Muhammad Saleem Faiz, Riaz Ahmad and Mian Muhammad Haroon for Petitioner.

Muhammad Tahir Saeed Ramay, Shabbir Ahmad Bajwa, A.R. Aurangzeb and Malik Muhammad Altaf Nawaz for Respondents.

Date of hearing: 1^st June 2022.

JUDGMENT

SULTAN TANVIR AHMAD, J:—The present civil revision, filed under Section 115 of the Civil Procedure Code, 1908 (the ‘Code’), is directed against the order dated 16.04.2019 passed by learned Additional District Judge, Bahawalpur, whereby the application under section 12(2) of the Code for setting-aside order dated 16.02.2012 has been dismissed.

2.    Brief facts of the case are that respondent No.1 filed suit on 30.06.2011 (hereinafter called as the ‘suit’) seeking declaration to the effect that property measuring 20.22 kanals located in Al-Jannat Housing Scheme, as further described in the suit (hereinafter called as the ‘suit property’), is meant for roads of the society and the petitioner as well as the other defendants of the suit are attempting to sell the same, jeopardizing the right of way and other easement rights of respondent No. 1 and other residents. At the same time permanent injunction was also sought in the suit. The petitioner filed written statement through his general power of attorney, namely, Sheikh Muhammad Abbas Raza (respondent No.2). Vide order dated 15.11.2011 the learned trial Court rejected the plaint on the account that the facts alleged in the suit have not been controverted, therefore, no cause of action was left in view of the admission by the defendants of the suit. This order was assailed before the learned Appellate Court, which reached to the following conclusion in the order dated 16.02.2012:-

“The contention of the learned counsel for the parties is tenable because the cause of action which arises in favour of the plaintiff at the time of institution of the suit has to merge in the judgment and decree of the Court when the claim of the plaintiff is admitted. On such admission the plaintiff becomes entitled to the decretal of his suit, so in view of the statement made by the learned counsel for the appellant/plaintiff today, his suit to the extent of right of easement in the shape of street as mentioned in the plaint 17 Kanals 10 Marlas is hereby decreed and to the extent of rest of the area, the suit is dismissed as withdrawn.…”

3.    After more than six years of the above decision, the petitioner filed application under section 12(2) of the Code with the prayer to set-aside the same on the grounds of fraud and misrepresentation. This application dated 22.10.2018 was dismissed by the learned Additional District Judge, Bahawalpur vide a detailed order dated 16.04.2019. Aggrieved from the same the present civil revision has been filed.

4.    Mr. Muhammad Saleem Faiz, Mr. Riaz Ahmad & Mian Muhammad Haroon, learned advocates appearing for the petitioner have submitted that the impugned order and memo of cost dated 16.04.2019 passed by learned Additional District Judge, Bahawalpur is completely illegal, void, against the law and facts and the same is liable to be set-aside; that learned Court below has committed an error while ignoring the misrepresentation or fraud, which is clearly evident from the record; that petitioner is the owner of land measuring 131-Kanals 02-Marlas and since he is living in Lahore for long time, therefore, he could not gain knowledge of the fraud and breach of trust reposed on his close friends i.e. respondents No.2 to 4, who were supposed to sell the property in small parts and they promised to handover the consideration to the petitioner before transferring the land to the purchasers; that general power of attorney in favour of respondents No.2 to 4 has been misused, tampered and the housing society has been made on the said land without permission; that the aforesaid respondents while misusing the general power of attorney has managed to transfer some land in the names of their close relatives without consent of the petitioner, which is not tenable in law. Learned counsel for the petitioner has submitted that application under section 12(2) of the Code as well as the question of limitation involved therein are mixed questions of law and facts, hence it was inevitable to frame appropriate issues and record the evidence before reaching to any decision. In this regard, learned counsel for the petitioner has relied upon cases titled “Haleema Shuja v. Mst. Syeda Mehmooda Begum (Deceased) through L.R. and others” (PLD 2021 Lahore 533), “Muhammad Nawaz Khan v. Muhammad Khan and 2 others” (2002 SCMR 2003), “Abdul Razzaq v. Muhammad Islam and 3 others” (1999 SCMR 1714), “Bashir Ahmad through Legal Representative and others v. Muhammad Hussain and others” (PLD 2019 Supreme Court 504) and “Niamatullah Khan Advocate and others v. Federation of Pakistan and others” (2022 SCMR 171).

5.    Conversely, Mr. Muhammad Tahir Saeed Ramay and Mr. Shabbir Ahmad Bajwa, learned counsel for the respondents have submitted that application under section 12(2) of the Code is hopelessly time barred; that the same is accompanied by an application under section 5 of the Limitation Act, 1908 which does not disclose any date from which the time period is required to be condoned; that this civil revision was instituted on 11.09.2019 against the decision dated 16.04.2019 and the concerned copying agency prepared the copy within one week and even if this time period is excluded, the present civil revision is badly time barred; that the petitioner remained indolent on every step of the proceedings. It is added that the question involved in application under section 12(2) of the Code and period of limitation involved therein was purely a question of law, as no fact requiring to be proved by leading evidence is involved, necessitating framing of issues. Malik Muhammad Altaf Nawaz, Advocate has adopted the arguments of Mr. Muhammad Tahir Saeed Ramay.

6.    Mr. A.R. Aurangzeb and Mr. Shabir Ahmad Bajwa, learned counsel for the respondents, while relying upon cases titled “Bashir Ahmed through Legal Representative and others v. Muhammad Hussain and others” (PLD 2019 Supreme Court 504) and “Chairman, NAB v. Muhammad Usman and others” (PLD 2018 Supreme Court 28) have contended that crucial starting point for the period of limitation is when the right to apply under section12(2) of the Code accrues in favour of any litigant, which in the present case is 16.02.2012 when the decision on the suit was passed and the extension of commencing this application under section 12(2) of the Code, is the date of knowledge under section 18 of the Limitation Act, 1908 which is specifically required to be pleaded with clear particulars and if the same is based on the vague assertions the extension cannot be granted.

7.    I have heard the arguments in length and record has been perused with the able assistance of learned counsel for the parties.

8.    Firstly, I would like to take up the arguments of the learned advocates of the petitioner regarding purported sale of certain plots or portion out of total land (about 131-kanal) to the relatives of the general attorney, without prior consent of the petitioner. Section 12(1) of the Code provides that when a person is precluded by rules in respect of any particular cause of action then on such cause of action he is not entitled to institute a further or separate suit in any Court. Sub-section (2) of section 12 of the Code is providing the remedy of filing application against the judgment and decree or order, if obtained by fraud, misrepresentation or want of jurisdiction. Combined reading of the two sub-sections makes it profusely clear that application under section 12(2) of the Code can only be made if the misrepresentation is made or fraud is committed with respect to the subject matter of the suit on which the order, judgment or decree is passed, as the aggrieved litigant is precluded under sub-section 12(1) of the Code to pursue an independent remedy. By now it is also well settled that fraud and misrepresentation, which is ground for the application of 12(2) of the Code, should be practiced during the proceedings in the court and not outside the Court. The record shows that the suit, in question, is based on grievance as to right of way and/or easement rights, with the averments that the petitioner is attempting to sell roads in the shape of plots leading towards the land of respondent No.1 as well as the other residents of Al-Jannat Housing Scheme. The petitioner filed written statement conceding that the suit property (as detailed in the written statement) is meant for the roads and he also confirmed not to alienate the suit property to any person. Replying upon this conceding statement, submitted by the petitioner through duly constituted general power of attorney, authorized in all manners, the learned Appellate Court has announced the decision on 16.02.2012 which is followed by the decree. The averments in the application filed under section 12(2) of the Code as well as the part of arguments addressed today by the learned counsel for the petitioner, based on the sale of certain plots by the aforesaid attorney to his relatives, are in complete departure from the subject matter of the suit which formed foundation of the impugned order or the decree dated 16.02.2012 and same do not pertains to the proceedings in the Court. The petitioner was not precluded by law or rules to pursue his independent cause as to purported sale of plots or transfer of same land to the relatives of the general power of attorney. Here, the subject matter was attempt to allocate the roads of the society/scheme in the form of plots and the right of way of respondent No.1 or the residents of the society. The petitioner, as matter of fact, has already filed a separate suit on 23.06.2018 to pursue this independent cause, perhaps realizing the same. Hence, these arguments being in deviation of the subject matter of the suit are not tenable in law.

9.    Now coming to the arguments of the learned counsel for the petitioner that learned Appellate Court has committed an error while failing to frame issues and giving a chance to the parties to lead their respective evidence is fatal for the case. Framing of issues and recording the evidence is obligatory when the Court considers that any such issue is raised in the application which is required to be resolved by leading evidence, however, when the learned Court dealing with the application is satisfied that the application can be decided even without framing the issues and the same does not involve any complicated question of fact, the framing of issue or recording evidence is not inevitable. It is primarily the satisfaction of the Court of first instance, dealing with the application under section 12(2) of the Code, which is important and no yardstick for the same is fixed and same varies from case to case. In cases titled “Ghulam Muhammad v. M. Ahmad Khan and 6 others” (1993 SCMR 662), “Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another” (1999 SCMR 1696), “Nazir Ahmed v. Muhammad Sharif and others” (2001 SCMR 46) and “Warriach Zarai Corporation v. F.M.C. United (Pvt) Ltd.” (2006 SCMR 531), the Honourable Supreme Court of Pakistan has already settled that allegations of fraud and misrepresentation normally involve investigation into question of fact but not in every case it is obligatory for the Court to frame issues and record evidence. The following extract from “Ghulam Muhammad” case (supra) is highly relevant to the proposition at hand:-

“…It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require.…”

(Emphasis supplied)

10. In the present case the petitioner gave general power of attorney to respondent No.1, which remained in field for a long time period, on the basis of which the entire housing scheme was developed and the land was sold in piecemeal manners or in the shape of plots over the period of several years. The petitioner never applied for revocation of said general power of attorney for such a long period and when in the year 2017 revocation/Abtal Nama or cancellation of power of attorney was filed, no allegation of fraud or misrepresentation was specified in the same rather the general power of attorney was revoked on the basis of mistrust. I have no reason to disagree with the following observation of the learned Additional District Judge, Bahawalpur, in paragraph No.11 of the impugned order:-

“…Thereafter through the general power of attorney sale transactions were done without any objection/interruption by the present petitioner and in 2017 the present petitioner filed Abtal Nama for cancellation of said general power of attorney and in the contents of the said Abtal Nama no fraud or misrepresentation is specifically alleged against the executant, rather, only mistrust is shown upon them.…”

11. It is also observed that the petitioner has not filed any application for criminal proceedings for breach of trust as alleged in the application under section 12(2) of the Code. It was a matter between the principal and his agent. It appears that the petitioner is attempting to prolong the matter by cooking up a story, throwing a trap against the residents of the aforesaid scheme, by filing the application and the present revision petition against his own attorney.

12. The petitioner filed a conceding written statement in the suit on the basis of which order and decree dated 16.02.2012 was passed and the law itself permits to contest cases through authorized agent or to consider the authorized agent when seeking denial or admission of allegations. The challenge to authorization after such a long time period is to frustrate the very object or the purpose of lawful proceedings which cannot be allowed. I am fortified in my view by the law laid down by the Honourable Supreme Court of Pakistan in case titled “Mst. Shabana Irfan v. Muhammad Shafi Khan and others” (2009 SCMR 40).The relevant portion is as under:-

“…If any fraud was allegedly committed by Yezdiar Nomi Kaikobad with Muhammad Shafi Khan, it was a matter between the agent and the principal, for which the principal could institute a suit in a Civil Court, proceed against the delinquent through criminal proceedings and agitate his grievance therein. Respondent No.1, having other separate remedies against Yezdiar Nomi Kaikobad, his agent, he could not be allowed to effect the transaction of Mst. Shabana Irfan, who had paid a huge sum to his agent, according to the contents of agreement to sell, and the statement made by aforementioned Yezdiar Nomi Kaikobad, before the learned Civil Court, in the suit specific performance of contract, believing the power of attorney, a valid and legal document, the execution of which was not denied by the principal. Therefore, the separate cause of action, available to Muhammad Shafi Khan, the principal, separate remedies can be availed of by Muhammad Shafi Khan, which are available and open to him in law.

7. Needless to add that petition under section 12(2) of the C.P.C. can be decided summarily by the learned Court, which has passed the final judgment, decree or order in dispute, when there are admitted facts, documents between the parties. There is no need to prolong the litigation, which the case ex facie appears to have not been filed in a wrong jurisdiction, and when fraud or misrepresentation was not involved therein the case or in the transaction. The matter and dispute in between the principal and the agent cannot affect the third party, as the aforementioned third party is not privy to the alleged fraud, misstatement, misrepresentation or wrong doing of the agent, if any committed by the agent with his principal.”

(Emphasis Supplied)

13. Now coming to the contention of the learned counsel for the petitioner that the limitation is always a mixed question of law and facts. The Honourable Division Bench of this Court in case titled “Shumail Waheed v. Rabia Khan” (2021 MLD 252), has observed that recording of evidence is not mandatory when the pleadings do not disclose such mixed question of law and facts and it has been held that when the question of limitation is one which can be resolved purely on the basis of law, without adverting to the facts, the same can be resolved even without framing the issues.

14. In paragraph No.6 of the application under section 12(2) of the Code, the petitioner attempted to fill the lacuna of delay by stating as under:-

“یہ کہ ڈگری فیصلہ زیر درخواست کا علم  سائل کو اس وقت ہوا جب جب دو یوم قبل TMA کو عدالت عالیہ لاہور ہائیکورٹ کی  Direction کے عمل درآمد کے لیے درخواست گزارنے کے لیے گیا چونکہ فیصلہ و ڈگری  زیر درخواست لا علمی اور دھوکہ دے کر حاصل کیا گیا ہے اس لیے درخواست  ہذا علم ہونے سے اندر میعاد ہے تاہم درخواست زیر دفعہ  5 ایکٹ میعاد لف ہے۔”

This application under section 12(2) of the Code is accompanied by application under section 5 of the Limitation Act, 1908, which simply states that the Court has been contacted as and when the petitioner learnt about the decree impugned therein. I am afraid that none of those contentions are plausible. In the application under section 5 of the Limitation Act, 1908 no specific date of knowledge is given. A vague reference is given, in Paragraph No.6 (reproduced above) of application under section 12(2) of the Code, to the following direction of this Court given in Writ Petition No.8715 of 2018:-

“At the outset, learned counsel for the Petitioner submits that the Petitioner would not press this petition if a direction be issued to the Respondent No.4 to decide his pending application dated 29.08.2018 (Annex-C of the petition) in accordance with law

2. Learned law officer has no objection if such direction be issued to the Respondent No.4.

3. In view of the above, this petition is disposed of with direction to the Respondent No.4 to decide the aforementioned application of the Petitioner (if pending) after providing proper hearing to all the concerned Including the Petitioner, strictly in accordance with law expeditiously within a period of two (02) weeks from the receipt of certified copy of this order.”

15.  The above direction obtained, without any contest followed by the application under section 12(2) of the Code are chain of events that cannot be taken in isolation to each other, to cover up the limitation. These events are based on clueless assertions and not suffice to establish the claim or condone the limitation. Even otherwise, the slackness and delay in contacting the Court while filing application under section 12(2) of the Code and then filing this revision petition beyond permissible 90-days amounts to extraordinary negligence rather recklessness in assertion of the right. In cases titled “Muhammad Raz Khan v. Government of N.W.F.P. and another” (PLD 1997 Supreme Court 397), “Bashir Ahmed through Legal Representative and others v. Muhammad Hussain and others” (PLD 2019 Supreme Court 504) and “Muhammad Sharif and others v. MCB Bank Limited and others” (2021 SCMR 1158) the Honourable Supreme Court of Pakistan has observed that facility regarding extension of time for challenging an order cannot be legitimately stretched to any length of unreasonable period at the whim’s, choices or sweet will of the delinquent party and date of knowledge of the challenged order must be established on sound basis.

16.  I have viewed the matter from every angle and it has been found that the impugned order dated 16.04.2019 passed by learned Additional District Judge, Bahawalpur, is accord with the settled principles of Civil Administration of Justice. Learned counsel has badly failed to persuade this Court to exercise the jurisdiction under section 115 of the Code. The instant revision petition being bereft of merits is dismissed. No order as to costs.

Petition dismissed