IN THE HIGH COURT OF SINDH, KARACHI

High Court Appeal No.08 of 2009

 

   Present

                                                    Mr. Justice Mushir Alam.

    Mr. Justice Aqeel Ahmed Abbasi.

 

Date of hearing              :                  19.01.2010

Date of order                  :                   19.01.2010

Appellant                                 :                        M/s.Al-Ahmed (Pvt) Ltd.

                                                                        through Mr. Khawaja Shamsul Islam, Advocate

                                                                       

Versus

 

Respondents                                                   Anjuman Falah-o-Behbood Hazara Mughal Goth & others.

Respondents 1 & 2                     :                     through Mr. S. Nasir Hussain Jafri, Advocate.

 

 

ORDER

 

Aqeel Ahmed Abbasi, J.  Through instant High Court Appeal the Appellant has impugned the order dated 22.10.2008 passed by the learned Single Judge in J.M.No.09 of 2008 in Suit No.1738/1999 (Execution No.56/2007) whereby the application under Section 12 (2) CPC filed by one Ali Khan son of Jan Ali claiming to be the President of respondent No.1 was allowed and judgment dated 14.03.2006 and decree dated 20.04.2006 passed in Suit No.1738/99. have been set-aside.

 

2.         Briefly the facts of the instant case as stated in the plaint are that the appellant has filed suit No.1738/99 wherein it has been contested that the appellant had purchased Flat Site i.e. plots bearing No.FL-2 and FL-3, measuring 4840 square yards each, meant for construction of flats situated in Block-4, Scheme No.36, Gulistan-e-Jauhar, Karachi. Where after the same was transferred in the name of appellant after payment of necessary transfer fees and fulfilling all the codal formalities.

3.         After the purchase of said plot the appellant applied to the then KDA (CDGK) for amalgamation of both the plots into one and after receiving the amalgamation fees, the KDA accorded the approval for such amalgamation of the plots and again it amalgamated plots bearing No.FL-2, measuring 9680 Sq. Yds, where-after lease of the said plot was issued in the name of the appellant. Appellant submitted construction plan which was approved by KBCA, thereafter construction of the flat site on one portion of the plot started and rest of the major portion of the plot was left un-constructed with boundary wall for its protection from the encroachers.

 

4.         It was further stated in the plaint that respondent Nos.1 & 2 had also filed a Suit bearing No.165/1996 against the appellant claiming the land of the appellant to be the part of their katchi abadi on the land of Board of Revenue, Government of Sindh, in Block 4-A, which suit was adjudicated upon before this Court, however, during the proceeding of Suit No.1738/1999 on 09.02.2000 the counsel for the appellant himself requested the Court to tag the file of the aforesaid Suit bearing No.165/1996 with file of Suit No.1738/1999 in order to ascertain whether the respondent No.4 has died and whether the defendants No.5 to 18 are residing at the given address. As per appellant even after tagging of the file of suit No.165/1996 the defendant did not appear in the case and even in their own suits, despite repeated notices and summons, however, Mr. S. Nasir Hussain Jafri, Advocate made appearance on behalf of respondents No.1 & 2 on 20.04.2000. It is stated that on 20.04.2000 this Court on appearance of the parties, application bearing CMA No.10458/99 in Suit No.1738/1999 passed an order for the inspection of the site by the Nazir of this Court with the direction not only to inspect the site but also get the area particularly Block-4 & 4-A, KDA Scheme No.36, Gulistan-e-Jauher demarcated with the assistance of officials of Board of Revenue and City Surveyor Karachi on the basis of survey map of Deh Safooran, Master Plan of KDA and subsequent land of KDA and submit report on the following points:-

(i)                  Whether the area, which is in occupation of the plaintiffs(Respondents) falls within the Scheme notified by KDA as Scheme No.37 or the land owned by the Government Board of Revenue?

(ii)                Whether the land in possession of the defendant No.7 (appellant) falls in Block-4 or Block 4-A?

 

5.         The Nazir submitted his detailed report dated 19.06.2000 under the title of tagged Suit No.165/1996 i.e. Anjuman Falah-o-Behbood Mughal Hazara Goth Vs. Sindh Katchi Abadis and others on the above mentioned two points, wherein it has been stated that:-

"In view of all these discussions, the site inspection, statements and maps and documents of various dates submitted before the undersigned, it is respectfully submitted that the area which is in occupation of the plaintiff (defendants in Suit No.1738/99) falls within the Scheme No.36, notified by the KDA, and not the land owned by the Board of Revenue or Government. The land which is in possession of defendant No.7 (plaintiff in Suit No.1738/99 and appellant in the instant appeal) falls in Block-4 and not in Block 4-A according to revised plan of KDA."  

 

6.         The respondents No.1 & 2 and their advocate failed to file any written statement in Suit No.1738/99 although one Mr. S. Nasir Hussain Jafri, made appearance on behalf of respondents No.1 & 2 upto 09.08.2004 but thereafter completely disappeared from the proceedings. Apparently, in view of facts that their case had been belied and disproved by documentary evidence, it appears that in the aforesaid suit No.165/1996 filed by the respondent was transferred in the District Court East on account of amendment in  Section 6 of  Sindh Civil Court Ordinance, 1962, whereas, this Court vide orders dated 10.03.2003 and 07.04.2003 directed the counsel for the appellant to file the report of Nazir submitted in Suit No. 165/1996, however, since the counsel for the appellant on account of his serious illness could not timely comply with the orders however it was complied with by filing a statement dated 12.08.2004 alongwith copies of Nazir report dated 18.05.2000 and on 19.06.2000 it was specifically pointed out in the statement that one of the Annexure of Nazir report was a letter of Director General, KDA dated 21.02.1993 addressed to Director General, Sindh Katchi Abadis Authority, which clearly shows that the encroachments made by the respondents were fresh and not covered under katchi abadis. It further appears that on account of continuous non-appearance of respondents No.1 & 2, on 26.09.2005 an order was passed wherein respondents No.1 & 2 were declared ex-parte with further direction to the appellant to file their affidavit in ex-parte proof. The appellant filed affidavit-in-ex-parte proof in Suit No.1738/1999. Suit was accordingly decreed vide order dated 14.03.2006 and decree was also drawn on the same date. Thereafter on 22.03.2007 the appellant filed Ex. Application No.56/2007 praying that Nazir of this Court be deputed to supervise the demarcation of boundaries. It appears that the present respondent claiming himself to be the President of Anjuman Falah-o-Behbood Mughal Hazara through the same advocate namely Mr. S. Nasir Hussain Jafri, who disappeared from the proceedings of Suit No.1738/1999, filed an application under Section 12(2) CPC stating that the judgment dated 14.03.2006 has been obtained by misrepresentation and fraud. Such application was vehemently opposed on legal as well as factual plane by the appellant, however, the learned Judge allowed the application under Section 12(2) CPC vide his impugned order which has been assailed by appellant before this Court through instant High Court Appeal.

 

7.         Learned counsel for appellant inter-alia contended that the impugned order is without jurisdiction and is based on extraneous consideration hence liable to be dismissed. Learned counsel further submitted that none of the ingredient of Section 12(2) CPC are attracted in view of the facts and circumstances of the case as neither any mis-representation nor any fraud has been played in Court. On the contrary the judgment and decree passed in favour of the appellant was based on true facts and correct appreciation of law. Learned counsel further argued that the so called President of Anjuman Falah-o-Behbood Mughal Hazara was neither the party in the proceedings in Suit No.1738/1999 nor has produced any documentary evidence authorizing him to file application on behalf of respondents No.1 & 2. Learned counsel further submitted that the respondent No.3 was fully aware of the proceedings in both the Suits bearing Nos.1738/199 as well as 165/1996. Moreover, the learned counsel namely S. Nasir Hussain Jafri had filed his vakalatnama on behalf of respondents No.1 & 2, however, for the reason best known to him, did not defend the suit. As per learned counsel thereafter several opportunities were given to the respondents, who did not avail the same and also did not file any objection in the above mentioned suit.

 

8.         It was further contended by the learned counsel for the appellant that the learned single Judge in chamber misconstrued and misconceived the order dated 07.02.2003, which according to learned counsel was already complied with, whereas on the applications bearing CMA No.10458/09 (i.e. stay application) and CMA No.10459/09 (i.e. application for inspection of site) which were filed by the appellant, interim orders were duly passed on both the applications. The inspection was carried out by the Nazir of this Court who submitted his report dated 19.06.2000, whereas on stay application interim stay was already granted and through judgment and decree dated 14.03.2006 now permanent injunction has been granted by the Court. Hence, under the circumstances, as per learned counsel, the alleged pendency of the aforesaid applications could not have any effect on the final disposal of the case. Learned counsel for the appellant further argued that the observation of the learned Single Judge in chamber regarding non-filing of counter affidavit to the application under Section 12(2) CPC by the appellant is also misconceived as Suit No.1738/99 was already attached with the J.M. No.09/2008 in which entire record was available. After having argued the case at length the learned counsel for appellant contended that the impugned order is neither maintainable in fact nor in law, hence the same is liable to be set-aside.

 

9.         Conversely the learned counsel for the respondent has supported the impugned order and argued that the ground stated in the application under Section 12(2) CPC filed by the respondent found favour by the learned Single Judge who after examining the factual as well as legal aspect of the matter has set-aside the impugned judgment and decree which was obtained by playing fraud by the appellant. Learned counsel further argued that since the respondent was not the party in the suit proceeding, hence could not defend the case properly which resulted in the impugned judgment and decree which was obtained by misrepresentation of facts. Learned counsel further argued that the respondent who filed the application under Section 12(2) CPC namely Ali Khan son of Jan Ali is the President of respondent No.1, hence is an aggrieved party in terms of Section 12(2) CPC. Learned counsel concluded that the instant High Court Appeal is devoid of any merits, hence liable to be dismissed.

10.       From the perusal of the record, the contents of application under Section 12(2) and the impugned order passed thereon by the learned Single Judge in chamber, it appears that the facts relevant for the purposes of disposal of the instant High Court Appeal appears to be undisputed, however, the effect and implication of such facts has been disputed by the parties. It also emerges from the facts stated herein above that the pendency of 02 suits bearing Nos.165/1996 and 1738/1999 alongwith listed applications filed in such suits as well as J.M.No.09/2008 was within the knowledge of both the parties. The counsel for the appellant/defendant after having filed Vakalatnama on behalf of the respondent attended the proceedings but for the reason best known to the appellant/defendant, their counsel chose to remain absent from the proceedings without any legal justification. It further appears that the same counsel who had filed his Vakalatnama on behalf of the respondent moved the application under Section 12(2) CPC on behalf of the respondent through a stranger, claiming himself to be the President of respondent No.1 without producing any evidence regarding his authorization in this regard. From perusal of the application under Section 12(2) it further appears that no new facts or the instance of alleged fraud and misrepresentation by the appellant/plaintiff has been pointed out. Similarly, perusal of the impugned order shows that the learned Single Judge in chamber appears to have re-examined the entire judgment and decree and on the same set of facts appears to have given a different opinion from the one already given in the impugned judgment and decree dated 14.03.2006 and 20.04.2006 respectively. The learned Judge in chamber appears to have taken pains to re-examine the effect and implication of tagging of 02 suits and their detachment during the course of proceeding as well as pendency of applications bearing CMA Nos.10458/99 under Order XXXIX Rule 1 & 2 CPC and 10459/99 under Order 10 Rule 18 CPC filed by the appellant/plaintiff, as well as office note of Assistant Registrar, D-II (O.S) dated 03.05.2005 as manifest from the para 11 of the impugned order. It is pertinent to mention that suit No.165/96 was transferred to the District Court East on account of Section 6 of Sindh Civil Court Ordinance 1962 enhancing the pecuniary jurisdiction of the lower Court to try and dispose of the cases up to the value of Rs.3 million. It is also pertinent to mention that the request for tagging the 02 suits was made on behalf of the appellant/plaintiff for the purpose of proper disposal of the 02 CMAs mentioned hereinabove and it was not at the instance of the respondent/defendant, who inspite of considerable lapse of time and having been represented by a counsel chose not to proceed with the above suits on merits. It appears that when the judgment and decree dated 14.03.2006 and 20.04.2006 was passed, no appeal has been preferred by the aggrieved party within the stipulated period, however, to overcome the issue of limitation the respondent/defendant has chosen to impugn the said judgment and decree after introducing a stranger to the proceeding by filing application under Section 12(2) CPC, without establishing as to how the applicant of application under Section 12(2) was an aggrieved party.

11.       We are of the view that the scope and the application of Section 12(2) CPC is very limited and could only be attracted in cases where the judgment and decree has been obtained by misrepresentation or by playing fraud on the Court by a party. Though an application under Section 12(2) CPC can be filed by a stranger to the proceeding but such applicant has to show that he is an aggrieved party and the impugned order/judgment has been obtained by misrepresentation and fraud. In the instant case, we are of the view that the respondent/applicant has miserably failed to discharge such burden.

12.       In view of hereinabove facts, we could not find ourselves in agreement with the reasoning of the learned Single Judge as stated in the impugned order, accordingly we allowed the instant High Court Appeal vide our short order dated 19.01.2010. These are the reasons of such order.

             

                                                                                                            JUDGE                                                                                                JUDGE