IN THE
COURT OF VII SENIOR CIVIL JUDGE AT KARACHI CENTRAL
SUIT No
989/2014
Ex. No.
15/2019
Muhammad Arshad &
another …………………….……Plaintiff/D.H.
1. Muhammad Swalheen
S/o
Muhammad Fazal
Since
deceased through his legal heirs
2. Mst.Amatul-Maeen
W/do
Muhammad Swalheen,
Muslim,
Adult,
R/o
House No.18, Block No.13,
Sector
No.5-G, New Karachi
through her attorney son Muhammad Zakir............Applicant/intervener
APPLICATION
U/S 12(2) CPC
R/W
SECTION 151 CPC
Original Power of
attorney executed by applicant No.2,4,5 & 6 in favour of the applicant No.2
is enclosed as Annexure-A
1. That
the decree holders filed the above suit bearing No.989/2014 on 15-09-2014 against the defendants/JD
namely Muhammad Nadeem & Muhammad Ameen before this Hon’able court for the
Recovery of amounting to Rs.28,00,000/-.
2. That
the decree holders with malafide did not make the party to the applicant No.1
(Muhammad Swalhen) in the above suit, as such the applicant No.1 who was
necessary party in the suit at the time of his aliveness, it is submitted that the
applicant No.1 (Muhammad Swalhen) died on 05-12-2016 after the filing of suit and
leaving behind the following legal heirs:-
1. Mst.Amatul-Maeen Widow
2. Muhammad Zakir Son
3. Mst.Saeeda Daughter
4. Mst. Razia Begum Daughter
5. Mst.Azra Begum Daughter
Photocopy of death certificate of Muhammad Swalhen
is enclosed as Annexure-A
3. That
the applicants/interveners No.3 to 6 are real cousins of the defendants/JD and
the subject property bearing No.13/18, admeasuring
112 square yards, Sector 5-G, North Karachi was gifted by the defendants/JD’s
father namely Muhammad Hanif S/o Muhammad Fazal to his son Muhammad Ameen S/o
Muhammad Hanif (defendant No.2) and his brother deceased Muhammad Swalheen S/o
Muhammad Fazal who was died on 5-12-2016 and the both persons are the
equal share holder in the above property.
Photocopy of the KDA transfer order dated 10-6-1996
is enclosed as Annexure- B
4. That
decree holders fraudulently did not make the necessary party of the share holder
of property namely deceased Muhammad Swalhen who should have been made a party in
above suit but plaintiffs/DH did not make him necessary party despite knowing
this fact by plaintiffs/DH that the Muhammad Swalhen is joint share holder in
the above property, it is worthwhile to mention here that the plaintiff/DH No.2
as well attorney of plaintiff No.1 who in his examination in chief produced
CDGK Certificate and the same was Exhibited
as P/3 by this Hon’able court which is clearly shows that the Muhammad Ameen
and deceased Muhammad Swalhen are the joint share holder in property
bearing No.13/18, admeasuring 112 square yards, Sector 5-G,
North Karachi.
Photocopy of CDGK certificate dated 26-4-2010
is enclosed as Annexure-C
5. That
this Hon’able court has passed the decree dated 3-4-2019 in favour of the
Plaintiffs/DH in respect of mortgaged Quarter No.13/18, admeasuring 112 square yards, Sector 5-G, North Karachi which is
joint property in the name of Muhammad Ameen (defendant/JD No.2) and deceased Muhammad
Swalheen and after the death of Muhammad Swalhen the applicants No.2 to 6 are
legally share holder in subject property admeasuring 112 square yards as such
the decree holders have concealed this fact from this Hon’able court and they
have committed fraud and misrepresentation and the said decree is liable to be
set aside.
6. That
decree holders has obtained the decree by way of fraud and they malafidely did
not make the party as a defendant to the applicant No.1 (deceased Muhammad
Swalhen) during his aliveness and after his death all the legal heirs should be
made a party. The decree holder with malafide & fraud deprived all the legal
heirs from their ancestor property and all the legal heirs are affected after
passing the decree.
7. That
due to the family issues the relation between the defendants/JD and applicants
were become sour so that the applicants made the separate door of the house, the
applicant/intervener No. 2 who is the widow of the deceased Muhammad Swalhen
who is in old age and living with her son namely Zakir Hussain (applicant No.3) and the
applicants/intervener No.4 to 6 are married women who are living with their
husbands houses, all of the legal heirs were unaware from the above suit which
was filed by the Plaintiff/DH and litigated between plaintiffs/DH and
Defendants/J/D.
8. That
plaintiffs/DH with the collusion of Defendants/JD they fraudulently executed forged
Iqrarnama dated 09-07-2010 in respect of loan or otherwise which was obtained
by the defendant/JD No.1 from the plaintiffs/DH and according to said Iqrarnama
the defendant/JD No.2 handed over the original documents of house bearing No.
No.13/18, admeasuring 112 square yards,
Sector 5-G, North Karachi without the consent of deceased Muhammad Swalhen and
there is not signature of Muhammad Swalhen being the joint share holder of the
above property and it is submitted that at the time of executing the Iqrarnamad
dated 09-07-2010 Muhammad Swalhen was alive neither the plaintiffs/DH
approached him nor deceased Muhammad Swalhen was aware about the said
Iqrarnama. The plaintiff No.2 as well attorney of plaintiff No.1 has produced
the said IQRARNAMA date 09-07-2019 in his examination in chief was Exhibited P/2 before this Hon’able Court the decree was passed on a void
documents/Iqrarnama which is liable to be set aside.
9. That
all the contents in IQRARNAMA dated 09-07-2010 was executed in favour of the
Plaintiff/DH No.1 and Defendant/No.2, in Para No.9 &10 of the IQRARNAMA there
is mentioned that after selling the house No. No.13/18, admeasuring 112 square yards, Sector 5-G, North Karachi Muhammad Arshad (Plaintiff/DH No.1)
will pay half of the amount of said property to Muhammad Nadeem (Defendant
No.1/JD) and no any Para of IQRARNAMA shows the share of the applicant No.1 deceased
Muhammad Swalhen and also not considered his share which shows malafide, fraud
and misrepresentation on the part of Plaintiffs/DH & Defendants/JD in order
to grab the share of the above property.
10. That
the original documents of the suit property was lying in custody of the
defendant/JD No.2 and the plaintiffs/decree holders with the collusion of
defendants/JD kept the documents as mortgage or otherwise this facts was not
known by the applicants and filed the above suit bearing No.989/2014 and decree
holder obtained the decree without making the necessary party as a joint share
holder to the applicant No.1 and after the death his legal heirs who are now
the legally share holder in the above suit property bearing No.13/18, admeasuring 112 square yards, Sector 5-G,
North Karachi which is still undivided property admeasuring 112 square
yards and the said decree is liable to be set aside.
11. That
the applicants/intervener learnt about the passing of the decree about one
month before when the bailiff of the court came to house of the applicants and
asking to vacate the premises.
PRAYER
It is respectfully prayed on behalf of
applicants that this Honourable court may be pleased to accept the instant
application and to set aside impugned judgment 30-3-2019 & decree
03-04-2019 obtained by fraud and misrepresentation.
Any
other relief which the applicants are entitled also awarded.
Karachi
Dated:
Advocate for the Applicant
IN THE COURT OF VII SENIOR CIVIL JUDGE
AT KARACHI CENTRAL
SUIT No
989/2014
Ex. No.
15/2019
Muhammad Arshad &
another …………………….……Plaintiff/D.H.
Versus
Muhammad Nadeem &
another ……………………... Defendant/J.D.
Muhammad Swalheen
S/o Muhammad Fazal
Since deceased
through his legal heirs
& others
………………..……………………............Applicants/intervener
AFFIDAVIT APPLICATION
U/S 12(2) CPC
R/W
SECTION 151 CPC
I, Muhammad Zakir S/O
Muhammad Swalheen, Muslim, Adult, R/o House No.18, Block No.13,Sector No.5-G,
New Karachi as well attorney of the applicants No.2,4,5 & 6, do hereby state on oath as under:-
1.
That I am applicant/ intervener as
well attorney of applicant No.2,4,5 & 6 in this matter, and well conversant
with the facts of the case.
2.
That the contents of accompanying
application has been drafted and written under my specific instructions, which
are true and correct and for the sake of brevity the contents whereof be
treated as an integral part of this affidavit.
3.
That the applicants/intervener are
share holder in decreetal property bearing No.13/18, admeasuring 112 square yards, Sector 5-G, North Karachi and the decree
holders concealed this fact that the applicant No.1 deceased Muhammad Swalhen
is share holder in above property and also not made him the necessary party and
obtained the judgment 30-03-2019 & decree date 03-04-2019 by committing
fraud and misrepresentation and the said decree is liable to be set aside.
4.
That until and unless my accompanying
application allowed, I shall be seriously prejudiced.
5.
That whatever stated above is true and
correct to the best of my knowledge and belief.
KARACHI: DEPONENT
DATED: CNIC
#________________
CELL#________________
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