This judgment shall dispose of Writ Petitions Nos.2932 and 2933 of 1998 as the same have arisen from the judgment of the Additional District Judge, Chiniot dated 5-11-1997, whereby he accepted the revision petition filed by Ahmed Yar and Muhammad Hayat, respondents Nos.1 and 2 herein, against the order dated 3-4-1996 of the Civil Judge 1st Class, Chiniot, whereby an application under section 12(2), C.P.C. Moved on behalf of Muhammad Khan and others predecessor-in- interest of the petitioner was accepted and thus the judgment and decree dated 19-12-1978 making the Arbitration Award dated 31-7-1978 as rule of the Court was set aside.
2. The parties of the writ petition are nephew and niece of one Maulu son of Raja who died issueless, who was owner-in---possession of land measuring 79 Kanals and 8 Marlas, situated in Mauza Thatha Chandu Kalan, Tehsil Chiniot, District Jhang, according to Register Haqdaran Zamin for the year 1974-75. Ahmed Yar and Muhammad Hayat, respondents Nos.1 and 2 claimed that they had purchased the above stated land from the owner, namely, Maulu son of Raja. It was their case that some dispute regarding the trees standing on the land and registration of the sale deed arose between the owner namely Maulu on the one side, Ahmed Yar and Muhammad Hayat on the other and to resolve the dispute the parties agreed to appoint one Shera son of Muhammad, predecessor of respondents Nos.4 to 7 as arbitrator vide agreement dated 24-7-1978, who announced his Award dated 31-7-1978. Ahmed Yar and Muhammad Hayat, respondents, moved an application under section 14 of the Arbitration Act to make the Award dated 31-7-1978 as rule of the Court. Muhammad Khan, the general attorney of Maulu, with whom the alleged agreement to sell was executed and the arbitration agreement dated 24-7-1978 was allegedly entered into between the parties and Shera son of Muhammad were impleaded as defendants/respondents in the application. The suit/application for making the Award rule of the Court was conceded by Muhammad Khan and Shera before the trial Court, thereupon the arbitration award dated 31-7- 1978 was made rule of the Court vide judgment and decree dated 28-11-1978. On the basis of this Award the Mutation No.546 dated 19-12-1978 was attested in favour of Ahmed Yar and Muhammad Hayat.
3. Maulu in his lifetime coming to know that the Award had been announced by the Arbitrator, namely Shera, in favour of Ahmed Yar and Muhammad Hayat on the basis of the above said agreement dated 24-7-1978, moved an application under section 12(2), C.P.C., on 7-3-1992 before the trial Court, through which he challenged the decree dated 31-7-1978 alleging that the same has been obtained by Ahmed Yar and Muhammad Hayat through fraud and misrepresentation without impleading the original owner, namely, Maulu son of Raja as a party in the suit. It was stated in the application that he never entered into agreement dated 24-7-1978 to appoint Shera as the Arbitrator and that the Award dated 31-7-1978 is based on fraud, and consequently the decree of the Court is also result of misrepresentation and fraud. Maulu died during the pendency of the application under section 12(2), C.P.C. Thereafter, the petitioners were impleaded as party.
4. The application was resisted by the respondents by filing the written reply. It was contended that the application was barred by time and that Maulu deceased through his General Attorney, namely, Muhammad Khan had sold the land in dispute to them and he got the arbitration award made rule of the Court. It was also submitted that Maulu, the original owner, had received consideration amount through his general attorney. He through his general attorney had entered into an agreement to sell. Muhammad Khan also contested the application by filing a separate reply. It was submitted-that the application was Benami and the same was filed for the benefit of Mst. Fatima daughter of Miraja. He further contended that Maulu had given him the general power of attorney and empowered him to sell the land in dispute and to pursue the cases. It was contended that appointment of the Arbitrator and thereafter the proceedings resulting the decree for making the Award rule of the Court were valid.
5. The learned Civil Judge, Chiniot, from the divergent pleadings of the parties proceeded to frame the following issues:--
(1) Whether the petition is time-barred? OPR
(2) Whether the petition is benami and filed for the benefit of Mst. Ghulam Fatima and also what is the effect of preliminary Objections Nos. 1 and 2 of the written reply? OPR
(3) Whether the impugned judgment and decree dated 19-12-1978 and impugned Mutation No. 79 dated 19-12-1987 are wrong, against law and facts, based on fraud, misrepresentation, collusion and without knowledge of the petitioner, without consideration and as such void and ineffective qua the rights of the petitioner? OPA
(4) Relief.
6. The learned Civil decided Issue No.3 in favour of, the petitioners and held that the impugned judgment and decree dated 19-12-1978 and impugned Mutation No.79 dated 19-12-1987 in favour of Ahmed Yar and Muhammad Hayat are against law and facts, based on fraud, misrepresentation, collusion and without knowledge of the petitioners, without consideration and as such void and ineffective qua the rights of Maulu. The learned Civil Judge also observed that Maulu himself should have been made a party. Notices should have been sent to him and after his service he might have sent a special or general attorney to contest the suit which has not been done in this case. The finding on Issue No.1 was also recorded in favour of the petitioner and against respondents Nos. 1 and 2, and it was held that the petition under section 12(2), C.P.C. Is within time because the application was filed upon gaining the knowledge of the impugned decree. The learned Civil Judge was of the opinion that the decree was kept secret from Maulu and mutation on the basis of decree dated 19-12-1978 was got attested on 19-12-1989, which clearly shows that the impugned decree was not made public till 19-12-1987. The learned Judge concluded that since no notice before the' institution of the application for making the Award rule of the Court was sent to Maulu, the original applicant, therefore, it is clear that the applicant had no knowledge or information about the tiling of the petition under section 14 of the Arbitration Act to make the Award rule of the Court. The application under section 12(2), C.P.C. Tiled by Maulu and pursued by the petitioner was allowed vide order dated 3-4-1996. This order of the Civil Judge was assailed by the respondents Ahmed Yar and Muhammad Hayat by way of filing a Civil Revision before the Additional District Judge, Chiniot. The findings on Issues Nos.1 and 3 were reversed and consequently vide judgment dated 5-11-1997 the learned Additional District Judge proceeded to set aside the order dated 3-4-1996 of the Civil Judge and the application under section 12(2), C.P.C.
Filed by Maulu was dismissed. The learned Additional District Judge relied on the commentary in the Code of Civil Procedure, 7th Edition of 1995 at page 80 by Mr. Aamir Raza Khan and observed that the petition under section 12(2). C.P.C. Tiled by Maulu was not maintainable because subsection (2) of section 12 was added by the Ordinance No. X of 1980, which is not retrospective. It was further held that the real issue between the parties was whether Maulu had not executed any general power of attorney in favour of Muhammad Khan son of Amir nor Shera son of Muhammad was appointed as an Arbitrator, and furthermore that the entire proceedings conducted by the learned trial Court in the main application for making the Award dated 31-7-1978 as rule of the Court were based on fraud, misrepresentation, collusion, without knowledge of Maulu and without consideration and the learned Civil Judge instead of giving his decision on the above issues has misdirected himself and wrongly held that Maulu was misrepresented by keeping him outside the proceedings of the application therefore, the fraud had been played. On the basis of evidence, the learned Additional District Judge observed that the agreement to appoint Arbitrator was entered between Maulu on one hand and Ahmed Yar and Muhammad Hayat on the other, through which Shera was appointed as Arbitrator and the proceedings were validly conducted by Muhammad Khan as general attorney of Maulu and there was no fraud and misrepresentation. He reversed the finding on Issue No.3 and set aside the same. The learned Additional District Judge also reversed the finding on Issue No.1 and held that the petition under section 1.2(2), C.P.C. Tiled by petitioner's predecessor, namely, Maulu, was time-barred. According to the learned Additional District Judge, Maulu could not produce Dossu whose name was mentioned in para.3 of the application under section 5 of the Limitation Act and the very contention of the applicant that Maulu came to know about the alleged fraud and misrepresentation only two days before tiling of the application under section 12(2), C.P.C. Cannot be attached any weight. The application filed by Maulu under section 5 of the Limitation Act for condonation of delay was considered as time-barred and it was held that no fraud had been established on behalf of the petitioners, therefore, the proposition of law that fraud vitiates even the most solemn proceedings is not attracted to the facts and circumstances of the present case. By dismissing the application under section 5 of the Limitation Act, the learned Additional District Judge also reversed the finding on Issue No. 1 recorded by the trial Court. The revision petition was accepted by setting aside the order dated 3-4-1996 of the learned Civil Judge and the application filed by Maulu under section 12(2), C.P.C. Was dismissed.
7. The learned counsel for the petitioners contends that subsection (2) was added in section 12 of the C.P.C. By Ordinance No.X of 1980. According to him, generally all laws apply prospectively, subject, however, to the exception that laws effecting procedure only are presumed to be retrospective. He states that the matters relating to remedy and jurisdiction are usually considered to be procedural in character, for they do not affect the rights of the parties. He contends that the decree in question was although passed prior to the promulgation of section 12(2), C.P.C., yet the same could have been challenged by availing the remedy under section 12(2), C.P.C. And the First Appellate Court has erroneously dismissed the application. Further contends that Maulu, the original owner of the land in dispute, was not impleaded as defendant/respondent, the provisions of Order I, rule 3, C.P.C. Which stipulates that all the persons may be joined as defendants against whom any right to relief in respect of, or arising out of the sane act or transaction or series of acts, is alleged to exist, ought to have been joined as defendants and by not impleading Maulu as defendant the above provisions of law have been violated. He contends that at maximum Muhammad Khan who was appointed as general attorney by Maulu could be considered as recognized agent and the application for making the Award rule of the Court could have been defended by the party in person or by his recognized agent or by a pleader. He states that summons under Order V ought to have been issued to the defendant to appear and answer the claim of the plaintiff. Since Maulu was not impleaded therefore, all the above stated provisions were violated. Contends that a well-reasoned judgment of the Civil Judge accepting the application under section 12(2), C.P.C. Vide order dated 3-4-1996, has been illegally set aside by the Additional District Judge, Chiniot.
8. Conversely, the learned counsel for the respondents contends that the application under section 12(2), C.P.C. Filed by Maulu was time-barred and that the provisions of section 12(2), C.P.C. Were not applicable to the application tiled by Maulu for setting aside the judgment and decree being obtained on fraud and misrepresentation and further that the .Learned Civil Judge has not appreciated the evidence qua the real issues of appointing Muhammad Khan by Maulu as his general attorney and that said Muhammad Khan entered into an agreement for appointing Shera as Arbitrator with Ahmed Yar and Muhammad Hayat therefore, the revision has rightly been accepted by the learned Additional District Judge by setting aside the order of the Civil Judge date 3-4-1996.
9. I have considered the arguments of both the parties and perused the record. The first question which needs examination in the case is whether section 12(2). C.P.C. Is retrospective or perspective and the same --applicable in this case and the remedy of filing the application under section 12(2), C.P.C. To set aside the judgment and decree dated 19-12-1978 making the Award rule of the Court in favour of Ahmed Yar and another by Maulu was available to him or not. It has been ruled in the case reported as Government of Sindh and others v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) that:-- "The intention of the Legislature in amending section 12, C.P.C. By adding subsection (2) is to provide a substitute for such a suit against judgment, decree or order obtained by fraud etc."
It is difficult to agree with the learned counsel for the respondent that section 12(2) does not apply to the decrees passed before its enactment. This view finds support from the judgment of the Peshawar High Court in the case reported as Abdul Rauf and others v. Abdul Rahim Khan (PLD 1982 Peshawar 172). The question of interpretation of section 12(2), C.P.C. Came up for interpretation before a learned Single Bench of this Court in case reported as Noor Muhammad v. Additional District Judge, Chakwal and 7 others (PLD 1994 Lah. 170) and while exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, this Court held that:-- Dismissal of application under section 12(2), C.P.C. For setting aside decree as being not maintainable.----Validity---Decree in question was although passed prior to promulgation of S.12(2), C.P.C. And initially it was challenged by petitioner by filing a suit yet on promulgation of S.12(2), C.P.C. He withdrew that suit in order to avail of the remedy as provided under S.12(2), C. P.
C.---Petitioner was competent to seek such remedy---First Appellate Court having erroneously dismissed such application, case was remanded for trial afresh in accordance with law."
10. On the touchstone of the above case---law, I am of the view that the application under section 12(2), C.P.C. Filed by Maulu was maintainable.
11. The second question, which influenced the mind of the learned Additional District Judge was that the Civil Judge while accepting the application under section 12(2), C.P.C. Has not attended to the question whether Muhammad Khan was appointed as general attorney of Maulu and he entered into agreement of arbitration with Ahmed Yar and another and on the basis of which Award was announced by Shera on 31-7-1978 and the proceedings were conducted by Muhammad Khan which resulted in making the Award rule of the Court by the decree dated 3-4-1996. The learned Additional District Judge was of the opinion that absence and non-impleading of real owner Maulu in the proceedings under section 14 of the Arbitration Act for making the Award as rule of the Court was not fatal. To appreciate this real controversy between the parties, following provisions of C.P.C.
Are relevant, which are reproduced hereunder:-- "O.I, rule 3. Who may be joined as defendants.---All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative,, where, if separate suits were brought against such persons any common question of law or fact would arise."
Order III, rule 1 Appearances, etc. May be in person, by recognized agent or by pleader.---Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.
"Order V, rule 1. Summons.---(1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear--
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court. "
12. Reading of all the above stated provisions of law would manifestly make it clear that impleading Maulu, against whom the decree was to be obtained by Ahmed Yar and Muhammad Hayat, was necessary.
13. The arguments of the learned counsel for the respondents that since Muhammad Khan was acting as attorney, therefore, there was no need for the respondents Ahmed Yar and Muhammad to implead Maulu as party in the arbitration proceedings, is not entertainable, because the attorney can appear in person being the recognized agent of the principal under Order III rule 1, C.P.C., but the notice has to be issued to the defendant under Order V, rule 1, C.P.C. Against whom decree or relief is to be obtained.
14. The observation of the learned Additional District Judge that the question of appointment of the general attorney and entering into agreement to sell through him with Ahmed Yar and Muhammad Hayat should have been decided by the learned Civil Judge on the basis of evidence on record is not well-founded. In the application under section 12(2), C.P.C. Filed by Maulu, he categorically has denied the appointment of Muhammad Khan as Attorney and entering into agreement of appointment of Shera as arbitrator. In this view of the matter, all the questions on merits regarding appointment of Muhammad Khan on behalf of Maulu as his attorney and entering into agreement and announcement of the Award dated 31-7-1978 and thereafter filing of the application on 19-9-1978 were subject to contesting the application under section 14 of the Arbitration Act filed by Ahmed Yar and Muhammad Hayat. This being so, the learned Additional District Judge exercised the jurisdiction not vested in him by accepting the revision petition by setting aside the findings on Issues Nos. 1 and 3. The Award was announced by Shera on 31-7-1978, whereas the mutation was sanctioned on 19-12-1987. It does not stand to reason why for nine years this Arbitration decree obtained by Ahmed Yar and Muhammad Hayat was kept secret. Maulu specifically stated that he gained knowledge of the impugned decree two days prior to the filing of the application. In this view of the matter, the application under section 12(2), C.P.C. Was within time.
For what has been discussed above, this writ petition is allowed, the order dated 5-11-1997 of the Learned Additional District Judge, Chiniot is declared to have been passed without lawful authority and of no legal effect. Consequently, the order dated 3-4-1996 passed by the learned Civil Judge, Chiniot accepting the application under section 12(2), C.P.C. Of the petitioners is restored. The case is remanded to the Civil Judge with directions to start proceedings on the application dated 19-9- 1978 under section 14 of the Arbitration Act filed by Ahmed Yar and Muhammad Hayat, respondents, to make the Award as rule of the Court by impleading the petitioners and all other necessary parties as defendants/respondents.
The writ petition is disposed of accordingly.