P L D 1988 Lahore 398 (PLP)

Mirza Aziz Khan Baig for Petitioners. Syed Muhammad Ali Gillani for Respondent. Date of hearing: 8th March, 1988. This revision petition under section 115 of the C.P. C. by Lal Din and Sabir Ali, petitioners, is directed against an order of the learned Additional District Judge, Khanewal, dismissing their application under section 12, subsection (2) of the C.P.C.

2. The facts are these, by means of two mutations viz. mutation 140.24 attested or, 26‑1‑1961 and mutation No.244 attested on 13‑6‑1961 Rana, father Of the petitioners, allegedly sold the land in question to Muhammad Ibrahim, respondent. The petitioners instituted a suit In the year 1980; their case was that Rana had died on 10‑1‑1960; that during his life time, he had not made the sales in question and that the mutations of. sales were the result of fraud and misrepresenta tion. The plaintiff s suit was dismissed by the learned trial Court on 25‑3‑1985 and their appeal was dismissed by the learned Additional District Judge, Khanewal, on 1‑12‑1985. The petitioners approached this Court by means of a revision petition but withdrew the revision petition on 23‑2‑1986 saying that they would apply under section 12, subsection (2) of the CPC

3. In their application under section 12, subsection (2) of the CPC before the learned Additional District Judge, the petitioners' case was that the decree of the learned Civil Judge dated 25‑3‑1985 and the decree of the learned Additional District Judge dated 1‑12‑1985 were obtained by fraud because they were based upon a death entry Exh.D.1, which was a forged document. It was said that during the pendency of their suit, the petitioners could not obtain the death entry; that now they had been able to procure a copy of the death entry, which showed that Rana had died on 10‑1‑1960, and, therefore, the decrees based as they were upon the death entry Exh.D.1 which was a forged document were obtained by fraud and misrepresentation. The learned Additional District Judge dismissed the petition under section 12, subsection (2) of the C.P.C. in limn; in doing so, he observed that the petitioners had failed to produce the certified copy of the death entry during the pendency of the suit; that at the trial of the suit, they had relied upon a certificate allegedly issued by the Chairman of the Union Council concerned certifying that the death of Rana had occurred on 10‑6‑1966 and "the mere fact that the petitioners have now been able to obtain some copy of the death register cannot be a ground for interference in the previous judgment through an application under section 12(2), CPC as it was all on merits that the suit filed by the petitioners was dismissed".

4. Thus, it had been the petitioners' case throughout that the death of their father had occurred on 10‑1‑1960 and not on 10‑6‑1966 and, therefore, one of the questions requiring determination in the suit was whether the death entry Exh.D. relied upon by the respondent at the trial of the suit was or was not a forged document. Exh.D.1 was a certified copy of the death entry issued by a Union, Council in Sindh and did not require formal proof. It, therefore, lay upon the petitioners to prove that Exh.D.q was a forged document. All that they did was to obtain a certificate from the Union Council concerned showing that Rana had died on 10‑1‑1960. The learned Additional District Judge, in his judgment dated 1‑12‑1985 had dealt with the certificate and had excluded it from consideration on the ground that it required formal proof and no evidence to prove it had been led. There is, therefore, no question that the suit was decided on its merits on the evidence led by the parties and it was the failure of the petitioners to lead evidence to show that Exh.D.1 was not a genuine document that had led the learned Courts to hold that the death had occurred on 10‑6‑1966. It was, at best, a case, in which the decree was obtained by false evidence or by producing a false document. It is well‑settled that no suit lies to have a decree or order set aside on the ground that it was obtained by perjury or false evidence; (See Kadirvelu v. Kuppuswami (1918) 45 Indian Cases 774 (FB); and on the same principle, the decree in question cannot be set aside by a petition under section 12, subsection (2), of the Code of Civil Procedure, The reason of the rule is that all questions, concerning the credibility of witnesses called or genuineness or otherwise of documents produced, in a suit, relate to that suit and must be decided therein; otherwise, "there would be an end to the doctrine of res. judicata. There would be no finality in litigation, 1 because either party might alternatively bring these cross‑actions With varied results ad infinitum". (See Bhikaji Mahadev Gund v. Balvant Ramchandra Kulkarni A I R 1927 Bombay 510).

5. Learned counsel for the petitioners cited two cases in support of the maintainability of the petition under section 12(2) of the C . P.C. The first is the case of Bhikaji Mahadev Gund, which has already been referred to and the second is Mst. Izat and another v. Kadir Bux P L D 1959 (W.P.) Kar.

221. The first case was decided with reference to section 44 of the Indian Evidence Act, 1872, which provided that any party to a suit might show that any judgment was obtained by fraud. It was held that:‑ "It is clear that some limitation must be put upon that section. For instance, if party A and his witnesses in a particular suit came into the box and committed deliberate perjury on material points, that is clearly fraud, on the other hand, if a decree is eventually passed in favour of that party even on that perjured evidence it cannot be open for the opponent to start a new action on exactly the same evidence, on the sole allegation that the previous evidence was wrongly believed by the Court On the other hand, it is to my mind clear that in a proper case the Court has jurisdiction to set aside a decree which has been obtained by fraud practised on the Court. If, for instance, the existence of certain evidence has been stoutly denied by one party, and the Court has been induced to frame its decree on the basis that that evidence did not exist, then, if that evidence is afterwards discovered, and it is of such a nature that if it had been before the first Court, the probabilities are that the Court would have arrived at a different conclusion, then, it may, be, when all the circumstances are looked at, that in that case the Court would set aside the original decree." Thus, it was recognized that if a decree was obtained by perjury or false evidence, no second suit would lie. Here, the previous decree was not passed on the basis that no death entry existed; it proceed on the basis that the death entry produced by the respondent was genuine document. In Mst. Izat v. Kadir Bakhsh, it was held that: "Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on' the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the party has deliberately put forward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party." Applying this test to the facts of this case, it appears to me that it was a case in which the respondent's claim was false to his knowledge and was supported by a false document and the ground, on which the decree is sought to be set aside, cannot, therefore, avail the petitioners.

6. Learned counsel for the petitioners also argued that the learned Additional District Judge was not competent to dismiss the petition without recording evidence and for that purpose, he relied upon Mst. Safla Bibi v. Mst. Aisha Bibi 1982 S C M R 494. indeed, an inquiry is necessary when the ground Of fraud is available. But where, as here, the facts alleged do not amount to fraud within the meaning of section 12(2) Of the C.P.C., to insist upon an inquiry to insist upon an exercise in futility.

7. For these reasons, the revision petition is dismissed, but the parties are left to bear their own costs. A. A. /L-29/L Revision dismissed.