IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

J.M. No. 47 of 2004

 

 

Appellant:-                     Ehsan Elahi through his Attorney

Mr. Shahid Elahi S/o Ehsan Elahi,

 

Through Muhammad Arif Khan,

                                      Advocates for the appellant.

 

Respondents:-                Muhammad Khalid Hussain Shaikh

and others.

 

Through Mr. Rasheed A. Rizvi alongwith

Mr. Farhatullah, Advocates for respondents Nos.1 and 3.

Mr. M.G. Dastagir, Advocate for respondents Nos.1,3 and 4.

Mr. Raghib Baqi, Advocate for respondent No.9.

 

 

Date of hearing       04.05.2010

Date of Judgment   04.06.2010

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The present application has been filed by the applicant under Section 12(2) CPC read with Section 151 CPC prayed to set aside the Judgment and Decree dated 31.5.2001 in Suit No.140/1994 on the ground that the same was obtained by way of fraud, misrepresentation and concealment of material facts and without valid service upon the applicant. The present application has been filed by the attorney of the applicant on 2.6.2006 alongwith supporting affidavit in this Court and stated in the affidavit that the respondents Nos.1, 2 and 3 on 2.3.1994 filed a Civil Suit No.149/1994 in this Court and in the title of the plaint of that suit the respondents Nos.1, 2 and 3 deliberately and malafidely disclosed address of defendants Nos.2 to 17 in that suit to 17 as under:-

"Under care of Central Cotton Mills Ltd,

5th Floor, State Life Building No.2,

Wallace Road, Off: I.I. Chundrigar Road,

Karachi.

 

The applicant was defendant No.5 in Suit No. 149/1994. The applicant submitted that his permanent address is, 1485, C/6, Asad Jan Road, Cantt: Lahore, for the last 15 years and whenever applicant comes to Karachi he resides at 24/3, Darul Aman Cooperative Housing Society, Block-3, Karachi. It is also stated in the affidavit that the applicant had neither been a Director of Central Cotton Mills nor had ever worked at Central Cotton Mills Ltd in any capacity and has no concern whatsoever with Central Cotton Mills Ltd and the respondents Nos.1, 2 and 3 had falsely shown the incorrect address of the applicant in the title of the plaint in Suit No.149/1994. The applicant further stated in the affidavit that the substituted service through publication against the applicant was not proper in law. The applicant is reader of daily Dawn Lahore and whenever he comes to Karachi he reads daily Dawn Karachi, but the notices through substituted service against the applicant in Suit No.149/1994 were published in daily Nawa-e-Waqt Karachi and the applicant is not the subscriber of that newspaper. The applicant stated that in the second week of may 2004 when he came to Karachi and visited the suit property he came to know from the shop keepers that the plaintiff/respondents Nos.1 to 3 have become owner of the suit property  by virtue of some decree passed in the High Court of Sindh three years ago. The applicant found out the details of the case in which decree has been obtained by respondents Nos.1 to 3 and after hectic efforts the applicant came to know that judgment and decree had been passed in Suit No.149/1994 and the applicant filed the present application on 2nd June 2004 in this Court for setting aside the judgment and decree dated 31.5.2001 obtained by way of fraud, misrepresentation and concealment of material facts.

1.         The respondent No.3 filed the Counter Affidavit to the applicant's application and stated that the application is time barred and the applicant has failed to explain delay of two days It is further stated in the counter affidavit that the application field by the person who had no Special Power of Attorney of the applicant when the present application was filed on 2.6.2004 whereas the Special Power of Attorney is dated 23.8.2004. The respondent No.3 stated that the last known address of the applicant is "Care of Central Cotton Mills Limited, 5th Floor, State Life Building No.2, Wallace Road, Off I.I. Chundrigar Road, Karachi" was valid for all legal and practical purposes as it was family concern of the applicant. It is also stated by the respondent No.3 in his counter affidavit that respondents Nos.4 to 19 in the present application are closely related interse and some of them are brothers and sisters of the applicant who were fully aware of the proceedings of the suit and they were defendants Nos.2 to 17 in Suit No149/1994. On failure of the applicant to appear, this Court passed an order dated 29.9.2000 given last opportunity to the applicant in Suit No.149/1994, but the applicant did not appear, therefore, this Court ordered for substituted service on the applicant through an officially approved and widely circulated newspaper of the country i.e. daily Nawa-e-Waqt Karachi. The respondent No.3 further stated in the Counter Affidavit that he got published a notice in daily Dawn Karachi on 20.12.1995 and 1.6.1999 warning the general public regarding the purchase of any interest in the suit property. The applicant admitted in his application that he is the reader of daily Dawn Karachi. Respondent No.3 got published another notice in another largely circulated newspaper i.e. daily Jang Karachi on 18.5.1999, which clearly shows that all the co-owner had knowledge of the sale of suit property and they had duly authorized their agents to sell the property. The respondent No.3 further stated in his counter affidavit that it was well publicized matter because earlier criminal proceedings had also ensued and the allegations of applicant regarding fraud/misrepresentation or concealment of facts are absurd, malafide and without any legal basis. The respondent No.3 also stated in the counter affidavit that he waited for 13 years in order to get justice in suit No.149/1994 and the judgment and decree was passed on 31.5.2001. The respondent No.3 further stated that the applicant had been attending this Court in other judicial proceedings and was well aware of suit No.149/1994. The assistant Commissioner South sealed the suit property on behalf of Income Department earlier and every co-sharer was aware of those proceedings.

2.         Heard Mr. Arif Khan, learned counsel for the applicant and M/s.Rashid A. Rizvi and Farhatullah, learned counsels for the respondent No.3.

3.         Mr. Arif Khan, Advocate submitted that the plaintiff/respondent No.3 had shown the wrong address of the applicant and respondents Nos.4 to 19 in the memo of plaint in Suit No.149/1994. He submitted that in para 5 of the affidavit of the attorney of the applicant actual address of the applicant has been given. He further submitted that the plaintiff/respondent No.3 had failed to show Special Power of Attorney. He further submitted that the decree was signed on 16.6.2001, whereas the present application was filed on 2.6.2004 within three years stipulated time, therefore, the instant application is within time. Learned counsel for the applicant placed is reliance in,

4.         (1)2004 CLD 821 the Judgment of Division Bench of Lahore High Court in case of Lt. Col (Retd) Mahmood Akhtar Vs. Bank of Punjab, it was held that the address of the appellant as given in the plaint and notices issued to him was that of this previous residence, which was on rent and he had vacated …………………. service on  previous address was no service in law, thus, appellant had not been served on his proper address---- High Court allowed appeal, set aside exparte decree.

5.         (2) 2009 CLD 849 Judgment of Hon'ble Supreme Court of Pakistan comprising of Justice Rana Bagwandas and Saiyed Saeed Ashhad and Hamid Ali Mirza, Mubarak Ali Vs. First Prudential Modarba, it is observed in that judgment publication was made in two newspapers of Urdu and English languages and change of address was not notified to the respondents would not be sufficient in view of the circumstances of the present case to hold the petitioner was duly served with the summons of the trial Court----------- the Hon'ble Supreme Court remanded the case to the trial Court for its disposal after affording due opportunity to the parties to record with the case and the case be decided afresh in accordance with law.

6.         (3) PLD 1993 Lahore 706 Division Bench of Lahoe High Court  Brig. (Retd) Mazharul Haq and another Vs M/s. Muslim Commercial Bank Ltd Islamabad, it is held that where defendants' was patently insufficient or incomplete or material defect in such address had come to the notice of the Court, it was not bound to take steps for the service of defendants especially by affixation or publication unless correct address was given or the defect was removed.

7.         (4) 2005 SCMR 1408 Division Bench of Hon'ble Supreme Court comprising of Mr. Justice Hamid Ali Mirza and Saiyed Saeed Ashhad – Sinaullah and others Vs. Mohammad Rafique and others, it was observed that Various powers of attorney executed by the female co-sharers were not produced in evidence in the Trial Court on account of which it was impossible to find out whether there was any mentioned of agreement to sell and whether the female co-sharers had expressly stated therein that they would be bound by said agreement to sell------ Female co-sharers, in circumstances, were under no compulsion to execute sale deed pertaining to the land and the agreement to sell could not have been specifically enforced against them.

7.         Whereas M/s. Rashid A. Raziv and Farhatullah, learned counsels for the respondent No.3 argued that the instant application is incompetently filed by Shahid Elahi in the month of June, 2004 and at the time of filing of the said application he had no authority/power to file the application. He subsequently filed the Special Power of Attorney on 23.8.2004 executed by the applicant in favour of his son hence at a subsequent stage the defect or infirmity of the application cannot be cured he placed reliance on 2007 MLD page 601 Haji Allah Bukhsh and others Vs. Muhammad Yar and others wherein it is held that subsequent power of attorney could not be considered on the said date. So a subsequent power of attorney could not be considered a valid authority even which has already passed. Learned counsel for the respondent No.3/plaintiff raised objections to the maintainability of the present petition as the decree was passed on 31.5.2001 while the present application was filed on 2.6.2004 and submitted that there is delay of three days in filing the application. Mr. Rizvi placed reliance on 2005 SCMR page 126, 2006 CLC 1018 and 1986 CLC 899. Learned counsel for the respondent No.3/plaintiff argued that non-service of summons or improper service could not be considered as valid ground for filing application under Section 12(2) CPC and in this regard he has placed reliance on 2007 page CLC 326, the Division Bench of Peshawar High Court comprising Mr. Justice Ejaz Afzal Khan  and Said Maroof Khan in the case of Nasir Khan and 16 others Vs. Additional District Judge-I, Lakki Marwat and 76 others has held that Non service of summons or improper service, could not be considered to be valid ground for filing application under Section 12(2) CPC, 2005 CLD 1182, Brig. (Retd) Ki-Ialid Mahmood Vs. Habib Bank Ltd and 5 others. It is further urged by learned counsel for the respondent No.3/plaintiff that the applicant has failed to give the details and proofs that any fraud and misrepresentation was committed on the Court. The scope of Section 12(2) CPC is that the judgment and decree must have been obtained by playing fraud and misrepresentation on the Court. He has placed reliance 1982 CLC page 2042, he has also placed reliance on 1992 SCMR 2184 Allah Wassaya and 5 others Vs. Irshad Ahmed and 4 others, It has been held by the Hon'ble Supreme Court that, "The appellants have challenged the decree passed by the competent Court of law on the ground of fraud and collusion under Section 12(2) of the Civil Procedure Code and the burden heavily lay upon them to establish that the fraud had been practiced by the decree holders on the Court in obtaining of the impugned decree. Fraud means and includes, inter alia, the suggestion, as a fact of that what is not true, by one who does not believe it to be true: and the active concealment of a fact by one having knowledge or belief of the facts. In the instant case the plaintiffs/decree holders neither misstated any fact nor concealed anything from the Court to obtain the impugned decree………"

9.         Learned counsel for the respondent No.3/plaintiff submitts that plea of the applicant that he had no knowledge of the institution of the suit No.149/1994 is patently false for the reasons that service of the notice was published on several times:- the first notice was published in the daily Dawn on 20.12.1995 after the institution of that suit, thereafter a notice dated 11.2.1998 (annexure B-2 of the Counter Affidavit was published in daily Nawa-e-Waqt by the orders of this Court when the defendants avoided service of the notice and thirdly notice was published in daily Nawa-e-Waqt on 1.12.2000 (annexure B-6 to the Counter Affidavit) i.e. before passing of the final order/judgment as this Court wanted to make sure that the defendants in Suit No.149/1994 should be given final chance to come to the Court in case they have any objection to the grant of prayer. Learned counsel for the plaintiff/ respondent No.3 further argued that besides the said three notices in daily Dawn and Nawa-e-Waqt, a notice dated 18.5.1999 (annexure B-5 to the Counter Affidavit was published in daily Jang by Choudhry Tanveer Ahmed, Advocate, when the defendants in Suit No.149/1994 malafidely wanted to sell the suit property to some other person during the pendency of the suit and in response to the said notice two notices dated 1-6-1999 (annexure B-4 and B-6 to the Counter Affidavit) were published in the daily Dawn and Nawa-e-Waqt informing the general public that Suit No.149/1994 is pending in respect of the suit property and that an injunction/stay order is operating against the defendants. According to the learned counsel for the respondent No.3/plaintiff six notices have been published in daily Dawn, daily Jang and the daily Nawa-e-Waqt during 11 years of pendency of the suit No.149/1994 and therefore, the claim of the applicant that he was not aware of the institution of the suit No.149/1994 is untenable.

10.       Learned counsel for the respondent No.3/plaintiff further argued that the defendants Nos.2 to 17 in Suit No. 149/1994 are all closed relatives who are legal heirs of the predecessor-in-interest of the suit property. The address for service on defendants as given in the plaint i.e. "Under care of Central Cotton Mills Ltd, 5th Floor, State Life Building No.2, Wallace Road, Off I.I. Chundrigar Road, Karachi" is valid as upon service on that notices/summons, which were sent on that address to all the legal heirs/defendants Nos. 2 to 17 in Suit No.149/1994. The defendants Nos.2 to 4 and 6 to 17 in Suit No.149/1994 approached this Court and had filed Vakalatnama by their counsel and application under Order 7 Rule 11 CPC and written statement. Learned counsel for the respondent No.3/plaintiff during the arguments confronted the attested copy of judgment and decree in Suit No.500/1998 passed by the Vth Banking Court, Lahore, wherein Askari Bank has filed Suit against Nusrat Textile Mills Ltd, Nusrat Parveen the wife of the applicant and against Shahid Elahi son/attorney of the applicant, the address given in the title of the judgment and decree is the same i.e. "Under care of Central Cotton Mills Ltd, 5th Floor, State Life Building No.2, Wallace Road, Off I.I. Chundrigar Road, Karachi". Similarly United Bank Ltd obtained a decree in Suit No.1673/97 from District Court against Nusrat Textile Mills Ltd on 7.8.1999 the address of M/s. Nusrat Textile Mills Ltd is the same as that of address of the applicant given in Suit No.149/1994 i.e. "Under care of Central Cotton Mills Ltd, 5th Floor, State Life Building No.2, Wallace Road, Off I.I. Chundrigar Road, Karachi". The wife of the applicant Begum Nusrat Parveen and son/attorney of the applicant namely Shahid Elahi are the Directors of M/s. Nusrat Textile Mills Ltd. It is also argued by the learned counsel for the respondent No.3 /plaintiff that on 10.7.2001 the Commissioner Income Tax South, Recovery Branch, sealed the suit property for recovery of arrears of tax and it remained sealed till May 2002 as referred in (annexure C-2 to the Counter affidavit). However, by the orders passed by this Court dated 23.5.2002 in Suit No.149/1994 the Nazir of this Court unsealed the suit property. The applicant being one of the legal heirs of the predecessor-in-interest of the suit property and having interest in the suit property must had knowledge that the suit property was sealed and must also had knowledge that by the order passed in that suit the property was unsealed. The learned counsel for the respondent No.3/plaintiff contended that the contention of the applicant that he was not aware of the institution of Suit No.149/1994 when the suit property was unsealed through an order of this Court is illogical, false and untenable. M/s. Rashid Rizvi and Farhatullah, Advocates submitted that the instant application filed by the applicant is not maintainable and is liable to be dismissed.

11.       I have gone through the record of the Court file of the present petition i.e. J.M. No.47 of 2004 and Suit No.149/1994. In the application under
Section 12(2) CPC read with Section 151 the applicant stated that he is permanently residing at  1485 C/6, Asad Jan Road, Cantt:, Lahore for the past 15 years and the applicant's place of residence whenever he comes to Karachi he resides at 24/3, Darul Aman Cooperative Housing Society, Block-3, Karachi. The applicant's attorney in the application never denied that the address of applicant and defendants Nos.2 to 17 in Suit No.149/1994 mentioned as "Under care of Central Cotton Mills Ltd, 5th Floor, State Life Building No.2, Wallace Road, Off I.I. Chundrigar Road, Karachi" was not the address of the applicants and defendants Nos.2 to 17. Contrary to that the address of attorney of the applicant Mr. Shahid Elahi and Begum Nusrat the wife of the applicant and mother of the attorney of the applicant has been shown in Suit No. 500/1998 filed in Banking Court No.V, Lahore and Suit No.1693/1997 decided by this Court has been mentioned as the same address i.e. 4th Floor, State Life Building No.2-A, Wallace Road, Karachi. The defendants Nos.2 to 4 and 6 to 10 in Suit No. 149/1994 were duly served on the aforementioned address who are the closed relatives of the applicant. The defendants Nos. 2 to 4 and 6 to 17 in Suit No.149/1994 had filed an application under Order 7 Rule 11 CPC bearing CMA No.4014/94 on 29.6.1994 the said application was dismissed in the year 1997. In the year 1999 restraining order was passed calling upon the defendants from taking any action which could create third party interest in the property. It is a matter of record that after disposal of the application under Order 7 Rule 11 CPC of defendants
Nos.2 to 4, 6 to 10 in Suit No.149/1994 who are the closed relatives of the applicant the said defendants never contested the case and the counsel appearing for them moved application for withdrawal of his Vakalatnama. Direct notices were issued to those defendants, and the notices having been served nobody turned up ultimately that suit was fixed for final disposal, vide a detailed order passed on 20.9.2000 by this Court. Before this Court passed final order in the suit that defendants to come forwarded and defend the suit as obviously from the documents on record there is a very serious dispute in case if the defendants were not served by normal means they will be served through publication.  By the order dated 31.5.2001 this Court observed that that in order to facilitate the defendants to participate in the proceedings a last chance was given and a publication had been effected in Nawa-e-Waqt dated 1st December, 2000 when nobody had turn up on behalf of the defendants despite of publication. As already argued by Mr. Rashid A. Razvi and Mr.Farhatullah for respondent No.3/plaintiff that in all six notices have been published in daily Dawn, daily Jang and daily Nawa-e-Waqt in Suit No.149/1994 during over 11 years of pendency of that suit, therefore the claim of the applicant that he was not aware of the institution of the suit No.140/1994 is untenable, absolutely baseless and false. The learned counsel for the applicant has failed to brought from the record any fraud, misrepresentation and concealment of the fact. All the defendants from Nos.2 to 17 except the applicant who are the closed relatives of the applicant contested the Suit No.149/1994 filed their written statement and application under Order 7 Rule 11 CPC in Suit No.149/1994 and if the dismissal of the application under Rule 7 Rule 11 CPC in the year 1997 the other defendants effected to continue to contest that suit with the result that after adopting the required legal procedure Suit No.149/1994 was decreed on 31.5.2001. The applicant himself in para 7 of the affidavit in support of the application has admitted that he is the reader of daily Dawn Karachi. As per record of Suit No.149/1994 the notices/summons of Suit No.149/1994 published on 20.12.1995 in daily Dawn Karachi. On perusal of the record it is well established that Special Power of Attorney executed by the applicant in favour of his son Shahid Elahi on 23rd August, 2004, the stamp paper of Special Power of Attorney was purchased on 23.4.2004 and the document was also attested on 23.8.2004. Whereas the instant J.M. No.47/2004 was presented/filed on 2.6.2005 and the office objection No.2 is apparent on record that Power of Attorney is to be filed. The office objection on the application was complied on 28.8.2004 after delay of about three months without any explanation of such delay. The cases law cited by the learned counsel for the applicant are distinguishable. Apparently no fraud or misrepresentation with this Court has been committed by the respondent No.3/plaintiff in obtaining the judgment and decree dated 31.5.2001, therefore the reasons stated above the application of the applicant is not maintainable, therefore, I hereby dismiss J.M. No.47 of 2004.

JUDGE