BARKAT ALI AND Others vs Mst. FAZAL BIBI AND 2 Other
This matter originated as a civil suit challenging a land mutation on grounds of fraud, collusion with revenue staff, and lack of consideration. The respondents alleged that the mutation was fictitious and that one respondent, being deaf and dumb, could not have consented to the sale. While the trial court dismissed the suit, the Additional District Judge reversed this decision, and the High Court dismissed the petitioners' appeal in limine. The core legal questions were whether the appeal before the Additional District Judge was incompetent due to the failure to appoint a next friend for a deaf and dumb respondent, and whether the respondents were precluded from relief because the specific type of fraud proved at trial differed from that pleaded. The Supreme Court held that the appeal was competent, as deafness and dumbness do not equate to unsoundness of mind under the law, and the fraud proved was consistent with the allegations. The Court affirmed the concurrent findings of fact regarding the fraudulent nature of the mutation and dismissed the petition, establishing that procedural irregularities causing no prejudice do not invalidate proceedings.
- Does the mere fact that a party is deaf and dumb necessitate the appointment of a next friend under Order XXXII Rule 15 of the Code of Civil Procedure 1908?
- Can a party succeed in a claim of fraud if the specific evidence presented at trial varies slightly from the initial pleadings?
- Does a procedural irregularity that causes no prejudice to the opposing party invalidate an appellate proceeding?
- Order XXXII Rule 15, Code of Civil Procedure 1908
ORDER
1. WAHEEDUDDIN AHMED, J.-The respondents brought a suit challenging mutation No. 574 dated the 30th April 1966, on the allegation that this entry was obtained by fraud and it was void, illegal, fictitious and without consideration. They denied that they received Rs. 14,500 as sale price and alleged that they did not appear before the Revenue Officer and did not consent to the sale in dispute. It was also alleged by them that one of the respondents Mst. Hanifan Bibi was deaf and dumb and could not give her consent to the sale. The respondents' case is that the land in dispute was given on lease to petitioner No. 8 for a period of three years from the 2nd July 1963 and the mutation in question was obtained in collusion with the Revenue staff. The suit was resisted by the petitioners. They denied to have practised any fraud and stated that Mst. Hanifan Bibi gave her consent for sale through her brother and mother. On the pleadings of the parties as many as 8 issues were framed. The learned trial Court dismissed the suit. The matter was taken in appeal to the learned Additional District Judge, Bahawalpur, who by order dated the 2nd February 1971, reversed the judgment of the trial Court and decreed the suit. The matter was then taken to the High Court in R. S. A. No. 31-71/BWP and a Division Bench of the High Court by judgment dated the 24th March 1971, dismissed the appeal in limine. The petitioners seek permission to file an appeal against the said judgment.
2. In support of the appeal Mr. Muhammad Abdul Wahid, learned counsel for the petitioners has urged two points. In the first place, the learned counsel contended that Mst. Hanifan Bibi being absolutely deaf and dumb, it was necessary for the petitioners before the Additional District Judge, Bahawalpur, to file the appeal through a next friend. The learned counsel contended that as this was not done the appeal before the District Judge was incompetent and it should not have been dismissed on this ground. Secondly, the learned counsel contended that the respon--dents alleged in the plaint one kind of fraud and proved at the trial all other kind of fraud and, therefore, the allegation of fraud made by them should not have been accepted. The contention of the learned counsel has not impressed us. It is quite correct that Mst. Hanifan Bibi is deaf and dumb but there is no proof on the record to show that she is of unsound mind. In these circumstances, Order XXXII, rule 15 of the Civil Procedure Code does not apply to the present case. In any case, this objection was not taken before the trial Court or before the first appellate Court, and the High Court was perfectly justified in observing that even if there is any irregularity in this behalf it has not caused any prejudice to the petitioners. This contention, therefore, is repelled.
3. So far as the question of fraud is concerned, the case of the respondents was that the mutation in question was obtained by the petitioners in collusion with the Revenue staff. At the trial the respondents have proved that somebody personated for them and the mutation in question was obtained by fraud. In our opinion, the fraud alleged and proved by the respondents is of the same kind and no objection can be taken to it on this ground.
4. On merits there is concurrent finding of facts by the Courts below that the respondents are owners of the land, that their signatures were not obtained on the mutation and that somebody has personated them before the Revenue authorities. The learned counsel for the petitioners was unable to satisfy us that this finding is not based on proper appreciation of the evidence led by the parties. The petition is dismissed.