Civil Procedure Code (V of 1908)--
---O. XXI, Rr. 97 to 103--Validity of decree, challenge to--Only remedy available to a party challenging decree on ground of misrepresentation, fraud and want of jurisdiction, being by way of application, Court on filing of such application, " should provide reasonable opportunities to both parties to prove and disprove facts in respect of alleged allegations--Order of . Court below dismissing application without holding enquiry simply on ground, that application was not competent in view of OXXI, Rr. 92 to 103, C.P.C. was set aside remanding case to be decided afresh.
Jahamat Jethamal for Appellant.
Khalique Humayun and Abdul Rahim. Kazi, Addl. A. G. for Respondents.
Date of hearing: 1st November, 1987.
TOWN COMMITTEE, SUJAWAL VS MURTAZA KHAN1989 M L D 1955[Karachi]Before Ajmal Mian, JTOWN COMMITTEE, SUJAWAL--AppellantversusHakim MURTAZA KHAN and others--RespondentsCivil Appeal No. 23 of 1981, decided on 01/11/1987.
---O. XXI, Rr. 97 to 103--Validity of decree, challenge to--Only remedy available to a party challenging decree on ground of misrepresentation, fraud and want of jurisdiction, being by way of application, Court on filing of such application, " should provide reasonable opportunities to both parties to prove and disprove facts in respect of alleged allegations--Order of . Court below dismissing application without holding enquiry simply on ground, that application was not competent in view of OXXI, Rr. 92 to 103, C.P.C. was set aside remanding case to be decided afresh.
Jahamat Jethamal for Appellant.
Khalique Humayun and Abdul Rahim. Kazi, Addl. A. G. for Respondents.
Date of hearing: 1st November, 1987.
JUDGMENT
This is a Miscellaneous Appeal against an order-dated 2-3-1981 passed by the learned District Judge Thatta in Execution Application No. 5 of 1980 dismissing the application under Order IX, rule 13 read with Section-12(2) CPC filed by the present appellant.
2. The brief facts leading to the filing of the above Miscellaneous Appeal are that the respondent filed Suit No: 8 of 1980 on 27-1-1980 for possession and mesne profits. In the above suit Chairman Town Committee, Headmistress Primary Girls School and the Secretary, Ministry of Education, Government of Sind were impleaded as defendants 1, 2 and 3 respectively. It appears that the summons of the suits were issued for 6-3-1980 and were received by the clerks of the said defendants. It appears that on 20-3-1980 learned District Judge, Thatta in whose Court the suit was filed, passed an order proceeding ex parte against the defendants. On 1-4-1980 ex parte decree was passed, whereas the appellant filed the above application on 13-12-1980, which has been dismissed inter alia on the ground that the same was not competent inasmuch as the premises were not vacated and, therefore, the provisions of Order 21 rules 97 to 103 CPC were not applicable. The appellant being aggrieved by the above order has filed the present appeal.
3. I have heard the learned counsel for the parties. It seems that the above application apart from being under Order IX, rule 13 CPC was under section 12(2) of the CPC. In paras 4 to 6 of the supporting affidavit the following averments were made:
"4. That the Government Primary School Sujawal is constructed by defendant No. 1 from the funds from P.L. 480 in 1963. Since then School is being run in the building and plot over which the school is constructed is neither evacuee nor declared as such before 1-1-57.
5. That the Government Girls Primary School is not constructed over evacuee plot No. 116-B admeasuring 901.3 sq. yards or on any evacuee plot.
6. That the plaintiff obtained the Decree through misrepresentation and fraud. Plaintiff had the knowledge that no plot bearing custodian No. 116-B admeasuring 901.3.sq. yards existed at Sujawal. He has obtained the transfer documents through misrepresentation, fraud while being id collusion with the Settlement Staff."
In spite of the above averments contained in the supporting affidavit, the learned District Judge without holding any enquiry in terms of Section 12(2) has dismissed the application. I am inclined to hold that in view of the above allegations, least the learned District Judge could have done was to provide reasonable opportunities to both the parties to prove and disprove the facts reproduced hereinabove. I am also of the view that the conclusion arrived at by the learned District Judge, Thatta that the application was not competent in view of Order 21 Rules 97 to 103 has overlooked the fact that after the amendment of Section 12 CPC the only remedy available to a party, who challenges the decree on the ground of mis-representation, fraud and want of jurisdiction is by way of an application. I would, therefore, set aside the order and would remand the case to .the learned District Judge:
I may observe that Mr. Khalid Humayoon, learned counsel for the respondent has pointed out to me that the respondent was even willing to lease out the plot to the Government in order to avert the eviction of the school from the premises. Mr. Jethanand learned counsel for the appellants submits that he will examine the case on the merits and thereafter he will try to bring about a settlement. The learned District Judge is directed to dispose of the above application within six months from the date of the receipt of the copy of this judgment.
Mr: Abdul Rahim Kazi, learned Additional Advocate General appearing for respondents 2 and 3 has supported the case of the appellants.
With the above observations the appeal stands disposed of with no order as to costs.
H.B.T./T-47/K.???????????
Order accordingly.
This is a Miscellaneous Appeal against an order-dated 2-3-1981 passed by the learned District Judge Thatta in Execution Application No. 5 of 1980 dismissing the application under Order IX, rule 13 read with Section-12(2) CPC filed by the present appellant.
2. The brief facts leading to the filing of the above Miscellaneous Appeal are that the respondent filed Suit No: 8 of 1980 on 27-1-1980 for possession and mesne profits. In the above suit Chairman Town Committee, Headmistress Primary Girls School and the Secretary, Ministry of Education, Government of Sind were impleaded as defendants 1, 2 and 3 respectively. It appears that the summons of the suits were issued for 6-3-1980 and were received by the clerks of the said defendants. It appears that on 20-3-1980 learned District Judge, Thatta in whose Court the suit was filed, passed an order proceeding ex parte against the defendants. On 1-4-1980 ex parte decree was passed, whereas the appellant filed the above application on 13-12-1980, which has been dismissed inter alia on the ground that the same was not competent inasmuch as the premises were not vacated and, therefore, the provisions of Order 21 rules 97 to 103 CPC were not applicable. The appellant being aggrieved by the above order has filed the present appeal.
3. I have heard the learned counsel for the parties. It seems that the above application apart from being under Order IX, rule 13 CPC was under section 12(2) of the CPC. In paras 4 to 6 of the supporting affidavit the following averments were made:
"4. That the Government Primary School Sujawal is constructed by defendant No. 1 from the funds from P.L. 480 in 1963. Since then School is being run in the building and plot over which the school is constructed is neither evacuee nor declared as such before 1-1-57.
5. That the Government Girls Primary School is not constructed over evacuee plot No. 116-B admeasuring 901.3 sq. yards or on any evacuee plot.
6. That the plaintiff obtained the Decree through misrepresentation and fraud. Plaintiff had the knowledge that no plot bearing custodian No. 116-B admeasuring 901.3.sq. yards existed at Sujawal. He has obtained the transfer documents through misrepresentation, fraud while being id collusion with the Settlement Staff."
In spite of the above averments contained in the supporting affidavit, the learned District Judge without holding any enquiry in terms of Section 12(2) has dismissed the application. I am inclined to hold that in view of the above allegations, least the learned District Judge could have done was to provide reasonable opportunities to both the parties to prove and disprove the facts reproduced hereinabove. I am also of the view that the conclusion arrived at by the learned District Judge, Thatta that the application was not competent in view of Order 21 Rules 97 to 103 has overlooked the fact that after the amendment of Section 12 CPC the only remedy available to a party, who challenges the decree on the ground of mis-representation, fraud and want of jurisdiction is by way of an application. I would, therefore, set aside the order and would remand the case to .the learned District Judge:
I may observe that Mr. Khalid Humayoon, learned counsel for the respondent has pointed out to me that the respondent was even willing to lease out the plot to the Government in order to avert the eviction of the school from the premises. Mr. Jethanand learned counsel for the appellants submits that he will examine the case on the merits and thereafter he will try to bring about a settlement. The learned District Judge is directed to dispose of the above application within six months from the date of the receipt of the copy of this judgment.
Mr: Abdul Rahim Kazi, learned Additional Advocate General appearing for respondents 2 and 3 has supported the case of the appellants.
With the above observations the appeal stands disposed of with no order as to costs.
H.B.T./T-47/K.???????????
Order accordingly.
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