IN THE
HIGH COURT OF SINDH AT KARACHI
Suit No.971 of 2013
Plaintiffs: Muhammad
Jameel (Late) through his legal heirs.
through:Mr.
Iftikhar Hussain Advocate.
Defendants: Syeda
Sakina & others
through
Mr. Faiz H. Shah & company Advocate for Defendant No.1 to 2.
Date of hearing. 29.08.2014
Date of order.
09.09.2014.
O
R D E R
Salahuddin
Panhwar J:- Through instant application, Under Order 7 R
11 CPC defendants seek rejection of the plant on following grounds :-
i)
being barred U/S 11
CPC as it has been filed against the Order & Decree, passed in Suit
No.1812/1996 (Old No.591/1982) which was finally decided by the Honourable High
Court of Sindh, Karachi (appellate jurisdiction) in R.A.No.147/2007 vide Order
dated 8.10.2007;
ii)
relief, claimed and
subject matter involved, already stood decided in previous suit i.e Suit
No.1812/1996 when plaintiff Muhammad Jameel himself filed compromise
application bearing CMA No.1021/1991 and CMA No.1093/1991 and Honourable High Court
allowed the same vide Order dated 05.6.1991 and subsequently the Plaintiff
Muhammad Jameel again filed 2nd Compromise application and appeared
as attorney for legal heirs. Hence legal heirs of plaintiff have estopped from
challenging the said orders by way of separate suit and act amounts to perjury;
iii)
Earlier suit
No.24/2013 was filed by the plaintiff and withdrawn but concealed such facts in
the suit;
iv)
Earlier mother of
attorney Saleha Zaheen (being legal heir of Baba Zaheen Shah Taji) filed suit
No.Nil/2006 which was dismissed for Non-Prosecution. Another suit No.277/2011
before Civil Judge Central and subsequently withdrawn the same on same
assertions as made in present suit. The Attorney Irshad Hussain is the
son-in-law of plaintiff’
2. The case of the plaintiff as
set out is that they are sons and daughters of the deceased Muhammad Jameel who
died on 06.11.2011, leaving plaintiffs as legal heirs in number of properties.
Original documents of properties and company’s original papers are in custody
of defendant Nos.1 & 2 which they obtained through unfair means. M/s Jameel
Enterprises (Pvt) Ltd was registered in May / June 1974 and it had three
directors, each holding 1/3rd share. The Jameel Enterprises was
claimed to be a separate entity and proprietorship was under ownership of
deceased Muhammad Jameel. The plaintiffs claim that Muhammad Tahseen Shah Taji
was one of the Director and died on 23.7.1979 leaving behind his sons and
daughters, including Muhammad Jameel (father of plaintiffs). Muhammad Hashim
s/o Muhammad Tahseen also died in year 2002, leaving his widow as only
surviving legal heir. Suit No.591/82 (New No.1812/1996) filed by legal heirs of
deceased grandfather in which several properties included by attorney, husband
of plaintiff Mst. Alia to that suit and in such litigations misrepresentation
was made by attorney and sometimes through other legal heirs of grandfather
with ulterior motives but company was not party to such litigation. On
16.7.2010 plaintiffs acquired knowledge that Mst.Syeda Sakina and Shabbir
Ahmed, posing them to be purchaser of both properties from legal heirs of
Muhammad Tahseen Shah, through sale agreement dated 15.12.2003. On 16.7.2010
they claimed to be purchaser from legal heirs of Muhammad Tahseen Shah. Rent of
Al-Jameel Square SD-26 Block-G North Nazimabad Karachi collected in court
showing it to be property of M/s Jameel Enterprises (Pvt) ltd; on 12.8.2010
father of plaintiffs acquired knowledge about fabrication of sale agreement
dated 21.11.2003 or 15.12.2003 and claim on such property for which defendant
Nos.1 & 2 filed suit for Specific Performance and Declaration before VIth Senior
Civil Judge, Karachi Central wherein Muhammad Jameel moved an application U/O 1
r 10 CPC seeking his joining as party in said suit i.e suit No.931/2005;
application was allowed however in revision order was set-aside, which order is
questioned through petition No.4099/2012 and same is pending. That the legal
heirs of Muhammad Jameel (present plaintiffs) also filed an application U/s
12(2)CPC R/W section 151 CPC to court on 17.01.2003 in suit No.591/1982 (New
No.1812/1996) which suit was dismissed in non-prosecution on 17.5.2011 ,
however, the trial court restored it and prepared the compromise decree as per compromise, submitted by parties and
application U/s 12 (2)CPC was fixed for final arguments.
3. Learned counsel for
defendant No.1 and 2 argued that admittedly in suit No.591/82 (New 1812/1996)
compromise was effected wherein plaintiff (Muhammad Jameel) was defendant No.3
hence instant suit is barred; Muhammad Jameel admittedly filed an application
U/O 1 r 10 CPC which, though was allowed by trial court, but was declined by
appellate court and even petition filed against such order stood dismissed on
09.12.2013. Instant suit is claimed to be ‘administrative suit’
but subject matter already stood decided in earlier round of litigation thus instant
suit is not sustainable; property No.SD-26, Block-G North Nazimabad was sold
through relinquishment deed dated 28.6.2005. Suit is barred U/s 11 CPC so also
by Section 47 CPC.
4. Learned counsel for
plaintiffs has argued that that suit is for Administration, rendition and
cancellation of relinquishment deed; since in earlier suits issues were not decided
hence question of resjudicata is not involved. The property bearing No.SD-267
Block-G North Nazimabad is only subject matter which was not subject matter in
earlier litigation although above property was mentioned in compromise but as it
was not part of pleading, therefore, compromise is not binding to the parteis
for such property. Plaintiff is claiming property from legal heirs mentioned in
para-4 of plaint; relinquishment deed was in violation of Court order and
property in instant suit is SD-G Block-C while in earlier litigation it was in
Block-D; earlier litigations and compromise (s) were barred under Section 39 to
52 of Muhammadan Law (PLD 1991 SC 731). A compromise cannot cross limit of the
pleadings (NLR-1995 UC 504, 2003 SCMR 604, 1990 SCMR 751, PLD 1983 SC 344, 2002
SCMR 300, 1991 SCMR 1725, 1990 SCMR 143, PLJ-2010 Lah. 96, 1992 MLD- 1879, 1997
CLC 636.
5. Heard learned counsel for
respective parties and examined the material available on record.
6. What is not disputed from
the pleading of the plaintiffs (plaint) that they have used the words ‘misrepresentation’
at number of occasions with reference to earlier litigation and outcome
thereof i.e compromise order / decree. The plaintiffs have admitted to have
been actively involved in earlier litigation (s) as one of the parties. The
plaintiffs, even have admitted to have preferred an application Under Section
12 (2)CPC in the decided suit but at the same time have filed the instant
separate suit with number of prayers.
7. The above position gives rise to a
proposition that:
Whether in existence of an application U/s
12 (2) CPC a separate suit can sustain for setting aside of a decree on grounds
, meant for Section 12(2)?.
8. To
properly appreciate the above proposition, it would be just and proper to refer
the Section 12 (2) of the Code which reads as under:-
“Section 12(2). Where a person challenges the validity of a judgment, decree or
order on the plea of fraud, mis-representation or want of jurisdiction, he
shall seek his remedy by making an application to the Court which passed the
final judgment, decree or order and not by a separate suit”
The
provision of Section 12 (2) of the Code is very much clear and specific in its
language and wording. Through induction of this provision the legislature has
placed a ‘full stop’ on filing of a separate suit where one
challenges the judgment, decree or order of the Court on the grounds of :-
i)
fraud;
ii)
mis-representation;
or
iii)
want
of jurisdiction
9. In
this provision the word ‘shall’ has been used while confining the ‘remedy’
, available to the person on such grounds which further stood stamped by
use of the phrase ‘not by a separate suit’. Thus the answer to
the above proposition shall be nothing but a big ‘negation’.
10. Let’s
examine the instant suit with reference to above proposition for which one of
the prayer clause (s) of the plaintiffs is necessary and same is reproduced
hereunder:-
"That, it is to be declared that 1st compromise
application and order on it and 2nd compromise application in suit
No.591/82 new No.1812/96 both applications are made by legal heirs of Muhammad
Tahseen Shah Taji due to using fraud and misrepresentation and by
concealing the real original facts and documents of title knowingly under malafide intention from the court, as
property bearing No.SD-33 Block A North Nazimabad Karachi is own property of
Muhammad Jameel i.e father of plaintiffs whereas the property bearing No.SD-26
block G Al-Jameel Square North Nazimabad Karachi is the property of M/s Jameel
Enterprises and deceased father of plaintiffs was the proprietor of the firm so
it is also declare that the property bearing no.SD-26 block G north Nazimabad
Karachi is also the property of Muhammad Jameel and his legal heirs are
entitled as per their share in said property and whatever the rent, arrears,
benefits, profits availed, recovered, collected from tenants or by way of other
mode in detail , tenant wise detail with name, date A/Cs from January 2010 to
date or arising out of said properties.” (underlining is supplied for emphasis)
The underlined and bold portion of
the prayer clause of the plaintiff (s) make it quite obvious that the
plaintiffs are seeking a declaration in respect of the compromise order, passed
in earlier suit, on ground of mis-representation, fraud and concealment
of facts. Once one seeks any declaration in respect of a ‘judgment,
decree or order‘ of a competent Court on any of the grounds i.e ‘fraud,
mis-representation or want of jurisdiction’ through a separate suit,
the provision of Section 12(2) C.P.C shall come into play whereby insisting for
rejection of the plaint under Rule-II(d) of the Order-VII of the Code. If not,
it shall frustrate the very object of the provision of Section 12 (2) C.P.C
which cannot be legally allowed to prevail.
11. Be that as it may, it is not
the case of the plaintiffs that they were under the dark about the earlier
proceedings but it is a matter of record that Mr. Jameel, the father of the
plaintiffs remained a signatory to compromise, arrived in earlier suit,
therefore, the present plaintiffs, being claiming under Mr. Jameel, are not
legally justified to challenge such act(s) through separate suit on the ground
that the property in question was not included as subject matter in such suit.
Let me make it clear here that a compromise is always arrived between the
parties on their own terms and conditions and shall be legal and competent if
the consideration thereof is within competence of such parties. The parties,
entering into compromise, can legally settle ‘consideration’ for
such compromise which ‘consideration’ is not necessarily to be
confined to pleadings but should be within competence of the parties because a compromise
(agreement) can legally bind the signatories and their successors only and not
to others. I am quite clear in my such view with the case of MESSRS
COUNTRY PRODUCTS EXPORT LTD versus MESSRS BAWANY SUGAR MILLS LTD
[PLD 1968 Karachi
115], wherein it is held:-
“The
words “that relates to suit” in Order XXIII rule -3 C.P.C. are sufficiently
wide to embrace the terms and conditions which constitute consideration of the
compromise, and in all such cases the Court cannot refuse to record the
compromise merely on the ground that certain terms and conditions are not
strictly within the scope of the suit. It is not the policy of the Code of
Civil Procedure to discourage compromises of litigation. The Courts are under
duty to record lawful compromises and a decree based on compromise, though it
includes terms and conditions which are not initially within the scope of the
suit but are considerations for compromise, would, nevertheless be the decree
of the Court, and unless there is express legal prohibition, such a decree
would be executable under Order XXI C.P.C.”
In the case of GHULAM
MUHAMMAD versus ZUBAIDA BEGUM
[1984 CLC 874],
it is held that:
“Property
or right forming consideration for
subject matter of litigation as per terms of compromise, held, would be
considered as subject of litigation resulting in compromise for all intents and
purposes, and such subject matter of consideration would not be treated as
extraneous property for purpose of executing proceedings”.
In
the case of NOORUDDDIN HUSSAIN versus DIAMOND VACUUM
BOTTLE MANUFACTRURING CO. LTD. KARACHI [PLD 1981 K 720],
it is held that:-
“Compromise
relating to matter outside scope of suit being a part of consideration for
agreement as to matter in suit, entire compromise, or an integral whole, held
must be recorded and decreed as relating to suit whether or not otherwise
relating to suit.”
12. The
plaintiffs have also pleaded that since there has been difference of block
number in respect of the property so mentioned in the compromise or that has
been made a subject matter in this lis, therefore, instant suit is not barred
under the law. This plea of the plaintiffs appear to be entirely misconceived
for the simple reason that though there has been difference of Block number yet
from reading of the plaint and relief(s), sought therein, it becomes quite
clear and obvious that this is same property because admittedly the plaintiffs
first attempted to protect such property by making an application Under Order 1
Rule 10 CPC and then through pending application U/s 12(2) CPC. Had it been so,
as claimed by the plaintiffs this should have been mentioned / specified in the
plaint or there would be no reason for them to challenge the compromise order
or even seeking declaration of such compromise order in the instant suit. The
Order 2 Rule 2 of the Code also stands in the way of the plaintiffs regarding
their plea to have come for different plea but under same set of facts against
same parties. A mere change in relief would not be sufficient to hold a
subsequent suit maintainable because a relinquished right cannot be raised
subsequently and since admittedly the plaintiffs have raised their instant
claim on basis of same set of facts with addition to reference of earlier
litigation would not be a fresh ground. I find support in my such view with the
case law reported as ANJUMAN MASJID NEW TOWN vs. Muhammad Shahid Zaki and 12
others [PLD 2011 Karachi-550] wherein it was held:-
“…….
To which it may be observed that clause 1 of Rule 2 of Order II, CPC provides
that every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any
Court. It is, therefore, left or the discretion of the plaintiff how he,
“frame” his suit and choose jurisdiction, according to his suiting, if law
permits. However, once the plaintiff has opted, then by virtue of clause 2 of
Rule 2 of Order II, CPC he, “shall not”, afterwards sue in respect of the
omitted or relinquished claim. Since the plaintiff omitted and/ or relinquished
to raise the claim of damages in Suit No.913 of 2010 he could have not raised
the prayer of damages in this suit. Therefore, by virtue of clause ‘d’ of Rule
11 of Order VII, C.P.C, this suit was barred by law and could have not been
instituted and / or entertained at all.”
Thus
the plea of the plaintiffs that earlier suit were barred under certain
provisions of Muhammadan Law. This plea also appears to be entirely
misconceived for the reason that the parties, including the father of the
present plaintiffs, never raised such plea and even competence of parties to
enter into compromise was never claimed to be going beyond their rights, claims
and title in properties so left by their predecessor interest namely Muhammad
Tahseen Shah Taji. However, since application Under Section 12(2) CPC is
pending decision before competent court hence any further discussion may cause
prejudice to the merits, therefore, I refrain from going deep down into such
plea.
13. In
the last, I would like to take the plea of the plaintiffs that since in earlier
suit issues were not decided but it was compromised therefore, section 11 of
the Code has no application. I find no substance in this plea for the simple
reason that a lis stands finally decided when the parties to such lis agree for
disposal of all their claims through course, provided by Order XXIII Rule 3
which is also evident from reading of the Rule-3 of the Order XXIII which, for
convenience and understanding, is reproduced hereunder:-
“3. Compromise of suit. –Where it is proved to the satisfaction of the Court that a suit
has been adjusted wholly or in part by any lawful agreement or
compromise, or where the defendant satisfies the plaintiff in respect of the
whole or any part of the subject-matter of the suit, the Court shall order such
agreement , compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it
relates to the suit.”
The parties to such lis would not be
legally entitled to re-agitate the adjusted claim through a separate suit till
the time the compromise order / decree is holding the field. If there has been
any question of ‘fraud, misrepresentation or want of jurisdiction’,
the only available remedy with such person is not a separate suit but through
the course of Section 12 ( 2) C.PC. Reference can be made to the case of JOHN
PAUL vs. IRSHAD ALI and others [PLD
1997 Karachi 267], wherein it is held that:-
“After
incorporation of section 12(2), C.P.C a decree obtained by making willful
misrepresentation and / or passed on the basis of void agreement can validly be
challenged before the Court which passed such decree.”
In the case of MUHAMMAD SHAFI and 3 others vs. MUHAMMAD YOUSAF and another [1995
CLC 481], it is held that:-
“8. Even if that be so, this plea hardly advanced the case of the
petitioners inasmuch as the real object of the petitioners is to have the order
of the Civil court dated 09.9.1991 sanctifying the compromise between the parties,
set aside on the ground of fraud and misrepresentation. No separate suit could
be filed in this behalf and the remedy, if any, of the petitioners was by
approaching the same Court through an application under section 12(2) CPC.”
14. In
view of what has been discussed above , I am of the clear view that plaint of
the plaintiffs is barred under the law hence same is rejected as such.