1. By this order I intend to dispose of five applications, four of which have been made by the applicant/intervenor and one has been made by the respondent/plaintiff, Nasreen Yousuf. In order to decide these applications it is necessary to state material facts as pleaded by the parties in these proceedings as well as in the Suit No,553 of 2000 filed by respondent/plaintiff, Nasreen Yousuf, against the all other respondents except the applicant/intervenor, who was not impleaded as party in the suit.
2. On 13-4-2000, Mst. Nasreen Yousuf (hereinafter referred to as the plaintiff) filed a Suit No,553 of 2000 against Jamil Akhtar Kiyani and five others, titled as declaration, injunction and cancellation of documents in this Court with the following prayers:--
(a) Declare that the plaintiff is the owner of house No,11/11, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi, till the filing of the suit and continues to be as such.
(b) Cancel the registered sale-deed allegedly executed between the plaintiff and defendant No,3 in respect of house No,11/11, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi, and registered in the office of the defendant No,4, registered at No,497, Block I, M.F. Roll No,1391 dated 24-1-1991 being fraudulent document registered through fraud and misrepresentation and therefore illegal of no legal consequences.
(c) Declare that the mutation of House No,11/11, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi, in favour of the defendant No, 3 in the record of the defendants Nos.5 and 6 effected through fraud and mis-representation and the same being nullity in the eye of law and therefore of no legal consequence.
(d) Permanent injunction restraining the defendants, their agents, servants or any other person claiming through or under them from acting on the basis of the registered sale-deed allegedly executed between the plaintiff and defendant in respect of house No,11/11, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi.
(e) Any other relief or reliefs which this Honourable Court may deem fit and proper under the circumstances of this case.
(t) Cost of the suit may also be awarded. ,
3. In this suit Sub-Registrar T Division, defendant No,4 and the Military Estate Officer (MEO), defendant No,6, were declared ex parte on 26-2-2001 while Mrs. Maryam, the defendant No,3, was declared ex parte on 10-4-2001.
4. Jamil Akhtar Kiyani and Mst. Riaz Bibi, however, filed their written statements as defendants Nos.1 and 2 disputing the maintainability of the suit. The Defence Housing Authority, defendant No,5, also filed its written statement stating therein that the suit-property stands in the name of Nasreen Yousuf, the plaintiff. On 28-8-2001 the counsel appearing for the plaintiff in the suit dropped Jamil Akhtar Kiyani and Mst. Riaz Bibi from the array of defendants and the suit was decreed in favour of plaintiff vide judgment of this Court dated 28-8-2001 holding therein that the property bearing No,11/11, Khayabane-Shamsheer, Phase-V, Defence Housing Authority, Karachi, (hereinafter referred to as the suit-property) is lawfully owned by Mst. Nasreen Yousuf, the plaintiff and the registered sale-deed dated 31-1-1991 executed by her in favour of defendant No,3, Mrs. Maryam, was cancelled. The Nazir of this Court was directed to immediately hand over possession of the suit- property to Mst. Nasreen Yousuf, the plaintiff.
5. On 31-8-2001 the Nazir of this Court in compliance with the decree and judgment passed in Suit No,553 of 2000 had handed over the physical possession of the property to the attorney of the plaintiff Muhammad Yousuf, who is her husband. On 1-9-2001 the Nazir also submitted his report to the effect alongwith the list of inventory, which was prepared by him in presence of the attorney of the plaintiff and Mr. Sardar Zulfiqar Ahmed, Advocate at the time of handing over of the possession of the suit-property. In this report, the Nazir has stated that he reached the premises at 2-50 p.m.
And there was no one present in the suit-property and he waited up to 3-15 p.m. And thereafter he handed over the possession of the suit-property.
6. It appears that on some application of the intervenor/applicant, inventory of the articles lying in the suit-property was again ordered to be prepared by the Nazir which he prepared in presence of the attorney of the plaintiff, Mr. Sardar Zulfiqar, Advocate, Mr. Junaid Kapadia and Mr. Rafiq Usman, brother of the intervenor/ applicant and submitted his report. In the second report, which the Nazir has submitted, he has stated that the suit-property was abandoned/opened when he handed over its possession. He in his report also observed that the brother of the intervenor/applicant appeared before him alongwith Mr. Tasawar Ali Hashmi, Advocate and reported him the intervenor/applicant was in possession of the suit-property and he employed his Chowkidar who had gone for Jumma prayers when the locks were broken open in the suit-property. On return of the Chowkidar, he was illegally detained at some place outside the suit-property by the plaintiff's men.
7. On 10-9-2001, Aquil Usman, the applicant/intervenor filed an application under section 12(2), C.P.C. In this Court which was numbered as J.M. 44 of 2001 challenging the judgment and decree dated 28-8-2001 passed in Suit No,553 of 2000 by this Court in favour of the plaintiff/ Nasreen Yousuf, inter alia, on the ground that the decree was obtained by misrepresentation and fraud by the plaintiff on the back of the applicant/intervenor who claimed to be the lawful owner of the suit- property by virtue of registered sale-deed and was in possession of the suit-property since 1997 when he purchased it till he was dispossessed by the Nazir pursuant to the decree of this Court.
Alongwith his application, the intervenor/applicant had placed on record a number of documents in order to show that he is the lawful owner of the suit-property, which included registered sale- deed executed in his favour by Mrs. Maryam. It was pleaded in the said application that the property was purchased by the intervenor after verifying the title of Mrs. Maryam and 'public notice' in the newspapers notifying the general public that he was purchasing the suit-property from Mrs. Maryam. Subsequent to all these precautionary steps and on payment of Rs,12,000,000 (One crore twenty lacs only) to Mrs. Maryam as sale consideration of the suit-property, a registered sale-deed was executed in his favour by Mst. Maryam on 19-11-1997. It was, however, a fact that the sale-deed was executed in favour of .The intervenor showed sum of Rs,3,600,000 as the sale consideration but actually an amount of Rs,12,000,000 was paid by the Aquil Usman to Mst. Maryam and receipts of the effect was also placed on record. It was further pleaded that possession on execution of sale- deed was handed over to the applicant Aquil Usman and since then he was in actual physical possession of the suit-property and was paying all utility bills. The respondents who were plaintiffs and defendants in Suit No,553 of 2000 were impleaded as parties to this application and counter- affidavits were filed.
8. Mst. Nasreen Yousuf in her counter-affidavit filed through her husband and attorney disputed the title of the applicant/Aquil Usman inter alia on the ground that the material/documents placed by him alongwith his section 12(2), C.P.C. Applications were forged and fabricated and no fraud or misrepresentation as alleged was committed by the plaintiff in obtaining the judgment and decree.
9. After filing of these proceedings, it transpired that Mrs. Maryam, one of the respondents and defendant No,3 from whom intervenor/applicant was claiming his title had died on 30-10-2000 before the passing of the decree in the suit and a death certificate issued by the Secretary of the concerned Union Council, was placed on the record.
10. This Court has framed following issue by order dated 2-10-2001:-- ' 'Whether the decree in Suit No,553 of 2000 has been obtained by fraud or misrepresentation.?
' The applicant/intervenor has appeared in the witness-box through his brother as attorney and has produced the original title documents in respect of the suit-property executed in favour of the applicant, besides the different payments which the applicant had made towards the utility bills.
Receipts of payments towards . Sale consideration amounting to Rs,1,20,000,00 Cantonment Board, Brinks Agency for installation of the system, copy of the Wealth Tax Return reflecting purchase of the suit-property and search certificate. The attorney of the intervenor was cross-examined at length by Mr. Mir Muhammad Shaikh, counsel for the respondent/plaintiff. All the documents produced by intervenor were exhibited without any objection raised by the plaintiff's counsel.
11. As against this evidence neither the plaintiff nor his attorney appeared in the witness-box to lead evidence in rebuttal except that the two reports which were submitted by the Nazir of this Court in Suit No,553 of 2000 were produced and taken on record.
12. This Court after hearing the parties by order dated 6-11-2002 had allowed the application of the intervenor setting aside the decree dated 28-8-2001 in Suit No,553 of 2000 by holding that the decree obtained by the plaintiff was by misrepresentation, and the direction was issued to the plaintiff in Suit No,553 of 2000 to implead the intervenor/objector as one of the defendant.
13. This order allowing the application 12(2), C.P.C. Of the intervenor/applicant was appealed against in High Court Appeal No,314 of 2002 preferred by Nasreen Yousuf, the plaintiff. By order dated 27-2-2003 Honourable Division Bench of this Court had dismissed the appeal maintaining the order of the Honourable Single Judge allowing the application under section 12(2), C.P.C.
Holding therein that there was no illegality committed by the Honourable Single Judge while allowing the application of the intervenor/applicant.
14. The plaintiff, Mst. Nasreen Yousuf, preferred civil petition for leave to appeal before the Honourable Supreme Court and by the order dated 17-3-2003 the Honourable Supreme Court had also maintained the findings of both the forums holding therein that the orders impugned against did not call for interference and maintained the impugned orders.
15. After orders of this Court were affirmed by the Apex Court, the applicant/intervenor had made two applications, one under Order XVIII, rule 18 read with Order 29, rule 9, C.P.C. (C.M.A. 8510 of 2002) and the other application under section 144 read with section 151, C.P.C. (C.M.A. 8511 of 2002).
Whereas the other two applications one under Order XXXIX, rules 1 and 2 read with section 151, C.P.C.
(C.M.A. 6726 of 2001) and the application under Order XXI, rule 101 read with section 151, C.P.C. (C.M.A.
7433 of 2001) made by the intervenor at the time of filing of the application under section 12(2) and were not decided by this Court while disposing of the application under section 12(2), C.P.C. As against this the plaintiff, Nasreen Yousuf, has made an application under Order XIX, Rule 2 read with section 151, C.P.C. (C.M.A. 1255 of 2003) which application was made on receipt of the notice of the applications of the intervenor/applicant referred to herein-above.
16. Mr. Khawaja Shamsul Islam. The learned Advocate for the applicant, has argued that once the decree dated 28-8-2001 in Suit No,553 of 2000 has been set aside by this Honourable Court holding that it was procured by misrepresentation, the restitution of the property being the consequential relief has to follow. He submitted that the order setting aside the decree passed by this Court was maintained up to Honourable Supreme Court of Pakistan and the possession of the suit-property was handed over to the plaintiff pursuant to the decree in suit by the Nazir of this Court on 31-8- 2001, the plaintiff, in law, could not retain possession of the suit-property and restitution of the property to the applicant/intervenor was natural consequence which was to follow. He while arguing the application under section 144, C.P.C. (C.M.A. 8511 of 2002) has relied upon the cases of Abdul Bari v. Muhammad Rasheed Khan reported in 1995 SCM R 851, Malik Yar Muhammad and others v. Muhammad Farooque Khan and others reported in 2003 SCM R 767, M/s. Rafique Industries Ltd. v. Conforce Limited reported in 1984 SCM R 807 and Sultan Bibi v. Gul Baran reported in PLD, 1999 Quetta 56 and Chapter on Restitution from Haulsbury's Laws of India, page 675. Mr. Khawaja Shamsul Islam had argued that he is also entitled to compensation for the period in which he was kept out of possession of the property as the decree was obtained by the plaintiff by misrepresentation besides damages, if any, caused by the plaintiff to the suit-property or to the articles which were lying in the property which were being used by the plaintiff and cost of any article, furniture which if it has been removed in addition to different utility bills for the period the plaintiff was in possession of the suit-property. Mr. Khawaja Shamsul Islam has attempted to invite my attention for comparing signatures of the plaintiff on the plaint in Suit No,553 of 2000 and that on the sale-deed to examine dissimilarity in them.
17. Mr. Mir Muhammad Shaikh, learned counsel on the other hand, argued that the applicant is not entitled to possession of the suit-property and according to him applicant's title to the suit- property was suspicious. He submitted that the applicant has failed to establish that he was in possession of the property in dispute before the Nazir put the plaintiff in possession of the suit- property. He has attempted to draw my attention to the different signatures of Mrs. Maryam on the receipts of payments of sale consideration, which the applicant has made and argued that these signatures were dissimilar from the N.I.C. Of Mrs. Maryam. His next argument was that no prayer for possession was made in the application under section 12(2), C.P.C. Therefore, possession of the suit-property cannot be restored to the applicant. It was also argued that the applicant did not examine the Chowkidar and who according to the applicant was employed by him. Mr. Mir Muhammad Shaikh submitted that the applicant has not produced any neighbour of the locality as witness to establish his possession and nor has produced utility bills of the suit-property. Mr. Mir Muhammad Shaikh argued that the house was lying vacant/abandoned as per the report of the Nazir, which report has been exhibited and, therefore, it was sufficient to disentitle the applicant to restore possession of the suit-property. Mr. Mir Muhammad Shaikh additionally argued that the attorney of the applicant be directed to appear in the witness-box for cross-examination in order to test the veracity of the contents of the affidavit which has been sworn, in support of restitution application (C.M.X. 8511 of 2002).
18. I have heard the learned counsel and perused the record. The scope of application under section 144, C.P.C. Is limited and the doctrine of restitution implies that on reversal of a decree the law imposes an obligation on the party to the suit who received unjust benefit of the erroneous decree to make restitution to the other partly of what he has lost. This obligation arises automatically on the reversal and or modification of decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. The Courts in making restitution are bound to restore the parties so far as they can be restored, in the same position as they were at the time when the Court by its erroneous action has displaced them from. The provisions in the Code of Civil Procedure, 1908, governing application for restitution, does not confer any new substantive right. It merely regulates the power of the Court in that behalf.
19. In the present case, it is an admitted possession that the plaintiff was put in possession of the property by Nazir of this Court pursuant to the decree of this Court, which decree has been set aside on the application under section 12(2), C.P.C. Made by the applicant/intervenor holding therein that the decree in favour of the plaintiff in the suit was obtained by misrepresentation. This finding was maintained by the Honourable Division Bench of this Court and thereafter by the Honourable Supreme Court. Additionally, it has been specifically pleaded by the applicant in his application under section 12(2), C.P.C. That since the purchase of the suit-property from Mrs. Maryam he was enjoying the possession after furnishing it. He also installed the Brinks Security System in the suit-property and was paying utility bills and was dispossessed on 31-8-2001 from the house by breaking open the lock of the suit-property when the suit-property was furnished. List of inventory of the articles was prepared twice by the Nazir of this Court. In the first counter- affidavit to the application under section 12(2), C.P.C. The plaintiff has not claimed ownership of the articles of which the . Inventory was prepared by the Nazir twice. Thereafter it appears that the plaintiff has improved upon her stand by claiming ownership of some of the articles which were lying in the suit-property at the time when the possession of the suit-property was handed over by the Nazir. Since the Suit No,553 of 2000 has to proceed afresh after the applicant has been impleaded as one of the defendants and on his filing written statement issues would be settled thereafter this Court would conduct regular trial, I, therefore, do not want to comment upon the authenticity of any of the document produced and or placed on record by either party as this may cause prejudice to any of the parties in their defence when the evidence is yet to be produced.
20. In order to grant restitution, the Court has to satisfy itself with three conditions: (1) the restitution sought must be in respect of the decree or order which has been reversed or varied; (2) the party applying for restitution must be entitled to benefit under reversing decree or order; and (3) the relief claimed must be properly consequential on the reversal or variation of the decree or the order. In other words, there must be an erroneous judgment, the benefit of that erroneous judgment must have been received by one party and the erroneous judgment must have been reversed. If these conditions are satisfied the Court must grant restitution.
21. In the present case, all the three conditions referred to hereinabove are satisfied as the decree sought by the plaintiff was found erroneous inasmuch as the said decree was held to have been obtained by misrepresentation. On account of the erroneous decree the plaintiff was put in possession of the suit-property and the possession of the applicant of the suit-property prior to the implementation of the decree, has not been disputed by any party except the plaintiff. In my opinion, objection by the plaintiff in regard to the possession of the applicant was insignificant in the given circumstances based on the material brought on record in the light of the pleadings of the parties. Since the aforementioned three conditions being satisfied I am of the considered opinion that the applicant is entitled to restitution of possession of the suit-property. The, argument of Mr. Mir Muhammad Shaikh, the learned counsel for the plaintiff tliat the applicant has not sought any prayer for restitution of possessiow in the 12(2), C.P.C. Is also misconceived inasmuch as the scope of 12(2), C.P.C. Is altogether different. Under section 12(2), C.P.C. The applicant has to apply for setting aside the decree and prior to the introduction of the above provision this could be done only through a separate suit. On the other hand, under section 144,, C.P.C. One acquires the right to seek restitution only when the C impugned decree is actually varied or set aside. Alongwith the main application under section 12(2), C.P.C. The applicant/intervenor had moved two applications, one under Order XXXIX, rules 1 and 2, C.P.C. And the other under Order XXI, rule 102. C.P.C. However, it is evident from the tact that no relief of restitution under these applications could have been granted because the applicant was already dispossessed. Moreover, I cannot loose sight of the fact, that alongwith 12(2), C.P.C. The applicant has also made an application under Order XXXIX, rules 1 and 2 C.M.A. 6726 of 2001 and C.M.A. 7433 of 2001 under Order XXI, rule 101, C.P.C. Made by the applicant praying therein for restoration of possession of the property. These two applications remained pending till date.
22. For the aforesaid reasons, I grant the application (C.M.A. 8511 of 2002) of the applicant directing the Nazir to immediately restore possession of the suit-property to the applicant or any other person nominated by him forthwith after preparing the list of inventory of the articles lying in the suit-property. The other two applications C.M.A. 6726 of 2001 and C.M.A. 7433 of,, 2001 have become infructuous and are dismissed.
23. In regard to C.M.A. 8510 of 2002 made by the applicant, the Nazir may assess the monthly rent of the suit-property besides any damage if it has been caused to the suit-property or of any shortfall of the articles/items mentioned in both the inventories and assess its costs. The Nazir shall also ascertain as to whether payments of utility bills were made by the plaintiff and will submit his detail report to this Court for further orders. The argument of Mr. Shaikh that the applicant has failed to establish his possession is also misconceived as the applicant through his attorney did appear in the witness-box and was subjected to lengthy cross-examination by the learned counsel. No suggestion of the nature was even made to the attorney of the applicant when he was in the witness-box. Even ownership of the articles mentioned in the inventories by the Nazir was not suggested by the plaintiff's counsel to the attorney of the applicant during his cross-examination.
Moreover, neither the plaintiff nor any witness on her behalf appeared in the witness-box to substantiate the allegations pleaded by her against the intervenor. Production of the list of inventories were not sufficient to establish that the applicant was not in possession of the suit- property.
24. The application made by the "plaintiff under Order XIX, rule 2, C.P.C. Is also misconceived and is dismissed as the facts narrated in the affidavit in support of the application under section 144, C.P.C. By the deponent are in substance identical to that which were stated by him in the application under section 12(2), C.P.C. Or in the subsequent affidavits sworn by the applicant. The attorney of the applicant on such facts was already cross-examined. In the given circumstances the law does not authorize a party to resort to the provisions of Order XIX, rule 2, C.P.C. For cross examination, when the parties have yet to lead evidence as it amounts to trial within trial. Mr. Mir Muhammad Shaikh has already cross-examined the attorney of the applicant at length and no justifiable reason has been spelt out in the application, which requires , appearance of the applicant's attorney for- cross-examination. The scope of Order XIX, rule 2, C.P.C. Is very limited and is not a substitute of regular trial as the applicant has to lead evidence at regular trial, therefore, on such an interlocutory application cross-examination cannot be ordered, as such, the application of the plaintiff for cross-examination is dismissed.
25. The plaintiff is directed to immediately amend the plaint in Suit No,553 of 2000 and after notice to the defendants, who may file their written statements, the office may fix the matter for issues.
After settlement of the issues, the matter be posted 'for evidence out of turn and be disposed of within four months from the date of settlement of issues.
26: 'The intervenor after being put in possession of the suit-property by the Nazir after preparing the inventory of the articles lying in the suit-property. The intervenor shall not part with possession of the suit-property nor would create any charge on the suit-property till the disposal of the suit No,553 of 2000. The articles/items lying in the suit-property shall also be retained by the intervenor/applicant and shall not be disposed of and or removed from the suit-property till the final disposal of the suit.