KARACHI DEVELOPMENT AUTHORITY Versus WALI AHMAD KHAN

1. This Civil Revision is directed against the order dated 24‑1‑1988 passed by the IVth Senior Civil Judge (East), Karachi whereby rejecting the application under section 12 (2) read with section 151, C.P.C. filed by the petitioner.

2. The facts leading to the filing of the above revision are that the respondent filed a suit for declaration and injunction seeking declaration that he is entitled to promotions to the posts of Head Clerk, Assistant Circle Office Superintendent and Superintendent Chief Engineer and further sought mandatory injunction to promote him to the post of Superintendent, Chief Engineer office. The petitioner resisted the suit. The case as set out in the written statement that the plaintiff was not deprived of his due promotion. His promotion to the post of the Office Superintendent has, however, been challenged by Ahmed Hussain. During the pendency of the suit; the respondent filed a Constitutional petition in this Court. The said Constitutional petition was disposed of on 1‑6‑1981.with the direction to the trial Court to decide the suit within six months from receipt of the record. The R & P was received by the trial Court on 11‑8‑1981. Thereafter Court motion notices were issued to the parties. The Court motion notice was waived by‑the counsel for the respondent on 12‑8‑1981. The petitioner was not served with the notice. Ultimately the Court motion notice was served upon the Law Department of the petitioner. As no one appeared on 17‑1‑1982, the case was adjourned and finally on 29‑3‑1982 ex parte decree was passed. The respondent filed Execution Application No.9 of 1982 and notice was served upon the petitioner on 1‑8‑1982 when it came to know that the ex parte decree was obtained by the respondent.

3. The petitioner filed an application. under Order 9, Rule 13 read with section 151, C.P.C. for setting aside ex parte decree which was allowed by the trial Court, and the ex parte decree was set aside. The respondent went in appeal which was allowed by an order dated 8‑10‑1983.

4. The petitioner then filed an application under section 12 (2) read with section 151 C.P.C. for setting aside the ex parte decree allegedly obtained by fraud or misrepresentation. The application was dismissed by an order dated 16‑12‑1985. The petitioner filed Civil Revision No. 55 of 1986 in this Court. The Civil Revision was allowed and the case was remanded to the trial Court for disposal in accordance with law after holding a proper and independent inquiry under section 12 (2), C.P.C.. The trial Court held that the Court motion notice had been duly served and dismissed the application. The petitioner being aggrieved has filed the present revision.

5. Mr. Khalil‑ur‑Rehman raised the following contentions;‑‑

(1) The respondent filed a false suit against the petitioner.

(2) Court motion notice was not served upon the Director‑General K.DA.

(3) Court motion notice was not served upon Mr. Yakoob Baig who was appearing for the petitioner.

(4) The respondent obtained decree by committing fraud.

6. On the other hand Mr. Khaliq Niazi submitted that the respondent having been unsuccessful in getting the decree set aside under Order 9, Rule 13, C.P.C. had his remedy by a revision from the order rejecting the application not having resorted to that remedy, the petitioner is precluded from bringing an application under section 12 (2) to set aside decree. The respondent has not filed a false suit. The order is according to law.

7. I have heard the learned counsel for the parties and perused the R & P of the case and the file of suit.

8. The respondent sought a declaration and 'injunction against the petitioner. The petitioner filed written statement and raised a number of defences. Issues were framed. Ex parte evidence was taken. On the date finally fixed for hearing of the case however, the petitioner could not appear and the evidence adduced by the respondent was that the Chief Engineer's amendment of Karachi Joint Water Board Recruitment Rules, 1953 by memorandum dated 9‑7‑1960 is illegal and he is not competent to do. The trial Court held that the respondent was admittedly affected due to illegal amendment and he is entitled to the seniority. The trial Court found that the Sindh Civil Services Rules were not applicable to the respondent.

9. Now there was no contrivance by which the petitioner was prevented from placing his case before the Court and it cannot be said that any fraud was practised in the Court in procuring the decree, or that the claim was false. As to that decree the petitioner moved an application for setting aside the decree. The application was allowed. The respondent filed appeal which was allowed and the application was dismissed. The petitioner did not prefer any revision against the dismissal of the application.

10. The present application is to set aside that ex parte decree on the ground of fraud and misrepresentation. But first question is was there any fraud perpetrated by the respondent in the course of the suit?

11. To my mind there is no such fraud proved. There was certainly no suppression of service of process. The petitioner appeared and issues were framed. The suit was remanded by this Court with a direction to dispose of the suit in accordance with law. The Court motion notice was not waived by the petitioner. The Court motion notice was served for hearing on 17‑1‑1982. The notice was received by the Law Department of the petitioner. P.W. 1, Mr. Mirza Yakoob Baig stated that service was not effected on him. He stated that he was Assistant Law Officer of the petitioner up to December, 1979 and he dealt with that case up to December, 1979. P.W. 2, Laiq Senior Clerk Law Department stated that notices issued from the Courts are received in the office of the Director‑General as well as in the Law Department. He stated that notice Exh.3 was received in the Law Dcpartment. Mr. Naziruddin Kazi, Assistant Law Officer stated that notice Exh.3 was received in the Law Department. In these circumstances, it seems that the learned Civil Judge l rightly held that the summons were not suppressed by the respondent. The E summons were duly received in the Law Department. No one appeared on behalf of the petitioner and finally the suit was decided in their absence. The l judgment of trial Court is no more than retrial on the merits of the suit. This Court has no jurisdiction to decide on the merits of the judgment, its function is to decide whether that judgment was vitiated by fraud.

12. The impugned order is in accordance with law. The learned counsel for the appellant cited AIR 1931 Patna 204 is not applicable to the fact of this case as in that case the summons were suppressed. I do not find any force in any of the contentions raised by the learned counsel for the petitioner.

13. There has been no evidence of inv fraud in the proceedings in the suit, I must hold that the application under section 12 (2), C.P.C was not competent.

14. For the aforesaid reasons the Civil Revision is dismissed. In the circumstances of the case the parties shall bear their own costs.

15. H.B.T./K‑359/K Revision dismissed.