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Petitioner: MOBINA BEGUMPlaintiff VS Respondent: THE JOINT SECRETARY, Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed, Haziqul Khairi Title:MOBINA BEGUMPlaintiff vs THE JOINT SECRETARY, Ministry of Religious and
Minority Affairs, Government of Pakistan, Islamabad and 2 others Case No.: Civil Miscellaneous No 1938 of 1982 Suit No,23 of 1980 Date of Judgment:1990-01-08 Reported As: 1994 MLD 1441 Result: Order accordingly Judgment ORDER ' WAJIHUDDIN AHMED, J.---C.M.A. No, 1938 of 1982 is an application under section 12(2) read with section 151, C.P.C. It is moved by the defendants Nos.1 and. 2. The facts pertinent to this application are somewhat complex. The present suit was filed for declaration and injunction by the plaintiff against the Joint Secretary, Ministry of Religious and Minority Affairs, Government of Pakistan, Chairman, Evacuee Trust Property Board and the Deputy Commissioner (East), Karachi. The suit proceeded on pleas that the plaintiff abovenamed obtained, on 99th years' lease, Survey Nos.2, 3, 4, 5, 6 and 7, Deh Soangal, Taluka and District Karachi, from one Baba Birpuri, since deceased for a consideration of Rs,1,66,000, as per registered sale-deed, dated 15-12-1965. On payment of full consideration towards the lease money, the referred lessor, Baba Birpuri, passed on the possession of the relevant survey numbers to the plaintiff in June, 1966. Since, allegedly, mutation of the property could only be had subject to the issuance of the "No-Objection Certificate" from the Deputy Administrator, Evacuee Property Trust Board, Karachi, plaintiff availed the services of one Hari Ram Vishenmal Sanyasi, Chela of Baba Birpuri, aforesaid, whose name was coming down as owner of such survey numbers. An application, dated 8-10-1974, of the plaintiff to the Deputy Administrator, Evacuee Trust Property Board, Karachi was forwarded to the Chairman, Evacuee Trust Property Board by the addressee upon which the Chairman, Evacuee Property Trust Board, allegedly, passed orders to the effect that his department had no objection to grant thereof, as the Evacuee Property Board Trust, never exercised any control or management of the lands mentioned in the plaintiff's application, dated 8-10-1974, and N.O.C., as described in such order, dated 15-10-1974, was allegedly, issued to the
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above-said Chela of Baba Birpuri, who allegedly, in order to grind his own axe, suppressed the facts from the plaintiff and, as such, mutation proceedings were held up, of which the Administrator, Evacuee Trust Property Board, was said to have taken advantage, and started making inroads on the plaintiff's land. The plaintiff, resultantly, filed Suit No,929 of 1978 against the Administrator, Evacuee Trust Property Board, Karachi, in the Court of the Ist Civil Judge, First Class, Karachi. During the proceedings in such suit, the referred Chela of late Baba Birpuri came forward, as an intervenor, and filed the N.O.C., he had collected on the basis of alleged authority from the plaintiff. However, such N.O.C. Was not accorded due consideration by the Administrator Evacuee Trust Property Board, Karachi, and the matter was referred back to the Chairman, Evacuee Trust Property Board, who, per his alleged order, dated 23-8-1978, directed that the record be checked to ascertain as to whether the N.O.C. Was issued, after due enquiry. An alleged report of the Litigation Branch was appended to the plaint, dated 5-10-1978, marked as Annexure "A", in which it was said that "from the perusal of the petition, it has been noticed that the letter said to have been issued by the office of the Deputy Administrator on 23-10-1974 had stated that No-Objection Certificate relating to Nos.2, 3, 4, 5, 6 and 7 of Deh Soangal had already been issued to the addressee". Thereafter, parenthetically, it was stated that before the Chairman, Evacuee Trust Property Board, the Deputy Administrator had also moved the Federal. Government for vacating the stay but the Joint Secretary to that, Government did not accede to the request. Hence he was made a party to the suit. Then the plaintiff went on to say that she had been running from pillar to post to get justice for the last 15 years. In frustration she also appealed to the President and Chief Martial Law Administrator of Pakistan to have justice done to her, who referred the matter to the Deputy Commissioner (East) Karachi but the latter expressed his inability to do anything in the matter, as the record shows that the lands, subject-matter of the suit, were entered as the property of Pinjraport Trust, Karachi. Consequently, the plaintiff was advised to approach the Administrator, Evacuee Trust Property Board, Karachi, which was maintained to amount to side-tracking the issue. Plaintiff thus pleaded that there was grave disparity in the stands taken. The Chairman, Evacuee Trust Property Board, was the sole authority in all Evacuee Property matters in Pakistan, while his subordinate was refusing to carry out his orders. Hence the suit. Cause of action for the suit was alleged to have arisen on 11-10-1979 on the refusal of the defendants to mutate the name of the plaintiff in the record of rights. By way of reliefs. Declaration was sought that the N.O.C. Issued by the Chairman, Evacuee Property Trust Board, dated 10-10-1974, to the plaintiff and subsequently ratified by the defendant No,2, Chairman, Evacuee Trust Property Board on 15-10-1974 was valid, subsisting and enforceable and that in the light of the directions and order of the Chairman, Evacuee Trust Property Board, dated 15-10-1974, the N.O.C. Issued by him be held good and enforceable in law. Permanent Injunction, restraining the defendants, etc. Was sought not to give effect to any further orders in any manner whatsoever till the final disposal of the suit. Residuary prayer was for any other relief as the Court may deem fit. 3. The defendants, even though served, did not put in appearance with the result that on submission of an Affidavit in evidence of one Izzat Khan son of Abdullah Khan, as attorney and Perokar of the plaintiff, the matter was taken up ex parte and, on 25-8-1980, decreed as such by my learned brother Saeeduzzaman Siddiqui, J. 4. Subsequently, an application for setting aside of the ex parte decree was moved but, per order, dated 3-5-1982, passed by my learned brother Nasir Aslam Zahid, J., was dismissed, on the finding that not only the defendants were grossly negligent, negligence even on the part of their learned counsel was all too evident. An appeal was taken to a Division Bench of this Court, which having been numbered as H.CA. 59 of 1982 was dismissed. Petition for leave to appeal bearing C.P.S.LA. No,531/K of 1984 also met the same fate.
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5. In the meantime, while the application for setting aside of the ex parte decree was pending, the above-said application C.MA. No,1938 of 1982, under section 12(2) read with section 151, C.P.C. Was filed. It was attempted to be argued by the substituted counsel for the defendants Nos.1 and 2 but such an attempt was disallowed, as reflected in the order, dated 12-5-1982 in the following words:- "It may be mentioned here that Mr. M.G. Dastgir, learned counsel for the defendants Nos.1 and 2 wanted to address his argument on the question that the ex parte decree had been obtained by fraud. I did not allow him to address arguments on this point. I find that on behalf of the defendants Nos.1 and 2 C.MA. No,1938 of 1982 has since been filed on 4-5-1982 under section 12(2) read with section 151, C.P.C. For setting aside the ex parte decree or the ground of default and misrepresentation. The said application will be dealt with on its own merits." 6. Such application under section 12(2), C.P.C. Inter alia, came up for consideration on the original side of this Court on 12-8-1985 and my learned brother Nasir Aslam Zahid, J. Passed the following order:-- "Before directing evidence to be recorded in this matter, I would like the learned counsel to argue the question of maintainability of the present application." 7. Later, this application remained part heard, as Mr. Justice Nasir Aslam Zahid was firstly, posted at the permanent Sukkur seat of this Court and, subsequently, joined as Secretary of the Ministry of Justice and Parliamentary Affairs, Government of Pakistan. 8. In due course, I heard this application but, in consonance with order, dated 12-8-1985, only on the question of maintainability and reserved orders. 9. Now, in the application under section 12(2), C.P.C. And the affidavit in support thereof it is maintained that the matter pertains to more than 71 acres of land which vest in the Federal Government and are under the management and control of the Evacuee Property Trust Board. It is said that prior to the institution of the above suit, the plaintiff had filed Constitutional Petition No,65 of 1976 in respect of the same land. Such petition was heard by a Division Bench of this Court and dismissed, per order, dated 6-2-1976, holding that the present plaintiff could not claim any right, title or even interest as lessee of the land in question on the basis of the lease-deed since such deed was not registered, as required by law. Copies of such petition as well as order thereon have been filed. It is next urged that the plaintiff, thereafter, filed an application, dated 19-10-1977, before the Chairman, Evacuee Trust Property Board, defendant/Judgment-Debtor No,2 herein, for direction to the Administrator, Evacuee Trust Property, Southern Zone, Karachi, not to interfere in the enjoyment of peaceful possession of the plaintiff of the land in suit. Such application was heard by the defendant/Judgment-Debtor No,2, who per order, dated 31-1-1979, found that the plaintiff had no right or title in the property in question nor Baba Birpuri, under whom the plaintiff claimed; had any authority to lease out the disputed property to her, since such property belongs to Pinjrapore Trust and its control vests with th6 Evacuee Trust Property Board. With the application under section 12(2), C.P.C. a copy of such application before the Chairman, Evacuee Trust Property Board together with order thereon have been placed on record. It is then said that the plaintiff abovenamed, on or about 7-2-1979, filed a revision application under section 17 of Act XIII of 1975 before the Federal Government against the orders last mentioned, which at the time of the filing of the application under section 12(2), C.P.C. Was pending disposal. A copy of such revision application is also brought on record. It is urged in the affidavit in support of the pleas under section 12(2), C.P.C. That all such facts were concealed from this Court at the time of the institution of the suit nor were the same brought to the notice of the Court at the time of passing of decree, dated 31-8-1980, whereupon is based the contention that if such facts were on record, there could not have been passed a decree in favour of the plaintiff, since the plaintiff has no right title or interest in the land in question and succeeded in obtaining that ex parte decree, solely, on the basis of fraud and misrepresentation. Express reliance is placed for further details as to facts on the affidavit, dated
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21-3-1982, submitted by Akhlaq Ahmed Khan, Legal Assistant in the office of the Deputy Administrator, Evacuee Trust Property, Karachi, earlier submitted alongwith the application under Order 9, Rule 13 read with section 151, C.P.C. 10. Counter-affidavit to such application was filed by Izzat Khan son of late Abdullah Khan, attorney and husband of the plaintiff and in this counter-affidavit, the pleas are that the application is barred by time, that the allegations that the decree was obtained by fraud and misrepresentation are misconceived and vexatious, that the defendants avoided to contest the suit, designedly, with a view to await the outcome of its result, and that even High Court Appeal No,59 of 1982, against the order, dated 12-5-1982, stood dismissed vide judgment, dated 27-8-1984, thereby closing the Chapter for good. As to the order passed in Constitutional Petition No,65 of 1976, it is said that the same was not relevant to the claim in suit, as that petition pertained to the issue of public notice by the Administrator, Evacuee Trust Property Board, and does not cast doubt or cloud on plaintiff's title to suit lands but, as to the title of the lesser (Baba Birpuri), the order in the petition opined that it was for him to seek a declaration from a competent Court of law, if so advised. It is maintained that application under section 12(2), C.P.C. Is a clumsy attempt to side-track the issue for setting aside of the ex parte decree, as on the pleas raised in such application, that decree could not be set aside. 11. In reply, Abdul Aleem Ansari, Deputy Administrator (Land), Evacuee Trust Property, Karachi, submitted an affidavit in rejoinder. The allegations in the counter-affidavit are denied therein. As to the pending Revision application before the Federal Government against the order of the Chairman, Evacuee Trust Property Board, dated 31-1-1979, it is said that during the intervening period, the same was withdrawn by the present plaintiff and stood disposed of in terms of order dated 15-5-1982. He has denied that either the Federal Government or the Evacuee Trust Property Board or any other functionary has issued any No-Objection Certificate to Mst. Mobeena Begum, the plaintiff herein, in respect of the land, in suit, as alleged in the plaint, and the plaintiff has been challenged to produce the original copy thereof before the Court to determine the authenticity of the same. It is claimed that in view of a large number of documents as well as of decisions of various Courts, upto the level of the Supreme Court of Pakistan, the lands in dispute vest in the Evacuee Trust Property Board, Government of Pakistan and that the plaintiff has no right to deal with the same. In support are referred and filed some documents including orders, in Constitutional Petitions Nos.990 of 1963 and D-484 of 1979. 12. The contentions from the side of the plaintiff, questioning the maintainability and competence of the application under section 12(2), C.P.C. Are several-fold. 13. It is urged firstly, that enactment of section 12(2), C.P.C. Does not constitute a departure from the law, which prevailed in the context of recall of decrees on the basis of want of jurisdiction or fraud at the time of the promulgation of such provision, which came about as a result of the Code of Civil Procedure (Amendment) Ordinance, X of 1980. It is pointed out that sections 40, 41, 42, 43 and 44 of the Evidence Act, 1872, applied on the subject till the date of the referred promulgation and the limitations for recall of decrees, as based on such provisions, etc. Would still apply to proceedings governed by section 12(2), C.P.C. Aforesaid, For this contention, Mr. Muhammad Ali Sayeed relies on Logadapatti Chinnayya v. Kotla Ramanna 19 Indian Cases 579, where a Division Bench of the Madras High Court observed that an unsuccessfully party cannot be allowed to get round the rule of res judicata and to prove that the judgment was wrong, because the Court came to a wrong conclusion on the evidence before it and that fraud to vacate the judgment must be extraneous of everything, which has been adjudicated upon; Janki Kuor v. Lachmi Narain and others 30 Indian Cases 789, declaring that a suit brought to set aside a decree in a previous suit on the ground that the decree had been passed in contravention of the pleadings in that suit is barred by the principle of res judicata and that, similarly, a suit to set aside a decree on the ground that the same was
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obtained by perjured and false evidence, is not maintainable; Kadirvelu Nainar v. Kuppuswami Naicker AIR 1919 Mad. 1044, incorporating the opinion of a Full Bench of the Madras High Court that no suit can be instituted to set aside a decree on the ground that it was obtained by perjured evidence; Pannalal Kuthari v. Tara Kanta Karmakar and others 63 Indian Cases 778, reporting that a suit to set aside ex parte decree obtained in another Court, on the ground that the same was obtained fraudulently, cannot succeed unless it is proved that there was fraudulent suppression of summons or that the claim of the respondents was false and false to their knowledge; Mahadeb Prosad Kanaria v. Mahabir Prosad and another AIR 1923 Cal. 569, wherein a Division Bench of the Calcutta High Court opined that an incomplete statement of a proposition of law in the plaint does not constitute fraud on the part of the plaintiff, where the decree came to be passed ex parte, unless it is shown that there was fraudulent suppression of summons; Punjab Commercial Syndicate and another v. Punjab Cooperative Bank, Limited and others AIR 1926 Lah. 96, holding that even an ex parte decree cannot be reopened except on the ground of fraud, as an extrinsic collateral fact vitiating the proceedings, in which the decree was obtained and it not sufficient to allege that it was obtained on perjured evidence in relation to a false claim; Mukhtamala Dasi. v. Ram Chandra De and others AIR 1927 Cal. 84, observing that an ex parte decree could not be set aside on the mere ground that it was obtained through the aid of perjured evidence and that something more should be proved in support of the allegations of fraud and it must be shown that fraud was practised in relation to the proceedings in Court and the decree had been procured by practising fraud of some sort upon the Court and Sher Bahadur and others v. Muhammad Amin and others AIR 1920 Lah. 569 laying down that the mere fact that a party has suppressed important evidence or has relied upon perjured evidence in the case and has, thereupon obtained a decree in its favour cannot be the basis of a subsequent suit which is brought for a declaration that the previous judgment was null and void and was of no legal effect. To this may be added the opinion of Sir Lawrence Jen Kins and Nenda Kumar Howladar v. Ram Jiban Howladar 41 Cal. 990 where, on a careful examination of English authorities, he came to the conclusion that general allegations of fraud cannot sustain a cause for setting aside of a prior judgment for which it was essential to show as to how, when, where and in what way fraud was perpetrated. 14. Now, all these cases proceed in the context of the rule that litigation between the parties must rest a some point of time and that parties are not permitted to raise the same questions, over an over again, in different sets of proceedings, solely, by resorting to the contrivance of a fresh suit, based on a supposed exercise of fraud by an adversary. In laying down dicta to this effect, Courts were not unmindful to situations, where a party may have been enabled to steal a. March over the other by advancing false pleas or adducing perjured evidence, all of which in relation to such proceedings could be dealt with, in the same round of litigation by way of review, appeal or revision and, once the matter had come to rest, no reopening of the controversy through a fresh suit at the instance of the unsuccessful litigant was found to be permissible, except in the rarest of cases. This approach to the problem, inter alia, rested on the limited scope of reopening of the controversy on judicial precedents embedded in the common law, that fraud vitiated all proceedings howsoever solemn, augmented by section 9 of the Code of Civil Procedure, conferring jurisdiction on Civil Courts pertaining to disputes of a Civil nature, sections 42, 54 and 55 of the Specific Relief Act concerning decrees of declaration and Injunction together with the rules of evidence as to relevancy of previous/judgments, incorporated in sections 40, 41, 42, 43 and 44 of the Evidence Act, 1872, all of which provisions do not seem to have been expressly adverted to in the referred case- law. At any event, The ambit and scope on such premises was limited. Even so, if it could be shown that summons were suppressed or tendering of evidence was precluded by exercise of fraud or that fraud was practised on the Court, as distinguished from that on the adversary, the case could reopen on the basis of a fresh suit, questioning the decree so obtained on the ground of fraud. In
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such situation as well, it would appear that the rule and concept of fraud in the context of ex parte proceedings even where the default of appearance is uncondonable, is different and, was different than as against cases where parties had litigated, at arms length, and had full opportunity of counteracting the pleas and evidence of one and another. In such cases of ex parte decree where the plaintiff advances pleadings in a circuitous or inconsistent manner, suppressing or twisting facts, as distinguished with law, or referring to material, which is irrelevant, and suppressing that which is relevant or even vital and then, on account of his adversary remaining unrepresented, proceeds to obtain a decree on mere affidavit or even uncontested evidence, recorded in Court, and, irrespective of failure in getting the ex parte orders recalled for want of sufficiency in cause, it is subsequently shown, as could be done under the old law by filing a fresh suit for recall of decree on the basis of fraud that, this was how such decree was obtained, it surely cannot be questioned that the fraud as may have been practised, came to be directly practised on the Court, for the Court could never have come to decree, the earlier suit had relevant facts, which were twisted, suppressed or otherwise ill projected were in its full view. There seems to have been no difference in the then state of law in such matters and there is none now that questions pertaining to fraud on the Court could be reopened and can be reopened now, without recourse to the later development of law, which will be examined below. Needless to say, that fraud is a very serious thing. It vitiates proceedings of the most solemn character. In the dispensation then prevailing a trial Court may competently have set aside or recalled the decree even of a Superior Court, if it was shown that such came to be obtained by use of fraud. Similarly, a decree so tainted could have been ignored and refused to be acted upon by the very Court which passed it. Thus, in Grindlays' Bank Limited v. Murree Brewery Company Limited and another PLD 1954 Lah. 745, Muhammad Munir, C.J. Speaking for a Division Bench of the Lahore High Court, observed that a Single Judge of the Court, hearing a review application, in a situation where the other member of the Bench could not sit in the case due to motives of delicacy, could recall an earlier order of the Division Bench, if fraud was shown to have cropped up, in obtaining such order. 15. Discussed above was the position of law as it prevailed prior to the introduction of section 12(2) in the Code of Civil Procedure which, as seen, came to be introduced through the Code of Civil Procedure (Amendment) Ordinance, X of 1980. With the insertion of section 12(2) in the Code an entitlement to challenge the validity of a judgment, decree or order, on the pleas of fraud, misrepresentation or want of jurisdiction, by way of an independent civil suit has been taken away and where a person challenges such validity on such grounds, that can only be done by making an application to the Court, which passed the fmal judgment, decree or order as the case may be. 16. In consequence of this legislative development remedy of suit, in relation to the referred grounds, having been expressly barred to that extent, those matters stand excluded from the pale of section 9 of the Code of Civil Procedure which provision, subject to the Code, confers jurisdiction on Civil Courts to try all suits of a Civil nature, excepting suits of which their cognisance is either expressly or impliedly barred. Next while under the earlier dispensation there was some doubt that a suit could lie on the basis of a decree having been obtained by use of misrepresentation such doubt stands clarified may even removed, and an application, under section 12(2), C.P.C. For recall, would lie even though the ground of attack is limited, merely, to a plea of misrepresentation. Needless to add that, primarily, distinction between fraud and misrepresentation is one of knowledge and intention, for whereas fraud proceeds on the basis of a fact or assertion or omission to assert such fact, with knowledge as to its falsity, in the context of misrepresentation the assertion or its omission may lack both knowledge or intention. Another, distinction lies between the law, as now enacted, and that which prevailed earlier to such enactment, in that the technical difficulties in the way of an aggrieved person regarding the manner, form or frame of the suit as controlled, inter alia, by sections 42, 54 and 55 of the…
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