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Petitioner: ABDUR REHMAN KHAN VS Respondent: MUHAMMAD ALTAF And 3 Others
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed, Sayed Saeed Ashhad Title: ABDUR REHMAN KHAN vs MUHAMMAD ALTAF And 3 Others Case No.: Date of Judgment:1997-02-11 Reported As: K.L.R. 1997 Civil Cases 643 Result: leave grant
JUDGMENT
JUDGMENT SAIYED SAEED ASHHAD, J.- The above HCA had come up for hearing on 11.2.1997 when arguments of Mr. Abdul Majeed, learned counsel for the appellant, Mr. Khursheed Anwar Shaikh, learned counsel for the respondents Nos. 1 to 3 and Ch. Muhammad Iqbal, learned counsel for the respondent No. 4 were heard and by a short order we had allowed this appeal, set aside the impugned order of rejection of plaint passed by learned single Judge on 4th August, 1996 and had remanded the after recording evidence. The brief facts of the case requisite for the purpose of disposal of this appeal are that the appellant/Plaintiff is a resident of Flat No. 9, on the second floor measuring about 690 sq.Fts., Jillani Mansion, A.M. 18, Off: Akbar Road, Karachi near Shahrah-e-Liaquat. The Jillani Mansion wherein the above flat is situated is a three storeyed building and there are four residential flats on each floor of the building and that there were wide open spaces on both sides of the said building which were being used by the occupants of Jillani Mansion for parking their cars and motorcycles for more than 20 years. It is further stated by the appellant/Plaintiff that there was also some space at the back of the building which was also used for the same purpose and thus the appellant and the other occupants of the building had acquired prospective right to use this passage and open space of the building measuring approximately 2754 sq.Fts. For their ingress and egress to and out of the building and for parking their cars and motorcycles. Respondents Nos.l & 2 are owners of the flat bearing No. G/l in the above Jillani Mansion on the ground floor, having purchased the same from respondent No. 2 and they illegally and un-unauthorizedly occupied the open space and in March, 1992 they constructed a show room for the puipose of sale and K.L.R. C.C. *
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c:c:645 purchase of cars in the name of Auto Deals and in doing so they occupied the open passage which was meant and was being used by the appellant and other occupants for parking their cars and motorcycles and thus they were denied and deprived of their legal right of using common open passage on account of the high-handedness of respondents Nos. 1 & 2. Respondents Nos. 1 & 2 had occupied the above common open pass-age on the ground floor measuring about 840.56 sq.Fts. On gun-point a&d the appellant as well as the other occupants of the flats raised objections and asked the defendants/respondents Nos.l & 2 to desist from their illegal act of unlawfully taking over the possession of the common open space. The defendants/respondents Nos.l &. 2 threatened the appellant and other occupants of dire and serious consequences and as such the appellant and other occupants of the flats of Jillani Mansion were deprived of their right of parking their cars and motorcycles in the common open space and to use it for entering in and exiting out of their flats. It was further submitted that the building in dispute being an evacuee property, the Settlement Department could not have transferred the common open passage to respondents without notice to other occupants of the building and consequently the transfer of the land of the common open passage by the Settlement Authorities in favour of original transferee by means of a document/verification plan issued by the Settlement Authorities dated 29-9-1964, the existence of which has been denied by the respondent No. 4 and is not available in the record of the Settlement Department. The case of the respondents No. 1 to 3 as put forward by Mr. Khursheed Anwar Shaikh, advocate is that the respondents No. 1 & 2 are successors-in- interest of respondent No. 3 in respect of fla't No. G/l, ground floor on the plot measuring 602.2 sq.Fts. Situated at Jhamat Sing, Rai Lawani Road, Artillery Maidan, off Akbar Road, Karachi, and that the respondent No. 3 had purchased the said fiat from the original transferee Mst. Hayatun Nisa Begum. It was further submitted on behalf of the above three respondents that the land alongwith building thereon was an evacuee property and the Settlement Authorities had also transferred the open passage of land, measuring 840.56 sq.Ft, to the original transferee vide the above plan/sketch dated 29.9.1964. Mr. Khursheed Anwar Shaikh did not file the written statement and instead moved ah application under Order VII Rule 11 CPC praying therein that the plaint filed by the appellant/Plaintiff be rejected inasmuch as it did not disclose any cause of action inasmuch as the Settlement Department had transferred the common open passage, which is the matter of dispute, in favour of the original transferee by a plan/sketch dated 29-9-1964, and the respondents being successors-in-interest of the original transferee are the owners thereof, and vehemently denied its use by the occupants of the flats for parking cars and motorcycles or that the site plan was a forged or fabricated document. The learned single Judge after hearing the advocates for the parties and going through the material on record observed that the only right which the appellant/Plaintiff could have shown to have existed in his favour in respect of the common open passage was the right of easement of ingress and egress and of parking his car and motorcycles for more than 20 years but he failed to refer to any material or averment in his plaint on the basis of which he could establish such easementaiy right and further. That the advocate for the appellant-plaintiff did'not at all advance any argument with regard to the existence of any easementary right in favour of the appellant/Plaintiff over . The common open passage and in view of the above observations he granted both the applications under Order VII Rule 11 CPC filed by respondents Nos. 1 & 2 and respondent No. 3 and ordered rejection of plaint. Being aggrieved and dis-satisfied with- the above order of the learned single Judge the appellant has proferred the above appeal. Mr. Abdul Majeed, learned counsel for the appellants/plaintiff vehemently attacked the order of the learned single Judge and submitted that the learned single Judge in deciding the applications
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under Order VII Rulril completely lost sight of the fact that the appellant/Plaintiff made an assertion that the disputed common open passage was not transferred to anybody including the respondents or their prodecessor-in-interest and it was being used and ejoyed by the occupants of all the flats of the building for the purpose of ingress and engress to and out of the building and for parking their cars and motorcycles and subsequently claim of the respondents that the same had been transferred to them by an order/verification plan dated 29-9-1964 issued by the Settlement Department was an absolutely false and untrue claim and that if there was any order/verification plan then the same was obtained by forgery, fabrication and fraud and that no reliance could be placed thereon for the purpose of deciding the right of the respondents over the common open passage. He further submitted that once the plaintiff categorically stated that respondents had acted with mala fide and fraudulent intention in claiming tp be the owner/title holder of the common open passage on the basis of some order/verification plan alleged to have been issiied by the Settlement Department a long time after issuance of the permanent transfer deed, it was incumbent upon the learned single Judge to hold an inquiry find to decide as to whether the respondents No. 1 & 2 had committed fraud in claiming their title over the common open passage, when admittedly for a long period of time the same was freely used by the occupants of the flats for their ingress and egress to and out of the building and for parking their cars and motorcycles and no party had asserted his ownership or title over such common open passage. Mr. Khursheed Anwer, learned counsel for the respondents/defendants submitted that the question of production of a forged or fabricated document/verifieation plan by the defendants/respondents did not arise and was out of question inasmuch as the Settlement Department had validly and lawfully issued an order whereby the common open passage measuring 840.56 sq.Fts. Was transferred to the predecessor-in-interest Of the respondents/defendants Nos.l to 3 and that the said respondents/defendants had purchased the flat in dispute together, with the common open passage measuring 840.56 sq.Fts. And the respondents being lawful and valid # owner/title holder of the above common open passage were entitled to put it ; to their on. Use and to stop the other occupants of the flats from Using the same as this common open passage was neither the passage way leading to the flats of the other occupants nor they could park their cars and motorcycles therein inasmuch as it was not adjacent to the flats of the respondents and in proximity with the passage/landing space used for the purpose of entrance and exit by the occupants of the flats of Jillani Mansion. We have given our due consideration to the arguments advanced by the learned counsel for the parties and have perused the material on record and the relevant provisions of law. Mr. Abdul Majeed, learned counsel for the appellant/Plaintiff has vehemently pleaded the question of fraud against the respondents and submitted that they had acquired the common open passage in dispute on the basis of a forged and fabricated document/plan dated 29-9- 1964 purported to have been issued by the Settlement Department/Authorities to the effect that the open space measuring 840,56 sq.Fts. On the ground floor adjacent to flat No. G/l of the respondents No. 1 & 2 stood transferred to the original transferee. In this connection, he further submitted that an inquiry was made from defendant No. 4 as to whether any such document or verification plan was issued by the Settlement Authorities but the respondent No. 4 did not confirm the issuance of any order/verification plan to the above effect and the only presumption which can be had on the circumstances of the case, is that the respondents No. 1 to 3 are relying on a forged and fabricated document for claiming to be the' owner/transferee of the common open passage in dispute and on the basis of illegal and fraudulent order are not only on the basis of the appellant/Plaintiff and other owners of the flats of the building of their right
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of egress and ingress and parking of their cars and motorcycles but also played fraud on the Court. The arguments advanced by the learned counsel for the appellant/Plaintiff are not without substance and merit consideration. Before the learned single Judge, a definite allegation of fraud was made against the respondents and it was stated that the respondents/defendants had acquired the disputed common open passage by means of fraudulent and fabricated document purported to have been issued and signed by the Settlement Authorities but the learned single Judge did not advert to the question of fraud. It has been generally held that fraud vitiates the most solemn of the transactions and renders the same as voidable and a nullity in the eye of law and it was necessary to examine the plea of fraud with a view to determine the possibility of commission of fraud by the above respondents and its effect on the alleged transfer of the common open passage in favour of the above three respondents. Before proceeding further it will be useful to have a clear and thorough meaning of the word fraud, W'hich will be of great help in solving the issue in question. Section 17 of the Contract Act defines fraud and the definition given therein is reproduced here as under: - "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) the suggestion as a fact, of that w'hich is not true by one w'ho does not believe it to be true; (2) the active concealment of a fact by one haring knowledge or belief of the fact; ' ' (3) a promise made without any intention of performing it; 14) any other act fitted to deceive; (5) any such act or omission as the law' specially declares to be fraudulent." It will also be useful to find out the meaning of the w'ord fraud as given in the various law/ordinary dictionaries. According to Black's Law Dictionary, revised VIth Edition, page 660 fraud means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It also defines fraud as a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed. The hand book of Legal Terms & Pharases by M. Ilyas Khan, advocate on page 285 defines fraud to mean an intentional deceit by one person of another person with the motive of having some illegal gain or advantage for himself or with the purpose of putting the person so deceived or cheated in wrongful loss and dis-advantage. The Chambers , Dictionary, new Edition 1994, on, page 662 defines fraud as deceit, impersonation with intent to deceive; criminal deception done with the intention of gaining'an advantage and a deceptive trick. From a bare perusal of the above definitions it is to be observed that the main ingredient of fraud is the intention to deceive or to induce a person by mis-xepresentation to enter into a contract on a false belief. A fraud may consist of an action in suppression of what is true or an action in representation of what is false. In order to sustain an action for deceit it must be proved that there was a statement as to a fact which wfas false; and secondly, that it was false to the knowledge of the person making it, part or * that he made it not caring w'hether it was true or false. When a Court is called-upon to exercise its discretion in equity to set aside a decree on the ground of fraud or collusion then it does not confine itself to the narrow definition contained in Section 17 of the Contract Act and all possible kinds of fraud which can come to mind are covered by the definition of fraud. The Courts have been view careful and cautions in dealing with any situation where the slightest allegation of fraud or collusion is raised by any of the parties to the case and, whenever any such allegation or issue is raised the Court takes upon itself to hold a thorough and complete inquiry to
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find out as to whether the transaction is tainted with fraud or not and, if so, then the entire proceedings of the Court as well as the proceedings prior to the Court become illegal and void if it be established that the basis of case the - Court w>as a forged or fraudulent7document. Even a judgment/decree or an order obtained from a Court on the basis of a fraudulent statement or any other kind of fraud loses its authenticity or sanctity and fraud renders the judgment, decree and order of every Court and Tribunal as voidable and it will be appropriate to examine decided Cases of our Supreme Court and High Courts dealing with the consequences and repercussions of fraud and misrepresentation on the transactions, judgments and orders and powers pf .The Courts and Tribunals in setting aside such transactions. The first case which we propose to discuss is a Division Bench case wherein the Lahore High Court had examined the question of validity and legality of a judgment or order obtained by fraud in the case of Grindlay's Bank Limited v. Murree Brewery Company Limited and another, reported in PLD 1954 Lah. 745, and has expressed following views:- "In law a judgment or order, however high- or independent the tribunal delivering or making it and however exclusive its jurisdiction, it is a nullity if it be proved that it was obtained by fraud. This fraud may be proved not only in the proceedings in which it was committed but also in a suit to set aside that judgment or order, the only limitation on the Court's power to avoid such adjudication being that the fraud should have been set up under Sections 40, 41, 42 or 43 of the Evidence Act by the party relying on it. In appropriate cases it is the duty of the Court that has seisin of the case to recall suo mofa an order procured by fraud." ' . , The Dacca High Court in the cate of Muhammad Idris Khan v. Hqji . .Fanuddin, reported in PLD 1958 Dacca 132, while dealing with the propriety of an order obtained by practising fraud on Court, observed that "it could not be allowed to stand on record because if it was allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances." The important point to note in this judgment is that the learned Single Judge while expressing the above view' w-ent to the extent of holding that the question of fraud can be taken up and decided even by the Court or Tribunal of very limited jurisdiction, thereby magnifying the gravity and seriousness with which the Courts view' fraud and fraudulent, transaction. In the case of Mst. Izat and another v. Kadir Bux, reported in PLD 1959 Kar. 221 a learned single Judge of the erstw'hile High Court of West Pakistan, Karachi Bench while dealing with the question of fraud, observed that fraud vitiates all proceedings and nothing that is product of fraud is of any validity. And further expressed as under:- * 'I* "In a case w'hich is being fought on one bause of action, namely, that the plaintiff is entitled to certain property as an heir of another, if property be introduced surreptitiously which has nothing to do with that cause of action and a decree be secured in respect of that property the decree would be vitiated by fraud." The facts of the reported cases are somew'hat similar to the facts of the present case inasmuch as in the reported case there w'as claim or entitlement by the plaintiff to certain property as heir of another and in that property he had surreptitiously included the property of defendant and obtained a decree as has been done in this case. In the case before us. The claim of ownership of respondents No. 1 and 2 with regard to the common open passage is being claimed on the basis of an allegedly tainted order/verification plan issued by the Settlement Authorities, which raises suspicion with regard to the authenticity and reliability of the alleged transfer of the common open passage. In the case of Ahmad Khan and others v. Custodian of Evacuee Property, West Pakistan and others, reported in PLD 1963 (W.P) Karachi 450, a Division Bench of the erstwhile High Court of West
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Pakistan, Karachi Bench had refused to grant equitable relief in writ jurisdiction on the maxim: "he who seeks equity must do equity"- and a person guilty of fraud is debarred from equitable relief. In this case the petitioner had obtained an order fr6m Additional Custodian on the ground of fraud and the same came to the notice when the matter was pending before the Custodian and the Division Bench further held that such order could be set aside by the Custodian in exercise of his powers. The Hon'ble Supreme Court of Pakistan in the case of Pakistan and others V. Roopchand and others, reported in PLD 1967 SC 479 while dealing with the question of fraud, did not allow additional evidence/documents to be brought on record in support of the fraudulent acts of the respondents on the ground that it would have amounted to have received additional evidence and . Substituting the findings of the Supreme Court in place of the findings of the Custodian, which were not open to an exception, but observed that it was open to the interested party to re-examine the whole case on the allegation of fraud before the proper forum. In the case of The Chief Settlement Commissioner, Lahore v. Rqja Muhammad Fazil Khan and others, reported in PLD 1975 S.C.331 the Hon'ble Supreme Court dilated on the question of orders which are void and orders which are voidable and observed that the order made by a Court, Tribunal or other authority acting without jurisdiction as regards subject.-^ matter, pencuniaiy value or territorial limits are void ab initio, whereas the order obtained by fraud is not void but only voidable, and it remains operative as long as it is not rescineded or recalled by a competent authority in proper proceedings. The Supreme Court further expressed the new as under:- 'While it is true, as has been so often stated, that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiiy. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it." In the case of Siraj Din and others v. Amanullah Qureshi and another, repotted in PLD 1980 S.C 1 the question for consideration before the Supreme Court was whether the plea "collusion' , "surreptitiousness" and "Concealment" raised and elaborated in a writ petition filed by respondent could amount to as to pleading fraud through the word fraud was not expressly used in the pleadings and the Supreme Court expressed the following view7:- No doubt in the writ petition the word "fraud" has not been specifically used by Amanullah Qureshi. But if later on during the course of arguments in the High Court, the cumulative effect of those pleadings as have been reproduced above, was addressed as an allotment fraudulently produced by the vendors, or if the learned single Judge himself observed that if in the context hereinbefore mentioned a finding of fraud could be recorded against the subsequent allotees,................................ ...................................................................................................... .Though on our part wre may observe that the plea of "collusion" Surreptitiousness" and "concealment" as raised in para 20 of the w'rit petition (reproduced above) and elaborated in para 13 generally speaking could be held as pleading fraud because all the aforesaid attributes are species of fraud and could result in fraud." The view expressed by the Supreme Court in the above-cited case, takes care of the contention advanced by Mr. Khursheed Anwer Shaikh, the learned advocate for the first three respondents that the appellant did not specifically and categorically raise the plea of fraud either in his pleading or during the course of argumepts of the applications under Order VII Rule 11 CPC and did not disclose the nature and kind of fraud alleged to have been committed by respondents Nos. 1 to 3, and the learned single Judge rightly did not consider the same. The plaintiff has in his plaint made a specific and categorical statement of the order/verification plan dated 29-9-1964 being a forged, fabricated and illegal document and the use of the above w'ords cannot convey a meaning other
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than that the order/verification plan w'as a product of fraud. The contention of Mr. Khursheed Amver Shaikh, as such, is devoid of force, besides not being supported by the record. Reverting to the case-law', in the case of Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others, reported in PLD 1991 S.C. 691, the Hon'ble Supreme Court was pleased to uphold the order of the Board of Revenue in setting aside illegal transfer of property worth millions of rupees by its on. Order, though it was observed that the Board of Revenue did not have the power or authority to re-call its order and the same was clearly without jurisdiction, but as the question of fraud was involved, the Supreme Court upheld the order of the Board of Revenue in setting aside the transfer obtained by fraud. In the case of Mst. Fehmida Begum v. Muhammad Khalid and another. Reported in 1992 SCMR 1908 the Hon'ble Supreme Court of Pakistan while considering the question of fraud, during the course of the proceedings of a Court or Tribunal, held that the same vitiates the proceedings of Court and even* Court irrespective of its limited jurisdiction would have power to set aside any order which had been secured by practising fraud or misrepresentation upon it and it was held that even a Rent Controller would have the power to set aside any such order. It trill be appropriate to reproduce the relevant portion from the judgment, which is as under: - "There cannot be any doubt that Section l2 <2) CPC, is in recogintion…
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