2018 Y L R 1611
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
ABDULLAH and 5 others ---Petitioners
Versus
RAHEEM KHAN and 12 others ---Respondents
Civil Revisions Nos. (s) 31, 33 and 34 of 2014, decided on 27th March, 2018. Civil Procedure Code (V of 1908) ---
----S. 12 (2) ---Suit for declaration ---Decree, setting aside of ---Fraud and misrepresentation---
Question of fraud and misrepresentation had rightly been decided by the Courts below ---
Petitioners had failed to point out any illegality or irregularity in the impugned orders ---
Findings recorded by the Courts below were well reasoned---Petition did not disclose any
fraud and misrepresentation committed by the Courts bel ow while passing the judgments and
decrees rather petitioners contested the proceedings ---No case of fraud and misrepresentation
had been made out ---Revision was dismissed in circumstances.
Ahsan Rafiq Rana for Petitioner.
Husnain Iqbal for Respondent N o.1.
Muhammad Sadiq Ghuman for Respondents Nos. 2, 4 to 11.
Muhammad Iqbal Marghzani for Respondent No.3.
Muhammad Aslam Jamali, AAG for Official Respondent.
Date of hearing: 23rd February, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---Through this judgment I intend to dispose of Civil
Revision Petitions Nos.(s) 31, 33 and 34 of 2014 filed by the petitioner Abdullah and others against the order dated 9th June 2014 (hereinafter referred as, "impugned order") passed by the learned Additional District Judge -I, Sib i (hereinafter referred, as "appellate Court"),
whereby applications under Section 12(2), C.P.C. filed by the petitioners were dismissed separately, however, common question of law is involved in all petitions, thus decided together.
2. Brief facts of the cases are that the petitioners/applicants filed miscellaneous
applications under Section 12(2), C.P.C. for setting aside judgment and decree dated 28th August 2007 passed by the learned Senior Civil Judge, Sibi and Judgment and decree dated 20th October, 2007 passed by the learned Additional District Judge -I, Sibi with averments
that the applicants and respondents Nos.1 to 10 and 13 are legal heirs of late Abdul Ghafoor,
who contracted three marriages in his life and died in January 1995. He left behind anc estral
property, which was automatically devolved upon the legal heirs as per Sharia law.
3. It is further alleged by the petitioners that there are different suits filed by the legal
heirs of the late Abdul Ghafoor against each other and the same were dec reed by the consent
of the participants vide judgment and decree dated 28th August 2007, passed by the learned Senior Civil Judge, Sibi and thereafter an Appeal No.12/2007 was filed before the learned Additional District Judge -I, Sibi and the decree was mo dified vide order dated 21st October
2007 with the directions that applicants Nos.1 to 3 and respondent No.12 were exonerated from payment of to pay mesne profit of Rs.45000/ - to respondent No.l. It is mainly alleged
that the respondent was not authorized to give consent for decree of suit without the consent and permission of applicants Nos.1 to 3 as attorney of applicants Nos.1 to 3 he actively concealed the facts in the suit; that the applicants Nos.4 to 6 are also legal heirs of late Habib
Khan and enti tled to get their shares and the applicants were not impleaded as party to the
suit, hence, the judgments and decrees so obtained were result of fraud and misrepresentation.
4. The miscellaneous applications were contested by the respondents by raising
objections; that the applications are not maintainable for want of jurisdiction as well as barred
by limitation.
5. After hearing the arguments of the parties, the applications were dismissed vide
impugned order as stated in Para No.1.
6. The learned counsel for the petitioners contended that the orders passed by the learned
Additional District Judge -I, Sibi are suffering from misreading, non- reading and
misappropriation of law; that the judgments and decrees passed by the Courts below behind
back of the petit ioners by means of fraud and misrepresentation, as such, both the judgments
and decrees are liable to be set aside; that being legal heirs of their predecessor in interest the petitioners are entitled to receive their proportionate share in the record of r ight, but this
important aspect of case was not considered by the Courts below; that no authority was mandated to the attorney for giving consent for passing consent decree in the earlier suits by the applicants, but such facts were concealed by the attorn ey and he joined hands with the
respondents/ plaintiffs, which resulted in miscarriage of justice with the applicants/petitioners; that the applications of the petitioners were well within the time and also well reasoning, but the learned Court below did not give due weight to the applications of the petitioners and in a slipshod and cursory manner rejected the applications of the petitioners.
7. Conversely, the learned counsel for the respondents vehemently opposed the
arguments so advanced by the learned counsel for the petitioners and contended that the applications filed before the Court of Additional District Judge -I, Sibi were not competent;
that even otherwise, the applications filed by the petitioners were also barred by time; that no fraud and misre presentation was committed by respondents by obtaining the judgment/
decrees from the competent court of law; that the applicants/petitioners were well within the knowledge and participated in the proceedings before the learned trial Court and even the proceedings gone upto the High Court and they were well within the knowledge, but nowhere
raised any objection with regard to the decrees passed by the learned trial Court as well as Court of Additional District Judge -I. Sibi, that the petitions are liable to be dismissed.
8. I have heard the learned counsel for the parties and gone through the record minutely,
which reveals that the parties are inter -se relatives with each other and successors of late
Abdul Ghafoor, who left behind different properties and thereafter the parties filed civil suits
against each other in the Court of Senior Civil Judge, Sibi and with consent of the parties, the suits were decreed, in pursuance whereof the property was devolved mutated/ transferred in the names of legal heirs of t he late Abdul Ghafoor, however, thereafter, the instant
applications 'under Section 12(2), C.P.C. filed by the petitioners with the averments that the judgment and decrees passed by the Courts below obtained by means of fraud and misrepresentation, now the moot question remained to be decided by this Court as that,
"Whether the judgments and decrees dated 28th August 2007 passed by the Senior Civil Judge, Sibi and judgment and decree dated 20th October 2007 passed by the learned Additional District Judge -I, Sibi were result of fraud and misrepresentation or otherwise".
9. The perusal of applications filed under Section 12(2), C.P.C. reflects that the
applicants/petitioners mainly agitated that the judgments dated 28th August 2007 and 20th
October, 2007 passe d by the Senior Civil Judge, Sibi subsequently modified by the
Additional District Judge, Sibi were obtained by means of fraud and misrepresentation and
concealing the facts from the Courts below behind the back of the petitioners. It is further
alleged by the petitioners that the suit so filed before the trial Court and the impression was
given by the respondent No.1 with the connivance of respondents Nos.2 to 13 that the suit
was filed for sharia -e-shares from estate of Abdul Ghafoor so under that impress ion written
statement was filed by the respondent No.13 he joined hand with the other respondents and gave an application, whereby a consent was given for decree of suit according to sharai share of plaintiff/ respondent No.1 infact respondent No.1 with the connivance of respondent No.2 had filed the above titled suit and by committed a fraud with applicants and by means of
misrepresentation they succeeded obtaining judgments and decrees from the competent court of law i.e. Senior Civil Judge, Sibi, while no such authority was. given to the respondent No.13 and he filed an application in the trial Court without written consent and permission and applicants Nos.1 to 3.
10. That the respondents Nos.4 to 6 were also legal heirs of late Habib Khan and are
entitled to get their shares from estate of late predecessor i.e. Abdul Ghafoor, neither
respondents Nos.2 to 3 nor respondent No.13, who was attorney of applicants Nos.1 to 3 brought this fact into the knowledge of trial Court; that there are other legal heirs of late Habib Khan and their appearance for decision of the case was very much essential and necessary. The trial Court also committed an error for not arraying applicants Nos.4 to 6 as party in that suit, from this fraud as well as misrepresentation made by respondent can be ascertained, respondent No.12 was allegedly attorney for legal heirs of late Mehmood Khan and Ajab Khatoon daughter of Abdul Ghafoor, who was instrumental in all things and was active participant in fraud as well as misrepresentation.
11. It is further alleged that the judgment and decree passed by the Senior Civil Judge,
Sibi a mesne profit was also ordered and according to that Rs.40,000/ - would be payable to
respondent No.1 by applicants Nos.1, to 3 and 13 against that a Civil Appeal No.1212007
was filed before the learned District Judge- I, Sibi under section 96, C.P.C. and vide order and
decree dated 20th July, 2007, judgment and decree dated 28th August, 2007 modified partially and the applicants Nos.1 to 3 and 13 were exonerated fr om payment of said money
to respondent No.1.
12. That the applicants Nos.1 to 3 under the impression within both the judgment/ decree
dated 28th August, 2007 and order/ decree dated 20th July, 2007 that their shares from the
estate of late Abdul Ghafoor remained intact and the other legal heirs had applied for their
shares without disturbing the shares of applicants so they did not object at any stage, they were regularly paying share to respondents Nos.1 to 3, so they filed appeal only to the ext ent
to mesne after both respondent No.1 with connivance of other respondents filed execution before the learned trial Court and the latter on mutation Nos.68 and 77 was carried out, in which applicants all together excluded from estate of late Abdul Ghafoor.
13. That the legal heirs of late Habib Khan when came into the knowledge they filed a
suit for declaration, correction of entries and permanent injunction in the Court of Senior Civil Judge, Sibi, which was contested by the parties and the matter is ult imately gone to the
High Court and vide order dated 30th March, 2012 this Court dismissed the petition as withdrawn operating part is reproduced as under: --
"In light of above discussion, I am of the considered opinion that the suit was
incompetent and non -maintianable, therefore, both the Courts below rightly rejected
the same by pressing into service the provisions of Order VII Rule 11 sub- clause (d)
of C.P.C. with afore -said observations, the revision petition is dismissed as
withdrawn."
14. The learned Additional District Judge, Sibi while deciding the question of
maintainability of fraud and misrepresentation under section 12(2), C.P.C. formulated certain
points, wherein also reproduced the section 12(2), C.P.C. for convenience the provisions of section 12(2), C.P.C. are further reproduced as under: --
"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 applica- tion to the court which passed the final judgment,
decree or order and not by a separate suit."
15. Whereby rightly recorded its findings in Miscellaneous Application No.26/2012
mainly on reason on point No.3 reproduced as under: --
"Reasons on point No.3
Applic ants alleged that the respondents obtained decree from the trial court in respect
of disputed property against the applicants by way of committing fraud and through
misrepresentation. As the applicants Nos.4 to 6 were not impleaded as party to the suit and the applicants were under the impression that the respondent No.1 (mother of
respondent No.4) filed the suit for her legal share only and they further alleged that the fraud was committed by the collaboration of their attorney (respondent No.13) and other respondents as the attorney of applicants set into compromise with other
respondents without any authority and without the consent and knowledge of the applicants Nos.1 to 3. Applicants further con- tended that attorney of applicants Nos.1
to 3 was conditi onally empowered to set into compromise with the respondents and
the condition to set into compromise with respondents was the consent of applicants Nos.1 to 3, but the attorney of applicants Nos.1 to 3 (respondent No.13) without the consent and knowledge of the applicants Nos.1 to 3 set into compromise and consent
decree was obtained by the respondents with collusion and connivance of respondent No.13 (attorney of applicants Nos.1 to 13) by way of fraud and misrepresentation. As
the applicants alleged that their attorney joined hands with the respondents and set
into compromise without the consent and knowledge of applicants Nos.1 to 3. It is
suffice to mention here that the respondent No.13 was not only the attorney of applicants but is brother of applicants Nos.1 to 5 who in his rejoinder to the application under section 12(2) alleged that Ahmed Khan attorney of respondent No.1 and Chakar Khan (respondent No.12) attorney of respondents Nos.3 to 12 committed fraud with him and he without the consent and knowledge of his brothers set into compromise with the respondents. It is worthwhile to mention here that the decree was obtained on 28th August, 2007, where the applicants Nos.1 to 3 and respondent No.13 was party to that suit, and thereafter the applicants herein filed a civil suit bearing No.29/2008 in the year 2008 and proceeded the Suit No.29/2008 up to Hon'able High Court having knowledge of alleged fraud but not challenged the decree of Suit No.07/2006 on the ground of fraud till 28th October, 2012. It is suffice to mention here that the applicants Nos.1 to 3 and respondent No.13 jointly filed Civil Appeal No.12/2007 against the judgment and decree dated 28th August, 2007, but in the same appeal they had not alleged any fraud or misrepresentation, they o nly
challenged and prayed for modification of the decree to the extent of mesne profit. It is crystal clear from the record of proceeding of Civil Suit No.7/2006 and appeal thereof that the facts were very much in the knowledge of the parties but not agita ted
at the right time and later on the applications filed a Civil Suit No.29/2008 on the same subject matter and after exhausting that forum now the applicants filed instant application under section 12(2), C.P.C. which is not permissible practice in the e yes
of law. It is an admitted fact that applicants Nos.4 to 6 were not impleaded as party to the Suit No. 07/2006, but mere non- impleading a party to the suit or proceeding is not
equivalent fraud especially when the brothers of applicants Nos.4 and 5 and sons of
applicant No.6 were party to the proceedings as defendants and they thereafter filed appeal before this Court against the decree dated 28th August, 2007. It is suffice to mention here that on perusal of decree dated 28th August, 2007 it divulges that Id. Trial Court only decreed 5 shares in favour of respondent No.1 and not excluded any of heirs of late Abdul Ghafoor, operating Para of decree is reproduced as under:
"It is ordered that the plaintiff is entitled to five shares out of total forty shar es in land
Khaiwat No.112 Min Khatooni No. 112 Min measuring 187.32, Road- 35 Pole -36
Mahal Karizai Mouza, Khushkaba Khajjak is entitled to receive her share in crop according to her share in jointly owned lands and get her share of land partitioned and defendants have no right to interfere in the land sin question to the extent to her share.
The defendants are restrained permanently for interfering to the share of land of plaintiff. The defendants Nos.2 to 5 to pay amounting Rs.45000- as mesne profits to
the plaintiff. "
13. Above decree was modified to the extent of payment of mesne profit by this Court and in my opinion while passing decree dated 28th August, 2007 in Civil Suit No.07/2006 ld. Trial Court as well as this Court has not excluded any of heirs of late Abdul Ghafoor from the legacy left behind by late Abdul Ghafoor, but only determined the shares of respondent No.1 and in case the mutation entries were carried out excluding other successors in interests of late Abdul Ghafoor in execution proceedin gs, that cannot be challenged through application under section 12(2),
C.P.C."
16. As well as the same question was resolved in the connected Miscellaneous
Applications filed under section 12(2), C.P.C. the question of fraud and misrepresentation
was right ly decided by the learned Court below.
17. The learned counsel for the petitioners failed to point out any illegality or irregularity
in the impugned orders. The findings of learned Courts below are well reasoning, the petitions does not to disclose any fr aud and misrepresentation being committed by the Courts
below, while passing judgments and decrees, rather the overall record transpired that the petitioners/applicants directly and indirectly contested the proceedings and well within the knowledge of proc eedings till the proceedings comes to this court too, as such, no case of
fraud and misrepresentation is made out to warranting interference by this Court.
Thus, for the reasons discussed hereinabove, the petitions being devoid of merits are
hereby dismis sed with no order as to costs.
ZC/33/Bal Revisions dismissed.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,
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