' MUHAMMAD NAWAZ ABBASI, J.---This single judgment proposes to dispose of the above two appeals by leave of the Court involving common questions of law and facts which have been directed against a consolidated judgment, dated 28-2-1995 passed by a Division Bench of High Court of Sindh at Karachi in three independent applications under section 12(2), C.P.C. Arising out of a civil suit.
2. The relevant facts in the background giving rise to these appeals are incorporated in detail in the order, dated 21-4-1997 by virtue of which leave was granted to the appellants as under:-- ' "These two petitions for leave to appeal are directed against the order, dated 28-2-1995, passed by the High Court of Sindh, Karachi, dismissing the applications filed by the petitioners under section 12(2), C.P.C. Assailing the judgment and decree, passed in L.P.A. No,20 of 1965 decided on 19-9-1970, on the ground that the decree was obtained therein by fraud and misrepresentation.
2. The relevant facts are that one Ahmad Umer (since deceased), predecessor-in-interest of Mst.
Aisha Bai and others, respondents Nos.1 to 8 herein, owned a properly bearing No,87/88, Khair Road, Bombay, and he migrated to Pakistan in 1947. On the other hand, one Rochaldas, respondent No,9 herein, and his brother Goverdhandas were Hindus living in Karachi and they owned two immovable properties in Karachi, bearing No,359 Cosmopolitan Housing Society, Jamshed Road, Karachi, and property on Hall Street, Saddar. On 12-2-1948 said Ahmad Umer entered into a written exchange agreement with said respondent Rochaldas and his brother Goverdhandas, according to which he was to receive from them the two properties owned by them and situated in Karachi, and in exchange Rochaldas and his brother Goverdhandas were to receive from him the property owned by him in Bombay and they also had to pay a sum of Rs.10,000 as a balance under the exchange agreement. It may be pointed out here that Rochaldas respondent and his brother took possession of the property of Ahmed Umer (deceased) in Bombay and Ahmed Umer took possession of the properties in Karachi. As however, execution and registration of the sale-deeds were delayed, the predecessor of respondents Nos.1 to 8, and after his death, the respondents themselves pressed Rochaldas and his brother to execute the sale-deed. Meanwhile, on account of the evacuee laws the two Karachi properties became evacuee and were allotted to the petitioners by the Settlement Department, as claimed by them.
' It would appear that Mst. Aisha Bai and others filed an application before the Deputy Custodian (Judicial) Karachi, under the Administration of Evacuee Property Act (XII of 1957) for permission to sue respondent Rochaldas and his brother Goverdhandas for specific performance of the aforesaid exchange agreement. This application was allowed by the Deputy Custodian vide his order, dated 15-1-1959. Respondent Rochaldas whereupon field a revision before the Custodian which was dismissed with the modification that since Rochaldas, petitioner before the Custodian, Evacuee Property, was residing at Karachi, no certificate could be granted regarding his share in the property. Meanwhile, Goverdhandas had died. On these allegations, the respondents Aisha Bai and others tiled suit against respondent Rochaldas and legal heirs of Goverdhandas for the specific performance of the exchange agreement of 12th of February, 1948: The said suit was however, dismissed on 27-11-1964.
3. Against the aforesaid judgment of the High Court, L.P.A. No,20 of 1965 was filed by respondent Mst. Aisha Bai and others. This L.P.A. Was allowed by the learned Division Bench of the High Court on 19-9-1970 and the suit for specific performance of the exchange agreement was decreed while the claim of Rs.10,000 was dismissed, and the `Nazir' of the Court was directed to execute the exchange agreement before the Registrar on behalf of respondents Nos.2 to 5 in the said L.P.A. After eleven years thereof, three applications were moved on 24th, 25th and 26th November, 1981, under section 12(2), C.P.C. Seeking setting aside the judgment and decree in L.P.A. As having been obtained by fraud, and misrepresentation. All these applications were heard together and dismissed by the learned Division Bench of the High Court by its order, dated 28-2-1995, inter alia, on the ground that the earlier Division Bench having dealt with the ground raised in the applications under section 12(2), C.P.C. The Division Bench could not sit in appeal over the earlier judgment, dated '19-9-1970, passed by the learned High Court in L.P.A. No,20 of 1965, in these applications. Hence these petitions.
4. Mr. Imran Ahmed, learned counsel for the petitioners, inter alia, 'contended that property in question having been declared evacuee and transferred to the petitioners, they could not be deprived of it by virtue of the exchange agreement on the basis of which the suit was decreed.
Learned counsel further submitted that the petitioners were neither made parties in the suit or in the L.P.A., nor any notice was issued to them regarding the same nor they had any knowledge of the said suit or the appeal, and as such, the decree passed by the learned High Court in L.P.A. Could not operate against their interest in the property transferred to them by the Settlement Department. Learned counsel next submitted that in their applications under section 12(2), C.P.C.
They had raised several grounds including the said grounds but the learned High Court dismissed their applications without considering the same.
5. After hearing the learned counsel, we are inclined to grant leave to consider whether the applications under section 12(2), C.P.C. Filed by the petitioners before the High Court were rightly dismissed by the learned Division Bench. Leave is accordingly, granted in both these petitions. Stay order already granted would continue."
3. Learned counsel for the appellants, has raised the following contentions in support of these appeals:--
(a) The property, subject-matter of dispute, was an evacuee property and being part of compensation pool was transferred to the appellants by the Settlement Department much before the passing of the decree in favour of respondents in appeal, therefore, no right, title and interest would be created in the property in favour of respondents through the exchange agreement.
(b) The respondents despite having knowledge of the transfer of the property to the appellants and issue of PTOs/PTDs in their names without impleading them as party in the suit and appeal obtained the decree in respect of the property on the basis of exchange agreement through concealment of material facts.
(c) The claim of any person in respect of the property which became evacuee under Pakistan (Administration of Evacuee Property) Ordinance, 1949 would not be acceptable after 1-1-1957, under Pakistan' (Administration of Evacuee Property) Act, 1957, therefore, the Deputy Custodian and Custodian of Evacuee Properties would not be competent to change the character of the property from evacuee to non-evacuee after the said date and the certificate given by them for determination of the dispute in respect of the property by the Civil Court was of no legal consequence.
(d) The appellants having purchased the property in auction from the Settlement Department were bona fide purchasers for value and their rights in the property were protected in law which could not be taken away without due process of law but the respondent without impleading them party in the suit and appeal obtained decree through suppression of facts and by practising fraud upon the Court.
4. Learned counsel appearing on behalf of the respondents, has submitted that application under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 moved by the respondents was treated as an application under section 20 of the said Ordinance by the Deputy Custodian, Evacuee Properties and after having made detailed scrutiny in the matter, affirmed the agreement of exchange and issued certificate vide order, dated 15-1-1959 in the following terms:-- ' "In short Agreement of Exchange is hereby approved, orders, accordingly are passed, on compilation and execution of Deed of Exchange, that will be produced before this Court for confirmation of the exchange transaction.
' The applicants shall initiate proceedings in the competent Court within 2 months from the date of this order, which shall be intimated to this Court.
' Under the terms of agreement, the respondents 1 and 2 were to pay, in addition to their property in Pakistan a sum of Rs.15,000 to Ahmed Omer, a part of which Rs.5,000 had been paid and a balance of Rs.10,000 is still payable. Respondents Nos.1 and 2 jointly and severally are hereby held to be liable to pay the amount to the applicants and this amount will be realized from the liquid assets in the hands of the Custodian or Rehabilitation Authority to the account of one or the other or both of them."
5. The Custodian of Evacuee Property, West Pakistan vide order, dated 2-1-1960 modified the above order as under:- ' "The Deputy Custodian was, therefore, right in granting him a "No-Objection Certificate". His order, however, needs a slight modification, because that certificate should have related only to the share of the property belonging to respondent No,2, who is an evacuee. The petitioner who admittedly is a resident of Karachi, is not an evacuee and, therefore, no certificate in regard to his share of the property could be granted to respondent No,1 under the aforesaid provision of the Act."
6. The suit for specific performance of exchange agreement, dated 12-12-1948 was filed by the successor-in-interest of Ahmad Umer in the High Court of West Pakistan at Karachi in its original jurisdiction in 1960. The suit was dismissed by a learned Single Judge of the High Court vide judgment, dated 7-12-1964 which was subsequently decreed in Letters Patent Appeal by a Division Bench of the High Court vide judgment, dated 15-9-1970. The appellants namely Mst. Nasira Khatoon and Noor Muhammad claimed transfer of property in their names vide PTDs, dated 28-9- 1965 and 13-6-1966 respectively when the Letters Patent Appeal filed by the respondent was pending in the High Court whereas Abdur Rashid appellant claimed transfer of property in his name in 1974 i.e, much after the disposal of appeal. The case of the appellants was that they came to know about the decree in December, 1978 when respondents (decree-holders) sent notices under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 to their tenants in the property for payment of rent. The provision of subsection (2) of section 12, C.P.C. Was made part of the statute by virtue of Ordinance X of 1980 promulgated on 26-3-1980 and the appellants moved applications under this section on 24th, 25th and 26th November, 1981. The main ground urged by them amongst others, in support of these applications was that decree was obtained by fraud and misrepresentation. However, in proof of the allegation of fraud, except placing on record on their own affidavits, counter-affidavits and the document of title they did not adduce any other evidence oral or documentary and even did not make their own statements on oath whereas Younas Ahmed, one of the respondents and decree-holders, made a detailed statement on oath in rebuttal.
7. The remedy of civil suit available for setting aside the judgment and decree obtained by fraud and misrepresentation prior to the enactment of subsection (2) of section 12, C.P.C. Was taken away by this subsection but this remedy would not be available like a regular suit and the Court may dispose of an application under section 12(2), C.P.C. Without framing issues, recording evidence of the parties and following the procedure for trial of the suit. However, the High Court in the present case while keeping in view the nature of allegation of fraud and misrepresentation recorded the evidence of parties through a. Local commission and on conclusion of the proceedings held that all the grounds taken for setting aside the decree had already been dealt with in detail by the Division Bench which disposed of Letters Patent Appeal and that no element of fraud and misrepresentation was traceable on record to attract the provisions of section 12(2), C.P.C.
8. The sole ground taken in support of fraud was that the appellants were bona fide transferees of the property and the respondents obtained the decree from the High Court in Letters Patent Appeal through concealment of material facts and without impleading them as parties in appeal, the decree was void. The appellants by taking plea of fraud, invoked the provisions of section 12(2), C.P.C. For setting aside the decree passed about ten years prior to the enactment of said subsection without showing any valid reason for not challenging the decree through the statutory remedies available to them under the law. The decree in the civil suit if is obtained through fraud and misrepresentation or is passed without jurisdiction can certainly be set aside under section 12(2), C.P.C. But in the present case, the suit for specific performance of the exchange agreement was filed by the successors-in-interest of Ahmed Umer, against Rochaldas and others in 1960 in the High Court of Sindh at Karachi on the original side which was dismissed by the trial Court on 7- 12-1964 and was ultimately decreed by a Division Bench of the High Court in appeal vide judgment dated 16th September, 1970. Subsection (2) of section 12, C.P.C. Was enacted by virtue of Ordinance X of 1980 promulgated on 26-3-1980 and prior to the enactment of this subsection, the appellants, could conveniently avail the remedies of moving an application for setting aside the decree and for re-hearing the appeal after becoming party in the appeal or could seek review of the judgment on the same ground under section 114 read with Order XLVII, rule 1, C.P.C., or could file an appeal before the Supreme Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973. In addition to the above remedies they could also bring a civil suit for setting aside the decree on the ground of fraud but the appellants did not avail any such remedy and much after the enactment of subsection (2) of section 12, C.P.C. Sought setting aside of the decree under this subsection on the ground of fraud taking the plea that they were ignorant of the decree before December, 1978. The mere lack of knowledge would not be a valid reason for abandoning the legal remedies available to the appellants and for invoking the jurisdiction of the Court under section 12(2), C.P.C. For setting aside the decree which was passed about 10 years prior to the enactment of this subsection. The statutes relating to the remedies and jurisdiction of the Courts, Tribunals and Authorities are considered procedural in character and subject to the rights of parties may take retrospective effect but if retrospectivity of a statute affects the substantive rights and causes injustice in such rights, the Courts by taking exception to the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the authorities operates retrospectively, may not accept its retrospectivity. The remedy of civil suit for setting aside the decree obtained through fraud or misrepresentation or if passed without jurisdiction was substituted with the provision of subsection (2) of section 12, C.P.C. But it would not be given retrospective effect except in the cases which were pending adjudication on its enactment or in which the decrees already passed were under challenge in the civil suits on the ground of fraud or in which the decrees were passed within three years prior to the date of its enactment. The period of limitation for an. Application under section 12(2), C.P.C. Is not specifically provided under law, therefore, the same is governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be filed within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be. The appellants in the present case by moving the applications under section 12(2), C.P.C. Sought setting aside of the decree passed in 1970 with the assertion that they were not aware of the pendency of suit and appeal involving the dispute of the property between the respondents (decree-holders) and the judgment-debtors and passing of the decree by the High Court before December, 1978 but in absence of any reasonable explanation of delay, the provisions of section 12(2), C.P.C. Would only be invocable in the cases in which the decrees were passed within three years beyond the date of commencement of the period of limitation.
9. The concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be more heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of the opposite-party. There can be no exception to the rule of law that without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. The appellants, in the present case having taken plea of fraud were under heavy burden to substantiate the allegation of fraud through clear and convincing evidence but they have not been able to discharge their onus to the satisfaction of law. The evidence recorded in the civil suit and the evidence brought on record in the proceedings under section 12(2), C.P.C. Would not suggest any concealment or suppression of material facts by the respondents and thus in the given circumstances, no element of fraud being inferable, no such presumption could be raised merely for the reason that pending disposal of appeal by the High Court, the property was transferred to the two appellants and the decree was passed in appeal in their absence. Abdur Rashid appellant would stand entirely on different footing as he having obtained transfer order much after the disposal of appeal could not challenge the decree on any ground. The examination of the facts in the background in details would show, that appellants due to their negligence, failed to avail the statutory remedies and subsequently, on the enactment of section 12(2), C.P.C. Taking plea of fraud, made an attempt to re-open the past and closed transaction. We are, therefore, of the considered view that the provisions of section 12(2), C.P.C. Would not be attracted in the present case and the dismissal of the applications by the High Court was unexceptionable.
10. The learned counsel for the appellants without giving a satisfactory answer to the question as to the question as to whether after issuance of confirmation certificate by the Custodian, the Settlement Department was competent to deal with the property, submitted that the order of Deputy Custodian and the Custodian by virtue of which confirmation certificate was issued, was not challenged or set aside by any competent authority or Court and was holding field at the time of transfer of property in 1965/66 but the appellants being bona fide purchasers for value would be entitled to the protection of law to retain the property. We find that the appellants have not placed on record any document to show that prior to the issuance of PTO/PTDs in their names the property was declared evacuee and could validly be transferred by the Settlement Department and further they have also not placed any order on record on the basis of which PTDs were issued in their favour, therefore the PTO/PTD in their possession even otherwise would not affect the decree.
11. The contention of the learned counsel that the exchange agreement, dated 12-2-1948 would not be enforceable through the civil suit in respect of the evacuee property and that the suit was barred by section 113 of the Limitation Act, 1908 being not relevant for setting aside the judgment and decree under section 12(2), C.P.C. The same would need no comments. The scope of this special provision can neither be extended beyond the grounds of fraud, misrepresentation and the defect of jurisdiction enumerated therein nor the learned Division Bench of the High Court, seized of the matter, could sit over the judgment passed in Letters Patent Appeal.
12. For the foregoing reasons, we while upholding the judgment of the High Court, impugned in these appeals dismiss the same with no order as to costs.