1995 PLP 1175 (MLD)

(2) Whether application is within time? (3) Whether decree dated 25‑2‑1987 in Suit No. 131/1 is fraudulent, collusive and result of mis-representation? (4) Whether applicant is entitled to the relief sought by him? (5) Relief. The parties adduced their evidence and the learned trial Court after hearing the parties, dismissed the application of the petitioner by holding it as not within time and also observing that the suit questioned therein was not the result of misrepresentation, fraud or collusion. The petitioner felt aggrieved then approached this Court in its revisional jurisdiction.

3. The learned counsel for the parties were heard and the material available on record was perused.

4. If a look is made over the proceedings of the lower Courts initiated and conducted at the instance of respondent, then one cannot escape to arrive at a conclusion that the conduct of the respondent was as such which leads one to believe that he had not come to Court with clean hands or he had not concealed the facts from the Court and thus became able to obtain a decree on the basis of misrepresentation and fraud. As evident from the facts narrated above that the suit was instituted against Bashir Hussain Shah on 7‑11‑1982 when he was already an absconder and was not available at his abode as criminal case had already been registered against him on 4‑10‑1982. When the said suit was dismissed in default on 15‑2‑1983 and when the application for its restoration was submitted, then instead of complying with the orders of the Court dated 16‑7‑1983, by submitting correct address of Bashir Hussain and also filing registered envelope for the issuance of notice to him, he adopted different course by submitting an application to the Court for publication in the newspaper and kept concealed the fact of registration of a criminal case against Bashir Hussain Shah and his abscondence and even the publication was obtained from the Court in a newspaper of limited circulation having its place of publication in a different Province at Lahore and thus the normal course of service of summons or process was not adopted. After the acceptance of the application for restoration of the suit, then no fresh proceedings for issuance of summons etc. were adopted and the proceedings for recording of evidence were initiated in the main suit. Had Bashir Hussain Shah been properly served and had he represented the suit properly, then the petitioners would not have been able to make the Court believe on their allegation of the payment of the remaining amount of Rs. 60,000 on 7‑8‑1982 as when the statement of the attorney of the respondent was recorded in the Court, he in unequivocally words stated that after the release of Bashir Hussain Shah from Jail, the payment of Rs. 10,000 was made to him and his release date is 24‑6‑1934. The other most important factor which goes against the respondent is his non appearance in the Court as a witness though he was present out of the Court during prosecution of the case as it is evident from the statement of his attorney which shows that he was having an apprehension in his mind that he would be deposing on oath and would be subjected to cross‑examination and in such a situation he would not be able to stand the test of cross‑examination or would not be able to depose falsely by taking an oath at the time of his examination as a witness and by deposing otherwise i.e. disclosing the true fact, then he would be loser.

5. So, it is quite apparent from the above discussion that the decree A obtained by the respondent was the result of concealment of facts and misrepresentation. Though the learned counsel for the petitioners also contended that the deed which has been relied upon by the respondent in his main suit is an agreement to sell and declaratory suit was incompetent and the suit for specific performance should have been brought.

6. As with regard to the limitation, the petitioner alleges that after obtaining of the `Fard Jamabandi' on 2‑5‑1991 they got knowledge of the mutation attested in consequence of the said decree and application was instituted on 13‑5‑1991, is within time if the period is computed from the date of knowledge. Their absence of knowledge as contended by their counsel was due to the keeping the facts secret from the petitioner as decree was obtained on 25‑2‑1987 and was attested on 13‑2‑1990 after about three years of the date of decree and even the mutation was attested in a different place i.e.. Village Korai instead of attesting the mutation in the same Village i.e. Gomal Kalan to which the property relates. So, all these acts of the respondent, in addition to keep the whole transaction and bargain secret from .the petitioner, were manipulated to have a plea of limitation and on the face the recourse of the petitioner to the Court in such a clandestine manner is also a pointer to his fraudulent act. The period of limitation for filing application under section 12(2) is covered by Article 181 of the Limitation Act for which the period is three years and the present suit is quite within time.

7. The learned trial Court though reproduced the major portion of the statement of the petitioners witnesses but wrong conclusion was deriving from the same by misreading it for example, when the witness of the petitioners states that the property has been transferred to the respondent though was taken against him but at the same time it was not noticed that the statement was recorded after sufficient time of the transfer of the said property fraudulently, through a decree and mutation and which was under challenge in the said application. So, his statement to this effect that the property has been transferred to the respondent should not be considered against him.

8. As a result of my above discussion, the application of the petitioner filed under section 12(2), C.P.C. is accepted, the judgment and decree impugned therein is set aside and as the main consideration for setting aside of the decree was keeping the whole affair secret by the respondent from the petitioners and obtained a decree on their back so the proper course would be to restore/revive the suit and send the case back to the trial Court in order to afford an opportunity to the petitioner to contest the suit. . Thus, on revival/restoration of the main suit which is sent back to the trial Court for re‑trial by affording an opportunity to the parties to prosecute/advance their cases. A.A./1708/P Case remanded.