P L D 2021 Balochistan 196
Before Abdul Hameed Baloch, J
SAMIULLAH ---Applicant
Versus
BAZ MUHAMMAD ---Respondent
Civil Miscellaneous Application No 1282 of 2020, decided on 11th June, 2021.
(a) Civil Procedure Code (V of 1908 )---
----S. 12(2) ---"Final order" ---Application under S.12(2), C.P.C.---Appeal of respondent
against eviction order of Trial Court in favour of respondent (alleged owner of shop) was
dismissed by High Court ---Separate suit of the present applicant for declarati on and
permanent injunction against respondents was decreed in favour of applicant/ plaintiff ---
Held, that applicant was recorded owner of shop as per revenue abstract ---Respondent
intentionally concealed from High Court the fact that applicant filed the s uit for declaration
and permanent injunctions ---Even after disposal of the said suit, respondents (contesting in
appeal before High Court) did not bother to inform the fate of the suit to High Court ---Fraud
would vitiate most solemn proceeding--- Respondent s by concealing the facts from
Court/Rent Controller committed fraud ---Concealment of facts should be discouraged---High
Court accepted application under S.12(2) and remanded the matter to Rent Controller with
direction to implead the applicant and decide the application according to law ---Cost of
Rs.200,000/ - imposed on the respondents.
The Punjab Cooperatives Board for Liquidation v. Dr. Nazir Saeed 2019 MLD 201;
Mst. Marryam Bibi v. Mst. Murad Bibi 2018 MLD 984 and Lahore Development Authority v. Fir dous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 ref.
(b) Civil Procedure Code (V of 1908) ---
----S. 12(2) ---Phrase 'court which passed the final judgment, decree or order'--- Scope ---
Applicant's prior application under S.12(2) for setting aside the order of tri al Court was
dismissed by trial Court as withdrawn for filing it before proper forum i.e. High Court ---
Held, that contention of respondents that application under S.12(2) of Civil Procedure Code, 1908 could not be filed before Trial Court because High Cour t affirmed judgment of Trial
Court, had no force ---With respect to the four situations relevant to the determination of the
final court within the purview of S.12(2) of C.P.C. as mandated by Supreme Court in Sahabzadi Maharunisa v. Mst. Ghulam Sughran (PLD 2016 SC 358), High Court recorded
elaborate observations:
High Court observations were as follows: --
(i) In the cases where the remedy of appeal/revision is provided against a judgment etc.
or a remedy of writ is availed, the appellate/ revisional/constitutional forum records reasons
on the consideration of the issues of law and /or fact the judgment etc. of the subordinate court/forum will merge into the decision of the appellate court etc. irrespective of the fact that such judgement reverses, varies or affirms the decision of the subordinate court/forum
and its decision will be operative and capable of enforcement on the principle of merger, the application under section 12(2) of the C.P.C. will be maintainable before the appellate/revisional/constituti onal forum (High Court, District Court, Tribunal or Special
Court as the case may be);
(ii) In the situation where an appeal/revision/writ is not disposed of on merits but on some
other grounds; there are certain exceptions to the rule of merger which shal l not apply where
an appeal etc. has been dismissed: -(i) for non -prosecution; (ii) for lack of jurisdiction; (iii)
for lack of competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi) withdrawal of the matter by the party; (vii) for l ack of locus standi; (viii) decided on the
basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) is rendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writ
is dismissed on the ground of availability of alternate remedy; (xii) where the writ is dismissed on the point of laches. Such exceptions shall also be attracted to the decision(s) of the Supreme Court, where applicable. However, where the case falls within the noted
exceptions the forum for an application under section 12(2) of the C.P.C. is the one against whose decision the matter has come and been disposed of in the above manner by the higher forum;
(iii) In the cases of reversal or modification of the judgment of the High Court(s),
Tribunal(s) or Special Courts before High Court, or those affirmed in appeal (where the matter does not fall within the exceptions) the judgment of the Sup reme Court shall be
deemed to be final for moving an appropriate application on the plea of lack of jurisdiction, misrepresentation and fraud;
(iv) In the cases where leave is declined by High Court, the judgment etc. of the lower
fora will remain intact and final and will not merge into the leave refusing order, for the purposes of an application under section 12(2) of the C.P.C. which can only be fi led before
the last forum i.e. the High Court(s) if the matter has been decided in the appellate/revisional/writ jurisdiction by the said court, or if the matter has come to this Court directly for leave from a Tribunal/Special Court (see Article 212 of the Constitution). However where the petition for leave to appeal has been dismissed with detailed reasons and a thorough decision of the questions of law and fact has been made, the judgment of the High Court(s)/Tribunal will though not merge into the order of the Supreme Court yet in order to
avoid a ludicrous situation that once a question of law and fact has been elaborately and explicitly dealt with by High Court in the leave refusing order and the court below may not be in a position to adjudicate upon those points without commenting on the order/reasons of the Supreme Court and to reopen the matter, an application in the nature of section 12(2) of
the C.P.C. can be filed before High Court, leaving it to the absolute discretion of this Court
to either de cide such application itself or send the matter to the lower fora for the decision.
Khalil -ur-Rehman for Applicant.
Siyal Khan for Appellant.
Syed Muhammad Zahid for Respondent.
Date of hearing: 7th June, 2021.
ORDER
ABDUL HAMEED BALOCH, J .---Through this order I intend to dispose of C.M.A.
No. 1282 of 2020, filed by the applicant Pervez Khan under section 12(2) Civil Procedure Code (C.P.C.) for setting aside of order and decree dated 18th February, 2015 passed by Senior Civil Judge -III/Rent Controller , Quetta and judgment dated 8th October, 2020 passed
by this court in F.A.O. No. 11 of 2015.
2. Concise facts of the case are that the applicant Pervez Khan filed application under
section 12(2) C.P.C. with the prayer:
"In view of above, it is therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to set aside the order/ decree dated 18.2.2015 passed by Senior Civil Judge/Rent Controller, Quetta and judgment dated 8.10.2020 passed by this
Hon'ble Court may kindly be set aside being obtained through fraud,
misrepresentation and concealment of facts, with any other relief in the interest of
justice."
3. Learned counsel for the applicant contended that the appellant (Samiullah) has
assailed order of Rent Controller/ Senior Civil Judge -III, Quetta by filing F.A.O. No. 11 of
2015 against respondent Baz Muhammad. The learned counsel further contended that both the parties have no concern or connection with the property in question. The applicant Pervez Khan is recorded owner of the property i n question. The applicant filed civil suit for
declaration and permanent injunction before Senior Civil Judge -III, Quetta against appellant
and respondent of F.A.O. No. 11 of 2015, which was decreed vide judgment and decree dated 30th September, 2020. The applicant filed application under section 12(2), C.P.C. for setting aside order dated 18th February, 2015 and 8th October, 2020, which was returned by the Rent Controller for want of jurisdiction. The parties in appeal had no locus standi to file applicati on.
4. The learned counsel for the respondents vehemently opposed the contention of the
applicant and stated that this court affirmed the judgment of the trial court, therefore, the application under section 12(2), C.P.C. could be filed before trial court. The application is time barred. On this sole ground the application is not sustainable. The applicant failed to specifically mention that when the alleged fraud was committed.
5. Heard and perused the record. The record transpires that the responden t Baz
Muhammad filed eviction application against appellant Samiullah before Senior Civil Judge -
III/ Rent Controller, Quetta (trial court) contending that the respondent Baz Muhammad is
owner of the property/shop along with basement bearing Khasra No.1763/ 518 measuring 816
square feet, situated at Double Road, Quetta. The trial court allowed the application. The
appellant Samiullah assailed the impugned order of Rent Controller before this Court and
this court vide judgment dated 8th October, 2020 dismissed the appeal. The relevant para of
the judgment reads as under:
"In view of above F.A.O. No. 11 of 2015 is dismissed. However, two months time is
granted to the appellant to handover vacant possession of premises in question and also to pay rent as already ordered by the trial court on application under section
13(6) of the Ordinance 1959 vide order dated 28th March, 2013, 9th October, 2013 and affirmed by this court in C.P. No. 763 and C.P. No. 797 of 2013 vide order dated 26th June, 2014. The parties are left to bear their own costs."
6. The applicant Pervez Khan filed application under section 12(2), C.P.C. for setting
aside of the order of the trial court dated 18th February, 2015. The trial court vide order dated 16th December, 2020 dismissed the applic ation as withdrawn. The relevant para is
reproduced hereunder for ready reference:
"----. The learned counsel for the applicant submitted that since the final order was
passed by the Hon'ble High Court of Balochistan, therefore, their instant application under section 12(2) read with section 151 of the C.P.C. for setting aside the order and decree, before this court is not the proper forum and they intend to withdraw the same and file it before the Hon'ble High Court of Balochistan. The signature of the counsel for the applicant was obtained at the Diary sheet. Upon the request of the applicant,
for withdrawal of the application, the same is dismissed as withdrawn."
7. The record transpires that the applicant Pervez Khan filed civil suit for declaration and
permanent injunction before Senior Civil Judge -III, Quetta, bearing Civil Suit No. 56 of 2017
against Baz Muhammad and Samiullah (appellant and respondent in F.A.O. N o. 11 of 2015)
in respect of shop under mutation No. 4775, khasra No. 1763/518, measuring 816 square feet Mohal Mouza Sirki Kalan, Tappa Saddar, City Quetta against the appellant and respondent stating that the plaintiff has purchased the property from one Najeebullah. The defendants
contested the suit. The trial court vide judgment and decree dated 30th September, 2020 decree the suit. The relevant para reads as under:
"What had been discussed herein above issues, I resolved that the plaintiff succeeded to establish his claim; therefore, the suit is decreed in his favour and the plaintiff
being the recorded owner of the property in question, therefore, the defendant No. 1 is permanently restrained from any kind of interference in the property in question.- --"
8. As per revenue abstract the applicant is recorded owner of property bearing Khasra
No. 1763/518. While filing eviction application the respondent Baz Muhammad has not arrayed the applicant Pervez Khan as party before the Rent Controller. While durin g
pendency of F.A.O. No. 11 of 2015 before this court the appellant Samiullah has intentionally concealed the fact that applicant Pervez Khan filed civil suit for declaration and
permanent injunction bearing No. 56 of 2017. Even after the judgment in civil suit on 30th
September, 2020 the appellant and respondent did not bother to inform the fate of the suit to
this court. It would be relevant to reproduce section 12(2), C.P.C.:
"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."
9. The above referred provision empower the court to re -call/ set aside its own
order/judgment if found that it was obtained through fraud and misrepresentation. It is settled principle of law that fraud vitiates most solemn proceeding. In case of The Punjab Cooperatives Board for Liquidation v. Dr. Nazir Saeed 2019 MLD 201, it was held:
"----It is well settled law that fraud vitiates the most solemn proceedings and any
edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill gotten gain achieved by committing fraud cannot be validated under any laws.-- "
This court in case Mst. Marryam Bibi v. Mst. Murad Bibi 2018 MLD 984 held:
"7. We are constrained to observe that had the lower forums been vigilant, attentive, careful and conscious of the facts of the case and alive of legal position, they would have not dismissed the application filed under section 12(2), C.P.C. By now, it is settled principle of law that fraud vitiates any proceeding how so ever solemn it may be. The view stands fortified by the dictum laid down by the Hon'ble Apex Court in
the judgment titled as 'Talib Hussain and others v. Member, Board of Revenue and others' reported in 2003 SCMR 549 (relevant at page 553), wherein it has been observed as under:
"It goes without saying that as far as fraudu lent transaction is concerned it has no
foundation to stand and whenever such transaction is declared null and void then the whole series of such order along with superstructure built upon it is bound to collapse. Reference in this behalf may be made to th e case of Yousuf All v. Muhammad Aslam
Zia (PLD 1958 SC (Pak.) 104). It would also not be out of context to note that fraudulent transaction is considered to vitiate even most solemn proceedings as it has been held in the judgments (1) Ghias -ud-Din v. Iqba l Ahmad and 5 others (PLD 1975
Lahore 780), (2) Lal and another v. Muhammad Ibrahim (1993 SCMR 710), (3) Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782), John Paul v. Irshad Ali and others (PLD 1997 Karachi 267), (5)
Mst. Sarwari Begum v. Atta -ur-Rehman (1997 CLC 1500) and (6) Muhammad
Yaqoob v. The State (1997 PCr.LJ 1979)."
10. The contention of respondents that this court affirmed the judgment of the trial court,
therefore, the application under section 1 2(2), C.P.C. could be filed before the trial court. The
contention has no force. The Honorable Supreme Court of Pakistan in case Sahabzadi Maharunisa v. Mst. Ghulam Sughran PLD 2016 SC 358 held:
"8. In order to sum up the discussion on the subject, we find that the following are the
situations (with certain exceptions) which would be relevant to the determination of
the final court within the purview of section 12(2) of the C.P.C: --
(i) Where an appeal/revision/writ is accepted, the judgment etc. is reversed, varied, modified or affirmed;
(ii) Where an appeal/revision/writ is not disposed of on merits but on some other grounds;
(iii) Where direct appeals or those after the grant of leave are allowed or dismissed and the
judgment etc. of the learned High Court(s)/Tribunals or special forums below has
been varied, altered, reversed or affirmed by this Court;
(iv) Where the petition(s) for leave to appeal under the Constitution is declined; "
9. With r espect to these four situations, our conclusion is as under:
(i) In the cases where the remedy of appeal/ revision is provided against a judgment etc.
or a remedy of writ is availed, the appellate/ revisional/constitutional forum records
reasons on the con sideration of the issues of law and/or fact the judgment etc. of the
subordinate court/forum will merge into the decision of the appellate court etc. irrespective of the fact that such judgment reverses, varies or affirms the decision of the subordinate court/forum and its decision will be operative and capable of enforcement on the principle of merger, the application under section 12(2) of the C.P.C. will be maintainable before the appellate/revisional/constitutional forum (High Court, District Court, Tri bunal or Special Court as the case may be);
(ii) In the situation mentioned at serial No. (ii) above, there are certain exceptions to the rule of merger which (rule) shall not apply, where an appeal etc. has been dismissed: -
(i) for non -prosecution; (ii) f or lack of jurisdiction; (iii) for lack of
competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi) withdrawal of the matter by the party; (vii) for lack of locus standi; (viii) decided on the basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) is rendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writ is dismissed o n the ground of availability of alternate
remedy; (xii) where the writ is dismissed on the point of lathes. It may be mentioned that such exceptions shall also be attracted to the decision(s) of the Supreme Court, where applicable. However where the case f alls within the noted exceptions the forum
for an application under section 12(2) of the C.P.C. is the one against whose decision the matter has come and been disposed of in the above manner by the higher forum;
(iii) In the cases of reversal or modificati on of the judgment of the High Court(s),
Tribunal(s) or Special Courts before this Court, or those affirmed in appeal (where the matter does not fall within the exceptions) the judgment of the Supreme Court shall be deemed to be final for moving an appropr iate application on the plea of lack of
jurisdiction, misrepresentation and fraud;
(iv) In the cases where leave is declined by this Court, the judgment etc. of the lower fora will remain intact and final and will not merge into the leave refusing order, f or the
purposes of an application under section 12(2) of the C.P.C. which can only be filed
before the last forum i.e. the learned High Court(s) if the matter has been decided in
the appellate/revisional/writ jurisdiction by the said court, or if the matte r has come to
this Court directly for leave from a Tribunal/Special Court (see Article 212 of the Constitution). However where the petition for leave to appeal has been dismissed with detailed reasons and a thorough decision of the questions of law and fac t has been
made, the judgment of the High Court(s)/Tribunal will though not merge into the
order of the Supreme Court yet in order to avoid a ludicrous situation that once a
question of law and fact has been elaborately and explicitly dealt with by this Court in the leave refusing order and the court below may not be in a position to adjudicate upon those points without commenting on the order/reasons of the Supreme Court and to reopen the matter, an application in the nature of section 12(2) of the C.P.C. can be filed before this Court, leaving it to the absolute discretion of this Court to either decide such application itself or send the matter to the lower fora for the decision; "
11. The respondent Baz Muhammad filed eviction application against appella nt Samiullah
before the Rent Controller and on decision the appellant Samiullah filed FAO No. 11 of 2015, but concealed the facts from the court thus committed fraud. The Honorable Supreme Court in case Lahore Development Authority v. Firdous Steel Mills ( Pvt.) Ltd. 2010 SCMR
1097 held:
"8. The remedy under section 12(2), C.P.C. to seek annulment of a decree on the ground of want of jurisdiction, misrepresentation or fraud is not the only remedy. A decree may be set aside through an appeal, a revision and review, if available under law. In this view of the matter, the contention of the learned counsel of the respondent that petitioner has filed an application under section 12(2), C.P.C. for re -hearing of
the main writ petition and the judgment dated 13- 9-1999 is final between the parties,
has no force.
9. Before proceeding further it is appropriate to know the meaning of words 'fraud" or "misrepresentation" used in section 12(2), C.P.C. on the basis of dictum laid down by the Supreme Courts and in the Legal Dictionary.
"Fraud"
"Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221."
"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134).
"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).
"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two persons that one should institu te a suit against the
other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655).
"For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion
is as good as the plea of fraud" (Zafarullah and others v. Dost Muhammad and others PLD 1984 Lah. 396).
"Fraud"
"A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury" --- "A generic term, embracing all multifarious means which
human ingenuity can devise, and which are resorted to by one individual to get
advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated" (Blacks Law Dictionary Fifth Edition).
"Misrepresentation"
"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." (Blacks Law Dictionary Fifth Edition).
"Collusion"
"An agreement b etween two or more persons to defraud a person of his rights by the
forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the
accomplishment of an u nlawful purpose". (Blacks Law Dictionary Fifth Edition).
10. It is settled proposition of law that fraud cannot be directly proved, it has to be inferred from the surrounding circumstances and conduct of the parties. It is also well-settled law that fraud vitiates the most solemn proceedings. Reference may be
made to the following cases: -
Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549, (ii) Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and (iii) Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
11. It is pertinent to mention here that all the ingredients of collusion are proved in the present case by submitting report and parawise comments of the representative of the petitio ner wherein the claim of the respondent was accepted in violation of the
ground realities existed at the spot. This fact alone is sufficient to establish that private respondent is a beneficiary and secured judgment from the High Court in connivance with t he representative of the petitioner."
12. In view of above circumstances it is crystal clear that the appellant Samiullah and
respondent Baz Muhammad had intentionally and deliberately concealed the fact from the court despite knowing that the civil suit f iled by applicant Pervez Khan relates to the said
property. Concealment of fact could not be encouraged, it should be discouraged. The
appellant Samiullah and respondent Baz Muhammad were under legal obligation to bring all the facts to the knowledge of th is court. The parties in F.A.O. No. 11 of 2015 have obtained
the decision by fraud, collusion, misrepresentation and with connivance of each other which could not be overlooked.
In view of above circumstances the application under section 12(2), C.P.C. filed by
applicant Pervez Khan is accepted. The order of the Rent Controller/Senior Civil Judge -III,
Quetta dated 18th February, 2015 is set aside and judgment of this court passed in F.A.O. No. 11 of 2015 dated 8th October, 2020 is recalled. The matter is remanded to the Rent
Controller/ Senior Civil Judge -III, Quetta with direction to implead the applicant Pervez
Khan and decide the application strictly in accordance with law. Cost of Rs. 200,000/ -
(Rupees two hundred thousand) is imposed on the appellant Samiullah and respondent Baz Muhammad to be paid by them to the applicant Pervez Khan.
ZH/93/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.