed.