GOVERNMENT OF SINDH and another vs Ch. FAZAL MUHAMMAD and another

ORDER

' NAIMUDDIN, J.--This is an appeal by leave from the order of the High Court of Sindh dated 11-12- 1985 whereby the High Court dismissed the application under section 12(2), C.P.C. In dismissing the application the learned Judge in the High Court observed as follows: "I do not find any justification for these applications. No fraud has been shown to have been committed by the respondent. In any case, the appellants are themselves responsible if a proper objection has not been raised by them in the Civil Court. Nobody had stopped them from raising any objection and they are responsible for the result."

2. The High Court further observed that even otherwise the application under section 12(2), C.P.C.

Should have been filed within 90 days, as held in 1983 CLC 1590 of the award, made on 6-11-1976 and 10-11-1976 and therefore these two applications filed on 4-3-1985 are obviously time-barred."

3. The High Court further observed that "even if the view is taken that Article 181 is applicable in respect of such application then also it should have been filed within three years of the impugned awards dated 6-11-1976 and 10-11-1976 but having been filed on 4-3-1985 they are time-barred."

Reliance was placed on Malik Inayatullah v. Government of Pakistan and another PLD 1985 Peshawer 23.

4. Leave was granted to consider the following questions:

(1) Whether subsection (2) of section 12 would not be attracted in a case where the party had failed to take up the plea of fraud and misrepresentation thereunder before the Courts in the original proceedings of the provision has been enacted to provide remedy to party who on account of reasonable cause was unable to take the plea at earlier stages.

(2) What will be period of limitation for filing an application under section 12(2). In this behalf we have kept in view that in this case although the Awards were made in 1976 the amendment by which subsection (2) was added to section 12 was enacted in 1980.Therefore, prima facie the time shall not start running before 1980.

(3) Any other related questions.

5. The brief facts relevant to this appeal are that on or about 16-10-1987 the respondent filed an application under section 14 of the Arbitration Act in the Court of Senior Civil Judge, Hyderabad seeking direction to appellant No,2 to cause an award or a signed copy thereof together with all the documents, depositions etc. Filed in the Court and to pass a decree in terms of award.

Accordingly, the award was filed in the Court and after notice and after hearing the appellants the award was made rule of the Court and a decree in terms thereof was passed.

6. The appellants being aggrieved filed an appeal, being No,49 of 1980, against the order of the learned Civil Judge. The appeal was dismissed for non-prosecution on 16-9-1984 but was restored but it was once again dismissed in default on 18-4-1988. Thereafter, the appellants filed an application for restoration of the appeal but they did not pursue the same properly and therefore it was dismissed on 26-8-1984. Then after six and a half months of that order the present application under section 12(2), C.P.C. Was filed on which the order impugned in this appeal was passed as stated above.

7. We have heard Mr. Abdul Hafeez Lakho, Advocate-General, Sindh for the appellants and Mr. Mohammad Ali Saeed for the respondents. The first question for consideration is that what is the scope of section 12(2), C.P.C. Before we proceed to examine the question it would be convenient to quote section 12(2), C.P.C., which reads as follows: Section 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."

8. A perusal of the above provision would show that the appellant could challenge the validity of (i) judgment, (ii) decree or (iii) order on the plea of (a) fraud, (b) misrepresentation and (3) want of jurisdiction by application to the Court which passed the final judgment, decree or order.

9. The appellants' case in the application under section 12(2), C.P.C. Mainly stated in para 12 was: "That because the relevant officers of the areas were not the original officers, as many transfers had taken place and the matter was old of 1962 and the relevant files had passed various hands and with the change of divisions and circles and dissolution of West Pakistan the real facts were not available at the time of filing of objections to application under section 14. Besides, these were filed by an inexperienced officer. An appeal before this Hon'ble Court was filed on general more particularly on ingnorance vague allegations which was not maintainable hence required no contest and was dismissed. The few facts came to the knowledge during the period of last winter vacation and thereafter all files were called, which were searched and collected with great difficulty. It has, therefore, come to light that the whole proceedings including that before the Senior Civil Judge were without jurisdiction and the Respondent had committed a gross fraud, hence this application.

10. It will be seen from the above that the appellants had opportunity to take all the objections to the award and if they did not plead all the facts and raised all the objections to the award which were available to them for an application under sections 30 and 33 of the Arbitration Act they have to blame themselves. Under Section 12(2), C.P.C. a party can question the validity of a judgment, decree or 'to order on the plea of fraud etc. In this case the challenge is not to judgment, decree or order but to the award itself. This could be done only under section 30 or 33 of the Arbitration Act.

Even a review of the judgment, decree or order could not be sought because if new or important matter was discovered the appellant had to satisfy, in order to succeed, that they had exercised due diligence and in spite of that the facts pleaded in the application under Section 12(2) were not within their knowledge.

11. So far as the decree of the Senior Civil Judge and order of the appellate Court, dismissing the appeal, are concerned they could not be said to have been obtained by fraud or misrepresentation. If the award was obtained by fraud or misrepresentation it was open to the appellants to challenge the same either by an application under section 30 and/or section 33 of the Arbitration Act. Even a suit to challenge the arbitration agreement or the award was not maintainable in view of the provisions of section 32 of the Arbitration Act. Nor could an arbitration agreement or award be set aside, amended or modified or in any way affected except as provided in the Arbitration Act. It may be convenient to quote section 32 of the Arbitration Act, which reads as follows: "32. Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act."

12. Accordingly, an application under section 12(2), C.P.C. Also was not maintainable.

13. Further, as will appear from the above-quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds E raised in the application under section 12(2), C.P.C. Because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of section 12(2), C.P.C. For their own acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the legislature as the same would be against public policy.

14. As regards the question of limitation, we may observe that the period for a suit for setting aside a decree obtained by fraud, or for other relief on the ground of fraud is 3 years as provided in Article 95 of the Limitation Act. This period commences when the fraud becomes known to the party wronged.

15. 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, but in view of the above object, we are of the opinion that 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 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.

16. Having stated the legal position, we do not find it necessary to go into the question whether the application was within time because on the first point on which leave was granted we are of the opinion that the application was not maintainable.

17. We, therefore, dismiss this appeal with no order as to costs.