MUBASHER AHMAD vs Mian TAHIR RAZA and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.-- This petition for leave to appeal is directed against the judgment/order dated 27th March, 2001 passed by Lahore High Court, Lahore whereby Civil Misc.

Application filed by respondents under section "12(2) CPC has been allowed and order passed by the learned High Court in Civil Revision No. 2427/1995 has been recalled.

2. Succinctly, stating facts of the case are that petitioner filed a suit for declaration in the Civil Court to the effect that Power of Attorney registered on 7th August 1981 on his behalf is forged document and inoperative qua his rights and the subsequent sale registered on 20.4.1982 through the aforesaid general Power of Attorney in favour of respondent Tahir Raza is void, illegal, without consideration, based on fraud and liable to be cancelled. Petitioner prayed for possession of the disputed plot bearing No. 342-B, Faisal Town, Lahore, after demolition construction raised thereon by the respondents. It may be noted that in the plaint plea advanced, seeking cancellation of the Power of Attorney, was that Power of Attorney dated 7th August 1981 was purportedly executed on .His name when he was minor and his father used to look after the affairs of the property but when this document was executed they both were out of country and when they came back in November, 1984 and visited the plot, they learnt about the sale of the same. It was revealed to them that Muhammad Yasin, styling himself to be attorney holder of the petitioner, had sold the plot to Tahir Raza vide registered sale-deed dated 20th April, 1982.

3. Suit was contested by the respondents. Learned Trial Court determined the issues including the one to the effect "whether General Power of Attorney in favour of the defendant No. 1 is forged document and it was never executed in favour of defendant No. 1? OPP". Learned Trial Court after recording evidence produced by the parties decreed the suit on 17th April, 1993.

4. It is to be noted that issue No. 9 was decided in affirmative nor for the reason that petitioner was minor but for the reason that General Power of Attorney in favour of defendant No. 1 was forged and it was never executed by the plaintiff. Against the order of the Civil Judge respondent Tahir Raza filed appear which was dismissed on 24th October, 1995. As such against both these orders revisional jurisdiction of the learned High Court was invoked by submitting an application under Section 115 CPC by Tahir Raza but it also met the same fate because it was dismissed on 24th February, 1999. Later on respondent No. 1 Tahir Raza filed an application under Section 12(2) CPC before the High Court for setting aside the earlier order passed by it. The learned Judge in the Chambers of Lahore High Court accepted the application vide impugned judgment dated 27th March, 2001, as a result whereof order dated 24th February, 1999 in Civil Revision No. 2427/1995 was recalled and judgments/decrees of the lower Courts were set aside and case was remanded to the Trial Court for its decision afresh, in accordance with law, keeping in view the allegation of fraud, after affording opportunity to the parties of producing evidence. As such instant petition has been filed.

5. Mr. Gulzarin Kiani, learned counsel for the petitioner contended that jurisdiction of Civil Court under Section 12(2) CPC can be invoked when a person challenged the validity of the judgment/decree or order on the plea of fraud, misrepresentation or want of jurisdiction. He stated that perusal of impugned judgment would indicate that the learned High Court had recalled its judgment dated 24th February, 1999 principally on the ground that petitioner was minor when Power of Attorney dated 7th August, 1981 was allegedly executed by him, therefore, matter needs thorough probe. Whereas, fact is that the learned Trial Court while disposing of issue No. 9 had not stated that Power of Attorney is invalid because it was executed on behalf of minor but while deciding this issue, Power of Attorney was cancelled because it was found to be forged, etc. According to him, the learned Civil Judge in its judgment dated 17th April, 1993 and the learned Additional District Judge and the learned High Court as appellate and revisional Courts, respectively, cancelled the Power of Attorney being the result of fraudulent transaction. He further stated , that it was the petitioner plaintiff who has asserted that Power of Attorney dated 7th August, 1981 is inoperative against him because the same was allegedly executed on his behalf at the time when he was minor and to deprive him from the property, Power of Attorney was prepared fraudulently but the Courts i.e. Trial, Appellate and Revisional Courts, did not agree with such plea of the petitioner but called it to be a document based on fraud. According to him, under such circumstances, the plea of challenging the judgment of the High Court dated 24th February, 1999 within the scope of Section 12(2) CPC was not available to the respondent, for the reason that such plea could have been raised ultimately only by the petitioner/plaintiff but not by respondents.

According to him, in this manner, the scope of section 12(2) CPC has been enlarged by the learned High Court opening the door for every body to submit such application for challenging the validity of judgment/decree on the plea of fraud, misrepresentation etc. He further stated that the Courts are bound to interpret the provision of Section 12(2) in its real perspective in order to avoid the flow of fabulous and baseless type of applications. He was also of the opinion that the learned Judge in the Chambers of the High Court failed to consider that the decree cannot be set aside on the plea of the fraud by holding the summary proceedings, without recording evidence and considering the material available on record, then where was the occasion to allow application under Section 12 (2)

CPC.

We have heard the learned counsel for the petitioner at length and have also gone through the impugned order and the order passed by the learned High Court on 24th February, 1999 as well as the judgments/decrees passed by the Civil Judge and Additional District Judge dated 17th April, 1993 and 24th October, 1995, as well as evidence available on record, carefully. In our opinion contentions raised by the learned counsel require examination in depth in the interest of justice.

Thus for the forgoing reasons, leave to appeal is granted. Status quo order dated 25th September, 2001 shall continue till the final disposal of the appeal, arising out of instant petition.