2000 PLP 1119 (CLC)

Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss. 10 & 12(2)‑‑‑Transfer of Property Act (IV of 1882), Ss.3 & 105‑‑ Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Suit for declaration Cancellation of grant of lease‑‑‑Setting aside of judgment and decree on ground of fraud and misrepresentation‑‑‑Suit for declaration, cancellation of grant of lease in favour of original lessee without impleading subsequent purchasers of leased property from original lessee‑‑‑Plaintiff failed to make new purchasers/applicants as party to suit despite the fact that it had come to his knowledge that original lessee had sold away leased property to applicants/new purchasers prior to filing of the suit‑‑‑Act of plaintiff/respondent of not impleading appilcants/new purchasers as party to the suit, would amount to suppressing names of persons interested in property in dispute and would amount to fraud having been played by plaintiff‑‑‑Judgment and decree obtained by plaintiff, were set aside by accepting application filed by applicants/new purchasers of land in dispute under S.12(2), C.P.C. directing plaintiff to implead applicants/new purchasers as defendants in suit who would be given right to file written statement. S.S. Jahangir for Applicants. Dilawar Hussain for Plaintiff: Chowdhary Muhammad Rafique, A.A.‑G. for Defendants. These are three Application Nos‑.37, 38 and 39 of 1994 moved on behalf of applicants (1) Muhammad Khusro, (2) Mst. Amina Babar (Lubna)and (3) Muhammad,Usman praying therein to set aside the judgment and decree, dated 22‑3‑1994 passed in Suit No.581 of 1993 Javedan cement Ltd. v. Government of Sindh and two others on the ground of fraud, misrepresentation and want of jurisdiction. the Suit No.581 of 1993 was presented on 14‑9‑1993 for declaration, cancellation of grant and its lease and injunction wherein Naimatullah son of Mr. Wall Abdullah was made as defendant No.3 and it was stated in the plaint that grant of lease in favour of said defendant was illegal and‑‑without lawful authority. It appears that the said defendant put in appearance before this Court in the said suit and made a statement that he has sold away the land in question but did not disclose the name of new purchaser consequently he was given notice to disclose the name but he failed to disclose the name of new purchaser consequently suit was decreed in favour of plaintiff Javedan Cement Factory by this Court. Contention of learned counsel for applicants is that the new purchasers named above were not made party to the suit though it came to the knowledge of the plaintiff/respondent that the original lessee Naimatullah has sold away his property prior to the filing of suit consequently, the judgment and decree were obtained by fraud and misrepresentation. Learned counsel for applications submits that without joining the new purchasers of the land in dispute the judgment and decree passed against them would not be binding upon them. Learned counsel for plaintiffs Javedan Cement Factory contends that the original lessee Naimatullah was asked to disclose the names of new purchasers but he failed consequently, judgment could not be said to have been obtained by fraud and misrepresentation, hence the application under section 12(2) moved by the counsel for applicants/new purchasers would not be maintainable. Learned A.A.‑G. has supported the applicants/new purchasers case that the judgment and decree were obtained without joining the new purchasers as party, therefore, same were not legal and were obtained by fraud and misrepresentation. Perusal of the affidavit and the documents would show that the suit was filed on 14‑9‑1993 and the deed of conveyance was executed in favour of the applicants/new purchasers Muhammad Khusro and Amina Babar on 9th August, 1993 much prior to the filing of suit whereas deed of conveyance through power of attorney was executed in favour of applicant/Muhammad Usman on 8th August, 1993 that also much before the filing of the suit. The registration of deed amounts to notice under Explanation‑I of section 3 of Transfer of Property Act. It would be seen that necessary mutations in the record of rights were also made on 26‑10‑1993, the photocopy of which has been filed in Judicial Miscellaneous 38 of 1994. In case the original lessee Naimatullah failed to disclose the names of applicants/new purchasers would not in law effect the rights of the applicants/new purchasers and they cannot be penalized for wrongful act of the vendor. It was the duty of the plaintiff Javedan Cement Factory to have gone to the registration authorities to enquire if such transfer of the said land was made in favour of any person. The act of the respondent/plaintiff of not impleading the applicants/new purchasers as party would amount to suppressing the names of persons interested in the land in dispute would amount to fraud having been played by the respondents/plaintiffs. In the circumstances, I find substance in the contentions of learned counsel for applicants, consequently, judgment and decree are set aside and listed applications under section 12(2), C.P.C. are allowed. The plaintiff Javedan Cement Factory would implead the applicants/new purchasers as defendants in the suit who would be givers right to file written statements and case would be disposed of in accordance with law. Q.M.H./M.A.K./G‑7/R Application allowed.