59 (DB) Peshawar
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Syed Sajjad Hassan Shah and Khalid Mehmood, JJ.
MUHAMMAD IBRAHIM and 9 others--Petitioners
Mst. RASOOLAN BEGUM and 7 others--Respondents
W.P. No. 52 of 2008, decided on 6.9.2011.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Power of attorney--Onus to prove power of attorney his on beneficiary--Validity--Main bone contention was proof of general power of attorney his on beneficiary who was the petitioners--For proof of general of power of attorney, petitioners were duty bound to produce attesting witnesses of the general power of attorney which was mandatory provision under Art. 79 of Qanun-e-Shahadat Order. [P. 63] A
2004 MLD 620, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Right to contest the suit--Application was moved after lapse of more than about twenty years of the decree--Address of predecessor was wrong and ambiguous and decree on same day had been obtained--Not sustainable in eyes of law--Validity--Limitation for setting aside a decree based on misrepresentation start from date of knowledge--Petition was dismissed. [P. 63] B
Mr. Muhammad Waheed Anjum, Advocate for Petitioners.
Mr. Abdul Qayyum Qureshi, Advocate for Respondents.
Date of hearing: 6.9.2011.
Khalid Mehmood, J.--Through the instant writ petition, petitioners have challenged the judgment/order dated 13.12.2007, passed by learned Additional District Judge-V, D.I.Khan whereby allowing the revision petition of the Respondents No. 1 to 6, accepted the petition under Section 12(2) CPC by setting aside the judgment/decree dated 06.06.1972 and restored the suit No. 253/1 of 1972.
2. Brief facts of the instant writ petition are that Hussain Bakhsh (predecessor of the petitioners) had filed a civil suit in the year 1972 for declaration cum perpetual injunction against Abdul Majid (predecessor of the respondents). The said Abdul Majid was appeared before the Court through his general attorney namely Muhamamd Rafique, who filed cognovits and accordingly the suit was decreed on 06.06.1972 in favourof the plaintiff Hussain Bakhsh. At that time the property was "Ghair Mumkin Darya" and predecessor of present petitioners namely Hussain Bakhsh through the Court decree become bonafide purchaser and incompliance of that decree, a Mutation No. 181 was attested in his favour. To save the villages at Western Bank of the River Indus from damage of flood, the Government of NWFP proposed a scheme for construction of a Spur which was constructed and as such the River flow was diverted and isolated from the said property, therefore, to some extent the property was changed into agricultural. On 10.05.1983, a notice was published in the Daily Mashriq whereby the claim of Abdul Majid was cancelled and property was put to public auction from 31.05.1983 to 02.06.1983. After getting knowledge of said auction, father of the present petitioners approached to Deputy Settlement Commissioner with request to withdraw the notice and to restore the claim as, the said Abdul Majid was no more owner but, Hussain Bakhsh was bonafidepurchaser of the land. The Deputy Settlement Commissioner refuse to take any step in favour of Hussain Bakhsh, who as a last resort filed a Writ Petition No. 22/D of 1983 on 26.05.1983 before the august Peshawar High Court, D.I.Khan Bench, for quashing the order dated 14.05.1983 of Respondent No. 2 (Govt. of NWFP) whereby the claim of Respondent No. 7 (Abdul Majid) has been cancelled and land Measuring 1000 kanals situated at village Mandhra Kalan, Tehsil and District D.I. Khan validly sold to the petitioner on 26.03.1974 for a consideration of Rs. 10,000/- has been illegally withdrawn because it was not an available property and cannot be disposed off through public auction by Respondent No. 6 (Settlement Department). In the said writ petition the predecessor of respondents namely Abdul Majid was arrayed as Respondent No. 6, who was personally served and appeared in person before the High Court and did not raise any objection either over the Court decree or on the Mutation No. 181 and also not expressed any grievance about the ownership of Hussain Bakhsh. The writ petition was accepted and the case was remanded back to the Respondent No. 1 therein (Settlement Department) with direction to consider the matter afresh and parties should be afforded opportunity to lead their evidence if so desired. Thereafter the parties appeared before the Settlement Commissioner who accepted the application of Hussain Bakhsh, withdrew the auction proceedings against claim of Abdul Majid and thereby property to Hussain Bakhsh was restored. On 02.07.1992, after the death of said Abdul Majid, his legal heirs (respondents) filed a petition under Section 12(2) of CPC for setting aside the judgment / decree dated 06.06.1972, wherein they alleged that neither they nor their predecessor had appointed anybody as their attorney and the judgment / decree dated 06.06.1972 is the result of fraud & misrepresentation, therefore, the Mutation No. 181 dated 26.03.1974 based on the aforesaid decree, is also ineffective upon their rights.
3. The petition under Section 12(2) of CPC was contested by the present petitioners (legal heirs of Hussain Bakhsh) by filing their replication. The learned trial Court after framing issues directed the parties to adduce their respective evidence and the learned trial Court after recording evidence of the parties, heard the counsel of the parties and dismissed the petition under Section 12(2) of CPC vide judgment/ order dated 17.07.2004. Aggrieved from the said judgment/order respondents filed a revision petition before appellate Court, who after hearing counsel of the parties, accepted the revision petition vide judgment/order dated 20.06.2005 and remanded the case back to the trial Court with direction to decide the same afresh after recording statement of Registry Muhasir/Record Keeper Data Ganj Bakhsh, Lahore, to produceWasiqa No. 678 Bahi No. 4 Jild No. 133 Page No. 36-37 dated 12.4.1971. The trial Court summoned the Registry Muharrir but it was transpired that no such Wasiqa is in existence and the trial Court vide judgment/order dated 23.2.2007, once again dismissed the petition under Section 12(2) CPC.
4. The respondents aggrieved from the above mention judgment/order filed a revision petition before appellate Court, who after hearing counsel of the parties accepted the revision petition vide judgment/order dated 13.12.2007 and set aside the judgment/decree dated 06.06.1972 and restored the suit with observation that the legal heirs of Abdul Majid have right to contest the suit, hence the instant writ petition.
5. Learned counsel for the petitioners contended that the decree was passed in favour of petitioners on 06.06.1972 whereas the application under Section 12(2) of CPC was moved on 25.06.1992 after about twenty years of the said decree. He argued that RL-II Shumara No. 39 on the basis of which Abdul Majid become owner and the same was also pertains name of Muhammad Rafique general attorney of AbdulMajid deceased/predecessor of the respondents. He submitted that the said attorney namely Muhammad Rafique appeared during proceedings of the suit which was decreed on 06.06.1972. He urged that the allotment order in favour of predecessor of respondents was cancelled against that order petitioners filed a Writ Petition No. 22/D of 1983 which was decided on 27.07.1987 and in that writ petition Abdul Majiddeceased was Respondent No. 7, personally appeared and his counsel also submitted vakalatnama on his behalf. He further contended that Abdul Majid died in 1990 but during his life time, the impugned decree was not challenged by him and after his death application under Section 12(2) of CPC was filed by the respondents on malafide ground. He further argued that under Article 144 of Qanun-e-Shahadat, the respondents are estopped to challenge the said order due to their own conduct.
6. On the other hand, learned counsel for the respondents supported the judgment/decree of the lower appellate Court and pointed out that the petitioners being the beneficiaries have been failed to prove the general power of attorney of Muhammad Rafique who was allegedly appointed by their predecessor. He argued that the address of the predecessor of respondents was wrong and ambiguous and the decree on the same day has been obtained, hence the same is not sustainable in the eye of law.
7. Arguments heard and record perused, in the light of arguments & available record our finding is below.
8. It is admitted fact that the suit was decreed on 06.06.1972 and on the same day cognovit submitted by general attorney of Abdul Majid deceased / predecessor of the respondents. The main bone of contention in the present case is the proof of general power of attorney given by Abdul Majid deceased. The onus to prove the general power of attorney lies on the beneficiary who certainly is the petitioners. For the proof of general of power of attorney, the petitioners were duty bound to produce the attesting witnesses of the said general power of attorney which is mandatory provision under Article 79 of Qanun-e-Shahadat. In this regard reliance can be placed in case titled Mst. Najma Begum versus Rehmat Ali and 19th others reported in 2004 MLD 620. The main objection of the petitioners were that the application under Section 12(2) of CPC was made after the lapse of more than twenty years and before assertion of Section 12(2) of CPC under the law reforms. In this regard a similar nature case was brought before the
Apex Court in which the consent decree was challenged in 1991 whereas the application under Section 12(2) of CPC was filed in 1986. The Apex Court in case titled Illahi Bakhsh versus Sheikh Muhammad Sadiq and 2 others reported in 2005 CLC 1704, held that limitation for setting aside a decree based on misrepresentation start from the date of knowledge. Though the petitioners have agitated that they are in possession of suit property and that after cancellation of the allotment a Writ Petition No. 22/D of 1983 was filed by them being the owners on the basis of said decree but this point was neither raised in their replication/written statement nor this writ petition was produced before the trial Court rather the same has not been produced before this Court. As these point want the decision on factual and legal aspects of the present case in this regard the petitioners are allowed to raise all these factual and legal points before trial Court.
9. In the light of our discussion, the impugned judgment/order passed by the learned lower Appellate Court is well reasoned, according to law and facts of the case and need no interference which is upheld and the instant writ petition, having no footing to stand with, is dismissed.
(R.A.) Petition dismissed