GHULAM MUHAMMAD vs M. AHMAD KHAN and 6 others

' MUHAMMAD AFZAL LONE, J.---This appeal by leave to appeal is directed against the Lahore High Court's order dated 4-10-1989, whereby an application under section 12(2), C.P.C. Filed by respondents Nos.1 to 4 was accepted; the judgment and decree of that Court dated 26-6-1988 passed in C.R. No,19-D/88/BWP were set aside and directions given for re-hearing of the appeal.

2. The dispute between the parties relates to Plot No,6, measuring 13 Marlas situate in Mohalla Amm-o-Khas, Bahawalpur, which was put to auction by the Municipal Corporation, Bahawalpur.

The appellant offered bid of Rs,55,000 which being the highest, he deposited 1/4th of the bid money. It appears that the Chairman of the Corporation declined to confirm the auction, which led to the institution of a declaratory suit by the appellant. It was decreed in his favour on 30-7-1987.

The Corporation challenged this decree through an appeal before the District Judge, Bahawalpur, which was accepted on 15-11-1987 and the suit dismissed. The appellant then invoked the revisional jurisdiction of the High Court. This revision was disposed of vide order dated 26-6-1988 with the consent of the learned counsel for the parties, which is reproduced below:-- "Learned counsel for the respondent states that he has no objection to the acceptance of this revision petition and the suit of the petitioner being decreed subject to the payment of enhanced price of Rs,60,000. Learned counsel for the petitioner states that the petitioner is prepared to pay Rs,60,000 as sale price of plot in dispute.

(2) In view of the agreement arrived at between the parties, this revision is accepted and the suit of the petitioner is decreed subject to payment of Rs,60,000. The parties are left to bear their own costs. The revision is disposed of accordingly."

3. On 3-8-1988 respondents Nos.1 to 4, who are residents of the locality wherein the plot in question is located, moved an application under section 12(2), C.P.C. Before the High Court on the ground that order dated 26-6-1988 was procured from the Court by practising fraud and misrepresentation. The particulars of the fraud given briefly in the impugned order are as under:-- "... The disputed plot was in fact reserved for Girls Primary School but contrary to the earlier resolution passed by Baldia Bahawalpur, the learned counsel for Baldia, collusively made statement in the High Court concealing the true facts; that since the highest bid offered by Ghulam Muhammad respondent was not approved by the Chairman, therefore, the plot should have been re-auctioned and could not have been transferred through decree on the statement of counsel for Baldia; that Resolution No,22, dated 22-6-1988, whereby the transfer of disputed plot to respondent No,4 was approved by the house of Baldia, is forged document, inasmuch as, the same was not on the agenda dated 22-6-1988. Furthermore, the motion of Mrs. Farah Liaqat Lodhi, Councillor, mentioned at No,27 of the minutes of the Special Meeting dated 22-6-1988 belies the genuineness of Resolution 22 dated 22-6-1988; that in Special Meeting dated 22-6-1988 motion at No,27 by Mrs. Farah Liaqat Lodhi was referred to Land Sub-Committee for opinion, therefore, the plot could not have been transferred to the respondents through statement of Legal Advisor made by him in Civil-Revision, before the disposal of motion 27 that the factum of the motion with regard to the disposal of the disputed plot having been referred to Land Sub-Committee was suppressed from the High Court."

4. The application under section 12(2), C.P.C. Was supported by an affidavit of respondent No,2; notice whereof was given to the appellant and other parties to the revision petition, who neither filed any counter-affidavit nor any written statement to the application. It being so, in the opinion of the learned Single Judge, the allegations levelled against the appellant and functionaries of the Municipal Corporation in the application under section 12(2), C.P.C. Remained uncontroverted.

Accordingly, the application was accepted; and as started earlier the judgment and decree passed in the revision petition on the basis of the consent of the learned counsel for the parties, were set aside; and a direction was given for re-hearing thereof.

5. Leave to appeal was granted to examine two contentions raised on behalf of the appellant; firstly, that respondents Nos.1 to 4 were not party to the suit, out of which the revision had had arisen and, therefore, the application under section 12(2) filed by them was not competent; secondly the allegations of misrepresentation and fraud could be resolved properly only after framing issues and allowing the parties to lead evidence in support of their respective pleas, but the High Court did not follow that procedure and dealt with the case summarily, which did not satisfy the requirements of justice, and vitiated the entire proceedings.

6. The first point has already been decided by this Court in the case of Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586) wherein it has been maintained that persons not party to the suit can also file application under section 12(2), C.P.C., and the following passage from the Peshawar High Court's judgment in Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Pesh.

172) was quoted with the approval:-- "It is obvious that in section 12(2), C.P.C. The word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word `person'. Had the intention of the law-maker been to restrict the right of filing the application under section 12(2), C.P.C. Only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law- maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."

7. Learned counsel for the appellant having been confronted with the judgment aforesaid did not have much to oppose the maintainability of the respondents' application under section 12(2), C.P.C.

And laid emphasis on the second point that the questions of fraud and misrepresentation being questions of fact, in view of the respondents' allegations, the High Court was bound to formulate issues and extend an opportunity to the parties to produce evidence. The ground urged in the leave grant order in this respect was thus reiterated.

8. Before the amendment of section 12, C.P.C. And incorporation of subsection (2) therein, the validity of judgment, decree or order procured by practising fraud and misrepresentation, could be challenged through a suit. The availing of this remedy was quite encumbersome. The institution of the suit resulted in a fresh round of litigation between the parties or between the persons adversely affected by such decree and the decree-holder. Such suit was not necessarily heard by the same Court which passed the decree and could be laid down before any Court of competent jurisdiction.

Further, the ultimate decision of the suit entailed a fairly long time. During the pendency of the suit invariably the proceeding as to the execution of the decree remained stayed. Subsection (2) of section 12 enacted by virtue of Ordinance 10 of 1980 expressly ordains that the validity of judgment and decree obtained by fraud and misrepresentation can be assailed through an application to the Court, which passed the final judgment, decree, order and not by a separate suit. Seemingly, two-fold purpose is sought to be achieved by the amending provision; firstly from jurisprudential point of view it is the obligation of the Court on whom the fraud is practised to undo the fraud. Such application lies before the Court passing the final judgment, decree or order. Since on appeal or revision, against the judgment, decree or order, obtained by fraud, the matte` is re-opened before the Appellate or Revisional forum, as the case may be, the application has to be filed before the higher Court seized of such matter. Secondly by conferment of the remedy through a simple application, the litigating party is to a large extent, saved from the hardship and encumbersome procedure involved in prosecuting a suit and the delay in the final decision thereof. It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand. So far as the instant case is concerned, undoubtedly, the respondents placed on the High Court's file an affidavit in support of their application, but as stated in the impugned judgment, the appellant did not file any reply to the application controverting the facts stated therein. There was thus no occasion for framing the issues. Had the appellant filed a counter-affidavit, he court well-request the Court for permission to cross-examine respondent No,2, and lead other evidence to rebut the contents of the affidavit. We have gone through the High Court's record and noticed that at no stage the appellant asked for permission to produce evidence. The High Court was thus, not wrong in relying upon the respondents' affidavit. No exception, therefore, can be taken to the procedure followed by the High Court in deciding the application. The fact that the revision will be re-heard and the appellant, or for that matter respondents Nos.5 to 7 will have an opportunity to persuade the High Court that no fraud was committed, is another factor to dissuade us from interfering with the impugned order.

' For the foregoing reasons, this appeal is dismissed, leaving the parties to bear their own costs.