Ihsaq Ahmed Khan Versus Muhammad Pervez Khan

Muhammad Ijaz Khan, J.--- Through this writ petition, petitioner has challenged the order and judgment of the learned Addl: District Judge, Swabi dated 14.03.2024, whereby, the appeal of the present petitioner has been dismissed and thereby, maintained the order and judgment of the learned Civil Judge-II, Topi, District Swabi dated 22.07.2024, whereby, application of the present petitioner under section 12(2) has been dismissed.

2. Arguments heard and record perused.

3. The record would show that both the parties are brother inter-se and that they are American nationals and are running a business in America. It was the case of respondent/ plaintiff that the present petitioner then defendant borrowed 50,000 dollars, however, later-on he refused to return the aforesaid amount, which necessitated the filing of the instant suit. The record further shows that when the present petitioner then defendant was summoned, he was duly represented by a counsel in the suit in which written statement was filed and both the parties also recorded their evidence, however, at the tail end of the proceedings when the case was fixed for final arguments, petitioner personally appeared on 28.06.2022 before the Court and recorded his statement, whereby, he conceded and showed his no objection over the grant of decree of the suit and as such on the basis of the said statemen of the present petitioner, the said suit was decreed in favour of respondent/plaintiff vide impugned judgment dated 04.07.2022. It is also reflecting from the record that apart of the decretal amount has also been paid by the present petitioner. Later-on, petitioner has filed the instant 12(2) petition, apparently, on the ground that the learned trial court was not having jurisdiction, however, such submission of the learned counsel for the petitioner could not be appreciated in his favor as on one hand under section 21 C.P.C., petitioner was required to have raised the objection court at the earliest and on the other, he has duly participated in the proceedings by engaging a counsel and notably, he has also personally appeared before the learned trial court and has recorded concessional statement a of in favour respondent/plaintiff. Record further shows that throughout the proceedings the present petitioner has not raised any objection qua the jurisdiction of the learned trial court. It is also relevant to mention here that the present petitioner has personally appeared before the court and he has recorded his statement, whereby, he has requested the court that the suit as prayed for may be decreed in favor of the respondent/ defendant and thus, it was on the basis of the aforesaid statement when the decree was passed in favor of the respondent/ plaintiff. It is settled ^[1] since long that order of court passed in terms of the compromise or on the basis of a concessional statement or a consent decree passed by the trial court exactly in accordance with the terms of the statement/compromise, then such decree is not challengeable under section 12(2) C.P.C. As against this, it is also settled ^[2] that, if a consent decree is being passed on the basis of a void agreement, then such consent decree could be challenged under section 12(2) C.P.C. It is also settled that a decree on admission though is not a consent decree but would fall under Order XII, Rule 6, C.P.C. to which too, the same principle herein above would apply.

4. In the given facts and circumstances, now the question would arise that as to whether the essential ingredients for maintaining the 12(2) petition are available to the petitioner in the instant case or not? It is an admitted fact that in his petition filed under section 12(2) C.P.C., the petitioner has not pleaded any fraud or misrepresentation, on the part of respondent/ decree holder, however, the only objection of the petitioner is that "Want of Jurisdiction", too could be considered as a valid ground for setting-aside the judgment and decree. Undisputedly, the plea of want of jurisdiction qua the validity of a decree could validly be considered for setting-aside a decree, however, in the peculiar facts and circumstances of this case, even the said ground could not be pressed by the present petitioner as, as stated hereinabove that when the respondent/ defendant filed the instant suit, notices were issued to the present petitioner, who duly put his appearance by engaging a counsel, filed his written statement and both the parties recorded their respective evidence and it was at the end of the trial when the present petitioner himself appeared before the court and he recorded his statement of having no objection over the grant of the impugned decree in the suit and thus, when by now much water has flown beneath the bridge, then at this belated stage, petitioner could not be allowed to raise an objection of "lack of jurisdiction" on the part of the learned trial court.

5. It is also relevant to mention here that before 1980, any decree obtained on fraud or misrepresentation or "want of jurisdiction" could be challenged by an aggrieved person by filing a suit however, thereafter, through Ordinance X of 1980, subsection (2) was inserted in section 12 of the Code of Civil Procedure, 1908, whereafter, an aggrieved person could file an application for setting aside such a decree, the same being relevant is reproduced below:-

[12. Bar to further suit. (1)] Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

[(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.]

The aforesaid provision of law unmistakably shows that the validity of a judgment, decree or order could be challenged by an aggrieved person, if such judgment/decree or order has been obtained on the basis of fraud and misrepresentation or if judgment, decree or order suffers for want of jurisdiction. It is also relevant to mention here that for maintaining a 12(2) petition, the nature and extent of fraud and misrepresentation or jurisdictional defect has to be pleaded specifically and then it has to be proved through positive evidence. As stated herein above, that in this case, petitioner has not alleged any fraud or misrepresentation on the part of decree holder, however, his only objection was with respect to "lack of jurisdiction" by the trial court, but, such submission of the learned counsel for the petitioner could not be attracted in the present case for many reasons including that firstly, he did not raise any such objection at the initial stage of the proceedings, secondly , petitioner has personally appeared before the trial court and has recorded his statement to the effect that he has no objection over the grant of decree in favor of the respondent/ plaintiff and thirdly , the principle of promissory estoppel would also debars the present petitioner to raise any objection over a decree passed on his statement. In a case ^[3] the Hon'ble Supreme Court of Pakistan has held that; It is a well-known legal exposition that the validity of a judgment, decree, or order under Section 12(2), C.P.C., can only be challenged on the plea of fraud, misrepresentation, or "want of jurisdiction." The literal meaning of "fraud" can be understood as a planned and calculated usage of deceptiveness, spuriousness, or a trick and/or dishonest means to divest another of his movable or immovable property or a legal right. The term "misrepresentation" refers to the act of conveying false or misleading information about something or someone to get unfair or unwarranted advantage and the expression "want of jurisdiction" epitomizes the lack of authority to hear a case by a judge/Court; a judge who surpasses his power or dominion to hear a case, or a court which does not have authority to hear the matter. It would also be relevant to mention here for clarification that the other principle of maintaining the 12(2) petition have also been analyze by the Apex Court in the case ^[4] to the effect that: the concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of the opposite-party. There can be no exception to the rule of law that without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify, an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. Thus, a summary of the above jurisprudence of the Hon'ble Supreme Court is that Fraud encompasses all acts and omissions whether by suppression of truth or suggestion of fact, which are deliberate and intended to cause benefit to oneself and to cause the other to suffer a loss or the risk of loss. It includes the element of intent and the actual act or omission which follows from such an intent. However, in circumstances there may not be a deliberate intent, yet the act or omission may be so reckless so as to constitute Fraud. Where allegation of Fraud is raised, such an allegation must be specific and must be proved by the party alleging such a fraud and thus in this case the respondent has specifically pleaded and highlighted his valuable rights attached to the property and has proved the same through production of evidence, therefore, the court below has rightly accepted the 12(2) petition.

6. In view of the above discussion and exposition of law, this petition being bereft of any merit, is hereby, dismissed in limine .

UN/209/P Petition dismissed.

1. Zaibun Nisa Habib v. Alley Rasool reported as, 1989 SCMR 416

2. John Paul v. Irshad Ali and others reported as PLD 1997 Karachi 267.

3. Pakistan Railways through Chairman Pakistan Railways, Islamabad and another v. Muhammad Amin, reported as 2025 SCMR 646.

4. Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others reported as 2003 SCMR 1050