IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitution Petition No.D-356/2024

Mohammed Ramzan and others Versus Chhuttal Bughio and others

1. For orders on office objection “A”

2. For orders on M. A No 1368/2025

3. For orders on M.A No 1737 /2024

4. For hearing of main case

Before:

Mr. Justice Muhammad Saleem Jessar

Mr. Justice Nisar Ahmed Bhanbhro

Petitioner: Muhammad Ramzan and others

Through Mr. Ahmed Hussain Shahani, Advocate.

Respondents No 1 to 6: Nemo

Respondents No 7 to 11: Through Mr. Liaqat Ali Shar Additional A. G. Sindh.

Date of hearing: 14-05-2025

Date of Decision: 14-05-2025

O R D E R

Nisar Ahmed Bhanbhro J.- Through this Constitutional Petition, the petitioners have challenged the order dated 23-02-2024 passed by the Court of learned Additional District Judge-VI Larkana (Revisional Court) in Civil Revision Application No.23/2023 (Muhammad Ramzan and others V/s Chuttal and others) whereby the Revision Application filed by Petitioners was declined and order dated 06.02.2023 passed by the Court of learned Senior Civil Judge-V Larkana (Trial Court) in Civil Suit No.61/1984 (Chuttal and others V/s Muhammad Ramzan and others), on the application under section 12(2) CPC was maintained.

2. The facts in brief of the instant petition are that the respondents No.1 to 6 filed Civil Suit No.61/1984 before the court of learned Extra Joint Civil Judge Larkana (the Court) seeking declaration of ownership of survey numbers 660 and 981 of Deh Bhutta Kalhora Taluka Dokri (the Suit Property). The Petitioners appeared before “the Court” but failed to file written statement and defend the suit. They were debarred from filing of written statement, ultimately the suit was decreed vide ex-partie vide judgment and decree dated 30-06-1985. The Petitioners did not challenge the decree which attained finality.

3. The Petitioners filed an application before Deputy Commissioner Larkana in year 2009, wherein they claimed ownership of the Suit Property and sought correction in the mutation entry alleging that the Khata (title) of the Suit Property was illegally changed. Deputy Commissioner Larkana declined the application of the petitioners on the ground that the said entry in record of rights was kept on the basis of judgment and decree passed in Civil Suit No.61/1984. The Petitioners preferred suit No.21/2017 before the court of Learned Senior Civil Judge-III Larkana contending therein that the judgment and decree passed in suit No.61/1984 was not traceable, it was suspicious and the entries recorded on the basis of such decree were bogus thus liable to be cancelled. The court of learned Senior Civil Judge-III Larkana called report regarding record of the judgment and decree passed in Civil Suit No.61/1984 from record room of District Court Larkana and found that decree was genuine and passed in accordance with the law. In view of the said position the Learned counsel for the petitioners withdrawn the Suit No.21/2017 for availing remedy in accordance with law.

4. After the withdrawal of suit No.21/2017, the petitioners filed an application under section 12(2) CPC before Learned Trial Court seeking reversal of the judgment and decree dated 30-06-1985. The Learned Trial Court issued notices of the application to the Respondents who appeared and defended the application. Based upon the pleadings of the parties Learned Trial Court framed issue for determination of the allegation that the judgment and decree dated 30-06-1985 was obtained through fraud and misrepresentation. In support of their claim Petitioners examined Muharam Ali Shaikh attorney of Petitioners and the respondents examined Muhammad Saleh and closed side for evidence. Learned Trial Court after hearing the parties through their Learned Counsel, dismissed the application under section 12(2) CPC on the ground that the same was time barred, filed beyond the period of limitation prescribed under Article 95 to the First Schedule of Limitation Act, 1908. The petitioners preferred civil revision application No.23/2023 before the Court of Learned District Judge Larkana which was assigned to the Learned Revisional Court for disposal in accordance with law. Learned Revisional Court after hearing the parties through their Learned Counsel dismissed the revision application and maintained the order passed by the Learned Trial Court. Hence this Petition against the concurrent findings of Court below.

5. The Respondent No.11 Mukhtiarkar Revenue Bakrani filed written reply to the petition, and submitted chronological history of mutation entries of the Suit Property, wherein he stated that the Suit Property was entered in the names of respondents No.1 to 6 in village form 7-A vide entry No.246 of year 1954 to the extent of 87%, whereas per entry No.703 of Village Form 7-B dated 21-01-1986, it stands registered in the name of Muhammad Salleh, Muhammad Rafique, Dodo Khan and Muhammad Siddique to the extent of 100% share.

6. The Respondents No 1 to 6 despite of service of notices chose to remain absent, therefore this Petition is being decided with the assistance of Learned Counsel for Petitioner and Learned Additional Advocate General Sindh.

7. Mr. Ahmed Hussain Shahani, Learned Counsel for the petitioners submits that the judgment and decree dated 30-06-1985 was passed behind the back of petitioners, it was an ex-partie judgment, the petitioners were not in knowledge of the judgment and decree as they were not served. They came into knowledge of the ex-partie judgment in the year 2014, when their application for change of Foti khata was declined by the Deputy Commissioner Larkana. They filed civil suit as the judgment and decree dated 30.06.1985 was not traceable on the record and was declared suspicious. He contended that the petitioners withdrew the civil suit when report was called by the Trial Court from the concerned record room wherein it was reported that judgment and decree were genuine and passed by the Court of Extra Joint Civil Judge Larkana. He contended that the Petitioners filed application under section 12(2) CPC seeking reversal of ex-partie judgement and decree but they were non-suited on the ground of limitation. He contended that the Ex-partie judgment and decree were obtained through fraud and misrepresentation and limitation would not run against the order procured through fraud. He contended that the bar of limitation does not operate against the fraud as enunciated under section 18 of the Limitation Act 1908. He contended that both the Courts below committed illegality and irregularity and there was misreading and non-reading of the evidence on record, he prayed for allowing this petition.

8. Mr Liaqat Ali Shar Learned Additional Advocate General opposed the petition on the ground that the application under section 12(2) CPC was decided on merits after framing of the issues and recording of the evidence of parties, wherein the petitioners failed to prove their case. The Orders passed by for a below did not suffer from any illegality. He prayed for dismissal of petition with costs.

9. Heard arguments and perused material available on the record.

10. Scanning of the material, revealed that the Petitioners asserted in their application under section 12(2) CPC that the judgment and decree dated 30-06-1985 and 19.09.1985 has been obtained by playing fraud and misrepresentation on the Court. The Petitioners were not served notice of the suit, they were debarred from filing of written statement and Trial Court decreed the Suit ex-partie. This contention of the Petitioners does not find support from record as in the judgment dated 30.06.1985 it has been observed by the learned Court that the defendants/Petitioners were served and they appeared in the court, one Mr. Ghulam Nabi Sangi filed Vakalatnama on their behalf and they sought time for filing of written statement. Since 24-01-1985 until 04-05-1985 several dates were given to the petitioners for filing of written statement but they did not turn up and failed to file written statement, thus were debarred. The Petitioners/ Defendants did not turn up before the Learned Court and the suit was proceeded ex-partie. The evidence of the respondents was recorded and on the basis of material available on record the suit was decreed. The Petitioners did not challenge the judgment passed by the Learned Court, though decree in the case was prepared on 19.09.1985, giving Petitioners ample time to file appeal or any application under Order IX Rule 13 CPC to set aside the ex partie decree. The findings of the Learned Court in the judgment dated 30-06-1985 reflect that the petitioners were well aware of the pendency of the suit but they deliberately avoided to proceed with the matter resulting into the ex-partie judgment and decree. It is very strange that despite of the knowledge of the judgment and decree, the petitioners filed an application before Deputy Commissioner Larkana seeking the change of Khata/title in Revenue record in their favor. The Deputy Commissioner declined their request through a well-reasoned order that Revenue Court was bound to implement the decree passed by Civil Court and entries kept in record of right pursuant to a decree of the Court could not be altered by Revenue hierarchy.

11. The meticulous perusal of record transpires that the Trial Court decided application under section 12(2) CPC wherein the issue regarding misrepresentation and fraud was framed. The petitioner Muharram entered into witness box, but he did not utter a single word regarding fraud and misrepresentation played by the Respondents on Court in obtaining the Judgment and Decree. The witness Muharram conceded in cross examination that he came to know about the judgment and decree dated 30-06-1985and 19.09.1985 in year 2003. Even if the assertion of the Petitioners that they were never served and vakalatnama on their behalf was managed and filed in Court, is taken to be correct even than per their admission that they came into knowledge of judgment and decree in year 2003 but remained in slumber for about 14 years until 2017 when they filed Civil Suit No 21/2017. Learned Trial Court after appraisal of the evidence and material on record concluded that the application under section 12(2) CPC was time barred. Article 95 of the First Schedule of the Limitation Act 1908 provides a period of 03 years for filing of any litigation on plea of fraud, which commences from the date of knowledge of fraud. The findings of fact on issue of limitation given by Trial Court were within the premise of law and did not suffer from any illegality or irregularity. No doubt fraud vitiates all the solemn proceedings, had the Petitioners established that the judgment and decree passed in favor of Respondents No 1 to 6 was result of fraud, this Court would not have hesitated to set it at naught, because the law of limitation cannot be a hurdle to deprive the parties of their right to immoveable property on account of a judgment of Court based upon fraud or misrepresentation. The Petitioners even did not record the Counsel Mr Ghulam Nabi Sangi or produced certified Copy of Vakalatnama filed on their behalf in suit No 61 of 1984 to demonstrate that actually fraud was played with the Court. The Petitioners failed to discharge this burden and could not establish fraud and misrepresentation thus limitation of 03 years would run against them as provided under article 181 of the Limitation Act, being residue article as law does not specify the time for filing an application under section12(2) CPC on the ground of fraud and misrepresentation.

12. Honorable Supreme Court of Pakistan in the case of Muhammad Yaqoob Versus Mst. Sardaran Bibi and others reported in P L D 2020 Supreme Court 338 has been pleased to enunciate the following principle of law for dealing with the question of limitation in matters involving fraud.

15. As far as the question of limitation is concerned, it has been argued that limitation for filing of a suit for declaration is six years under Article 120 of the Limitation Act. We notice that the Respondents prayed for a declaration that the mutation in question was illegal and had fraudulently been entered into the revenue record. Each entry in the revenue record gives a fresh cause of action to an aggrieved person and adverse entries in the revenue record even if allowed to remain unchallenged do not have the effect of extinguishing the rights of a party against whom such entries had been made. Even otherwise, cancellation of the disputed mutation, which is not a document of title would result in reversion of the respective shares of the Respondents to them and admittedly there is no limitation in this regard barring co-sharers to do so. In addition, any transaction/document which is the result of fraud or misrepresentation can neither be perpetuated nor can it be protected on the ground of expiry of the period of limitation, whenever such transaction is assailed in a Court of law.

13. Honorable Supreme Court of Pakistan in the case of Muhammad Aslam (deceased) through L.Rs and another Versus Molvi Muhammad Ishaq through L.Rs and others reported in 2024 SCMR 1390 has held as under:

25. It is also pertinent to mention that Applications under section 12(2), C.P.C. were filed in the year 1990, i.e. after almost 11 years of the compromise, though it was averred that these applications were filed, after the entries of jamabandi made in 1987 and hence were in time but equally true is the fact that in those Applications the main question agitated on behalf of the Respondents was with regard to the entering into the compromise in a defective manner and thereafter, obtaining the decree by way of fraud or misrepresentation by the present Appellants. This Court in Sarfraz case has held: "...although under the provisions of the Limitation Act no specific time has been prescribed for filing of application under section 12(2), C.P.C., therefore, Article 181 of Limitation Act being residuary govern such proceedings according to which maximum period of three years has been prescribed for filing the application under section 12(2), C.P.C."

Therefore, even in a hypothetical sense, if one were to count the period of limitation from 1987, the Applications under section 12(2), C.P.C. were time-barred. Attention is also drawn to this Court's decision in the case of Bashir Ahmed¹³wherein it was held that limitation has to be counted from the date of knowledge. In the instant matter, in our view, the Respondents were fully aware about the date and facts of the compromise entered between the parties in 1979 but filed the Applications under section 12(2), C.P.C. only in the year 1990. Thus, in our view, all the three Courts below have erred in entertaining these Applications, without examining the true contents of the compromise.

14. The petitioners were burdened to prove that the Respondents No 1 to 6 obtained the judgment and decree by playing fraud and misrepresentation with the Court. In the present case from the face of the facts it appears that no case for fraud or misrepresentation was made out as the petitioners were in knowledge of the institution of the suit, they contested it and a judgment and decree was passed which was well within their knowledge but they chose to remain away from the process of the court. In tandem, a person can challenge the validity of a judgment, decree, or order on plea of fraud and misrepresentation or want of jurisdiction under Subsection (2) of Section 12, C.P.C. by making an application with full particulars of the fraud and misrepresentation to the Court which passed the final judgment, decree, or order and not by a separate suit. The term "person" provided in this Section cannot be interpreted narrowly to restrict its scope and application only to the judgment-debtor or his successors but it includes any person adversely affected by the judgment and decree or order of the Court without any distinction on whether he was party to the original proceedings or not. The fraud and misrepresentation are constituted when a judgment is obtained by presenting the facts before the Court which did not actually exist and court believing the existence of facts passed a decree or by playing fraud with the Court, for which the party agitating the fraud or misrepresentation is burdened to establish the same by adducing reliable and trustworthy evidence that beneficiary of decree has played fraud with the Court, which is lacking in the present case.

15. Honorable Supreme Court of Pakistan in the case of Shaikh Muhammad Iftikhar Ahmad and others Versus Faiz Ahmed and others reported in 2023 S C M R 2158 has been pleased to hold as under:

5. Essentially, no case under section 12(2) of the C.P.C. is made out by the Appellants because no fraud was played on the Court. If there is any fraud, at best, it is inter se the parties which does not attract the provisions of section 12(2) of the C.P.C. Section 12(2) of the C.P.C. requires that fraud or mis representation be played on the court and that consequently the order obtained is through fraud or mis-representation. In this context, the applications under section 12(2) of the C.P.C. were filed against judgment dated 13.03.2001, being the Appellate Court judgment, in favour of Faiz Ahmad and no case of fraud or mis-representation is made out in that case against Sheikh Muhammad Saleem. The argument here is that Sheikh Muhammad Saleem deliberately did not inform the Court that he actually sold the land during the pendency of the appeal to the Appellants. However, this does not fall within the mandate of section 12(2) of the C.P.C. and, at best, is a fraud inter se the parties.

16. It is well-settled notion of law that for determination of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application under section 12(2), C.P.C., the Court is not obligated in each and every case to record evidence by framing issues, although the language contained in section 12(2) CPC equates the proceedings in an application under section 12(2) CPC to that of a regular suit, but it always lies upon the satisfaction of the Court to conduct its proceedings, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide to frame issues and record evidence, if satisfied that grounds raised in the application under Section 12(2), C.P.C. cannot be decided without recording of evidence. The main ground alleged in the application under section 12(2) CPC filed by the petitioner was that the summons of the Court were not served upon them, which fact if believed to be true the applicants had alternate remedy to seek reversal of the decree by filing an application under Order IX Rule 13 CPC as there is an eye-catching difference between Order IX, Rule 13 and the niceties of Section 12(2), C.P.C. In case of an ex-parte decree, the defendant may apply under Order IX, Rule 13 C.P.C. for setting aside the decree and if the Court is satisfied that summons were not duly served or the defendant was prevented from any sufficient cause from appearing before the Court when the suit was called, the Court can make an order for setting aside the decree and appoint a day for proceedings with the suit. However, it is further provided that no ex-parte decree shall be set aside merely on the ground of any irregularity in the service. But in the present case Judgment dated 30.06.1985 manifested that the Petitioners were served and they appeared before the Court, engaged a Counsel to plead their case and thereafter chose to remain absent. Hence, this ground was not available to Petitioners, the Trial Court decided to exercise its discretion framed issues and recorded evidence and passed order that no fraud or misrepresentation was played on the Court, thus declined to interfere with the judgment and decree.

17. It is discernable from the impugned order that the judgment and decree passed by the learned Court have been already executed and implemented in the revenue record and the decree holder are shown as owners of the suit property. The facts of the suit No 61 of 1984 reveal that the Respondents No 1 to 6 who were plaintiffs in the said Suit had sought declaration of Court regarding ownership of the Suit Property. The Respondent No 11 Mukhtiarkar Bakrani in its report submitted in response to this Petition has filed its reply and stated that the Suit Property is recorded in the register of rights in favor of Respondents No 1 to 6 since year 1954, presumption of truth is always attached to such long standing entries in record of rights unless the contrary is proved. The judgment and decree under challenge by no means debarred the Petitioners to bring a fresh suit on a fresh cause of action if they were aggrieved by the existence of Revenue Entries in favor of Respondents No 1 to 6, but the Petitioners at no point of time have challenged those revenue entries.

18. This Court under its writ jurisdiction is very slow to show indulgence against the concurrent findings of the lower Courts, unless the Court is satisfied that the findings of Courts below are erroneous and perverse, result of misreading and non-reading of evidence available on the record and are a result of miscarriage of justice. This view finds support from the dicta unanimously laid down by the Honorable Apex Court for examination of concurrent findings of the fact.

19. Honorable Supreme Court of Pakistan in the case of Sardar All Khan v. State Bank of Pakistan reported in 2022 SCMR 1454 has held as under:

"This Court could not go behind concurrent findings of fact unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible."

20. Honorable Supreme Court of Pakistan in the case of Muhammad Rashid Ahmed v. Muhammad Siddique reported in PLD 2002 Supreme Court 293 observed that concurrent findings suffering from material irregularity could be interfered with. In the similar manner Honorable Supreme Court in the case of United Bank Limited v. Tamil Ahmed reported in 2024 SCMR 164 observed that concurrent findings of fact recorded by Courts below cannot be treated as sacrosanct and can be interfered with in case of nun-reading and misreading of the evidence.

21. In light of what has been discussed herein above, We are of the considered view that the Petitioners have failed in showing that the conclusion arrived at by the fora below were fallacious or erroneous or perverse or suffered from misreading or non-reading of the evidence on record, no case for interference under supervisory writ jurisdiction of this Court is made out, Consequently this Petition fails and the same is accordingly dismissed with listed applications if any with no order as to the cost.

JUDGE

Asghar/P.A