MUNAWAR and others vs HABIB and others
This matter arises from a petition for leave to appeal against the judgment of the High Court, which upheld the setting aside of a consent decree. The core legal question concerned whether a consent decree obtained on the basis of an alleged oral gift by the original owner could be successfully challenged through an application under Section 12(2) of the Code of Civil Procedure on the ground of fraud. The Supreme Court held that the trial court and the High Court correctly concluded that the consent decree was the result of fraud and was not sustainable, noting that no mutation was sanctioned during the lifetime of the original owner based on the alleged gift or decree. The Court affirmed that the findings of fact regarding fraud and misreading of evidence by the revisional court were unexceptionable, and thus dismissed the petition, laying down that concurrent findings regarding a fraudulent consent decree will not be interfered with where evidence has been properly appreciated.
- Can a consent decree obtained on the basis of an alleged gift be challenged through an application under Section 12(2) of the Code of Civil Procedure on the ground of fraud?
- Whether the Supreme Court will interfere with concurrent findings of lower courts regarding a consent decree being the result of fraud when evidence has not been misread?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' MUNIR A. SHEIKH, J.---Decree dated 6-11-1983 was obtained by the petitioners in a suit filed by them on 5-11-1983 against Muhammad Nazir, the original owner of the land on the basis of alleged consent of said Muhammad Nazir to the effect that the land had been gifted by him to the petitioners. Muhammad Nazir died on 16-8-1985. Admittedly, no mutation was got sanctioned either on the basis of the original gift allegedly made by Muhammad Nazir before filing of the suit on 5-11-1983 or on the basis of the said consent decree till the death of Muhammad Nazir on 16-8- 1985. The petitioners are the nephews of Muhammad Nazir from his brother Muhammad Yaqoob whereas respondents 1 and 2 are also his nephew and niece from his other brotherMuhammad Bashir who filed application under section 12(2), C.P.C. On 24-4-1988 that the said decree was the result of fraud.
2. The trial Court after considering the evidence -came to the conclusion that consent decree had been obtained through fraud, therefore, the same was not sustainable. Through order dated 19-11- 1989, the said application was accepted and the consent decree was set aside. Revision Petition filed by the petitioners was accepted by the learned Additional District Judge, through order dated 18-7-1990 which has been set aside in Constitutional petition filed by the respondents by the learned Judge in Chambers of the High Court through the impugned judgment dated 10-1-2002 by holding that the learned Additional District Judge had misread the evidence on the record, therefore, his judgment was without lawful authority.
3. Learned counsel for the petitioners has not been able to persuade us that the findings recorded by the trial Court and affirmed by the High Court suffer from any illegality, therefore, no case has been made out for interference, for no evidence has either been misread or misconstrued.