Find a Lawyer

Civil Revision No. 746 and 747 of 1981, decided on 25th May, 1986.

---S. 12(2)--Proceedings under S.12(2), Civil Procedure Code, quite independent of suits--Principles laid down in case of suits regarding parties cannot be pressed into service in case of application under S.12(2), Civil Procedure Code, which can be filed by a person who challenges validity of judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction.

---S. 12(2)--Expression 'person' occurring in S.12(2), Civil Procedure Code, does not necessarily mean "judgment debtor" or person against whom judgment, decree or order has been made'.

---S. 12(2)--Person against whom an application under S.12(2), Civil Procedure Code, may be filed need not necessarily be decree-holder or his successor-in-interest or a party to suit--Any person who is liable for fraud and misrepresentation etc., held, could be joined as a respondent in such an application.

Abdur Rauf and others v. Abdur Rahim Khan P L D 1982 Pesh, 172 and Chaudhary Jalal Din v Mst. Asghari Begum and others 1984 SCM R 586 rel.:

---S. 12(2)--'Collusion'--A species of fraud--Collusion in judicial proceedings is a secret agreement between two persons that one should institute a suit against other in order to obtain decision of a judicial tribunal for some sinister purpose.--[Words and phrases].

---S. 12(2)--Collusion--Advocate of respondents colluding with petitioners and filing written statements admitting claim of petitioners pursuant to their collusion--Advocate, held, could be impleaded as respondent in application under S.12(2), Civil Procedure Code in circumstances.

Gul Muhammad and another v. Mir Zaman and another P L D 1954 Leh. 406; Ahsan Corporation, Karachi v. Chairman Evacuee Trust Property Board and 9 others P L D 1973 Kar. 403; Mst. Razia Begum v. Mat Iqbal Begum and 7 others P L D 1957 Lah. 1040; Syed Modaris Ali v . Syed Muhammad Ilias Ali and others P L D 1971 Dacca 309; Abdur Rauf v. Mst. Khalida P L D 1968 Lah. 423 and Syed Haider Raza v. Syed Imam Ali and another P L D 1961 Lah. 800 ref.

---Ss. 12(2), 115 a 151--Revision--Order of Trial Court dismissing application, filed by petitioner under-S.151, Civil Procedure Code, seeking deletion of names of Advocates from list of respondents, neither suffering from any illegality or material irregularity nor from jurisdictional defect--Interference declined in revisional jurisdiction.

Ch. Muhammad Hassan for Petitioner.

Amir Alam Khan and Zulfiqar Ali Bhatti for Respondents Nos. 1

Nemo for Respondents Nos. 7 and 8.

Date of hearing: 15th March, 1986.

This judgment shall dispose of two civil revisions viz. Civil Revision No. 746 of 1981 and Civil Revision No. 747 of 1981 involving common questions of law and facts.

2. In case of Civil Revision No. 746 of 1981, Muneer Ahmad Khan, petitioner herein, filed a declaratory suit on 17-7-1980 before a learned Civil Judge, Faisalabad, against Samiullah Khan and others, seeking a declaration to the effect that he was the owner in possession of the land measuring 2,149 Marlas 82 sq. ft. as described in detail in the headnote of the plaint and that this land was sold in favour of the petitioner for Rs.44,00,000 through an agreement to sell, dated 29-11-1979.

3. Ameer Ali Malik, an Advocate of Faisalabad, filed a written statement on behalf of Samiullah Khan etc. the contesting defendants, whereby the claim of the petitioner was admitted and thus his suit was decreed on 27-7-1980.

4. Subsequently, an application under section 12(2), C.P.C. was filed by Samiullah Khan etc. defendants Nos. i to 5 in the original suit, whereby they challenged the aforementioned decree, dated 27-7-1980 on the ground of fraud, collusion and misrepresentation etc. In the said application under section 12(2), C.P.C., Ameer Ali Malik was arrayed as respondent No.2 while Muneer Ahmad Khan petitioner .was shown as respondent No.l. This application was originally allowed by the learned trial Court on 22-9-1980, but in appeal High Court set aside the order of the trial Court and remanded the case for fresh proceedings and decision in accordance with law on 28-2-1981.

5. Ameer Ali Malik, Advocate, who as already stated has been arrayed as respondent No. 2 in the application under section 12(2), C.P.C., has filed his written statement as also submitted -his affidavit in support of what has been maintained in the written statement filed by him. In fact, through his written statement and the affidavit he has admitted the claim of the contesting respondents and has pleaded that on the identification of Hamid Ali Khan Sherwani, Advocate, Faisalabad, he accepted a person accompanying Hamid Ali Sherwani as Muhammad Zafarullah Khan, a general attorney of the contesting respondents, and under the instructions of the said person he filed written statement whereby the claim of the petitioner was admitted.

6. The petitioner filed an application before the learned trial Court seeking the deletion of the name of Ameer All Malik from the list of respondents in the application under section 12(2), C.P.C. He maintained that Ameer Ali Malik was not a party to the civil suit out of which the application under section 12(2), C.P.C. arose and, therefore, he could not be arrayed as a respondent. This application was resisted by the respondents and the learned trial Court after hearing the parties, dismissed the application filed by the petitioner under section 151, C.P.C. seeking the deletion of the name of Ameer Ali Malik, Advocate from the list of respondents, on 15-6-1981.

7. The aforementioned order, dated 15-6-1981 passed by the learned Additional Administrative Civil Judge, Faisalabad, has been called in question through Civil Revision No. 746 of 1981.

8. In case of Civil Revision No. 747 of 1981, Habib Ahmed Khan filed a suit through Khan Muneer Ahmad, Advocate, seeking a declaration to the effect that the land in dispute measuring 26 Kanals 8 Maria s, as described in detail in the headnote of the plaint, was the ownership in possession of Habib Ahmad Khan plaintiff as the same was sold in his favour by Samiullah Khan defendant No. 1 through agreement to sell, dated 29-11-1979 and the entire consideration money of Rs.9,45,600 was paid and the possession was delivered to the plaintiff.

9. A written statement was filed on behalf of the defendants by Malik Muhammad Saleem, Advocate, whereby the claim of the plaintiff was admitted and thus the suit was decreed on 10-4-1980 while it was filed on 26-3-1980.

10. Subsequently, an application under section 12(2), C.P.C. was filed by Samiullah Khan etc. challenging the aforementioned decree on the grounds of fraud, collusion and misrepresentation etc. 'this application was originally allowed by the learned trial Court on 22-9-19 0. However, pursuant to an appeal, High Court, vide judgment, 28-2-1981 remanded the case for fresh decision in accordance with law.

11. It is noteworthy that in the application under section 12(2), C . P. C . Malik Muhammad Saleem, Advocate has been arrayed as respondent No. 4. He has filed his written statement and affidavit whereby he has maintained that he too was defrauded by the contesting respondents in the application under section 12(2), C.P.C. inasmuch as a person was identified before him by Hamid Ali Sherwani, Advocate, Faisalabad, as attorney of the defendants and under the instructions from the said attorney, he filed the written statement admitting the claim of Habib Ahmad.

12. An application under section 151, C.P.C. was filed before the learned trial Court praying that the name of Malik Muhammad Saleem be deleted from the list of respondants as he was neither a necessary nor a proper party to the proceedings. He could at the most be produced as a witness. For ulterior motives, he was arrayed as respondent. This application was, of course, resisted by the respondents and the learned trial Court, vide its order, dated 15-6-1981 dismissed the application.

13. The aforementioned order, dated 15-6-1981 passed by the learned Additional Administrative Civil Judge, Faisalabad, has been called in question through Civil Revision No. 747 of 1981.

14. It has been urged on behalf of the petitioner that Ameer Ali Malik and Malik Muhammad Saleem, Advocates were not a party in the suit giving rise to applications under section 12(2), C.P.C. They were, therefore, her necessary nor proper party in the applications under section 12(2), C.P.C. arising out of the suits. It has further been urged that these two Advocates had no legal right to file written statement supporting the allegation of the respondents and that their affidavits could not be read as evidence.

Reliance has been placed on Gul Muhammad and another v. Mir Zaman and another P L D 1954 Lah. 406. In this judgment, it has been explained that by virtue of provisions of Order 1, Rule 10, C.P.C. 'necessary party' means party in whose absence no effective decree can be granted in suit at all and 'proper party' means party whose presence is necessary for final adjudication of all matters in dispute.

It has thus, been urged that the aforementioned two Advocates were neither necessary nor proper party for resolving the controversy arising between the parties.

Reliance has also been placed on Ahsan Corporation, Karachi v. Chairman Evacuee Trust Property Board and 9 others P L D 1973 Kar. 403 and Mat. Razia Begum v. Mat. Iqbal Begum and 7 others P L D 1957 Lah. 1040. In both these judgments, it has been explained that who could be a 'necessary party' and who could be a 'proper party'.

15. In the under consideration two civil revisions the impugned order does not arise out of proceedings in a suit itself but these orders have been made during the course of hearing of applications filed under section 12(2), C.P. C. The proceedings under section 12(2), C.P. C. obviously are quite independent of the suits and the principles laid down in case of suits regarding parties cannot be pressed into service in case of applications under section 12(2), C . P . C .

16. The learned counsel for the petitioner has also cited Syed Modaris Ali v . Syed Muhammad Ilias Ali and others P L D 1971 Dacca 309, Abdur Rauf v. Mat. Khalida P L D 1968 Lah. 423 and Syed Haider Raza v. Syed Imam Ali and another P L D 1961 Lah. 800. The principal enunciated in these judgments was that the evidence through affidavits can only be permitted if there is an agreement between the parties that the evidence will be taken by affidavits or where under Order XIX, Rule 1, C . P. C . there is an order of the Court in that behalf.

17. The learned trial Court while deciding the applications under section 12(2) , C . P . C . will naturally take care of the provisions of Order XIX, Rule 1, C.P. C. and the principle enunciated in the aforequoted judicial precedents. Obviously, the said learned Court shall not decide the applications merely on the basis of affidavits filed by Messrs Ameer Ali Malik and Malik Muhammad Saleem, Advocate.

18. As already observed an application under section 12(2), C.P.C. is quite independent of the suit and such an application can be filed by a person who challenges the validity of the judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. The expression 'person' occurring in section 12(2), C.P.C. does not necessarily mean the 'judgment debtor' or the 'person against whom judgment, decree or order has been made'.

In Abdur Rauf and others v. Abdur Rahim Khan P L D 1982 Pesh. 172, it was observed: "It is obvious that in section 12(2), C.P.C., the word 'person' and not the 'judgment debtor' or his 'successor-in -interest' or the word 'party to the suit' have been used. Thus, it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the 'judgment-debtor' or his 'successor-in-interest' or the 'person who was a party thereto' then nothing was easier for the law-maker to have said so".

Similarly in Chaudhary Jalal Din v. Mat. Asghari Begum and other 1984 S C M R 586, it has been held that the word 'person' used in section 12(2), C.P.C. is not intended to restrict right of filing application under section 12(2), C.P.C. only to the 'judgment-debtor' or his 'success to-in-interest' or 'a person who was a party thereto'.

19. On the same analogy, it can be said that persons against whom an application under section 12(2), C . P. C . may be filed need not necessarily be the decree-holder or his successor-in-interest or a party to the suit. Any person who is liable for fraud and misrepresentation etc. can be joined as a respondent in such an application. In the circumstances of the present case, on account of written statements filed by Messrs Ameer Ali Malik and Malik Muhammad Saleem, Advocates, the decree which has been sought to be set aside through applications under section 12(2), C.P.C., was obtained by the petitioner herein. It is alleged in the said applications that these Advocates colluded with the petitioner and others and defrauded the respondent i.e. the petitioners in applications under section 12(2), C.P.C. The collusion, no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two persons that one should institute a suit against the order in order to obtain the decision of a judicial l tribunal for some sinister purpose. Since Messrs Ameer Ali Malik and Malik Muhammad Saleem, Advocates allegedly colluded with the petitioner and others and filed written statements admitting the claim of the petitioner and others pursuant to their collusion with the petitioner and others. They have, therefore, rightly been impleaded as respondents in the applications under section 12(2), C.P.C.

20. For the foregoing reasons, the impugned orders do not suffer from any illegality or material irregularity within the meaning of section 115 of the Code of Civil Procedure nor there is any jurisdictional defect qua these orders. Both the under consideration civil revisions are, therefore, dismissed with costs.

M . Y . H . Revision dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.