1995 PLP 1603 (CLC)

MIAN MUHAMMAD AJMAL, J.‑‑‑Mst. Surriya Begum, petitioner herein, filed Suit No.272/1 of 1988 against Munib Ahmed and others (her own children) seeking declaration that house bearing Nos.1556, 1557, 1558, 1559 and 1560 known as 'Dar‑ul‑Noor' Kutcheri Road, Abbottabad is owned and possessed by her on the basis of gift by her husband and that respondents have no right whatsoever to claim the ownership of the said house in her lifetime. The suit was ex parte decreed in favour of the plaintiff on 8‑2‑1989. Aftab Ahmed, respondent herein, filed application under section 12 (2), C.P.C. against Mst. Surriya Begum and her children that the above mentioned ex parte decree was obtained by fraud as the property was the exclusive ownership of the mother of the applicant and his late brother Iqbal Ahmed Khan and that Sheikh Muhammad Ahmed husband of Mst. Surriya Begum being the step son of their mother was not entitled to get any share out of the property. The petitioners contested the application and in view of the pleading of the parties issue were framed. The parties thereafter led their respective evidence, and learned Court on the assessment thereof accepted the application with cost and set aside the ex parte decree dated 8‑2‑1989 in Suit No272/1 of 1988 vide order dated 24‑1‑1993 'and directed petitioner No.1 to file amended plaint impleading Aftab Ahmed Khan and legal heirs of Iqbal Ahmed Khan as defendants. Aggrieved of the said order, petitioners have impugned the same in the revision petition.

2. We have heard the learned counsel for the parties and have gone through the record of the case.

3. From the very perusal of the plaint in Suit No.272/1 of 1988 it would transpire that the same was filed in collusion with the defendants, who were her real children. It also indicated that she claimed the property on the basis of alleged oral gift by her late husband and the entries made in the municipal record in consequence thereto. Petitioner No.1 in her reply to application and in statement before the Court admitted that the ex parte decree was a consent decree. As per averments of the plaint she had no better footing than the applicants as she also based her claim on the Municipal Committee and Excise receipts, which according to herself does not confer any title. According to statements of the Municipal Committee Official, the property was recorded in the name of the widow of Sheikh Noor Ahmed and these entries were changed on the basis of ex parte decree. Since petitioners did not approach the Court with clean hands, therefore, the ex parte decree designedly obtained was rightly cancelled. It is well‑settled law that one who seeks equity must do equity. The omission to implead the necessary parties in the suit appears to be intentional so to deprive them from their legal rights. Petitioner No.1's statement itself suggest that her claim require through probe and she has to prove her case in accordance with law. In view of the legal maxim 'ex dolo malo non orbiter actio' (no right of action can have its origin in fraud), the learned Court after discussing the evidence rightly held in its findings on issue No.15 that the ex parte decree was obtained through fraud, misrepresentation, concealment of facts and was thus liable to be set aside. No misreading or non‑reading of evidence was pointed out nor could the learned counsel for the petitioners make out a bona fide claim of petitioner No.1, in such circumstances, we uphold the impugned order which is well‑reasoned and well‑founded. Consequently this revision petition is dismissed being devoid of merits, with costs. A.A./1774/P Petition dismissed.