IFTIKHAR RASHID Versus HAMEED AKHTAR NIAZI
This matter concerns appeals against a High Court order regarding the allotment of a government house. The dispute arose between the appellant and respondent No. 1, both claiming entitlement to the property. During Intra-Court Appeal proceedings, the parties reached a compromise, recorded by the Court, requiring the appellant to vacate the premises and the government to provide alternative accommodation. Subsequently, the appellant filed an application under Section 12(2) of the Code of Civil Procedure 1908, seeking to set aside the compromise order on grounds of fraud and misrepresentation, alleging that respondent No. 1 had concealed his retirement status. The Supreme Court held that the application under Section 12(2) was unsustainable because the retirement notification was a matter of public record and did not constitute fraud or misrepresentation. Furthermore, the Court observed that the government, having participated in and partially complied with the compromise, could not resile from it. The Court affirmed that a consent decree cannot be challenged on such grounds when the alleged 'concealed' fact was publicly available and did not invalidate the underlying agreement.
- Can a consent decree be set aside under Section 12(2) of the Code of Civil Procedure 1908 on the grounds of non-disclosure of a publicly gazetted retirement notification?
- Is a party who has accepted and acted upon a compromise order permitted to subsequently resile from it?
- Does the failure to disclose a retirement notification that is already published in the official Gazette constitute fraud or misrepresentation sufficient to invalidate a compromise decree?
- Section 12(2), Code of Civil Procedure 1908
SALEEM AKHTAR, J.--- These two appeals will be disposed of by this judgment as they arise from a common impugned order of the High Court.
2. The dispute relates to the allotment of House No.I.48, F-6/3 which the appellant (Iftikhar Rashid) and respondent No.1 claim but appellant had taken possession of the said house. The said house was allotted to respondent No.1 which was cancelled. Respondent No.1 filed Constitution petition against the cancellation but it was dismissed on 9-4-1990. Respondent No.1 filed I.C.A. against the said order and it seems that stay order had been granted. On 28-2-1990 the said house was allotted to the appellant but the same was cancelled on 15-4-1990. However, it was occupied by the appellan:. Respondent No.1 seems to have tiled an application for contempt against the appellant but during the proceedings, the learned Judges passed an order by which a compromise was recorded and the Infra-Court Appeal filed by respondent No.1 was disposed of in terms of the said order. This order, inter aha, provided that appellant shall vacate the disputed house by 29-1-1995 and vacant possession shall be handed over to respondent No. l and further that the Government of Pakistan, respondent No.1 in I.C.A. was to ensure that before the "expire of the fixed period" another first available house of similar standard/category "was" allotted to the appellant and vacant possession shall be given to him". If no such house was available for allotment to the appellant, the Government was to take on rent house of the same category for the appellant". The Government of Pakistan through Ministry of Housing and Works and Assistant Estate Officer made an application on 13-1-1995 seeking review of order dated 22-12-1994 which was dismissed in limine on 1-2-1995. The learned Judges did not agree with the contention that these applicants came to know about the Notification dated 7-11-1994 whereunder respondent No.1 stood retired with effect from 19-2-1995 only when they started proceeding for complying with the direction dated 22-4-1994. This was not considered to be valid ground for review of the order. On other hand the appellant made a petition under section 12(2), C.P.C. for setting aside the order dated 22-12-1994 on the ground that he came to know on 2-2-1995 that Notification dated 7-11-1994 was deliberately concealed by respondent No.1 from him and also from the Court at the relevant time i.e. 22-12-1994. According to him had he known these facts on 22-12-1994 he would not have agreed to any compromise with respondent No.1. This application was dismissed by the impugned order.
3. An application under section 12(2), C.P.C. is maintained only in cases where a consent decree has been obtained by misrepresentation, fraud or the order is without jurisdiction. The only allegation of misrepresentation seems to be that respondent No.1 did not inform the appellant or the Court that he has been retired with effect from 19-2-1995. In our view this cannot be treated as misrepresentation because the Notification was published in the Gazette and furthermore as observed by the learned Judges, in view of SRO-1031(1)/94 dated 16-10-1994 after superannuation a civil servant remains entitled to continue in occupation of residential accommodation for two months.
4. The learned counsel for the appellant contended that he had not consented to the agreement. This is a dishonest place as from the impugned order it is clear that in the application under section 12(2), C.P.C. the appellant had stated that if he would have known about the Notification he would have not entered into the compromise. The learned counsel for the appellant in other appeal (CA 280/95) filed by the Government also contended that the government was not a party to the compromise. Mr. Sabir, who is Joint Estate Officer arid is present in Court stated that he was present in the Court when the compromise order was passed but he was not a party to it. This order was within the knowledge of respondents Nos.2 to 4 in C.A. No. 279/95 and appellant in C.A. No. 280/95. The fact remains that all of them including Government of Pakistan through its officers accepted the compromise, complied with it and made an allotment to the appellant on 15-1-1995. Now at this stage none of them can deny or resile from the compromise.
Both the appeals are dismissed
H. B. T./I-241 /S Appeals dismissed.