ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
J.M. No.21 of 2012
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Order with signature of Judge
For orders on CMA No.10657/12
Applicant : Ms.Zainab
Respondents : Muhammad Javed & others
Date of hearing : 09.10.2012.
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Ms.Syeda Sara Kanwal, Advocate for the applicant along with applicant Ms.Zainab.
Mr.Tariq Mehmood, Advocate for the respondent No.4 along with respondent No.4
Mr.Anwar Fazlani, Advocate for Ghulam Mohiuddin along with Ghulam Mohiuddin.
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MUHAMMAD ALI MAZHAR, J: The applicant has filed this judicial miscellaneous application under section 12 (2) read with Section 151 C.P.C for setting aside an order dated 9.4.2012 passed in Suit No.129 of 2011 title “Ghulam Mohiuddin vs. Muhammad Javed & others”, which according to the applicant was obtained through fraud and misrepresentation.
2. The brief facts of the case are that a Suit No.129 of 2011 was filed by Ghulam Mohiduddin for partition and permanent injunction through his daughter and special attorney Ms.Zainab (applicant) against the present respondents. The plaintiff claimed in the suit that he and the defendants are legal heirs of deceased Mohammad Masood, who died on 12.9.2000 and left two properties mentioned in the head of immoveable properties at page-2 of the plaint as “A” and “B”. The suit remained pending, however, when this suit was fixed before me on 15.3.2012, CMA No.1625/12 was fixed for hearing, in which the attorney of plaintiff in her supporting affidavit stated that her father (plaintiff) Ghulam Mohiduddin has been forcibly kept by defendant Nos.3 to 7 and took his signatures under threat and have filed application for withdrawal of the suit through some other advocate. The matter was adjourned by me for 29.3.2012 with the directions to the defendants to produce the plaintiff in court on the next date of hearing. On 29.3.2012 the matter was fixed in court before learned single judge but the Reader diary shows that the Board was discharged, however, it was again fixed before another learned Judge of this court on 9.4.2012 , when the counsel for the plaintiff was present and he drawn the attention of the court to CMA No.622 of 2012 which application was filed by the counsel for the plaintiff and the application was supported by the personal affidavit of Ghulam Mohiduddin, in which he stated that on 14.1.2012 he has revoked/cancelled the special power of attorney given by him to his daughter Ms.Zainab and in this regard the public notice was also published in daily Aman dated 18.1.2012. Copy of deed of revocation of special power of attorney, notice given to the attorney Ms.Zainab and public notice, all were attached with the personal affidavit of the plaintiff. The learned Single Judge vide order dated 9.4.2012 allowed the application and suit was dismissed as withdrawn along with pending applications.
3. This judicial miscellaneous application under Section 12 (2) CPC has been filed by Ms.Zainab in the capacity of attorney of her father and though she has challenged the withdrawal of the suit, but in para 6 of the application she herself admitted that the application moved under order 23 rule 1 CPC was supported by the personal affidavit of the plaintiff Ghulam Mohiduddin in the suit.
4. On 16.8.2012, Mr.Anwar Fazlani, advocate undertook that on the next date the father of applicant Ghulam Mohiduddin will also appear in person to resolve the controversy, therefore, the matter was adjourned to 12.9.2012. On 12.9.2012, the respondent No.4, who is real sister of plaintiff reported that Ghulam Mohiduddin is not feeling well, hence, he could not appear. She undertook to produce him on the next date for further proceedings. On her request the matter was adjourned to 21.9.2012. Today, advocate for Ghulam Mohiduddin and respondent No.4 moved urgent application in which it is stated that the matter was adjourned for 21.9.2012, which was declared public holiday and hence, the matter was by consent taken up for hearing today. Since counsel for the applicant, counsel for Ghulam Mohiduddin and respondent No.4 all were present in court, therefore, by consent urgency was granted and all applications including the main application moved under Section 12 (2) CPC were taken up for hearing.
5. Ms. Syeda Sara Kanwal, the learned counsel for the applicant argued that the applicant is lawfully constituted attorney of her father and she has rightly filed the suit for partition on his behalf. She argued that the suit was withdrawn surreptitiously and the signatures of the plaintiff were obtained under duress. She further argued that the plaintiff was continuously requesting his brothers and sisters to give his share and ultimately he filed the suit No.129/2011, as the defendants flatly refused to pay his share in the inherited properties. She further argued that CMA No.622/2012 was presented in this suit on 21.1.2012, while the applicant being attorney moved CMA No.1625/12 on 20.2.12 and obtained the order for the production of Ghulam Mohiduddin in court on 29.3.2012. The case was subsequently fixed on 9.4.2012 on which date eight applications were fixed for hearing but CMA No.622/12 was taken up and suit was dismissed as withdrawn. Learned counsel argued that the order was obtained by concealing the order dated 15.3.2012 and the court was misled. According to the learned counsel the order dated 9.4.2012 was obtained through fraud and mis-representation of facts. She further argued that CMA No.1625/12 regarding the production of plaintiff in court was filed after filing the application of withdrawal, therefore, the counsel argued that the withdrawal application should not have been allowed. Finally, she argued that the order is liable to be set-aside and the suit be restored to its original position.
6. Conversely, the learned counsel for Ghulam Mohiduddin argued that father of the applicant is present in court in person, and he invited my attention to application moved by Ghulam Mohiduddin under section 151 CPC and his rejoinder/counter affidavit in which it was mentioned that the application under section 12 (2) CPC is misconceived. It was further stated that the applicant has no power/authority or locus standi to file this application on the strength of special power of attorney. It was further stated that Ghulam Mohiduddin has revoked/withdrawn the special power of attorney. Rejoinder and supporting affidavit of application of Ghulam Mohiduddin was attested by the Identity Section Management System (ISMS) on 7.8.2012. The learned counsel further pointed out that the urgent application is also supported by personal affidavit of Ghulam Mohiduddin, which was also sworn in before the ISMS Department of this court on 5.10.2012, in which he has again stated that he has revoked the special power of attorney and he has executed general power of attorney in favour of Mst.Gulnar (respondent No.4). Since Ghulam Mohiuddin was present in court and the applicant requested for a short meeting with him, therefore, I kept aside the case and allowed the applicant to meet with her father Ghulam Mohiuddin separately in the court room. After their meeting I myself asked Ghulam Mohiuddin whether he withdrew the suit under threat or pressure to which he replied that the suit was withdrawn by him with his freewill and without any threat or pressure.
7. Mr.Tariq Mehmood, the learned counsel for the respondent No.4 argued that the applicant has no right and or authority to plead the case of her father. He invited my attention to the statement, which he filed along with some documents on 10.9.2012. The first document is general power of attorney, which the plaintiff executed in favour of his sister Mst.Gulnar (respondent No.4) this power of attorney was registered on 12.4.2012 before Sub-Registrar, Gulberg Town, Karachi. Learned counsel further pointed out the deed of revocation of special power of attorney, which was executed by Ghulam Mohiuddin on 14.1.2012, whereby he revoked the special power of attorney executed in favour of applicant. The notice of revocation dated 15.1.2012 is also attached along with courier receipt and copy of public notice which was published in daily newspaper Aman, Karachi on 18.1.2012 is also attached. The learned counsel argued that on the face of it, this J.M. under section 12 (2) CPC is not maintainable and after revocation of special power of attorney, the applicant has no right and authority to file this J.M., which is liable to be dismissed.
8. After hearing the arguments of all learned counsel, I have reached to an irresistible conclusion that the suit No.129/2011 was filed by the applicant in the capacity of attorney, as it is the only plaintiff who can claim in his life time his inherited share in the estate of his deceased father. I have also seen the special power of attorney, which was executed by Ghulam Mohiuddin in favour of applicant in the year 2010, in which the applicant was authorized to move competent court for the purpose of obtaining succession certificate/letter of administration or in criminal/civil litigation on behalf of Ghulam Mohiuddin and further authorized to receive share of the plaintiff or to take possession of portion in the deceased property. It is also a fact that the suit was withdrawn on 9.4.2012 and withdrawal application was supported by personal affidavit of Ghulam Mohiuddin and when CMA No.622/12 was presented in court on 21.1.2012, the special power of attorney executed by Ghulam Mohiuddin in favour of applicant was already withdrawn and notice was tendered and public notice was also published on 18.1.2012, therefore, in all fairness, when the application for withdrawal of the suit was filed and it was withdrawn the applicant was not attorney of the plaintiff. Similarly, when the applicant moved CMA No.1625/12 on 20.2.2012, at that time also she was not attorney of her father. No issue is before me in the present proceedings nor the applicant has assailed the revocation of power of attorney or execution of fresh power of attorney by Ghulam Mohiuddin in favour of his sister.
9. It is well setelled that under the present proceedings initiated under section 12 (2) CPC, the court has to see only as to what fraud or mis-representation of fact has been committed by the other side for securing or obtaining the orders in his favour. Here the fraud is alleged to have been committed with Ghulam Mohiduddin, who was principal and or co-owner in the estate of his deceased father, but he has not reported any fraud and misrepresentation in any application under section 12 (2) CPC. On the contrary, he has voluntarily appeared in the court and clearly stated that he has withdrawn the suit by his own freewill without any coercion or duress so in my view no case of fraud or misrepresentation is made out for setting aside the order, whereby the suit No.129/2011 was dismissed as withdrawn. Ghulam Mohiuddin had withdrawn the suit on the grounds that defendants assured him for the payment of his inherited share in the estate of his deceased father. If his share has not been paid, he can institute fresh proceedings but applicant has no right to represent him as attorney when the power was revoked.
10. The remedy under section 12 (2) CPC is available only to vitiate or set aside the order/judgment or decree, which was obtained due to fraud, misrepresentation of facts or want of jurisdiction. From the available record, it is clear that indenture of revocation, notice and public notice all are available on record but the applicant failed to rebut any document. Fraud vitiates all things. Fraud no doubt would vitiate most solemn proceedings and can be taken as a ground of attack but at the same time it may be urged as ground of defence. The honorable Supreme Court in its judgment reported in 2010 SCMR 1097 discussed the meaning of fraud and or misrepresentation used in Section 12 (2) CPC on the basis of dictum laid down by it and legal dictionaries which are as under:-
“Fraud”
“Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree” (Mst.Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221).”
“A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134)”.
“Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact” (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).
“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 other in order to obtain a decree of a judicial tribunal for some sinister purpose” (Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655).
“For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud” (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lah. 396).
“Fraud”
“A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury”. “A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestion or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated” (Blacks Law Dictionary Fifth Edition).
“Misrepresentation”
“Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead.” (Black Law Dictionary Fifth Edition).
“Collusion”
“An agreement between two or more persons to defraud a person of his right by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose.” (Blacks Law Dictionary Fifth Edition).
11. There is no procedure provided to decide the application under section 12(2) CPC, however, for determination of application moved under section 12(2) CPC, court is not under obligation in every case to frame issues, record evidence of the parties and follow procedure prescribed for decision in suit. Matter is left to the satisfaction of the court which has to regulate its proceedings and keeping in view the nature of allegation in the application the court may in its discretion adopt any mode for its disposal. Reference can be made to my own judgment reported in PLD 2010 Karachi 400 (Muhammad Akram Shaikh v. M/s.Pak Libya Holding Company) and 2010 CLC 1578 (Mrs.Azra Shabbir v. Mrs.Rehana Khatoon).
12. The applicant was merely acting as an agent and attorney and when plaintiff himself appeared and categorically stated that he was not victim of any fraud or misrepresentation rather he candidly admitted that he had withdrawn the suit by his free will therefore in my view, after revocation of attorney, the applicant cannot espouse the cause of plaintiff. Since no case of fraud or mis-representation is made out, this application is dismissed along with all pending applications.
Judge