The NATIONAL LOGISTICS CORPORATION (FORMERLY THE NATIONAL LOGISTIC CELL, HEADQUARTER) DRY PORT, LAHORE Versus Khawaja ZAFAR IQBAL

ORDER

NAEEM AKHTER AFGHAN, J.--- On 15.03.1980 Civil Suit No.220/1/80 was filed by respondents Nos.1 and 2 against Safdar Hussain, Khadim Hussain (sons of Bashir Ahmad), Rehmat Ali, Noor Muhammad, Muhammad Hussain, Said Bibi, Hussain Bibi and Zainab Bibi (sons and daughters of Sardar) for specific performance of agreement to sell dated 21.05.1978 (registered on 27.05.1978) in respect of land measuring 43 kanal 11 marla falling in different khasra numbers in village Niaz Baig Tehsil and District Lahore (the suit land) . Punjab Provincial Cooperative Bank Limited (PPCBL) was subsequently arrayed as defendant No.9 in that suit. National Logistics Corporation, formerly the National Logistics Cell (the petitioner) , was not party to the suit. The suit was decreed by learned Civil Judge (CJ) Lahore vide judgment and decree dated 13.11.2012.

2.The petitioner filed an application on 15.12.2016 under sections 7, 11, 14, 16 and 17 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 (Act of 1993) read with section 12(2) of the Civil Procedure Code 1908 (C.P.C.) for setting aside judgment and decree dated 13.11.2012 passed by learned CJ Lahore for having been obtained by fraud, misrepresentation, without jurisdiction and being barred by law. The application of the petitioner was dismissed by learned CJ Lahore vide order dated 23.10.2018 without framing issues and recording evidence of the parties.

3.The petitioner challenged the order dated 23.10.2018 passed by learned CJ Lahore by filing civil revision before the learned District Judge, Lahore which was transferred to learned Additional District Judge (ADJ) Lahore. While accepting revision of the petitioner vide judgment dated 14.01.2020 learned ADJ Lahore set aside the order dated 23.10.2018 passed by learned CJ Lahore and remanded the matter to learned CJ Lahore with directions to decide the application of the petitioner and resolve the questions of facts and law which have been raised by the petitioner in its application after framing issues and recording evidence of the parties.

4.Feeling aggrieved of the judgment dated 14.01.2020 passed by learned ADJ Lahore, respondent No.1 filed writ petition before Lahore High Court (the High Court) . The writ petition was accepted by the learned Judge of the High Court vide judgment dated 01.11.2023. After setting aside the judgment dated 14.01.2020 passed by learned ADJ Lahore, the order dated 23.10.2018 passed by learned CJ Lahore was upheld by the High Court with the observations that in the facts and circumstances of the case no evidence is required for deciding the application of the petitioner and that the learned CJ Lahore has rightly dismissed the application of the petitioner on the basis of legal issues.

5.Feeling aggrieved of the judgment dated 01.11.2023 passed by the learned Judge of the High Court, the petitioner has filed the instant petition.

6.After hearing learned counsel for the petitioner, learned counsel for respondent No.1 and respondent No.11 (PPCBL/defendant No.9 of Civil Suit No.220/1/80), we have perused the available record. It reveals that during pendency of the Civil Suit No. 220/1/80 the private defendants alienated 34 kanal 5 marla and 9 kanal 7 marla of the suit land to one Akbar Ali Bhatti vide two registered sale deeds dated 14.03.1988 on the basis whereof mutation Nos.27534 and 27535 were entered and confirmed in his name on 17.04.1988.

7.Akbar Ali Bhatti was Chief Executive of the Barex Commercial Cooperative Society Limited Lahore (the Barex Society) which was registered under the Cooperative Societies Act, 1925 (Act of 1925) . The Barex Society obtained loan from PPCBL which was secured by the mortgage of the suit land having been purchased by Akbar Ali Bhatti as well as his personal guarantee. The Barex Society failed to repay the loan due to which proceedings under section 54 of the Act of 1925 were initiated against it by the nominee of the Registrar Cooperative Societies Lahore. The nominee of the Registrar rendered award dated 27.05.1992 and held Mr. Akbar Ali Bhatti and the Barex Society liable to pay the principal amount of Rs. 12,99,59,212.11 + Rs.2,59,00,145.40 upto December 1995 with mark-up.

8.Proceedings were also conducted against the Barex Society by Mr. Justice Saeeduzzaman Siddiqui as Cooperative Judge of the Supreme Court of Pakistan in Petition No.104-C of 1992 wherein the Barex Society was declared as undesirable society under the provisions of the Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 (Ordinance of 1992) . Interim Liquidator of the Barex Society was appointed vide order dated 31.05.1992 and all the properties belonging to the Barex Society were taken over by the Punjab Cooperative Board for liquidation. The award of the nominee of the Registrar Co-operative Societies Lahore dated 27.05.1992 was confirmed vide order dated 30.09.1992. Properties of Barex Society including the suit property were auctioned. For ten properties of Barex Society including the suit property, the bid offered by PPCBL was accepted/confirmed and sale certificate was issued in favour of PPCBL on 14.12.1993 in respect of the 10 auction properties including the suit land and mutations were entered accordingly in the name of PPCBL.

9.Subsequent proceedings were conducted by Justice Malik Mohammad Qayyum as Cooperative Judge of the High Court wherein detailed order dated 03.10.1998 was passed and the matter was finally disposed of.

10.Being lawful owner by virtue of auction purchase of 10 properties including the suit land, PPCBL sold 100 kanal vide registered sale deed dated 07.02.2007 to Metro Cash and Carry and it sold 63 kanal 13 marla falling in different khasra numbers including the suit land to the petitioner vide registered sale deed dated 22.09.2007 on the basis whereof mutation No. 65310 was also entered/confirmed in the name of petitioner on 23.05.2009.

11.In Para-14 of the application under section 12(2), C.P.C. filed by the petitioner on 15.12.2016, it has been stated by the petitioner that the petitioner got knowledge of the judgment and decree dated 13.11.2012 passed by learned CJ Lahore in Civil Suit No. 220/1/80 few days prior to filing of the application through its employee Mr. Imtiaz Ahmad who was informed by an Advocate about pendency of the execution proceedings.

12.It further reveals that being party to Civil Suit No. 220/1/80 as defendant No.9, PPCBL filed written statement before learned CJ Lahore on 10.09.1998 with the statement that the suit land is not owned by PPCBL.

Despite knowledge, PPCBL did not disclose in its written statement all the relevant facts about obtaining of loan by the Barex Society from PPCBL by mortgaging the suit land and personal guarantee of Akbar Ali Bhatti, the proceedings initiated under section 54 of the Act of 1925 by the Registrar Cooperative Societies Lahore against Barex Society, passing of award dated 27.05.1992 by the nominee of the Registrar, order dated 07.09.1993 passed by Justice Saeed uz Zaman Siddiqui as Cooperative Judge of Supreme Court of Pakistan, Barex Society being declared as undesirable society under Ordinance of 1992, appointment of Liquidator; taking over of all the properties of Barex Society by the Punjab Cooperative Board, auction of 10 properties including the suit property and acceptance of the bid of PPCBL, issuance of sale certificate dated 14.12.1993 to PPCBL; the proceedings conducted and disposed of by Justice Malik Mohammad Qayyum, Cooperative Judge of the High Court, execution of registered sale deeds dated 07.02.2007 and 22.09.2007 by PPCBL with Metro Cash and Carry and with the petitioner which included the suit land.

13.According to the settled principles, for determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application under section 12(2), C.P.C., it is not mandatory for the court to frame issues and to record evidence of the parties in each and every case but it always rests upon the satisfaction of the court to structure its proceedings and after analysing the nature of allegations of fraud or misrepresentation, the court may decide whether a case is fit for framing of issues and recording evidence of the parties. 1

14.The peculiar facts and circumstances of the instant case, the intricate facts and the law points raised by the petitioner in its application under section 12(2), C.P.C. necessitate framing of issues and recording evidence of the parties for effectively deciding the application of the petitioner under section 12(2), C.P.C. In this regard the learned CJ Lahore as well as the learned Judge of the High Court have erred in facts as well as law while dismissing the application of the petitioner under section 12(2), C.P.C. without framing issues and recording evidence of the parties. While remanding the matter to learned CJ Lahore vide judgment dated 14.01.2020 for deciding the application of the petitioner under section 12(2), C.P.C. after framing issues and recording evidence of the parties, the learned ADJ Lahore has passed a well-reasoned speaking judgment and has acted in accordance with law keeping in view the relevant facts and circumstances of the case as well as the contents of the application filed by the petitioner under section 12(2), C.P.C.

15.The above are the reasons of our short order of even date which reads as follows:

Sd/--

SALAHUDDIN PANHWAR, J.--- I have had the advantage of going through the main judgment authored by my learned brother. I entirely concur with the conclusions recorded therein and with the order of remand directing the learned trial Court to decide the application under section 12(2), Code of Civil Procedure, 1908, in accordance with law after adopting a procedure commensurate with the nature of the controversy.

2.However, to facilitate a focused trial and to avoid avoidable diffusion of the controversy, I consider it appropriate to indicate certain core issues which, in my view, arise from the pleadings and are ordinarily determinative in applications under section 12(2), C.P.C. The learned trial Court shall, therefore, frame issues on the following lines, and shall proceed to record evidence relevant thereto:

(ii-a) If not, whether the applicant has proved a legally sustainable basis for exclusion or extension of time, including the pleaded date of knowledge and the circumstances in which such knowledge is claimed to have been acquired? OPA

3.It is clarified that the above issues are indicated to assist the learned trial Court in structuring the trial. The learned trial Court may frame additional issues, or suitably refine the above issues, if deemed necessary for the just decision of the application, on the basis of the pleadings as they stand or as may stand after any lawful amendment.

4.Time is of the essence in proceedings under section 12(2), C.P.C. which challenge the integrity of a decree and, if left pending, multiply litigation and uncertainty in titles. The learned trial Court shall, therefore, make earnest endeavour to decide the application under section 12(2), C.P.C. within a period of four months from the date of receipt of an authenticated copy of this judgment. The parties shall cooperate, and unnecessary adjournments shall be avoided.

5.The learned District and Sessions Judge, Lahore shall ensure monitoring of compliance, and a brief compliance report on conclusion of proceedings, or earlier if delay occurs for reasons beyond control, shall be furnished to this court through Deputy Registrar (Judicial), for information and record.

UN/N-2/SC Appeal allowed.

1 Hafiz Malik Kamran Akbar v. Muhammad Shafi (PLD 2024 SC 262); Ghulam Muhammad v. M. Ahmad Khan (1993 SCMR 662) and Amiran Bibi v. Muhammad Ramazan (1999 SCMR 1334).