FAZAL ELAHI vs SARFRAZ KHAN
This petition for special leave to appeal arises from a judgment and decree of the Lahore High Court upholding the concurrent findings of the lower courts in favor of the respondent. The core legal question concerned whether an ex parte decree obtained by the petitioner declaring him the owner of a disputed evacuee house was vitiated by fraud and misrepresentation. The Supreme Court held that the concurrent findings of fact by the courts below regarding the presence of fraud and misrepresentation in obtaining the ex parte decree were based on a proper appreciation of evidence and warranted no interference. The petition for special leave to appeal was accordingly dismissed.
- Whether the High Court is justified in not interfering with concurrent findings of fact based on appreciation of evidence?
- Does an ex parte decree obtained through fraud and misrepresentation affect the rights of a lawfully transferred property holder?
SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment and decree, dated 30-1-1982 of the Lahore High Court, Lahore.
2. The property in dispute in this petition is a house situate in village Noorpur Thal of District Sargodha. It was owned by a Hindu and after Independence it was occupied by the father of the respondent. In 1956 the petitioner filed a suit for possession of the house on the foot of a sale allegedly made in his favour on 25-9-1942 by the Hindu owner. The suit was later withdrawn. On 20- 2-1960 the house was transferred to the father of the respondent and he was issued a P . T . 0 . On 11-3-1961 the petitioner filed a suit against the Hindu owner for a declaration that he was the owner of the house and obtained an ex parte decree on 29-11-1961. When the respondent came to know of this decree he on 10-4-1962 instituted the present suit. In the suit he sought a declaration to the effect that the decree obtained by the petitioner on 29-11-1961 was based on fraud and misrepresentation and had no effect on his rights. The suit was decreed by the trial Court and the petitioner's appeals before the Additional District Judge and the High Court remained unsuccessful. He now seeks leave to appeal in this Court.
3. There is a concurrent finding of the Courts below that the petitioner had obtained the ex parte decree on 29-11-1961 by fraud and misrepresentation. This is a finding of fact based on appreciation of evidence. The High Court was, therefore, justified in not interfering with this finding.
In view of this finding no case for grant of leave to appeal. To the petitioner has been made out. The petition is accordingly dismissed.