1990 PLP 859 (CLC)

S. Nasiruddin for Petitioner. A. A. Mohammadally, A.‑G. (Sindh) and Abdul Rehman for Respondents. Shah Nawaz for Respondent. SALEEM AKHTAR, J.‑‑The petitioner filed the petition and the name of petitioner was mentioned as Haji Mohammad Ahsan. During the hearing the question arose whether he is an aggrieved person. By judgment dated 26‑8‑1986 it was held that on the basis of documents produced by the petitioner, he was not an aggrieved party because the documents proved the entitlement of one Haji Mahmoodul Hasan and not Haji Mohammad Ahsan the petitioner. The petition was therefore dismissed. The petitioner then filed petition for special leave to appeal before the Hon'ble Supreme Court where after considering the observation made by this Court the petition was dismissed in the following manner: "Syed Nasiruddin, learned Counsel appearing in support of the petition submitted that petitioner "Haji Mahmood Ahsan" is the same person as "Haji Mohammad Ahsan" and "Haji Mahmoodul Hasan", and the High Court has erred in reaching the conclusion to the contrary. We find that whereas in the petition filed in this Court the petitioner has named himself as "Haji Mahmood Ahsan", he, in the Constitution petition before the High Court, had given out his name as "Haji Mohammad Ahsan". Be that it may, the reasons that prevailed with the learned Judges of the High Court for not being satisfied that petitioner is the same person to whom the disputed land was originally granted on lease are based on very sound inferences that can be legitimately drawn from the documents produced by the petitioner and there is, therefore, no scope for interference by this Court with the impugned judgment of the High Court. The petition is therefore dismissed." The petitioner has now filed application under Section 12 C.P.C. praying that the judgment dated 26‑8‑1986 be set aside and the main petition may be heard on merits and injunction may be granted against respondents 1 and 2 restraining them from interfering with the possession of the applicant. The main ground for setting aside the judgment is that the finding that Haji Mohammad Ahsan the petitioner is not an aggrieved party is not correct as Mohammad Ahsan and Haji Mahmoodul Hasan are the names of the same person and further that Mr. Abdul Rahman, Advocate had made mis‑statement in the Court which has resulted the dismissal of the petition. We have heard Mr. S. Nasiruddin at length. So far the mis‑statement is concerned, Mr. Abdul Rehman, Advocate has filed his counter‑affidavit in which he has produced record of the suit and criminal case which were pending in the Court and on that basis he had stated that Mahmoodul Hasan is a different person and is not the same person as Haji Mohammad Ahsan. No rejoinder has been filed to controvert this statement. Therefore, on the basis of documents which he has produced, it cannot be said that any mis‑statement was made by him. Furthermore the impugned judgment has not been passed on this statement. It is mainly based on an appreciation of the documents that were produced by the petitioner himself. The finding and the inference drawn by the High Court has been upheld by the Supreme Court. The learned Counsel for the petitioner has taken us through the affidavits and documents filed by him alongwith this application and has contended that as it is a disputed question of fact the application under section 12 (2) is a proper remedy. We are‑ afraid the contention is misconceived. Section 12 (2) provides that a person can challenge the validity of a judgment on the plea of fraud, misrepresentation or want of jurisdiction. None of these grounds have been B made out by the petitioner. He wants us to reopen the entire question and to examine the documents which have been produced now to establish that Haji Mohammad Ahsan who had riled the petition is the same person who is named as Mahmoodul Hasan. Such controversy cannot be made subject‑matter of Section 12 (2) as neither it proves fraud nor misrepresentation. The petitioner in the garb of Section 12 (2) C.P.C. wants to reopen the controversy which on the basis of documents filed with the petition stands finally disposed of. In these circumstances we cannot entertain the application which is dismissed. M.Y.H./M‑876/K Petition dismissed.