Mst. GULl and others vs MUHAMMAD AMIR KHAN and others
This matter involves two civil petitions for leave to appeal against a judgment of the Lahore High Court, which dismissed writ petitions challenging concurrent findings of the trial and revisional courts regarding an application under Section 12(2) of the Code of Civil Procedure 1908. The core legal question was whether the petitioners' predecessor-in-interest had been defrauded into withdrawing a suit for declaration, thereby allowing the respondent to obtain a decree in a separate suit based on an agreement. The Supreme Court dismissed the petitions, holding that the petitioners failed to substantiate allegations of fraud or misrepresentation. The Court observed that the original suit had been contested, the resulting decree attained finality, and the petitioners had failed to raise the plea of fraud in subsequent pre-emption litigation involving the same property. The key principle laid down is that where concurrent findings of fact exist regarding the absence of fraud or misrepresentation, and where a party has failed to challenge a decree that attained finality or raise the plea of fraud in earlier related proceedings, such findings will not be disturbed in appellate jurisdiction.
- Can a decree be challenged under Section 12(2) of the Code of Civil Procedure 1908 on the grounds of fraud when the underlying suit was contested and the decree attained finality?
- Does the failure to raise a plea of fraud in earlier related litigation preclude a party from asserting such fraud in a subsequent application under Section 12(2) of the Code of Civil Procedure 1908?
- Will the Supreme Court interfere with concurrent findings of fact regarding the absence of fraud or misrepresentation in the absence of misreading or non-reading of evidence?
- Section 12(2), Code of Civil Procedure 1908
' HAMID ALI MIRZA, J.--- These two civil petitions for leave to appeal are directed against the judgment of the same date in Writ Petitions Nos.6075 and 6076 of 2002 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby both writ petitions were dismissed maintaining the order, dated 15-3-2001 of the trial Court and order, dated 14-2-2002 passed by the revisional Court on an application under section 12(2), C.P.C.
2. Facts of the case need not be reiterated as the same have been stated in the impugned orders as well as in the memo. Of petitions.
3. Contentions of the learned counsel for the petitioners in both petitions are that the order with regard to withdrawal of the Suit No,207 of 1992 for declaration filed by the petitioners' predecessor- in-interest consequently its dismissal and decree in Suit No,4 of 1991 obtained by the respondent in his suit were obtained by the respondents by committing fraud, therefore, the impugned order passed by the learned Judge in Chambers maintaining the orders of the Courts below cannot be sustained in law and further that the suit of the respondent was not maintainable on the basis of said agreement.
4. We do not find merit and substance in the said contentions. On the basis of agreement dated 16- 2-1985 the respondent filed a suit on the ground that the amount of Rs,85,000 was not returned to him, therefore, he became the owner of the property in dispute be deemed to have been sold to him for the non-payment of the said amount. The said suit filed by the respondent was contested by the petitioner/defendant Mst. Guli and after recording of evidence, the suit was decreed on 18- 11-1993 which was not appealed against and decree attained its finality between the parties. The respondent/plaintiff got the conveyance deed executed in his favor through Officer of the Court on 28-5-1994. One Beara and others filed suit for pre-emption on 26-9-1994 against the respondent/plaintiff and others wherein petitioners were also impleaded as party which suit was also contested up to High Court and in the High Court the suit was disposed of through withdrawal of R.S.A. By the original vendees. It was also not denied by the learned counsel for the petitioners that in the said suit for pre-emption wherein they were respondents/defendants no such plea of fraud was agitated in the written statements filed by them. It will be seen from the record that the petitioner's predecessor had contested the proceedings as such neither fraud nor misrepresentation could be said to have been practiced or committed by the respondents.
Learned Judge in Chambers and two Courts below have arrived at concurrent findings of fact that there was neither fraud nor misrepresentation on the part of the respondents and further no misreading or non-reading of evidence has been pointed out in the impugned judgment.
5. We find no factual or legal infirmity with the impugned judgments, therefore, leave to appeal is declined and the petitions are dismissed.