2022 M L D 1910
[Balochistan]
Before Zaheer ud Din Kakar and Muhammad Aamir Nawaz Rana, JJ
NOOR KHAN ---Petitioner
Versus
SHER KHAN and 11 others ---Respondents
Constitution Petition No.1113 of 2022, decided on 2nd August, 2022.
Civil Procedure Code (V of 1908) ---
----S.12(2), O.VI, R. 4 & O. I, R. 8 ---Bar to further suit ---Particulars to be given where
necessary ---Plea of fraud and misrepresentation ---Burden of proof ---Scope ---Respondents
filed a suit for declaration and permanent injunction within the sco pe of O.I, R.8, C.P.C., on
behalf of three tribes ---Suit was decreed ---Petitioner filed application under S.12(2), C.P.C.,
alleging fraud as well as misrepresentation and lack of knowledge regarding the decree ---
Application was concurrently dismissed ---Validity ---Since provision of S. 12(2), C.P.C., was
invoked by the petitioner so the entire burden to prove fraud and misrepresentation was upon
his shoulder ---Necessary particulars constituting fraud and misrepresentation had not been
mentioned in detail wit hin the scope of O.VI, R.4, C.P.C. ---Proper publication was made in
the suit prior to proceeding with the case ---Petitioner had tried to justify delay of 17 years in
filing the application by pleading lack of knowledge but it was admitted that the petition er's
uncle was party to the judgment and decree ---Petitioner had neither filed any revenue record
nor had he relied upon any document which could justify his locus standi to file application
under S. 12(2), C.P.C. ---Constitutional petition was dismissed.
Happy Family Associate v. Pakistan Intentional Trading Company PLD 2006 SC 226
rel.
Muhammad Naeem Kakar for Petitioner.
Date of hearing: 27th July, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ----The petitioner, while invoking
constitution jurisdiction of this Court under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973 (hereinafter "the Constitution"), has called in question the order
dated 21.06.2021 and order dated 23.02.202 2 respectively passed by learned Civil Judge -II,
Zhob (hereinafter "the trial Court") and learned District Judge, Zhob (hereinafter "the
appellate Court"), whereby the application under section 12(2), C.P.C. filed by the petitioner
for setting aside the ju dgment and decree dated 29.02.2000 was dismissed and the appeal
against the same was also unsuccessful.
2. The relevant facts required to consider the claim of the petitioner are that
representative civil suit for declaration and permanent injunction withi n the scope of Order I,
Rule 8, C.P.C. was filed before learned Qazi Zhob/Sherani by certain persons belonging to
Umarzai, Badinzai and Abdullahzai Kakar tribes against individuals belonging to
Khalwatzai, Badinzai and Abdullahzai Kakar tribes who were imp leaded in representative
capacity. The suit was registered as case No.11/1999, filed on 01.06.1999 in the Court of
Qazi Zhob/Sherani. The perusal of record confirms that the suit was decided on merits vide
judgment and decree dated 29.02.2000 passed by lea rned Qazi Zhob/Sherani.
3. The counsel of petitioner has submitted that the petitioner had absolutely no
knowledge of the judgment and decree dated 29.02.2000 passed by learned Qazi
Zhob/Sherani and only by coincident, he came to know about the said judgme nt and decree
in the year 2017, when in some other case, the judgment and decree dated 29.02.2000 was
referred.
The petitioner has alleged "fraud" and "misrepresentation" against the respondents
while obtaining judgment and decree dated 29.02.2000, furth er learned counsel for the
petitioner contended that the Courts below have failed to exercise their jurisdiction in
accordance with law and since allegation of fraud and misrepresentation duly supported by
evidence had been proved, therefore there was no o ccasion for the trial Court to dismiss the
application under section 12(2), C.P.C., so filed by the petitioner and the appellate Court has
also committed the same error by dismissing the appeal of the petitioner.
Arguments heard. Relevant record perused.
4. The petitioner has challenged the judgment and decree dated 29.02.2000 after lapse of
almost 17 years without any plausible and cogent explanation of the delay and just alleged
fraud and misrepresentation on the part of the respondents. The main thrust of arguments of
learned counsel for the petitioner was that the provision of Order I, Rule 8, C.P.C. has been
misused and the suit filed in representative capacity before learned Qazi Zhob/Sherani was
not legally competent.
5. Since provision of section 12 (2), C.P.C. has been invoked by the petitioner so the
entire burden to prove fraud and misrepresentation within the ambit of section 12(2), C.P.C.
was upon the shoulder of the petitioner and simply by using the word fraud and
misrepresentation, without act ually pointing out the necessary particulars, the provision of
section 12(2), C.P.C. is not attracted, rather in order to prove the allegations within the scope
of Order VI, Rule 4, C.P.C., necessary particulars constituting fraud and misrepresentation
had to be mentioned in detail and required to be proved in accordance with law which part is
completely missing in the application so filed by the petitioner under section 12(2), C.P.C.
6. The suit, which was decreed on 29.02.2000; was filed in representative capacity in
view of Order I, Rule 8, C.P.C. For ready reference, same is reproduced herein below:
"8. One person may sue or defend on behalf of all in same interest. - (1) Where there
are numerous persons having the same interest in one suit, one or mor e of such
persons may, with the permission of the Court, sue or be sued, or may defend, in such
suit, on behalf of or for the benefit of all persons so interested. But the Court shall in
such case give, at the plaintiff's expense, notice of the institution of the suit to all such
persons either by personal service or, where from the number of persons or any other
cause such service is not reasonably practicable, by public advertisement, as the Court
in each case may direct".
7. The perusal of aforementione d provision clarifies that in such like suit of
representative capacity, the Court, at the plaintiff's expense, issue notice of the institution of
the suit to all such persons either by personal service or, where from the number of persons
or any other cau se such service is not reasonably practicable, by public advertisement, as the
Court in each case may direct. The perusal of judgment dated 29.02.2000 reflects that proper
publication was made in the newspaper prior to proceeding with the case. So much so, the
petitioner has not questioned the proceedings carried out by the learned Qazi Zhob/Sherani
while passing judgment and decree dated 29.02.2000 on merits, rather levelled bald
allegations of fraud and misrepresentation, since scope of this petition is l imited to section
12(2), C.P.C. so the merits of the judgment and decree dated 29.02.2000 cannot be evaluated
in these proceedings.
8. The petitioner has tried to justify delay of 17 years in filing application under section
12(2), C.P.C. by pleading lack of knowledge but it is admitted position that uncle of the
petitioner namely Kamal Khan was party to the judgment and decree dated 29.02.2000. Apart
from that, considering the evidence before the trial Court, the Courts below have rightly,
concurrently con cluded; that plea of lack of knowledge taken by the petitioner is without any
substance and deliberately lame excuses have been mentioned in order to avert the objection
of limitation. Furthermore, the petitioner has failed to meet the criteria which defin es
aggrieved person, as in the application under section 12(2), C.P.C., so filed by the petitioner;
to challenge the judgment and decree dated 29.02.2000, neither he had filed any revenue
record nor had relied upon any document which could justify his locu s standi to file
application under section 12(2), C.P.C. so on this score alone the petitioner was not
competent to initiate proceedings under section 12(2), C.P.C. In this context we are
enlightened by the order passed by Hon'ble Supreme Court in the case titled as Happy Family
Associate v. Pakistan International Trading Company1. The relevant portion is reproduced:
"------ .That decree attained finality and the arguments now being submitted against
this decree could have been examined if the petition for leave to appeal/appeal against
the decree was filed in this Court. Application under section 12(2) or under section
151, C.P.C. is no substitute to regular appeal or revision or review nor these
provisions can be construed as something over and above the n ormal modes of
questioning a decree by way of appeal, revision or review. It is unfortunate that some
litigants attempt to frustrate the decree/its execution by resorting to provision of
section 12(2) and section 151, C.P.C., unnecessarily".
9. Both the Co urts below have minutely evaluated each and every aspect of the matter
and have concurrently decided the case against the petitioner so this Court, in writ
jurisdiction, cannot evaluate factual controversies which exercise has already been done by
the Cour ts below, exhaustively.
In view of the above, this petition is found meritless and devoid of any legal
substance, as such same is dismissed in limine.
SA/124/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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