FAIZUM alias TOOR Versus NANDER KHAN

ORDER

CH. IJAZ AHMAD, J.--- In the suit filed by the respondents Nos.1 and 2 a consent decree was passed on 30-3-1971. The petitioner filed an application on 20-1-1986 under section 12(2) of the Code of Civil Procedure for recalling of the said decree on the ground of fraud. This was dismissed by the learned trial Court vide order, dated 3-5-2000 which was affirmed by the learned District Judge and ultimately by the learned High Court vide order, dated 30-10-2001. The petitioner seeks leave to appeal against the said order.

2. The learned counsel for the petitioner contends that the suit was decreed on the day on which it was filed and mutation was also attested on the same day (not so stated in the aforesaid application). The other grievance is that in the first round of litigation, the case was remanded by the learned High Court in Civil Revision No.250 of 1993, decided on 15-2-1994 for comparison of the thumb-impressions of the petitioner on the Wakalatnama and the compromise. Although the expert submitted the report but it was not clear and determinative. Accordingly the petitioner made a request for the expert being summoned for examination in the Court but it was declined and even the request for issuing interrogatories for examination of the expert was refused. When questioned whether the application made was within time, his contention was that limitation will start from the date of discovery of the fraud and it was so stated in the application that only one month preceding filing thereof, the petitioner came to know of the fraud. He maintains that the application of the petitioner was not dismissed by the Courts below on the ground of limitation. Reliance has been placed on Allah Bakhsh and others v. Mst. Irshad Begum and others 1986 SCMR 1496.

3. The submissions made by the learned counsel for the petitioner have been considered. Undisputedly limitation for an application under section 12(2), C.P.C. is governed by Article 181 of the Limitation Act which is three years. In fact, the petitioner was seeking extension of limitation under section 18 of the Limitation Act on the ground of fraud. We have carefully perused the application. The averment in para.2 is reproduced hereunder:--

Urdu Para Page 1933

4. The particulars of the fraud were required to be given under rule 4 of Order VI of the Code of Civil Procedure to overcome the bar of Limitation but were not given in the application. In fact, in accordance with the dictum laid down by the Privy Council in Bal Gangadhar Tilk and others v. Shrinivas Pandi and others AIR 1915 PC 7, the application did not even disclose any cause of action. The rule laid down therein was reiterated in Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75. The judgments relied upon by the learned counsel for the petitioner proceed on its own facts and are not applicable to the instant case which is governed by the rule laid down by this Court in Izzat Bakhsh v. Nazir Ahmad and 13 others 1976 SCMR 508. In the said case time was sought to be extended under section 18 in a suit for pre-emption with the averment that the plaintiffs did not come to know of the sale-deed as the same was registered in another district. This Court, while repelling the plea, observed that the averment did not qualify for extension of limitation, under section 18, particulars of the fraud must be fully described by the plaintiff and established by the cogent evidence.

5. As far as the contention of learned counsel that the application was not dismissed on the ground of limitation is concerned, as held by this Court in Ahsan Ali v. District Judge and others PLD 1969 SC 167, there is no waiver of the question of limitation and even if the parties do not point it out, it is the duty of the Court to apply the law of limitation where it is found to be applicable.

6. We have, however, noticed that even on merits, the petitioner had no case for the reason that P.W.2, the learned counsel of the petitioner, before the trial Court, affirmed the thumb-impression of the petitioner on the compromise as well as on the Wakalatnama. The learned counsel had not much to say as to why the statement of his own learned counsel examined as a witness should be discarded.

7. In view of the categorical statement of P.W.2, non-examination of the expert in the Court, although his report was against the petitioner, was not of any material consequence. We, therefore, see no infirmity or illegality in the impugned order. This petition is, accordingly, dismissed and leave refused.

M.H./F-21/SC Petition dismissed.