PROVINCE OF PUNJAB through Secretary (Colonies), Board of Revenue, Punjab Versus MUHAMMAD YAQOOB
1. CH. MUHAMMAD IQBAL, J.---- Brief facts of the case are that the respondent Muhammad Yaqoob filed Writ Petition No.1049/1991 contending therein that land measuring 87 Kanal 03 Marla bearing Square No.35 Kila Nos.1, 2, 3, 8, 9, 10 and Square No.85 Kila Nos.21, 22, 23, 24/1 situated in Chak No.220-R.B Tehsil and District Faisalabad was allotted to him against RL.II. No.123 in the year 1953. The Government of Pakistan, Ministry of Rehabilitation through a notification dated 03.1.1958 exchanged the evacuee land measuring 5235 Acres with state land measuring 7150 Acres in various parts of Lyallpur District for extension of Layallpur Town (Faisalabad). A number of allottees who have been issued PTDs challenged the said exchange and they were given proprietary rights of the said land by the Colonies Department. Muhammad Yaqoob / writ petitioner/respondent filed W.P.No.1049/1991 with the prayer that he is entitled to get the proprietary rights of the aforementioned land under notification dated 12.06.1988 and he also filed another Writ Petition No.3221/1995 with the prayer that against his remaining 916 PIUs the land in his possession be confirmed in his favour. Both these writ petitions were allowed by this Court vide order dated 03.05.1995 and direction was passed to issue him the proprietary rights. Against the said judgment, Civil Appeals Nos.2233 and 2234 of 1998 were filed by the Province of the Punjab. The Civil Appeal No.2234 of 1998 filed against the order dated 03.05.1995 passed in Writ Petition No.1049/1991 was partly allowed vide order dated 10.09.2001 and direction was passed for the adjustment of alternate land in the name of Muhammad Yaqoob/ respondent (writ petitioner) in accordance with law within two months, whereas the Civil Appeal No.2233/1998 against the same order dated 03.05.1995 passed in Writ Petition No.3221/1995 filed by the Province of Punjab was allowed by the Hon'ble Supreme Court of Pakistan through its judgment reported as Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob (PLD 2002 SC 5).
2. The Province of the Punjab filed petition under Section 12(2), C.P.C. before the Hon'ble Supreme Court of Pakistan on the ground that the initial allotment in favour of the writ petitioner is illegal/void as the same was obtained through fraud, misrepresentation and interpolation in the Settlement Record, challenging the order dated 10.09.2001 passed in Civil Appeal No.2234 of 1998 wherein the Hon'ble Supreme Court of Pakistan, on 12.01.2015, passed following order:
2. "We note that the issue in Criminal Original Petition No.53 of 2002 is regarding non-compliance of the judgment handed down by this Court on 10.09.2001 in Civil Appeals Nos.2233 and 2234 of 1998 but through Civil Miscellaneous Application No.4204 of 2004 the Government of the Punjab has filed an application under section 12(2), CPC seeking recalling of the said judgment dated 10.09.2001. We have been informed that on 19.04.2004 the Deputy District Officer (Revenue), Faisalabad had concluded after an inquiry that the allotment made in favour of the present petition namely Muhammad Yaqoob was bogus and, thus, compliance of the above mentioned judgment passed by this Court on 10.09.2001 may perpetuate a fraud. The learned counsel for the petitioner has vehemently maintained that an application under Section 12(2), C.P.C. is not competent or maintainable before this Court. In view of the above mentioned peculiarity of this case we convert the said application filed by the Government of the Punjab under section 12(2), C.P.C. into a review petition against the judgment dated 10.09.2001 rendered by this Court in Civil Appeals Nos.2233 and 2234 of 1998. Let a notice be issued to all the parties in connection with the said review petition. Adjourned for a period of two months."
3. On 19.01.2017, regarding the matter in issue, the Hon'ble Supreme Court of Pakistan passed following order:
4. "The request of Malik Muhammad Qayyum, learned Sr. ASC for time to file additional documents is allowed. The parties must also come prepared to argue whether the original application of the respondent moved under Section 12(2) of the CPC but subsequently converted in a review petition vide order dated 12.1.2015 can be revived as an application under the provisions of Section 12(2) ibid in light of the law laid down in the judgments reported as Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 SC 358) and Nasrullah Khan and others v. Mukhtar-ul-Hassan and others (PLD 2013 SC 478). Re-list."
5. On 12.04.2018, the Hon'ble apex Court held as under:
6. "C.R.P.No.308/2004: Having heard the learned counsel for the parties, we suo motu withdraw our earlier order dated 12.1.2015. This petition shall be treated as under Section 12(2) of the Code of Civil Procedure, 1908 as per the law laid down by the judgment reported as Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 SC 358). Re-list." and on 24.10.2018, the Hon'ble spex Court remitted the matter to this Court for adjudication, as under:
7. "Both the learned counsel for parties are that as per the law laid down in the case of Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 SC 358) the application under section 12(2) of the Code of Civil Procedure, 1908 should have been filed before the learned High Court. In these circumstances, the said application along with the reply filed by the respondent is transmitted to the learned Lahore High Court to decide the application in accordance with law. In case any factual controversies are involved in the matter, the Court should resolve the same framing issues and recording evidence, if need be. Disposed of in the aforesaid terms."
3. Though the respondent/writ petitioner was represented before the Hon'ble Supreme Court of Pakistan and order of remitting the above application under section 12(2), C.P.C. was passed in his presence even then this Court issued notice on 21.01.2019, 17.04.2019, 12.06.2019 and 20.01.2020 to procure his attendance. In response to notice of this Court dated 13.02.2020, the respondent (Muhammad Yaqoob) appeared in person before this Court on 27.02.2020 and obtained an adjournment in order to engage counsel and on request of respondent, the case was adjourned for 04.03.2020. On 04.03.2020, respondent did not appear and the case was adjourned for 11.03.2020. Today, the respondent has not appeared before this Court despite being well within the knowledge of date of hearing, as such, ex parte proceedings are hereby initiated against the respondent.
4. I have heard the ex parte arguments of learned counsel for the applicant and have gone through the record with his able assistance.
5. The Government of Pakistan, Ministry of Rehabilitation vide notification dated 03.01.1958 exchanged Crown Land / State Land with evacuee land required for extension of Lyallpur Town (Faisalabad). The said notification is reproduced as under:-
8. No.F 21(6)/57-P.II
GOVERNMENT OF PAKISTAN
MINISTRY OF REHABILITATION
9. Karachi, the 3rd January, 1958
10. From
11. S. Sharaful Haque, Esqr.,
12. Officer on Special Duty
13. To
14. The Custodian of
15. Evacuee Property,
16. Lahore
17. Subject: EXCHANGE OF CROWN LAND WITH EVACUEE LAND REQUIRED FOR THE EXTENSION OF LYALLPUR TOWN.
18. Sir,
19. I am directed to refer to your letter No.CEF/IX-F-1/3688, dated the 10th December, 1957 on the above subject and to say that the Central Government is pleased to convey its approval under Section 25(2)(a) of the Land Administration of Evacuee Property Act, 1957 to the Custodian of Evacuee Property, Lahore to the exchange of 5235 acres of evacuee land round about Layallpur with state land measuring 7150 acres in various parts of the Layallpur District, required for the allotment of displaced allottees of the evacuee land.
20. This Ministry's letter No.F 21(6)/57-P.II dated the 7th May, 1957, may be treated as cancelled.
21. Yours obedient servant,
22. Sd/ S. Sharaful Haque
OFFICER ON SPECIAL DUTY"
23. The aforementioned notification of exchange of land was challenged by the evacuee allottees and finally it was validated by the Hon'ble Supreme Court of Pakistan in Ali Muhammad through Legal Hiers and others v. Chief Settlement Commissioner and others (2001 SCMR 1822). Before the promulgation of the above said notification, some evacuee allottees have already paid all the dues/consideration and Settlement Department had issued permanent transfer deed (PTD) in their favour. They claimed absolute ownership on the basis of such PTDs. The Government of Punjab, Colonies Department, as special hardship case granted proprietary rights to the said persons vide notification dated 12.06.1988. The said notification is reproduced as under:-
GOVERNMENT OF THE PUNJAB
COLONIES DEPARTMENT
NOTIFICATION
24. Lahore, dated the 12th June 1988
25. No.186-88/1316-CIV WHEREAS certain areas of State land situated in the district of Faisalabad were exchanged with former evacuee land around city of Faisalabad in the interest of urban development and the said exchange was approved by the Government of Pakistan under section 25(2) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), vide Ministry of Rehabilitation letter No.F.21(6)/57-P.II, dated 3rd January 1958;
26. AND WHEREAS it subsequently transpired that for some of the area so exchanged, claim holders had been given permanent transfer deeds/allotment orders, as the case may be, against consideration received by the Settlement Department, Government of Pakistan or in satisfaction of verified claims (urban or rural), under the repealed Settlement Laws, prior to 3rd January 1958. It was therefore considered that it would cause hardship to dispossess such persons from the aforesaid land which had since become State land;
27. NOW, THEREFORE, in exercise of the powers conferred by section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912), the Government of the Punjab in the Colonies Department is pleased to issue the following terms and conditions for the disposal of the above mentioned category of State land:-
(1) Persons holding genuine and valid Permanent Transfer Deeds (in the case of urban area) or in whose case valid allotment orders exist in Register R.L.II (in case of rural area) in respect of the evacuee land (now State land), as mentioned above, and which were finalized prior to 3rd January 1958 may be allowed to acquire proprietary rights for such land, provided:
(a) He/they satisfy the District Collector, Faisalabad about the validity/authenticity of his/their PTDs/allotment orders and that those are still intact:
(b) No litigation is pending in any court about the land in question;
(c) Final payment of price to the Settlement Department/adjustment of claim is proved from the record;
(d) No other Government dues including Settlement fee etc. are payable by the grantee;
(e) He/they is/are in possession of the land in question.
(2) In case the District Collector is satisfied about the above conditions he will record and issue an order of transfer of such property in the form at Annexure 'A'.
ASAD ALI SHAH
28. SECRETARY TO GOVERNMENT OF THE PUNJAB,
29. COLONIES DEPARTMENT."
30. (emphasis supplied)
6. As per the available record and pleadings of writ petition, the respondent claims that land measuring 87 Kanal 03 Marla bearing Square No.35 Kila Nos.1, 2, 3, 8, 9, 10 and Square No.85 Kila Nos.21, 22, 23, 24/1 situated in Chak No.220-R.B Tehsil and District Faisalabad was allotted to him against RL.II. No.123 and his prayer in Writ Petition is that in terms of above Notification dated 12.06.1988 proprietary rights may also be granted to the respondent. As per the terms and conditions of the notification dated 12.06.1988 reproduced above, the respondent was required to satisfy the District Collector, Faisalabad about the validity/authenticity of his alleged allotment orders and also prove from the record the final payment of consideration to the Settlement Department through deposit receipt, but no such required documents are available on the record of the writ petition which may elucidate the fulfillment of the above stipulation. Even in paragraph No.1 of the Writ Petition, the respondent/writ petitioner stated that "this land is till today in occupation of the petitioner through tenants." which means that the respondent neither remained in possession of the disputed land nor has appended any document with the writ petition to show his possession over the disputed land as per covenant 1(e) of the above notification dated 12.06.1988.
7. The next aspect of the matter is that the said alleged allotment in favour of the writ petitioner/respondent was purportedly confirmed on 28.02.1953 on the basis of order dated 29.02.1952. The order dated 29.02.1952 is reproduced as under: but as per National Identity Card No.244-42-361288 (date of birth 09.01.1942) as well as computerized National Identity Card No.33100-5619685-1 (date of birth 03.12.1940) of the writ petitioner, he was aged about only 5-1/2 years (if calculated from his old National Identity Card) at the time of his migration to Pakistan, that when the order of allotment dated 29.03.1952 was passed, he was only aged about 10 years, as such, being below age he could not be a government employee which oust the very foundation of his allotment. Furthermore, as per record, father of the respondent remained alive till 1990 but neither his father nor any of his family member lodged any evacuee claim for allotment of land which factum alone leads to conveniently observe that the claimant was not an evacuee which factum alone dismantle the veracity/sanctity and legality of Khata RL.II. No.123 on the basis of which respondent got allotment.
31. Perusal of alleged RL.II.123 shows that following note has been mentioned therein:
32. When the above entry of allotment was incorporated in khata RL.II. in 1953, no reason has been expounded for making of subsequent entry in the Khata RL-II regarding the exchange notification dated 03.01.1958. Even no effort was made by the allottee to get it incorporated in the revenue as well as the Periodical Record (Jamabandi) record and no independent order of allotment was passed by the Settlement Commissioner/competent authority in respect of the allotment of Khata RL.II. No.123 in favour of the respondent, which proves that the alleged RL.II. No.123 is an antedated and bogus document.
8. Moreover with regard to the implementation of allotment order the Chief Settlement Commissioner issued Policy Notification No.1624/78/855/RL dated 19th June, 1978 that any allotment order of evacuee land which has not yet been given effect in the revenue record before coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or within one year after passing of said allotment order, whichever is later, such order may be deemed to have been obtained fraudulently by ante-dating the entries in the register R.L.II and same should be considered as cancelled forthwith, after hearing objections, if any, of the so-called allottee. For ready reference, aforesaid notification is reproduced as under:-
33. No.1624/78/855/RL
34. Office of the Member Board of Revenue
35. (Settlement & Rehabilitation Wing)
36. Punjab.
37. Dated Lahore the 19.6.1978.
38. From
39. Mian Waheed-ud-Din Rathore,
40. Secretary (Rural)
41. (Settlement and Rehab. Wing)
42. Board of Revenue Punjab.
43. To
1. All the wholetime Settlement Commissioners (L) and Addl: Settlement Commissioners (L) Punjab.
2. All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab.
44. Subject: Allotment of resumed land to informers etc. Mr. A.K. Khalid, C.S.C./Member Board of Revenue (S&R) Punjab.
45. MEMORANDUM:
46. The Chief Settlement Commissioner/Member, Board of Revenue(S&R) Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by ante-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called allottee.
2. The Chief Settlement Commissioner/Member Board of Revenue(S&R) Punjab, has further been pleased to order that all cases where land has been resumed on 'Mukhbari' applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under Section 14 (1A) of the Displaced Persons (Land Settlement Act, 1958, read with section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
3. You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay.
47. Sd/-SECRETARY RURAL)
48. (SETT: AND REHAB. WING)
49. BOARD OF REVENUE PUNJAB.
50. No.1624/78/855/RL dated 19th June, 1978.
51. A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land) Punjab for information and necessary action.
52. Sd/-SECRETARY RURAL)
53. (SETT: AND REHAB. WING)
54. BOARD OF REVENUE PUNJAB.
55. From the perusal of the aforesaid notifications, it was mandatory for an allottee to get incorporate the allotment in the revenue record within the prescribed period and non-compliance of the above provisions and policy decision badly frustrate the validity and veracity of the alleged allotment.
9. The alleged allotment order was passed in favour of the respondent in 1953 and factum of its non-incorporation came into his knowledge in 1958 but till filing of the writ petition he made no endeavor to get the allotment incorporated in the Revenue Record, whereas as per the report A.C/DDOR a page of fake RL-II-123 was subsequently unauthorizedly inserted in official record of Settlement Department, as the Official Index Register which is prepared in alphabetical order containing the names of the allottees, shows that the name of respondent (Muhammad Yaqoob) is not available therein, whereas the original khata RL.II.123 of Chak No.220-R.B Tehsil and District Faisalabad was confirmed in favour of one Mehar Din son of Noor regarding land situated in square No.26 whereas in the alleged RL.II. No.123, the respondent claim the allotment of land situated in Square Nos.35 and 85 which shows that the alleged allotment in favour of the respondent is a bogus one. The report of Deputy District Officer Revenue, Faisalabad in this regard is very important, which is reproduced as under:
56. From
57. The Deputy District Officer,
58. Revenue, City, Faisalabad.
59. To
60. The District Officer,
61. Revenue, Faisalabad.
62. No. 175 Dated. 19-4-04
63. Subject:- APPLICATION-ENQUIRY AGAINST CLAIM OF MR. MOHAMMAD YAQOOB.
64. Sir,
65. It is submitted that in the case of M. Yaqoob Shakir, an enquiry was pending before the undersigned in which certain astonishing facts have been revealed which necessitate that the attention of the Hon'able Court be drawn to the matter.
66. The applicant's Inam-ur-Rahim and Mohammad Iqbal made the following allegations regarding the genuineness of the claim of M. Yaqoob:-
67. 1) i) That as is evident from the NIC of M. Yaqoob that at the time of partition, he was only five years old. Whereas there could be no claim of a minor in the whole settlement process. ii) Moreover, his father was alive at that time and has died in early 1990s. iii) None of Yaqoob's brothers or sisters filed any evacuee claim.
68. 2) That the claimant migrated from Amritsar whereas the entry in RL-II showed that the claimant belonged to Jalandhar.
69. 3) That the entry on the Register RL-II shows that the claimant is a Government servant, which he has never been.
70. 4) That the order of the Additional Commissioner referred to in the RL-II is non-existent.
71. On receiving such a serious complaint, the undersigned summoned the claimant on 25-3-2004 to appear on 26-3-2004 and again on 26-3-2004 for 27-3-2004 (Annex: "A"). Despite service, the claimant M. Yaqoob did not appear. Shaikh M. Yousaf, the attorney of the claimant appeared before the undersigned on 30-3-2004 and expressed his concern over the application. The undersigned imposed upon / bound the attorney to either ensure the appearance of the claimant or contest the allegations. The attorney assured the undersigned that he will produce the claimant before the undersigned on 2-4-2004 but did not do so. Again the claimant was summoned for 5-4-2004 but he did not appear. In these circumstances I desired to proceed ex parte against M. Yaqoob Shakir, claimant and afforded the applicants an opportunity of proving their case. In the context they produced the following evidence:- i) They produced the NIC of the claimant, which clearly revealed that he was a child of only five years age when the partition of India took place in 1947 (Annex "B"). ii) They produced a witness Shabir Ahmad son of Bashir Ahmad who testified that he belonged to Amritsar and M. Yaqoob was his neighbor. iii) No clue of his Government service has been traced. It appears highly improbable that he joined Government service at the age of 10/12 years. iv) The whole record of the case was examined but no clue could be traced regarding the order of the Additional Commissioner. The onus of proof rests upon the claimant to produce his evidence in this regard.
72. This state of affairs created serious doubts regarding the genuineness of the case / claim of M. Yaqoob. The undersigned in order to probe further in the matters, arranged to examine the register RL-II that is kept under double lock. Careful examination of the register RL-II and the Khata pertaining to the claimant of this case clearly showed that it was a case of forgery and fraud and the claimant is liable to be proceeded against and criminal action should be taken against him. Following, among others, were the points noticed during the examination of Register RL-II:- i) The page pertaining to Khata No. 123 (relating to M. Yaqoob) appears to have been inserted and pasted in RL-II apparently by removing the original leaf. Visual examination of RL-II will enlighten the Honourable judges to reach correct conclusion. ii) Index of the register is maintained in alphabetical order of names. Thorough examination of the index revealed that the name of M. Yaqoob is nonexistent in the said index (Annex:"C"). iii) In the index Khata numbers are listed corresponding to Sq No. Khata No.123 relates to Sq No.26, whereas the claimant had prepared his document as Khata Nos.123 with Sq Nos.35 and 85. It appeared that the original page pertaining to Sq No.26, Khata No.123 which had been replaced with a new one favoring M. Yaqoob (Annex:"D"). iv) The officer signing the proposal of allotment used to be the rank of a Naib Tehsildar. The officer signing the proposal of Khata No.123 on 29-5-1952 has signed most of the other Khatas as confirmation authority (ARC) e.g Khata 20/112, 279 etc. it shows that while tampering with the record and while fabricating the document, the party neglected the rank of the officer and just copied signatures from other Khatas of the RL-II register. Thus the signatures of ARC have been copied as proposer (Naib Tehsildar) (Annex: "E,F,G"). v) The signature of confirmation authority on Khata No.123 are clearly different from other signatures of the same officer on different Khatas and on the same day i.e 28-2-53 e.g Khata No.353,372,376 etc. ("H,I,J"). vi) ARC while confirming land on different stages wrote the confirmation order in his own hand writings, but not in this case. vii) There is an entry of 1958 by the Patwari that the claim cannot be incorporated in the revenue record owing to the exchange of 3-1-58. There was no such practice to enter such a note on RL-II. There is no mention of the exchange and there is no such statement on any Khata of any other RL-II register. This was probably done in apprehension of the objection regarding delay of 38 years when the party entered into litigation in 1991. viii) In the volume of RL-II containing Khata No.123, no entry of 1953 exists, which shows that the Khata is not of the same period and is a forged one. ix) Patwari's entries on Khata No.123 do not indicate any date. x) The whole revenue record of the area has no mention of the claimant as occupant of the land. This issue also needs consideration by the Hon'ble Court
73. In the light of the aforementioned facts, the undersigned is of the view that this case is the act of forgery and should be proceeded on criminal as well as civil side.
74. These facts have never been high lighted, as the case has never been scrutinized. During the litigation, revenue officers have raised objection regarding genuineness of the claim but without giving any grounds and have only demanded that the case be sent for scrutiny under 12-6-88 Notification, which excluded certain lands from exchange of 3-1-1958. These facts need to be brought to the kind notice of the Hon'ble Supreme Court of Pakistan in order to avoid failure of justice.
75. Deputy District Officer,
76. Revenue, City, Faisalabad.
77. (emphasis supplied)
78. In this case while filing application under Section 12(2), C.P.C. the petitioner based on a detailed inquiry conducted by the Deputy District Officer, Revenue concerned, who submitted report, which has been reproduced in para 9. The petitioner gave full particulars of fraud and misrepresentation as prescribed in the judgment reported as Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi (PLD 2002 SC 500).
10. As per record/National Identity Card, the respondent/writ petitioner (Muhammad Yaqoob) was minor about 5 1/2 years of age at the time of creation of Pakistan and was only 10 years of age when the alleged allotment order was passed showing him as an A-Class allottee being Government Employee. This is an astonishing fact that how can be a minor boy of 10 years became an government servant, as such, the alleged allotment was procured through practicing fraud and misrepresentation of the real facts. The respondent on the basis of fake and forged document of Khata RL.II.123 obtained the order from this Court by committing fraud and misrepresentation of the true facts. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any laws. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). Moreover in the judgment reported as Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), the Hon'ble apex Court has held that fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his own fraud.
79. As discussed above the order dated 03.05.1991 passed in W.P.No.1049/1991 was obtained by practicing fraud and misrepresentation of the true facts, as such, the same is hereby reversed and application under Section 12(2), C.P.C. is hereby allowed.
11. Now adverting to Main Writ Petition, as all the material documents and relevant record was produced by the petitioner before the Hon'ble Supreme Court of Pakistan in C.M.No.151 of 2003 and in Crl.Org.No.53-W of 2002 and same is available with this Court, perusal whereof shows the existence of brazen fraud. It is settled law that the Court is well within competence to decide the matter on the basis of material placed before it. Reliance is placed on Muhammad Akram Malik v. Dr.Ghulam Rabbani (PLD 2006 SC 773). So far as the impugned order of allotment dated 29.02.1952 as well as confirmation of the said allotment order dated 28.05.1953 are concerned, suffice it to say that it is elaborately discussed in the preceding paragraphs of instant judgment that a manifest fraud has been committed in obtaining the basic allotment order and when the foundational order of allotment was obtained through manipulation, malpractice, fraud and misrepresentation, which is patently illegal and void, then the subsequent series of orders propounded whereof have no legal sanctity which are considered non-existent and stood automatically crumble down, as such, further proceedings in Writ Petition is useless and amount to the abuse of process of law and this Court is well within jurisdiction to set aside the basic order as well. Reliance in this regard is placed on Subhan ud Din and others v. Pir Ghulam (PLD 2015 SC 69), Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) and Muhammad Aslam and others v. Mst.Kundan Mai and others (2004 SCMR 843). Further under Article 199 of the Constitution of Islamic Republic of Pakistan, this Court may decline to intervene or exercise its discretionary and equitable jurisdiction where grant of relief would amount to retention of ill-gotten gains and is competent to pass such order as may be necessary for the ends of justice. Reliance is placed on Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others (2003 SCMR 1221).
12. Moreover if in the proceedings of application under Section 12(2), C.P.C. it evinces that the main plaint is barred by law and does not disclose any cause of action the court is competent to reject the plaint and dismiss the suit. Reliance is place on Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708) wherein it has been held that if a plaint does not disclose cause of action or is barred under the law, then while deciding the petition under Section 12(2), C.P.C., the plaint can also be rejected or even suit can be dismissed for want of jurisdiction. In another case titled as S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338), the Hon'ble Supreme Court of Pakistan has observed that incompetent suit shall be buried at its inception for the saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes and held as under:-
80. "17. Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of the learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected."
81. (emphasis supplied)
82. In another case titled as Abdul Rasheed v. Ali Bux through L.Rs and others (2016 CLC 1824) wherein it is held as under:-
83. "9. It is well settled that Courts should look attentively to plaints at initial stage to find whether they attract application of Rule 11 of Order VII of C.P.C., if facts of the case justify application of Rule 11 of Order VII of C.P.C., it must be applied for rejection of the plaints, irrespective of fact whether it is stage of disposal of application for temporary injunction and it is somewhat earlier stage. It is also well settled that plaint can be rejected if it does not disclose cause of action or the same is barred by any law as enumerated in clauses (a) to (d) of Rule 11 of Order VII, C.P.C. If from the face of record any infirmity enumerated in clauses (a) to (d) of Rule 11 of Order VII, C.P.C., then the Court shall order for rejection of the plaint as the fruitless litigation requires to be buried at its inception, to avoid wastage of time of Courts and unnecessary expenses and wastage of time of the litigants as well."
84. (emphasis supplied)
13. Furthermore, the respondent asserted in the writ petition that the allotment was made in his favour in the year 1953 whereas he filed Writ Petition for implementation of said order in the year 1991 i.e. after lapse of about 38 years rather he remained mum for a period of four decades and did not agitate the matter before competent forum, as such, principle of laches is also fully applicable upon this case. Reliance is placed on the cases titled of State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280), Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR 587), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2014 SCMR 1594) and Iqbal Ahmad and others v. Government of Sindh through Secretary and others (PLD 2007 Karachi 353).
14. For what has been discussed above, Writ Petition No.1049/1991 filed by the respondent is hereby dismissed.
85. MH/P-6/L Petition dismisse