MUHAMMAD AKRAM MALIK vs Dr. GHULAM RABBANI and others

' JAVED IQBAL, J.---This petition for leave to appeal is directed` against the order dated 27-1-2005 whereby the revision petition preferred on behalf of respondent has been accepted and the judgment dated 3-10-2003 passed by the learned Senior Civil Judge, Islamabad whereby application under section 12(2), C.P.C. Filed by the respondent was summarily dismissed, has been set aside.

2. Briefly stated facts of the case are that petitioner filed a suit for recovery of rupees fifty million as compensation/damages in the Court of Senior Civil Judge, Islamabad against respondent which was decreed ex parte by means of judgment and decree dated 15-11-2000 which was assailed by means of application under section 12(2), C.P.C. Which has been accepted vide order impugned, hence this petition.

3. Mr. Muhammad Akram Malik (petitioner) appeared in person and urged emphatically that the legal and factual aspects of the controversy have not been appreciated in its true perspective, which resulted in serious miscarriage of justice. It is argued that well reasoned judgment passed by the learned Senior Civil Judge, Islamabad on 3-10-2003 whereby the application preferred on behalf of respondents under section 12(2), C.P.C. Has been dismissed could not have been reversed in exercise of revisional jurisdiction by the learned High Court which is limited in nature and besides that it was not necessary to frame issues for disposal of any application preferred under section 12(2), C.P.C. And it could have been disposed of summarily and as such no illegality has been committed by the learned Senior Civil Judge. In order to substantiate his contention the learned Advocate Supreme Court has referred the dictum laid down in case Warriach Zarai Corporation v.

F.M.C. United (Pvt.) Ltd. 2006 SCM R 531. It is next contended that the learned Single Judge of Lahore High Court, Lahore has erred while holding that Article 184 of Limitation Act, 1908 was not applicable to the application preferred under section 12(2), C.P.C. And the application being hopelessly barred by time pursuant to Part 1 of Article 164 of the Limitation Act, 1908 has been accepted and question of limitation could not be decided in accordance with law. It is also argued that there was no allegation qua fraud and on this score alone application under section 12(2), C.P.C. Could have been dismissed. It is contended with vehemence that the law does not provide duplication of proceedings and simultaneous action could not have been initiated under section 12(2), C.P.C. And Order IX, rule 13, C.P.C. Which aspect of the matter has been ignored by the learned single Judge in Chambers causing grave prejudice to the petitioner.

4. We have examined the above-mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned whereby the revision petition preferred on behalf of respondent has been accepted. There is no cavil with the proposition that an application preferred under section 12(2), C.P.C. Could have been summarily dismissed if it is without any substance but A generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismissed summarily and without recording the evidence. It is worth mentioning that primarily it is the satisfaction of the Court concerned either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the merits of each case. No yardstick can be fixed for rejection of such applications. A similar proposition was discussed in case Ghulam Muhammad v. Ahmed Khan 1993 SCM R 662 wherein it was observed as follows:-- "It is correct that the determination of allegations of fraud and misrepresentation, usually involved investigation into the questions of fact but it is not in every case that the Court would be under obligations 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. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand.

5. It is well-entrenched legal proposition the- the framing of issues depends on the circumstances of each case, nature of alleged fraud and the decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate object of section 12(2), C.P.C.

Which is to avoid, protracted and the time consuming litigation and to save the genuine decree- holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below which are already overburdened."

5. The petition in question has also been adjudged on the touchstone of the criterion as mentioned herein above. We are of the considered view that misrepresentation and fraud have been alleged in the application preferred under section 12(2), C.P.C. As is indicative from para. 6 of the application which has been reproduced in the order impugned. In fact the learned trial Court has not appreciated the contents of application in the light of provisions as contained in section 12(2), C.P.C. And dismissed the same in a casual and cursory manner. In view of the circumstances of the case and allegations levelled in the application under section 12(2), C.P.C. It should have not been dismissed summarily. The learned High Court has exercised its discretion judiciously and the order impugned being well based does not warrant interference as no prejudice whatsoever has been caused to the petitioner who would have ample opportunities to canvass his point of view and substantiate his claim and rebut the allegation of misrepresentation and fraud before the Courts concerned.

6. We have also adverted to the question of limitation which has rightly been appreciated by the learned single Judge in Chambers as Article 164 of Limitation Act, 1908 could not be made applicable to the application preferred under section 12(2), C.P.C. And Article 181 of Limitation Act, 1908 would be applicable. A similar proposition was examined in the case Government of Sindh v.

Fazal Muhammad PLD 1991 SC 197 and it was observed as follows:-- "The intention of the legislature in amending section 12, C.P.C. By adding subsection (2) is to provide a substitute for such a suit against a judgment, decree or order obtained by fraud etc. Since no limitation period is specifically provided for such an application, in view of the above object, this will be governed by Article 181 of the Limitation Act, which is a residuary Article for applications for which no period of limitation is provided elsewhere in the Limitation Act or by section 48 of the C.P.C. The period for such an application, as provided in the Article is three years when the right, to apply accrues i,e, the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction. But, if a. Judgment, decree or order is sought to be reviewed under section 114, C.P.C. On the grounds mentioned in Rule 1 of Order XLVII of the C.P.C.

Though the application is made under section 12(2), C.P.C. The period of limitation as provided in Article 173 of the Limitation Act, will be 90 days from the date of the judgment, decree or order, except in cases specifically provided by Articles 161 and 162, which respectively deal with the review of the judgments and decrees of the Small Causes Court and the High Court."

7. The controversy qua the period of imitation regarding section 12(2) has been set at naught, which hardly needs any further elaboration. No other point was argued.

In sequel to above mentioned discussion the petition being meritless is dismissed and leave refused. es.