ORDER SHEET

HIGH COURT OF SINDH, KARACHI

J.M. No.26 of 2012

   Date                     Order with signature of Judge

1.For hearing of CMA No.6078/12 (u/s 151 CPC)

2.For hearing of CMA No.6099/12 (u/s 151 CPC)

3.For hearing of CMA No.4939 (u/o 39 rule 1&2 CPC)

4.For hearing of main application u/s 12(2) CPC

Mohammad Ramzan………………..….       Applicant

                                        Versus

Mohammad Akbar Bhatti & 10 others….         Respondent

Date of hearing 02.11.2012

Ms. Shamim Akhtar, Advocate for Applicant

Mr. Muhammad Iqbal Ch., Advocate for Respondent Nos.1 to 10

Syed Muhammad Akbar, Advocate for Respondent No.11

………

Muhammad Ali Mazhar, J: This Judicial Miscellaneous Application under section 12(2) CPC has been filed to challenge compromise decree passed by this court on 28.02.2012 in Suit No.616/1998 titled “Muhammad Akbar Bhatti and others against Muhammad Akram Bhatti and others” in which the applicant Muhammad Ramzan was also the defendant No.2. The suit was confined to the portion of 70 Square Yards of the property bearing No.M-II-E-616, measuring 800 Sq. Yd., situated at Shershah Colony, Karachi which was owned by (late) Ghulam Farid Bhatti predecessor-in-interest of the plaintiffs and the defendant No.1. This suit remained pending for a considerable time however CMA No.1921/2012 was filed under order 23 rule 3 CPC whereby  the parties agreed to resolve the dispute. It is pertinent to point out that in the prayer clause of main suit, the plaintiffs prayed as under:-

“It is therefore respectfully prayed that this Honourable Court may be pleased to pass a preliminary decree in the above suit and appoint the Nazir of this Honourable Court as an Administrator for realizing amounts of rents and for making investigations of selling of piece of land of the property of the deceased, measuring 70 Yards out of total area of 800 Sq. Yards to defendants No.2 by the Defendant No.1 and to submit his report to this Honourable Court.

To determine shares of all the legal heirs of the deceased according to their respective shares.

To realize the amount of rents received by defendant No.1.

Any other relief/reliefs which this Honourable may deem fit and proper under the circumstances of this case.”

2.     The grievance of the applicant is that though compromise application was filed but neither the defendant No.2 was made party to the compromise nor he had any information but the plaintiffs and the defendant No.1 filed compromise application in the month of February, 2012 which was allowed by this court vide order dated 28.02.2012 and decree was passed. Learned counsel for the applicant pointed out Paragraph No.2 of the decree in which by consent Administrator was appointed for the property in question with further direction to sell the whole Plot admeasuring 800 sq.yards on maximum prevailing market value and to disburse the amount as per terms of this compromise. Similarly in Paragraph No.4 of the decree, it is further stated that after receiving amount of sale of structure (Malba), a sum of Rs.300,000/- will be paid to the defendant No.2 Muhammad Ramzan. Learned counsel for the applicant argued that both these conditions mentioned in the decree have severely affected the rights of the defendant No.2 and same has been incorporated in the compromise application on misrepresentation of facts and decree was passed without his consent who was never made party to the compromise application. It was further averred that through aforesaid compromise, the plaintiffs and the defendant No.1 have committed fraud and they have obtained decree fraudulently on misrepresentation and concealment of the facts.

3.     Mr. Muhammad Iqbal Ch., learned counsel for the respondent Nos.1 to 10 admits that though compromise was effected between the plaintiffs and the defendants but the defendant No.2 was not made party to compromise application however he submits that at the best, decree may be set aside against the defendant No.2 and so far as the suit against the defendant No.2 is concerned, the same will remain intact. Syed Muhammad Akbar, learned counsel for the respondent No.11 also argued in the same lines however he submits that the applicant remained absent for a considerable time and he failed to appear in the suit.

4.     Since it is an admitted position that the defendant No.2 was not party to the compromise application hence in all fairness, it would be appropriate to set aside compromise decree against the defendant No.2.

5.     At this juncture I would like to observe that without determination of disputed questions regarding genuineness of compromise & rights of the parties in suit property, the decree on the basis of compromise between the parties in suit with exclusion of applicant would not be sustainable. Section 12(2) merely postulates an unspecified remedy where a decree suffered from want of jurisdiction or was tainted with fraud or had emerged upon misrepresentation & the court, therefore has all available options to fashion relief according to the requirements of a situation. In appropriate cases whereupon the recall of the decree a foreseeable result should follow which may be not different than what could be achieved without setting aside of the decree, a ratification or modification could be ordered. Such relief may even be accorded without any elaborate inquiry & concomitant loss of time. When consent decree was obtained by misrepresentation, the application is maintainable for setting aside the decree obtained by misrepresentation. There is no procedure provided to decide application u/s 12(2). Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in suit. Matter is left to the satisfaction of the court which has to regulate its proceedings & keeping in view the nature of the allegation in the application, the  court may in its discretion adopt any mode for its disposal. Concealment of facts before judicial forum would amount to fraud & misrepresentation, Fraud, misrepresentation & circumvention used to obtain judgment were generally regarded as sufficient cause for the opening or vacating thereof, particularly where the judgment was obtained against a person without his knowledge. Justice required that every case once tried & finally adjudicated upon by a competent forum must be deemed to be conclusive & binding on the litigants & the parties driving title from them. The maintenance of public order, the repose of society & the quiet of families required that what has been definitely determined by competent tribunal shall be accepted as irrefrangibly legal truth. If it were not for the conclusive effect of all such determination, there will be no end of litigation & no security for any person, the rights of parties would be involved in endless confusion & grave injustice often done under cover of law. Act of court shall prejudice no one. Courts were required to do justice between the parties in accordance with the provisions of law, as the litigant, who approached Court for the relief was bound to substantiate that procedure has been adopted by him in accordance with law because it was elementary principle of law that if a particular thing was required to be done in a particular manner it must be done in that manner, otherwise it should not be done at all. Reference can be made to my own judgment reported in PLD 2010 Karachi 400 and SBLR 2011 Sindh 175 (Muhammad Akram Shaikh v. M/s.Pak Libya Holding Company (Pvt.) Ltd. & others).

6.     For the foregoing reasons, the application is disposed of in the terms that compromise decree dated 28^th February, 2012 passed in Suit No.616/1998 is set aside against the defendant No.2, who was not party to compromise and suit will proceed against him in accordance with law. It is further clarified that portion of 70 Sq. Yds., which is in possession of the defendant No.2 will not form part of the decree. Since the plaintiffs have already compromised the suit with other defendants who are not at issue except defendant No.2, the plaintiff may file amended title in the suit and suit will only proceed against the defendant No.2/applicant. All pending applications are also disposed of. Office shall transmit copy of this order to the Nazir of this court for compliance.

                                                                        Judge