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Petitioner: Before Aziz-ur-Rehman,SARDAR AHMED ABBASI VS Respondent: MUHAMMAD ZAMAN ABBASI and 4 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title:Before Aziz-ur-Rehman,SARDAR AHMED ABBASI vs MUHAMMAD ZAMAN
ABBASI and 4 others Case No.: Judicial Miscellaneous No,57 of 2010 in Suit No,1333 of 2007 Date of Judgment:2014-04-23 Reported As: 2015 CLC 1157 Result: Application allowed Judgment ORDER ' AZIZ-UR-REHMAN, J.--- By means of this application under section 12(2) read with section 151, C.P.C. (J.M. No,57 of 2010), the applicant (means J.D. No,1-defendant No,1) has approached this Court with a prayer for setting aside of the ex parte Judgment and Decree dated 18-2-2010 passed in Suit No,1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others), mainly on the ground that the applicant at no stage of proceedings had any knowledge about the institution of the suit and passing of such Judgment and Decree in favour of the respondent No,1 (means Decree Holder-plaintiff), and the same have been obtained through 'fraud' and 'misrepresentation' committed by respondent No,1 upon the Court as the applicant was never served with the summons of the above suit or otherwise, had any knowledge about the institution of the suit. 2. Brief facts leading to the filing .Of above application under section 12(2), C.P.C. Read with section 151, C.P.C. (J.M. No,57 of 2010) are as follows:--- 3. That the respondent No,1 is an advocate by profession and registered on the role of the advocates of High Court. 4. That the respondent No,1 and the applicant (means Vendees) entered into a sale agreement dated 19-3-1988 with one Mr. Hayatuddin son of Fayazuddin (means Vendor) for purchase of a double storey bungalow constructed on Plot No,70-L, situated in Block No,2 of Pakistan Employees Cooperative Housing Society, Karachi (means 'subject property') for a total sale consideration of Rs,8,50,000. (Rupees Eight Lacs Fifty Thousand only). Per assertions, at the time of executing of the aforesaid sale agreement, a sum of Rs,25,000 (Rupees Twenty Five Thousand only) as 'advance
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money' was paid which was not only acknowledged by the vendor but he also issued a proper receipt thereof on 19-3-1988. 5. That the vendor/owner after entering into the sale agreement for the sale of the 'subject property' applied to the Ministry of Works for permission to sale/transfer the 'subject property' to the vendees. The Ministry of Works (respondent No,3-Defendant No,3) also granted such permission. 6. Per averments, the 'subject property' was in possession of two tenants. The 'ground floor' of the 'subject property' was in possession and in occupation of -the family of Syed Zafarul Islam and 'first floor' of the 'subject property' was in possession and in occupation of one Hamid Ali. At the time of sale agreement of 19th March, 1988, the ejectment proceedings initiated by the vendor/owner against the said tenants were still pending before the competent court of law. 7. Subsequently, in view of the litigation, it was mutually agreed and decided to complete the sale transaction without obtaining the actual 'physical possession' of the 'subject property', however, as mutually agreed, by reducing the sale price from Rs,8,50,000 (Rupees Eight Lacs Fifty thousand only) to Rs,5,20,000 (Rupees Five Lac Twenty thousand only). As such, the sale deed was prepared and presented in the office of the Sub-Registrar T. Division-XI, Karachi, for its registration on 6th February, 1989 upon full payment of the agreed sale consideration to the vendor. The Sale Deed dated 6-2-1989 was not duly signed and executed but also registered before T. Division--XI Karachi. 8. No doubt, prior to registration of the aforesaid sale-deed of 6th February, and after entering into the said sale agreement of 19-3-1989, a 'Public Notice' in the local Newspaper daily 'Nawai-e-Waqt' dated 8-6-1988 was also got published whereby objections from the 'general public' in respect of the 'subject property' were also invited. 9. As a pre-cautionary measure and keeping in view the litigation going on with the tenants, the Sale-Deed dated 6-2-989 was executed and registered in the joint names of the respondent No,1 (Muhammad Zaman Abbassi) and the applicant (Sardar Ahmed Abbassi) as coowners/vendees. 10. Eventually, the physical possession of the 'subject property' was got vacated from the tenants and since then, per assertion, the possession of the 'subject property' is with respondent No, 1. Per averments, at the time of execution of the sale deed dated 6-2-1989, the Applicant had made a 'promise' with the respondent No,1 for subsequent surrender of his 50% share in the 'subject property'. 11. Upon executing of the sale-deed dated 6-2-1989 the respondent No,1 thereafter had applied for mutation of the 'subject property' in the office of the respondent No,2 (means J.D. No,2 - PECHS) whereby the respondent No,2 referred the matter for further action to the respondent No,3 (defendant No,3). Per averments, the respondent No,3, of course, raised the objection against the transfer of the 'subject property' (i,e, exclusively in the name of the respondent No,1) as the applicant was also co-owner according to Sale-Deed of 6th February, 1989. 12. On 15-6-1989, the application of respondent No,1 for transfer of the 'subject property' in his name by PECHS (respondent No,2] was forwarded to .The Government of Pakistan, Ministry of Housing and Works (respondent No,3) for issuing 'No Objection Certificate' (in short NOC). Such permission for transfer of 'subject property' in the name of Muhammad Zaman Abbasi (respondent No,1) per assertion, was granted vide Transfer Order No,F.No,1(390)/72-73 LEM dated 7-8-1993. Consequently the 'subject property' was mutated by respondent No,2 vide PECHS Transfer Order No,PECHS/1052/12693 dated 27-9-1993 in favour of respondent No, 1. 13. However, later on, at the pointation of the applicant as being co-owner of the 'subject property' the transfer order in the name of respondent No,1 exclusively, nonetheless, was subsequently/withdrawn by PECHS vide its office order dated 24-8-2007. As a result, the Ministry of Housing and Works while, superseding its earlier NOC, issued fresh 'NO OBJECTION' vide its letter dated 27-11-2007 for transfer of the 'subject property' in the joint names of the applicant and
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respondent No,1 as being co-owners of the 'subject property' under the registered Sale-Deed of 6th February, 1989. 14. According to the respondent No,1 against the alleged illegal action of the respondent No,2, a complaint dated 15-9-2007 was lodged to the respondent No,3, by inviting its attention towards the illegal act of the respondent No,2 and thereby a request for issuing directions to the respondent No,2 for not disturbing the existing position of record was also made in respect of the 'subject property' but to no avail. Per averments, the applicant is a benamidar shareholder/ co-owner of the 'subject property' to the extent of 50% share as the entire funds/total sale consideration of the 'subject property' was arranged by the respondent No,1 through sale of his movable and immovable properties. 15. According to respondent No,!, the applicant as being the younger brother of the respondent No,1, was managing the affairs of the his agricultural land situated at Deh Bohla Khalhora under the Survey Nos.841, 842, 733, 770/2, 767/1, 869, 870, 871, 868 and in Deh Ghattar Survey Nos.333/1, 333/2, 335 and 328, totaling 33 acres but he neither paid the true agricultural incomes from the above said agricultural lands nor ever rendered the true accounts. The respondent No,1, due to negative attitude of the applicant regarding payment of agricultural income till JANUARY, 2003, was nonetheless compead to lodge a complaint with D.D.O. Qamber. 16. Besides, per respondent No,l's version the applicant had also sold the Furgoson Tractor of the respondent No,1, which was purchased by him from Kamdar Akbar Kalhoro. The respondent No,1, per assertion, had also approached the Applicant through some relatives for amicable resolution of the issue between him and the applicant but notwithstanding such efforts, the applicant is still continuing to hold the agricultural lands, income derived therefrom and house/houses at Qambar, which were purchased by respondent No,1 from the pool of the agricultural income from Post Master (the father of Dr. Zubair and Hindo named Matoomal) admeasuring 1000 square yards. All the 'original documents' per assertion of respondent No,1, are in the custody of the applicant. Per respondent No,l's knowledge all the properties referred to hereinabove have been now illegally transferred by applicant in his name. 17. Further, the case of respondent No,1 is that in the year 2001, the wife of the respondent No,1 got seriously ill as she suffered the brain-haemorrhage and thus was hospitalized. As such, on the ailment of his wife, the respondent No,1 had incurred a lot of money and thus he had fallen in dire need of extra money. Under such circumstances, respondent No,1, once again approached the applicant for his agricultural income but he received no positive response from the applicant. Unfortunately, the wife of the respondent No,1 was eventually passed away and after her death, the respondent No,1, take back the control of his agricultural land 'forcibly' from the applicant but by that time respondent No,1, no doubt, had suffered the losses in the sum of Rs,40,00,000 (Rupees Forty lacs only) at the hands of the applicant. Apart from the above, the applicant had also failed to pay the respondent No,1, the income gained by him from the agricultural land situated at Deh Ghattar under the Survey Nos.333/1, 333/2, 335, 328. Moreover, the Applicant gave possession of 5000 square yards land of village Chundia, illegally to the Directorate Education for school, which per assertion, is belonging to the respondent No,1 as being Chief of Chundia Tribe, inherited, after the death of his father on 17-11-1958, worth of Rs,10 Crores. 18. Apart from the above, the applicant had also got the possession and charge of the 'flat' of the son-in-law of the respondent No,1 after his death (who expired on 30-10-2008) and presently the applicant is residing therein along with his family. Upon demanding the possession of the said 'flat', the applicant shown his real face, by demanding the possession and charge of his 50% share in the 'subject property'. On such demand of possession of the 'Flat', the applicant has become seriously antagonized. 19. Hence this suit with the following prayers:---
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i. declare that the plaintiff is the real and ostensible owner of the suit property viz. House No, 70-L, Block No,2, PECHS, Karachi having acquired from the previous owner/his client from his own sources, funding and saving and the defendant No,1 is the only benamidar in respect of his 50% share in the suit property. Ii. After declaration that the plaintiff is the ostensible and real owner to the either suit property cancel the 50% share of the defendant No,1 in the suit property as the benamidar and award the same to the plaintiff by rectifying the sale-deed dated 6-2-1989 and direct the Nazir of this Hon'ble court to get record rectified i,e, entering name of the plaintiff as sole owner in the record of Registrar T-Division XI, Karachi, the defendant No,4. iii. Declare that the impugned order of the defendant No,2 dated 24-8-2007 is illegal ab-initio void without jurisdiction out of limitation period and order for its cancellation. Iv. Award mesne profit of Rs,40,00,000 (Rupees Forty Lac only) of the agricultural produce. v Award the declare in favour of the plaintiff amounting to Rs,11 crores causing losses to plaintiff due to his illegal act for illegal occupation of two houses at Qambar and giving 5000 sq. Yds. Of the plaintiffs inheritance land as the chief of the tribe of village chundia to the District Education Office Qambar situated in Chundia village. Vi.. Restrain the defendants, his agents, assigns, legal heirs claimants and administrative nor to create the third party interest in the suit property and not to transfer, alienate, sale, the suit property to the third person or to disturb the record of the defendants Nos. 2 and 3 till the final disposal of the above matter. Vii. Cost of the suit. Viii. Any other relief and reliefs which this Hon'ble court may deem fit and proper under the circumstances of the case. 20. The plaint was presented in Court on 10-1-.2007 and thereafter was allotted Suit No,1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others). The address of the applicant (Judgment-debtor No,1-defendant No,1) as given in the title of the plaint reads as follows:--- 'Sardar Ahmed Abbasi son of Late Ghulam Muhammad Abbasi, Muslim, adult and resident of 10 G- 13, Maymar Avenue, near Patel Hospital, Gulshan-e-lqbal No,4, Karachi and 2) Abbasi Mohalla, Qambar Ali Khan, District Qambar Shandadkot, Larkana Sindh. (underlining is mine) 21. From the diary sheet of the Additional Registrar (O.S.) dated 10-10-2007 it appears, that process was issued to the defendants for 14-12-2007. Per diary sheet dated 14-12-2007, summons issued to defendants Nos.1 to 5 returned served on defendants Nos.2, 4 and 5. As far as applicant (defendant No,1) and the respondent No,3 are concerned, per the aforesaid diary, no 'report' was received from District Judges Larkana and Islamabad. While, upholding 'service held good' upon respondents Nos.2, 4 and 5 (defendants Nos.2, 4 and 5), summons to the unserved defendant No,1 and defendant No,3 were repeated through DISTRICT JUDGE, LARKANA and Islamabad for 26-2- 2008. 22. According to the Additional Registrar (0.S.) diary of 26-2-2008, inter alia, it was observed as follows:--- 2. Summons not issued to defendants Nos.1 and 3 returned served.--- For written statement by defendants No,1 and 3 four weeks time granted. 3. Notice of C.M.A. No,8607 of 2007 not issued as cost not paid. 23. Per diary sheet of Additional Registrar (0.S.) dated 24-4-2008 with regard to defendant No,1, it was observed as follows:--- '2. For filing of w/s by defendant No,1 . No W/S has been filed since 26-2-2008.... 2. Fix in Court for further order on 12-5-2008. 3. Notice of C.M.A. No,8607 of 2007 not issued as cost not paid. (Emphasis and underlining are mine) 24. Thereafter, on 12-5-2008 when the case came up before the court the following order was passed:--- "Mr. Muhammad Khalid advocate holding brief for Mr. Aga Faquir Muhammad advocate is present, whereas none present for defendant No,1 nor any intimation (received). He has not filed written
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statement since 26-2-2008, as such he is given last chance for filing the written statement. ' On the last date of hearing summons were repeated against the defendants Nos.3 to 5, which have been served but nobody is present for them nor any intimation (received). Service against them stand good. ' Put up for written statement." 25. Again, when the case came-up before the Court on 13-10-2008 the order passed on the aforesaid date, reads as follows:- ' (1) It seems that the defendants Nos.1, 3 and 5 are not present nor any intimation has been received on their behalf. They have been given last chance to file written statement since 26-2- 2008, service against them is hereby held good. They are proceeded ex-parte. The Plaintiff is directed to file affidavit in ex-parte proof along with original documents if any, within one week. (Emphasis and underlining are mine) (2) Deferred. ' Adjourned. Interim order passed earlier shall continue till next date of hearing 26. Thereafter, on 2-3-2009 when the case came-up before the Court, the learned counsel for the plaintiff made a statement that he has already filed 'AFFIDAVIT-IN-EX PARTE PROOF' in compliance with order dated 13-10-2008 along with original documents and upon such statement the case was straightaway reserved for judgment on 30-3-2009. It is worth to note that the 'AFFIDAVIT-IN-EX PARTE PROOF' is available on record with only a list of 'ORIGINAL DOCUMENTS' with R.K. No,112 of 2008, however, without any endorsement of the concerned clerk. Nonetheless, the Judgment was not announced and the case was consequently fixed in Court on 19-6-2009. The order passed on 16-6- 2009 reads as follows:--- 'this matter be fixed for re-hearing on date to be fixed by the office according to roster. ' 27. Importantly, the respondent No,2 had already filed its written statement on 16-1-2008 which, of course, was/is available on record. In view of the written statement of respondent No,2 (J.D. No,2- defendant No,2), the suit was rightly posted for issues/re-hearing by the office. The matter then came-up before the Court on 25-1-2010, on which date, inter alia, it was observed as follows:--- '... thereafter matter did not finalize and case came up for hearing on 19-6-2009. Today office has inadvertently fixed the matter for hearing of C.M.A. No,8616 of 2007 and Issues, the said suit should be reserved for Judgment as pointed out by learned counsel for the plaintiff. Matter is reserved for Judgment, (underlining is mine). 28. On 18-2-2010, the Judgment in Suit No,1333 of 2007 was announced, whereby the plaintiffs suit was decreed in terms of prayer clauses (i) to (iv). Being relevant, I would like to reproduce herein the operative part of the Judgment dated 18-2-2010 which reads as follows:---
"Defendants Nos. ], 3 to 5 were served through summons and service against them held good and they were declared ex parte whereas defendant No,2 has filed written statement wherein it has been stated that when letter of the Ministry was received in their office, the defendant under reply had already received the notice of the instant suit as such the PECHS did not issue any letter to follow up of the letter of the Ministry, neither the letter of the Ministry was forwarded to the concerned parties and the matter was kept in abeyance till decision of this Court in the instant matter. (underlining is mine).
'Hence the suit is Decreed as per prayer clauses (i) to (iv) in favour of the plaintiff. Office is directed to prepare such Decree. The C.M.A. No,8616 of 2007 having become infructuous is disposed of accordingly.'
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29. The application for injunction under Order XXXIX, Rules 1 and 2 read with sections 94, 151, C.R.C. And Rule 76 (O.S.) of Sindh Chief Court Rules (C.M.A. No,8616 of 2007) was 'disposed off as having become infructuous. Resultantly, the status quo order passed on 11-2-2008 stood vacated.
' The 'ex parte Decree' passed on 20-2-2010 was put to execution by the respondent No,1 (Decree Holder-plaintiff) and also therein an application under section 39, C.P.C. For transfer of the Decree to DISTRICT JUDGE QAMBAR was filed. Upon receiving the notice on 14-9-2009, the applicant thus came to know about 'ex parte Decree'. Hence, the instant application under section 12(2), C.P.C. Read with section 151, C.P.C. For setting aside the 'ex parte Judgment and Decree' (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others) was - filed in this Court on 8-10-2010, inter alia,' on the pleas of 'fraud' and 'misrepresentation'.
31. The main ground of attack is that the applicant is the actual resident of 'ABBASI MUHALLAH, QAMBER ALI KHAN, DISTRICT QAMBER, AT SHAHDAD KOT' but. Respondent No,1 by playing 'fraud' and 'misrepresentation' got issued the summons/ notices to the applicant (J.D. No,1-defendant No,1) through 'DISTRICT JUDGE LARKANA' instead of 'DISTRICT JUDGE QAMBER AT SHAHDAD KOT'. As such by committing 'misrepresentation' and 'fraud', the 'exparte Decree' was obtained without serving the applicant with summons or any notice whatsoever. The summons issued through DISTRICT JUDGE LARKANA were never served upon the applicant as DISTRICT LARKANA, even to the knowledge of respondent No,1, is absolutely a SEPARATE DISTRICT and does nothing with DISTRICT QAMBER AT SHAHDAD KOT to which the Applicant is belonging. 32. Upon service, the respondent No,1 in rebuttal to the Judicial Miscellaneous Application under section 12(2), C.P.C. Filed a detailed 'counter affidavit' wherein not only the contents of the application-under section 12(2), C.P.C. Have been denied but also dismissal of the same has been sought by respondent No, 1. In the 'counter-affidavit' it has been specifically averred that the judgment and decree both of 18-2-2010 besides validly passed are not liable to be set aside much- less on the assertions made in the application under section 12(2), C.P.C. Read with section 151, C.P.C. Per averments of the 'counter-affidavit' no 'fraud' and/or 'misrepresentation' as alleged by the applicant has ever been committed by respondent No,1 in the process of service on the respondent No,1 or otherwise. 33. In response a detailed 'affidavit-in-rejoinder' has also been filed. In the 'affidavit-in-rejoinder' not only contents of the 'counter affidavit' have been denied forcefully but the contents of the application under section 12(2), C.P.C. Have also been reiterated and re-affirmed as true and correct. 34. On 1-4-2014, when above matter came up before me I heard Mr. Qazi Khalid Ali, learned counsel for the applicant and Mr. Mustafa Lakhani, learned counsel for the respondent No,1 and with their valuable assistance also gone through the record available before me minutely. 35. Mr. Qazi Khalid Ali, learned counsel for the applicant vehemently contended that from the record it reveals that the Suit No,1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others) was filed on 10-10-2007 before this honourable Court. The process/summons were ordered to be issued to the applicant and respondents No,3 (defendants Nos.1 and 3) for appearance on 14-12-2007 through DISTRICT JUDGES LARKANA AND ISLAMABAD respectively amongst other defendants (respondents Nos.2, 4 and 5). Per diary of the Additional Registrar (O.S.) dated 14-12-2007, the service against respondents Nos.2, 4 and 5 (defendants Nos.2, 4 and 5) were 'held good' and four weeks time was granted for filing of their written statement. No any report was received from the DISTRICT JUDGE, LARKANA about service upon applicant (defendant No,1) and from DISTRICT JUDGE, ISLAMABAD upon respondent No,3 (defendant No,3). Under such
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circumstances, it was directed to repeat summons to respondents Nos.1 and 3 (defendants Nos.1 and 3), through DISTRICT JUDGES LARKANA AND ISLAMABAD FOR 26-2-2008. 36. The diary dated 26-2-2008 of Additional Registrar (0.S.) reads as under:--- (a) W.S. Has been filed by defendant No,2. (b) No W.S. Have been filed by defendants Nos.4 and 5 since 14-12-2007 (c) Summons not issued to defendants Nos.1 and 3 returned served. (d) Notice of C.M.A. No,8607 of 2007 not issued as cost not paid. (el Fix in Court for ex parte order on 10-3-2008. (f) W.S. In four weeks. (Emphasis and underlining are mine). (g) Cost in a week. (h) Notice for 21-3-2008 37. Mr. Qazi Khalid Ali, learned counsel for the applicant vehemently contended that the 'Diary Sheet' of Additional Registrar (O.S.), is absolutely silent about receipt of any report from the District Judges, Larkana and Islamabad about service. The order dated 26-2-2008 at Sr. No, 'c' above is self-contradictory because on one hand it has mentioned that 'SUMMONS NOT ISSUED to defendants Nos.1 and 3 and on the other hand it has mentioned 'RETURNED SERVED'. 38. Per Mr. Qazi Khalid Ali, learned counsel for the applicant, it was quite strange that on 10-3-2008, no order in respect of applicant (defendant No,.1) was passed, however, summons were ordered to be repeated to the defendants No,3 and 2 to 5 through D.C.O. Office. The position of defendants Nos.1 and 3 was same as on 26-2-2008 then question arises why summons could not be repeated to the applicant on 10-3-2008. Per learned counsel such is a glaring example of 'fraud'- and 'misrepresentation' on the part of respondent No,1 who then manmed the issuance of summons to all other defendants except the applicant (Judgment-debtor No,1-defendant No,1). 39. Mr. Qazi Khalid Ali, learned counsel for the applicant next contended that on 24-4-2008 the Additional Registrar (O.S.) though recorded his minutes to the effect that no 'written statement' has been filed by applicant since, 26-2-2008 but nothing has been mentioned about the return of service of summons upon the applicant through learned DISTRICT JUDGE LARKANA. On 9-9-2008, the Additional Registrar (O.S.) recorded that as a 'last chance' time was granted on 12-5-2008 to applicant for filing of written statement but applicant failed to file any written statement and consequently the matter was fixed for further orders on 13-10-2008. The applicant and respondents Nos.3 and 5 were declared 'ex parte' without mentioning a single word about the proper service upon applicant. Per learned counsel, the order dated 13-10-2008 besides illegal is uncalled for and thus also liable to be set aside. 40. Per Mr.…
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