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Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017L238

2017 C L C 1032

[Lahore]

Before Amin-ud-Din Khan, J

ZAHUR AHMAD through L.Rs. and others----Petitioners

Versus

PAKISTAN CARGO SERVICES (PVT.) LIMITED through Chief Executive and 4 others----
Respondents

Writ Petition No.4665 of 2006, heard on 7th June, 2016.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Fraud alleged without giving details---Effect---For pressing fraud, the same was to be pleaded
with full details---No details of fraud had been mentioned in the present case, therefore, requirement of law
was not fulfilled---Constitutional petition was dismissed accordingly.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)--- Misrepresentation--- Pleadings--- Petitioners appeared before the court and recorded their
statement---Signatures upon the order sheet had not been denied---Matter of misrepresentation was not even
pleaded---Misrepresentation had not been proved in circumstances---Constitutional petition was dismissed.

(c) Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Consent decree, setting aside
of---Plaintiff had urged that he be declared owner in possession of property mentioned in the plaint---Suit
was decreed on the basis of consenting statement---Defendant moved application for setting aside consenting
judgment and decree on the ground of fraud, misrepresentation or want of jurisdiction---Application was
accepted by the Trial Court and consenting decree was set-aside but the lower appellate court restored the
consenting decree--- Validity---None of the necessary ingredients had been proved for invoking the
jurisdiction of Court under S.12(2), C.P.C., other objections, raised on the surface during the proceedings and
recording of evidence on application under S.12(2), C.P.C. on behalf of both the parties, were not relevant---
Constitutional petition was dismissed accordingly.

(d) Administration of justice---

----Procedure of court---Where a party asked the court to adopt a specific procedure for determination of a lis
pending before it, such party could not be allowed to use any deviation from the normal procedure by saying
that it was detrimental to the rights of such party.

Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney
and another PLD 2008 SC 591; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Limited 2006 SCMR 531
and Babu Jan Muhammad and others v. Dr. Abdul Ghakor and others PLD 1966 SC 461 ref.

(e) Civil Procedure Code (V of 1908)---

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----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Main ground of attack by petitioners through

filing application under S.12(2) of the C.P.C. against the judgment and decree was that the same had been
procured with the connivance of court---No oral evidence had been or any documentary evidence had been
produced to such effect---Presumption of truth was attached to the judicial proceedings---Strongest and
unimpeachable evidence was required to displaced such presumption---Constitutional petition was dismissed
accordingly.

Muhammad Zaman v. Abdul Ghaffar and 3 others PLD 1980 Lah. 582; Ghulam Muhammad and
others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 and Fayyaz Hussain v. Akbar Hussain and
others 2004 SCMR 964 rel.

Taki Ahmad Khan, Ch. Ghulam Hussain and Malik Amjad Pervaiz for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 7th June, 2016.

JUDGMENT

AMIN-UD-DIN KHAN, J.--- Through this writ petition petitioners have challenged the
judgment/order dated 31.01.2006 passed by the learned Additional District Judge, Sialkot whereby revision
petition filed by the respondents was accepted and the order dated 20.10.2005 passed by learned Civil Judge
Class II, Sialkot was set aside whereby application under section 12(2) of the C.P.C. filed by the petitioners
was accepted.

2. Brief facts of the case are that plaintiff/respondent No.1 filed a suit for declaration with regard to the
land measuring 38 kanals, 4 marlas with the assertion that through oral sale the suit property has been
transferred by the three defendants in their favour and decree for declaration of title was sought on the ground
that the property is situated outside the municipal limits, therefore, Registration Act is not applicable and the
mutation is to be sanctioned in their favour. As per record of the learned trial court on 9.5.1996 all the three
defendants appeared before the Court in person as well as their counsel Mr. Aziz Ahmad Khan, Advocate
appeared and got recorded a conceding statement and the learned trial court decreed the suit on the basis of
conceding statement of the defendants on the same day i.e. 9.5.1996. On 23.4.1999 the defendants filed an
application under section 12(2) of the C.P.C. against the plaintiff of the suit as well as Mr. Aziz Ahmad Khan,
Advocate who appeared on their behalf in the suit. The grounds mentioned in the application were that a
forged and fictitious, based upon fraud suit was filed title of which is "Pakistan Cargo Services (Pvt.) Limited
v. Zahur Ahmad etc." It is contended in the application that the fictitious and based upon fraud suit was got
decreed within a period of 14 days with the connivance of the Court on 9.5.1996. The grounds mentioned in
the application are that Zahoor Ahmad was never appointed Attorney by the other defendants, the suit was
fictitious and fraudulent and sale in favour of plaintiff has been denied. It is mentioned that in the fictitious
and based upon fraud suit no summons were received by the defendants/applicants. It is further mentioned
that after procuring the illegal decree dated 9.5.1996 respondent No.1/plaintiff got sanctioned mutation on
6.7.1998 with regard to the suit property in his favour. It is further pleaded that after procuring a decree
fictitiously decree-holder got filed a suit for pre-emption against it by Abdul Razzaq son of Nazar
Muhammad Lumberdar with whom applicants-defendants have a longstanding litigation as well as rivalry but
in the same breath it is stated that petitioners came to know about filing of pre-emption suit through children
of said Abdul Razzaq. It is further pleaded that mutation in favour of plaintiff-respondent No.1 on the basis of
fraudulent decree is No.123 attested on 6.7.1998, it is not binding upon the rights of the applicants. It is
further stated that when they came to know about the attestation of mutation the plaintiff-respondent No. 1

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was asked to get the mutation reversed in favour of the applicants as they are poor persons and cannot afford
the litigation expenses but when refused first time on 25.4.1996 and last time one week before filing of the
application, therefore, the application.

3. Reply was filed. In reply, case of the plaintiff that there is an agreement to sell with regard to the suit
property between plaintiff and defendants through Zahoor Ahmad one of the defendants dated 5.1.1995 and
the agreement was extended vide agreement dated 8.7.1998 and it is further mentioned that the suit property
was pledged with the bank and matter was pending before the learned Judge Banking Court. On facts it is
stated that since the date of decree the delivery of possession and sowing of crop is in the knowledge of the
applicants. It is further mentioned that applicants appeared in person before the court and their counsel also
appeared and their Identity Card numbers were also mentioned when their statement was recorded by Malik
Ghulam Muhammad, Civil Judge, who passed the decree in the suit. It is further mentioned that the power of
attorney in favour of one of the defendants Zahoor Ahmad is registered one and same has not been cancelled,
therefore, the stance taken by the applicants is absolutely against the law. It is further stated that the part of
the suit property was exchanged and the pre-emption suit filed by Abdul Razzaq is also in the knowledge of
the applicants from the day first, therefore, application is barred by time and not maintainable and has been
filed malafidely.

4. Learned trial court framed the issues, invited the parties to produce their evidence. Both the parties
produced their oral as well as documentary evidence. Learned trial court not only accepted the application but
set aside the judgment and decree passed by the learned trial court and it was ordered to the DDOR to reverse
the mutation in favour of the decree holder. Respondent No.1 being aggrieved by the judgment passed by the
learned trial court whereby the application filed under section 12(2) of the C.P.C. was accepted, filed a
revision petition which has been accepted by the learned revisional court and the order passed by the learned
trial court accepting the application under section 12(2) dated 20.10.2005 has been reversed. Hence, this writ
petition by the applicants of application under section 12(2) of the C.P.C.

5. Learned counsel for the petitioners argues that suit was to be filed for specific performance on the
basis of agreement to sell and further that the application under section 12(2) of the C.P.C. has been filed on
the basis of misrepresentation and fraud and for want of jurisdiction. Learned counsel argues that when the
suit property was mortgaged with the Bank and matter was pending before the learned Judge Banking Court,
therefore, the transaction claimed by the plaintiffs-respondents was hit by section 23 of the Financial
Institutions (Recovery of Finances) Ordinance, 2001. States that when possession was claimed, the plaintiff
was required to pay the court fee. States that when sale was claimed on the basis of oral agreement to sell,
therefore, pleading in detail date, time and place and names of the witnesses were necessary. States that when
evidence was recorded in the application under section 12(2) of the C.P.C. the case pleaded by the plaintiff-
respondent that he has purchased the suit property for Rs.11,50,000/-, therefore, argues that agreement to sell
dated 22.12.1994 has been produced as Exh.A20 which contains allegedly the signatures of Zahoor Ahmad
only and does not contain the signature of the purchaser Pakistan Cargo Services (Pvt.) Limited. Same is the
position of agreement of extension of time Exh.A19. It is further argued that the suit was pending before the
learned Civil Judge Class-II, who was having pecuniary jurisdiction of Rs.50,000/- at that time. Further
argues that Mr. Aziz Ahmad Khan, Advocate appeared as RW-2 and he has admitted that he is working with
Pakistan Cargo Services (Pvt.) Limited since the year 1992. Finally argued that when in the plaint there is no
mention of agreement to sell and payment under the agreement, same cannot be considered. Prays for
acceptance of the instant writ petition.

6. On the other hand, learned counsel for respondent No.1 argues that as it was settled between the
parties that through the decree of the court which was used as a tool, the suit property was got transferred

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with the consent of the writ petitioners, therefore, states that there was no need to mention full details in the
plaint and when plaint was admitted by the defendants and the stance of the plaintiff was accepted, therefore,
the learned trial court has rightly decreed the suit and filing of application under section 12(2) of the C.P.C.
was mala fide. Argues that none of the ingredients necessary to prove for invoking jurisdiction of the Court
under section 12(2) of the C.P.C. has been proved, therefore, findings of the learned revisional court are in
accordance with law and there is no defect in it and learned trial court fell in error while accepting the
application under section 12(2) of the C.P.C. Further states that the cross-examination upon Zahoor Ahmad is
very important who admitted the stance of respondent No.1 with regard to pendency of the suit and states that
through the pay orders and cheques the payments were made in the Banking Court when the suit property
was put to auction on the ground that same was mortgaged with the ADBP and in execution the Court was
going to auction the property. Learned counsel has referred the documentary evidence produced by
respondent No.1 in the trial court of application under section 12(2) of the C.P.C. to show that the payments
were made and the pay orders were submitted which match with the order passed by the learned Judge
Banking Court dated 9.6.1995 when the pay order on 14.6.1995 for a sum of Rs.1,47,281/- was produced
which shows that the same was paid under the orders of the Court from the account of Pakistan Cargo
Services. With regard to possession of the suit property refers interim order passed by this Court on
5.12.2006 to state that possession of respondent No.1 has been admitted by this court as well as the writ
petitioners. States that respondent No.1 is a limited company, suit has been filed through Chief Executive
which was validly filed and writ petitioners have no right to challenge the same. States that in the special
circumstances of the case the suit has rightly been filed for declaration and there was no need to ask for
specific performance. Prays for dismissal of the writ petition.

7. I have heard learned counsel for the parties at length and gone through the record with their able
assistance.

8. I am clear in my mind that when a party comes to the Court through an application under section
12(2) of the C.P.C. it is the responsibility of that party to prove, one of or all the grounds on the basis of
which the application under section 12(2) of the C.P.C. has been filed. As in the instant case all the three
grounds i.e. fraud, misrepresentation or want of jurisdiction have been pressed, therefore, instant matter can
be adjudged. Firstly on all the three grounds pressed by the applicants-petitioners before the learned trial
court through application under section 12(2) of the C.P.C. the fact or the court record is that a suit for
declaration was filed on 25.4.1996 by respondent No.1 and defendants/petitioners appeared in person as well
as counsel filed power of attorney on their behalf and got recorded the statement on 9.5.1996 and put their
signatures in the margin of their statement that they admit the suit and they have no objection if the suit is
decreed and vide judgment and decree of the same date the suit was decreed. Application under section 12(2)
of the C.P.C. was filed on 23.4.1999 i.e. about three years after passing of the decree. I have minutely gone
through the application filed under section 12(2) of the C.P.C. in which in Para-3 the main thrust is that with
the connivance of the Court a decree has been procured. I quote Para 3 of the application for ready reference:-

In Para 4 the grounds for acceptance of application under section 12(2) of the C.P.C. have been mentioned. In
none of the grounds it is mentioned that defendants-applicants never appeared before the Court on 9.5.1996
and got recorded their statement. Needless to state that for pressing fraud the same is to be pleaded with full
detail, no detail has been mentioned, even as I have noted supra appearance before the Court and recording of
their statement and their signatures upon the order sheet have not been denied by the defendants/applicants,
therefore, matter of misrepresentation is not even pleaded and fraud has not been mentioned, which was
required to be pleaded with detail. The third part relates jurisdiction of the court, is concerned when the suit
was valued for Rs.22,000/- admittedly the learned Civil Judge Class II was having the pecuniary jurisdiction
of Rs.50,000/- at that time, therefore, the suit was within the jurisdiction of the learned trial court when

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defendants of the suit have not disputed the jurisdictional value of the suit, and got recorded their conceding
statement. The main ground of attack through filing application under section 12(2) of the C.P.C. against the
judgment and decree dated 9.5.1996 that same has been procured with the connivance of Court not a single
word in oral evidence has been uttered by the applicants or an iota of documentary evidence has been
produced to this effect.

9. All the other objections which have been argued in detail before this Court can be considered if the
applicants/petitioners were able to prove the basic ingredients, for invoking the jurisdiction of a Court under
section 12(2) of the C.P.C., none of the necessary ingredients has been proved for invoking the jurisdiction
under section 12(2) of the C.P.C., therefore, the other objections now raised or came on the surface during the
proceedings and recording of evidence on application under section 12(2) of the C.P.C. on behalf of both the
parties are not directly relevant in my view in the above circumstances. I am conscious of the fact that while
exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court
cannot afford to go into the factual controversy between the parties and matter of interpretation or
reinterpretation of evidence of the case available on the file. I have to consider the legal points only and
nothing more. The learned revisional court had considered the evidence available on the file to note that the
payment made by the plaintiff through cheques and drafts matches with the payment received by the Banking
Court on behalf of the applicants who were defendants/judgment debtors before the Banking Court for
release of their mortgaged property. The payment was made through cheques and drafts by the plaintiff of the
instant litigation. To strengthen this fact learned counsel for the respondents relies upon "Subedar Sardar
Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another" (PLD
2008 Supreme Court 591) and "Warriach Zarai Corporation v. F.M.C. United (Pvt.) Limited" (2006 SCMR
531). I am of the considered view that when a party comes to the Court and asks the Court to adopt a specific
procedure for determination of a lis before the Court thereafter that party cannot use any deviation from the
normal procedure saying that it was detrimental to the rights of that party. As I have noted supra that when
the applicants-defendants appeared before the Court and made a statement that suit be decreed, therefore,
now the objection does not lie in their mouth that suit should have been for specific performance and property
was pledged with the Bank and under section 23 of the Financial Institution (Recovery of Finances)
Ordinance, 2001 the agreement of sale transfer of property and suit was not competent and saying that the
proper court fee was not paid, these objections have absolutely no value when plaintiff appeared and made a
statement before the court and further stating that date, time and place of the agreement and the witnesses
were not mentioned in the suit and further that when the agreement was for Rs.11,50,000/-, therefore, suit
was not competent before the Civil Judge Class-II and the last argument that when agreement has not been
mentioned in the plaint, therefore, the findings with regard to payment of the consideration amount cannot be
looked into. I am clear in my mind that these objections and arguments raised before this Court have
absolutely no value. Light can be taken from "Babu Jan Muhammad and others v. Dr. Abdul Ghakor and
others" (PLD 1966 Supreme Court 461). I am of the further view that a party cannot take the benefit of his
own wrong. These objections could have been considered only if the petitioners were able to prove
misrepresentation and fraud committed by the plaintiffs of the suit. As I have noted supra that no ingredient
of application under section 12(2) of the C.P.C. has been proved by the applicants/ petitioners, therefore, all
their objections raised are not considerable. Needless to state that presumption of truth is attached to the
judicial proceedings. Strongest and unimpeachable evidence is required to displace this presumption. Light
can be taken from "Muhammad Zaman v. Abdul Ghaffar and 3 others (PLD 1980 Lahore 582), "Ghulam
Muhammad and others v. Malik Abdul Qadir Khan and others" (PLD 1983 Supreme Court 681) and "Fayyaz
Hussain v. Akbar Hussain and others" (2004 SCMR 964). So far as question that the plaintiff being a
company has not produced the resolution, learned counsel states that during the revision petition resolution
has been produced which shows that the previous proceeding/actions by the Chief Executive of the Company
have been validated. In this regard judgment of the august Supreme Court of Pakistan reported as "Mushtaq

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Ahmad and others v. Muhammad Saeed and others" (2004 SCMR 530) can be relied upon.

10. In this view of the matter, the factual findings recorded by the learned revisional court need no further
examination or interpretation and legal position has been discussed supra. Resultantly, no case for
interference by this Court has been made out therefore, this writ petition stands dismissed.

JK/Z-21/L Petition dismissed.

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