9/30/21, 4:18 PM 2021 Y L R 1867

2021 Y L R 1867
[Balochistan]
Before Abdul Hameed Baloch, J
NOOR AHMED and others---Applicants
Versus
GUL AHMED and others---Respondents
Civil Revision No. 178 of 2017, decided on 29th September, 2020.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Fraud and
misrepresentation---Onus to prove---Applicants assailed judgment and decree
which was passed on the plea of fraud and misrepresentation---Validity---Scope of
S.12(2), C.P.C. was to restrict only to decide matter of misrepresentation and fraud-
--Application under S. 12(2), C.P.C. must plead and prove that misrepresentation
and fraud was committed by parties to suit while obtaining judgment, decree or
order---Burden to prove was upon applicants to prove plea of fraud and
misrepresentation and they were to show their legal title and right vested in them in
respect of property in question---Applicants claimed their right more than 24 years
after institution of suit by respondents---Such conduct showed ignorance of
applicants about pending litigation between respondents---High Court in exercise
of revisional jurisdiction declined to interfere in orders passed by two Courts
below---Revision was dismissed, in circumstances.
Faizullah v. Atta Muhammad 2010 MLD 1959 ref.
Khalil Ahmed Panezai for Applicants.
Musawar Iqbal for Respondents Nos. 1 to 7 and Muhammad Ayub, Assistant
Advocate General for Official Respondent.
Date of hearing: 22nd September, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J.---The applicants filed application under
section 12(2) read with section 151 Civil Procedure Code (C.P.C.) for setting aside
of the judgment and decree dated 24th March, 1998 passed by Qazi Sarawan at
Mastung, judgment and decree passed by Majlis-e-Shoora Kalat Division dated
28th August, 1998 and judgment passed by this Court dated 1st July, 1999,
whereby the suit filed by respondents Nos. 2 to 7 was decreed and upheld up-to this
Court.
2. The plaintiffs filed a suit for declaration, permanent injunction and
cancellation of mutation entries tilted as Haji Mir Aziz Khan Kurd and others v.
Muhammad Noor and others, stating therein that the plaintiffs are owners in
possession of property bearing khewat/ khatooni No. 1/1, khasra Nos. 1032, 1036,
1047, 1057, 1058, 819, 820 and 824 situated in Mohal Hasni, Tehsil Dasht. The

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said property was entered in the names of plaintiffs in the settlement of 1962-65. It
was further averred that the land adjacent to the above land was left unmeasured by
settlement authorities and the plaintiffs were informed that the same would be
carried out later on. In 1993 the plaintiffs came to know that the defendants in
connivance with official defendants have entered the land under khasra Nos.1172/2,
1182/2, 1186, 1189, 1190, 1192, 1194. 1196 to 1201 Mohal Hasni Sharqi. Tehsil
Dasht in their names. It was averred that the plaintiffs approached official
respondents for correction of revenue entries, but of no avail, hence suit was filed.
3. The defendant No. 1 contested the suit on legal as well as factual grounds by
filing written statement and prayed for dismissal of the suit, whereas the defendants
Nos. 2 and 3 were proceeded against ex-parte.
4. After receiving pleadings of the parties the learned trial court framed issues,
on which the plaintiffs and defendant No. 1 produced their respective evidence. The
trial court vide judgment and decree dated 31st July 1995 dismissed the suit of the
plaintiffs. Whereas the learned appellate court i.e. Majlis-e-Shoora Kalat vide
judgment and decree dated 24th September, 1996 accepted the appeal by setting
aside the judgment and decree dated 31st July, 1995 of the trial court and remanded
the matter to the trial court with direction to decide the suit afresh.
5. The learned trial court after remand vide judgment and decree dated 24th
March, 1998 decreed the suit of the plaintiffs. The appellate court vide judgment
and decree dated 26th August, 1998 dismissed the appeal and upheld the judgment
and decree of the trial court. The defendant No. 1 being aggrieved filed Civil
Revision Petition No. 295 of 1998 before this court. The same was dismissed vide
judgment dated 10th July, 1999. Being aggrieved of the same the defendant No. 1
filed civil petition before Honorable Supreme Court of Pakistan which was
dismissed by Honorable Supreme Court vide order dated 23rd June, 2000.
6. The applicants filed application under section 12(2), C.P.C. with the prayer:
"In view of above, it is, therefore, respectfully prayed that the judgment/decree
dated 24.03.1998 passed by Qazi Sarawan, judgment/decree dated
26.08.1998 passed by Majlis-e-Shoora Kalat Division at Mastung and
judgment dated 01.07.1999 passed by this Hon'ble Court may kindly be set
aside being obtained through fraud, misrepresentation and concealment of
facts and further be pleased to remand the case to trial court for de novo trial
by impleading the applicants as necessary party, and giving them chance to
defend the protect their vested legal rights, with any other relief in the
interest of justice."
7. Learned counsel for the interveners/applicants contended that the judgments
and decrees have been obtained by the respondents Nos. 2 to 7 by fraud and
misrepresentation without arraying the interveners/applicants as party. The
interveners/applicants had no knowledge about the settlement conducted by the
Revenue authority in 1985. In the year 1993 the respondents Nos. 2 to 7 with the
connivance of official respondents mutated the land in their names in the record of
rights. The private respondents have no right over the property in question. The
property is in possession of interveners/applicants from forefathers. The

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predecessor of interveners/applicants has purchased the land from Noor Ahmed and
others and have document (Sanad). The interveners/applicants are necessary party,
as such prayed for setting aside of the judgments and decrees and order for their
impleadment as party.
8. Heard and perused the record. The suit filed by respondent No. 2 and others
on 21st April, 1993 against the respondent No. 1 for declaration, cancellation and
correction of mutation entries. The said suit was contested by the respondent No. 1,
whereafter the trial curt decreed the suit of plaintiff vide judgment and decree dated
24th March, 1998, which was upheld by the Honorable Supreme Court of Pakistan
vide order dated 23rd June, 2000. The plaintiffs/ respondents Nos. 2 to 7 challenged
the mutation entries in 1993 before the trial court, meaning thereby the
measurement and final attestation was completed before 1993. The Revenue
authority had mutated the land in question in the name of respondent No. 1 in the
record of right.
9. The applicants filed the instant application by contending that the judgments
and decrees were obtained by fraud and misrepresentation and behind the back of
the applicants with the connivance of each other. It would be appropriate to
reproduce section 12(2), C.P.C.:
"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."
10. The scope of section 12(2), C.P.C. had to restrict only to decide the matter of
misrepresentation and fraud. The application under section 12(2), C.P.C. must plead
and proved that misrepresentation and fraud was committed by the parties to the
suit while obtaining the impugned judgment and decree. The fraud and
misrepresentation define as under:
"Fraud: means untrue statement by a person who did not believe the same to be
true and active concealment of facts"
Misrepresentation: The statement of an untruth. A misstatement of fact which if
accepted leads the mind to an apprehension of a condition other and
different from that which exerts distinction between fraud and misrepre-
sentation is one of the knowledge and intention."
11. The applicants claimed themselves to be the owners of the property in
question. The applicants stated that the respondents with the connivance of each
other obtained the decree through fraud and misrepresentation. The applicants had
got knowledge of the decree first time when they filed suit for declaration and
correction of entries in 2017. The burden lies upon the applicants to prove the plea
of fraud and misrepresentation. The applicants have to show their legal title and
right vested in them in respect of the property in question. Subsequently the
applicants filed some documents but the said documents do not disclose that it
pertain to which property.

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12. The litigation was started in 1993 between the respondent No. 1 (defendant)
and respondents Nos. 2 to 7 (plaintiffs), which was decreed by the trial Court in
1998 and same upheld up-to Honorable Supreme Court of Pakistan in June, 2000.
The applicants claimed their right after more than 24 years after institution of the
suit by respondents Nos. 2 to 7 (plaintiffs). It seems how the applicants remained
ignorant about pending litigation between respondent No. 1 and respondents Nos. 2
to 7. Reliance is placed on the reported case of this court Faizullah v. Atta
Muhammad 2010 MLD 1959.
In view of the above the application under section 12(2), C.P.C. filed by the
applicants is dismissed.
MH/203/Bal. Application dismissed.

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