SAFIA BIBI Versus AISHA BIBI

MUHAMMAD AFZAL ZULLAH, J.‑ Leave to appeal was sought in this matter from judgment of the Lahore High Court dated 21‑1‑1981 whereby an application for review and recall of order dated 26‑10‑1980 on the ground that it was obtained through fraud and misrepresentation, was dismissed, with the observation that the High Court was "not inclined to hold enquiry into this question" and further that the petitioner could "take legal action against her attorney and resort to appropriate legal action for redress of her grievance".

2. Mst. Aisha Bibi, respondent No. 1; had instituted a constitutional petition (No. 1588‑R of 1976) in the High Court against the petitioner and a Settlement authority, as respondents Nos. 1 and 2 respectively therein. It came up for hearing and was disposed of by a learned Single Judge on 26th of October, 1980 with the following short order :‑

"Both the counsel submit that the parties have compromised. In view of this no further order is required in this writ petition which is accordingly disposed of. No order as to costs."

3. On 2‑12‑1980 the petitioner moved an application in the High Court with the assertion that in reality there was no compromise and that Abdul Khaliq (respondent No. 3 herein) representing himself to be her general attorney engaged a counsel and "without any authority" represented that there was an agreement between the parties while in fact there was none. Thus on account of this misrepresentation, the writ petition was disposed of without consideration of the merits of the subject‑matter involved therein. It was further asserted in the application as follows :‑

"That Abdul Khaliq whose general power of attorney was produced in the High Court was never appointed by the petitioner .The applicant's land was sold in the village on the basis of present power of attorney and then the applicant filed a civil suit against the false vendees and present Abdul Khaliq son of Munshi to declare that the applicant is the owner of the land and prayed to cancel the false power of attorney.

The service in the suit was effected on Abdul Khaliq on 10‑8‑1980 to appear in the Court of Mr. Khaliq Akhtar, Civil Judge, Sheikhupura to appear in his Court on 2‑9‑1980. The copy of the plaint is annexed at Annexure `A'. The copy of the notice duly received by Abdul Khaliq is at Annexure `B'.

That Abdul Khaliq received a notice from the Civil Court and his false power of attorney was under challenge for cancellation ; and that. '

The above‑named person (Abdul Khaliq) held no power of attorney on behalf of the applicant to plead before the Hon'ble Court and engaged counsel to make any statement or submit any agreement. This fact was fully in the knowledge of Abdul Khaliq who did not reveal the same to the High Court."

4. On the basis of the afore‑quoted assertions, the petitioner requested the High Court that she not having been represented by any lawfully appointed person and the order dated 26‑10‑1980 having been passed "on the statement of counsel who was not appointed by the applicant, the appoint ment of the counsel on behalf of false attorney is no representation on behalf of the applicant therefore, the order was required to be recalled". A request was also made that Abdul Khaliq who made false representation before the High Court and suppressed the true facts, be proceed against and punished for contempt of Court.

The learned Single Judge after hearing the learned counsel for the petitioner and the learned counsel for Abdul Khaliq, respondent, dismiss ed the application for recall of the earlier order dated 26‑10‑1980 with the observation that the petitioner might seek remedy through other appropriate legal action. The petitioner then sought leave to appeal.

5. On 16‑12‑1981, we heard learned counsel appearing for petitioner and respondent No. 1, two main parties before the High Court, as also learned counsel for Abdul Khaliq, who represented himself (though falsely as alleged by the petitioner) as attorney of the petitioner at the time of the disposal of the writ petition in the High Court, it was considered to be a fit case for grant of leave for examination of the question whether the provisions contained in section 12(2) of the Civil Procedure Code which have been recently brought on the statute book did not cover this case. The leave petition was accordingly converted into appeal and on the request of the learned counsel for respondent No. 1, the matter was adjourned for further arguments.

6. We have again heard arguments today. Learned counsel (for res pondent No. 1) has contended that although allegation of misrepresentation has been made against Abdul Khaliq, who acted as attorney of the petitioner/appellant at the time of the disposal of the writ petition by the High Court, his client, that is, respondent No. 1 is not at fault and further that if an enquiry had been held the 'said respondent would have brought on record certain more facts and would also have relied on the law of agency.

Section 12(2) of the Civil Procedure Code reads as follows :‑

"12(2)‑Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a ; separate suit."

The afore‑quoted provisions were newly added by an amendment through an Ordinance in March, 1980. The High Court passed the first order in October, 1980. The amendment, it appears, was not published in the journals within reasonable time. This, it further appears, seems to be the reason why the learned counsel failed to bring it to the notice of the learned Judge when the application for recall of order dated 26‑10‑1980 was disposed of. This supposition is strengthened by the fact that the provisions of the Civil Procedure Code (unamended) were mentioned in the application submitted by the appellant in the High Court, it cannot be denied that mention of a wrong provision of law in an application would not deprive the Court of the power and jurisdiction if otherwise the same is available under the law.

7. The power to decide the application was available to the High Court at all relevant times and particularly the amendment brought about of in subsection (2) of section 12 of the Civil Procedure Code affirms this position. This is not all. The statute law has made‑another important provision, namely, that in cases like the present one, where a person challenges the validity of a judgment, decree or order of the High Court on the plea of fraud, misrepresentation or want of jurisdiction, he shall have to seek his remedy by making an application to the High Court and "not by a separate suit." In this case, the petitioner could not have filed a separate suit as it stood barred by the above‑referred law. It was, therefore, necessary for her to have made an application before the High Court if she wanted to challenge the order dated 26‑1C‑1980 on the allegations of fraud and misrepresentation as made in the application dated 2‑12‑1980. That being the position, the High Court was required to hold the enquiry and adjudicate this aspect of the matter (Muhammad Akhtar's case (1981 S C M R 878)

8. The question of proceedings for contempt of Court against Abdul Khaliq is separate as it was entirely within the discretion of the learned Single Judge to proceed or not to proceed against him for contempt of Court. With this observation, thus, we are of the view that this appeal merits acceptance. It is accordingly allowed. The impugned order dated 21‑1‑1981 is set‑aside and the case is remanded to the High Court for fresh decision.

There shall be no order as to costs.

Appeal allowed.