ORDER SHEET
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Date Order with signature of Judge
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FOR HEARING OF CMA NO.11358/2008.
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07.04.2009
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Mr. Muhammad Nishat
Warsi, advocate for the petitioner.
Mr. Amanullah Agha,
advocate for the respondent No.1.
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The facts leading to the filing of this constitutional petition are that a suit for Declaration and Permanent Injunction, being Suit No.314/1994 (Old No.1203/1993) instituted by respondent No.1, against the petitioner on 25.08.1993, was decreed by the Court of Civil Judge, Malir, Karachi vide its judgment dated 08.02.2000, followed by preparation of decree dated 20.03.2000.
2. During the proceedings of this suit, after service of notice, Written Statement was submitted by the petitioner before the Civil Court on 25.12.1993. However, thereafter, he chosen to remain absent from the further proceedings in the suit till the stage of recording of evidence of the witnesses of respondent No.1 was over and judgment was announced. The judgment and decree passed in the suit attained finality as it was not challenged by the petitioner before any higher forum. However, after the filing of execution proceedings, on 30.08.2003, he moved an application under Section 12(2), CPC before the Court of Civil Judge, Malir, Karachi, which was contested by the other side. The said application was dismissed vide order dated 01.07.2004 for the short reason that such application having been filed in the execution proceedings was not maintainable.
3. The petitioner aggrieved by such order of the Civil Court, preferred appeal No.3/2004 before the Court of District Judge, Malir, Karachi also challenging the judgment and decree passed in the suit. This appeal was also contested by respondent No.1 and it was finally dismissed vide order dated 01.09.2008 with the observation that since the petitioner has not challenged the judgment and decree passed by the Civil Court, therefore, that judgment has attained finality and the application under Section 10(2), CPC on that account as well as on account of having been filed in the execution application proceedings, was not maintainable.
4. Mr. Muhammad Nishat Warsi, learned counsel for the petitioner, making brief reference of the above stated facts, contended that the application under Section 12(2), CPC moved by the petitioner, contained substantial grounds, which were within the scope of Section 12(2), CPC but the Civil Court instead of examining such grounds on merits, opted to find a shortcut by dismissing the application on a mere technical objection about its non-maintainability in execution proceedings. Disputing this position on factual grounds, learned counsel made reference to the contents of the said application to show that the application under Section 12(2), CPC contained in its title both the numbers of suit as well as execution application, therefore, in all fairness the Court should have treated the said application in the suit instead of considering it to be an application filed in the execution proceedings, more so, as the same R&Ps of the suit contained the execution part. He further contended that looking to the grounds urged in the application under Section 12(2), CPC, the Civil Court could have very conveniently treated it to be an application in the suit as the forum was not changed for this purpose. Criticising the judgment of the appellate Court, brief submission of the learned counsel is that mere fact that the judgment and decree passed in the suit was not challenged in the appeal by the petitioner, was no ground for dismissal of his application under Section 12(2), CPC as erroneously held by the appellate Court.
5. Throwing further light to the facts of the case, learned counsel for the petitioner submitted that indeed the plot in question bearing No.A-293, Phase-I, Gulshan-e-Hadeed, Bin Qasim, Karachi was leased out by the respondent No.1 to the petitioner for residential purpose, as provided in the registered Indenture of Lease, but subsequently its change of use was allowed in the manner that towards its commercialisation charges an amount of more than 240,000/- was recovered by the respondent No.1 from the petitioner, as per details given in the documents attached with the petition. Learned counsel when asked about the maintainability of the petition, without following the remedy of civil revision application available against the two impugned orders, made reference to the judgment of the Hon’ble Supreme Court of Pakistan in the case of FARZAND RAZA NAQVI AND 5 OTHERS VS. MUHAMMAD DIN AND OTHERS (2004 S.C.M.R. 400) and contended that availability of alternate remedy is not an absolute bar for availing the remedy before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, particularly, in a situation when it deprives a party to protect its legitimate rights and result in great hardship on that technical ground.
6. Mr. Amanullah Agha, learned counsel for the respondent No.1 opposing this petition vehemently contended that the petitioner being negligent in pursuing his remedy in the suit, deserve no indulgence and, therefore, this petition is liable to be dismissed. He further contended that the application under Section 12(2), CPC was filed only in the execution proceedings No.1/2003, therefore, Civil Court was justified in dismissing the said application on that ground alone. Making reference to the order of the appellate Court, learned counsel did not dispute that non-availing of remedy of appeal against the impugned judgment and decree was not a bar for the purpose of filing an application under Section 12(2), CPC. However, making reference to the chequered history of litigation, he urged that in the given facts and circumstances, particularly, keeping in view the fact that the application under Section 12(2), CPC was filed by the petitioner much beyond the prescribed period of limitation under Article 181 of the Limitation Act, no fruitful purpose will be served by putting the parties to another round of litigation.
7. We have carefully considered the submissions made by learned counsel and also perused the material placed on record, which go to show that indeed the petitioner has shown negligence in contesting the proceedings in the suit for Declaration and Permanent Injunction instituted by respondent No.1 by keeping himself away from such proceedings after filing of Written Statement. However, in our view, this fact alone was not sufficient for the Civil Court for passing ex-parte judgment and decree in favour of the respondent No.1, without examining and taking into consideration the case of the petitioner, as per his Written Statement, where he has also challenged the maintainability of the suit on various legal grounds. Be that as it may, however, due to non-filing of appeal such judgment and decree has now attained finality and this issue cannot be reopened at this stage.
8. From the perusal of the contents of application under Section 12(2), CPC and its supporting affidavit, it is evident that in the cause title of the said application, the number of civil suit as well as execution application was mentioned by the petitioner, but later on in the title of the application, number of civil suit was scored off. This fact alone was not sufficient for the Civil Court to conclude that the said application under Section 12(2), CPC was filed in execution proceedings, therefore, it was not maintainable for this technical reason.
9. In our opinion, in his application under Section 12(2), CPC the petitioner has raised substantial questions falling within the scope of Section 12(2), CPC, which permit a party to challenge any decision, judgment or decree on the basis of fraud, misrepresentation of facts or want of jurisdiction. In such circumstances, the order dated 01.07.2004, rejecting the application under Section 12(2), CPC was patently illegal. The appellate Court, which has dismissed the Civil Appeal No.3/2004 by its impugned order dated 01.09.2008, also fell in error by making observations that failure of the petitioner to challenge the judgment and decree has debarred him from filing of application under Section 12(2), CPC, which has its own independent scope. In the case of FARZAND RAZA NAQVI AND 5 OTHERS (supra), the question of availability of alternate remedy has been dilated upon by the Hon’ble Supreme Court of Pakistan and following observations were made.
“4. There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitutional petition if an alternate remedy under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulates the Constitutional jurisdiction of High Court and thus in exceptional circumstances, the High Court may exercise its Constitutional jurisdiction in a matter in which the statutory remedy of appeal or revision as the case may be, was available but could not be availed. The order impugned in the writ petition if is a void order or it was passed without jurisdiction, the non-availing of alternate remedy of appeal, review or revision against such an order would not debar the High Court to proceed in Constitutional jurisdiction and declare such an order as without lawful authority. The rule that High Court should not entertain the Constitutional petitions and adjudicate the matter in its Constitutional jurisdiction, in which remedy of appeal, review or revision is available under the statute, is not an absolute rule and in exceptional cases the strict observance of the rule that extraordinary remedy of writ petition cannot be availed in a matter in which the relief being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 could be granted by way of appeal, review or revision, may cause injustice in substance, therefore, the application of this rule would depend on the facts and circumstances of each case.”
10. In the other case AZRA RIFFAT RANA VS. SECRETARY, MINISTRY OF HOUSING AND WORKS, ISLAMABAD AND OTHERS (PLD 2008 SC 476), the Hon’ble Supreme Court of Pakistan held as under:
“It was held that the appellants having believed the representation made by the State and having further acted thereon could not have been defeated of their hopes which had crystallized into rights. It was further held that it was not open to the State according to the law laid down by the Supreme Court of India to backtrack. Needless to point out that though the doctrine of promissory estoppel does not extend to legislative and sovereign functions yet, executive orders are not excluded from lis operation. Reference in this regard may be made to the cases reported as Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others PLD 1991 SC 546, Federation of Pakistan v. Ch. Muhammad Aslam 1986 S.C.M.R. 916, Union of India and others v. Godfrey Philips India Limited AIR 1986 SC 806, Messrs Lit Ram Shiva Kumar and others AIR 1980 SC 1285, M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621, Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self-Government, Chandigarh and another AIR 1970 Punj. And. Har. 462.”
11. In our opinion, the above observations are relevant for the just and equitable disposal of the application under Section 12(2), CPC moved by the petitioner before the Civil Court in Civil Suit No.314/1994. Even if the Civil Court had come to the conclusion that the application under Section 12(2), CPC moved by the petitioner, was in fact filed in Execution Application No.1/2003, it could have still treated the said application as an application in the suit, instead of defeating the claim of the petitioner merely for this technical reason. In this context, we are guided by a judgment of the Hon’ble Supreme Court of Pakistan in the case of NOORUL AMIN AND ANOTHER VS. MUHAMMAD HASHIM AND 27 OTHERS (1992 S.C.M.R. 1744).
12. Mr. Amanullah Agha, learned counsel for the respondent No.1 has not been able to controvert the above legal position about illegality committed by the Civil Court and the appellate Court in their respective orders dated 01.07.2004 and 01.09.2008. However, the question as regards the maintainability of the application under Section 12(2), CPC being time barred, is a question, which now needs to be discussed here.
13. Section 3 of the Limitation Act enjoins responsibility upon the Court to see that proceedings initiated in the form of suit, appeal or application, are within the period of limitation, prescribed thereof by the 1st Schedule of the Limitation Act, even if it has not been set up as defence. In the present case, it is an admitted position that the Suit No.314/1994 was decreed against the petitioner on 08.02.2000 and decree was accordingly framed on 20.03.2000. This judgment and decree attained finality, as the petitioner did not challenge it before any higher forum. It was for the first time on 30.08.2003, that the petitioner moved the application under Section 12(2), CPC before the Civil Court without offering any explanation for the inordinate delay in the filing of such application after three years five months and ten days. The period of limitation for filing an application under Section 12(2), CPC is governed by Article 181 of the Limitation Act, which provides maximum timeframe of three years to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. In the instant case, this period is to be computed from the date of signing of decree for the reason that nowhere either in the application or in the supporting affidavit, the petitioner has alleged that he had no knowledge of passing of such judgment and decree against him by the Civil Court. Thus the presumption will be against the petitioner that he had full knowledge of such judgment and decree, which was announced against him.
14. In a situation when we have come to the conclusion that application under Section 12(2), CPC, which was dismissed by the Civil Court as well as the appellate Court, was barred by limitation then next question for consideration before us would be whether in such circumstances, while exercising our constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, it will be appropriate to set aside such orders and by passing an order of remand for afresh decision on the application under Section 12(2), CPC, put both the parties to another round of litigation with no fruitful result. Having formed this view that the application under Section 12(2), CPC moved by the petitioner before the Civil Court on 30.08.2003, was hopelessly time bared, despite our observation that the two impugned orders were erroneous and illegal, we are inclined to dismiss this constitutional petition to save the parties from yet another exercise of litigation. Order accordingly.
CHIEF JUSTICE
J U D G E
Azeem