1992 PLP 2323 (CLC)

3. It was contended by the learned counsel for the petitioners that since Qatal Khan had not raised the plea of fraud, misrepresentation or lack of jurisdiction, the suit filed by him did not come within the mischief of subsection Q) of section 12 of the Code of Civil Procedure. According to him, the suit was for a declaration, aimed at avoiding the decree obtained by the respondent, and, therefore, it was competent.

4. On the other hand, it was urged by the learned counsel for the respondent, that the allegations contained in the plaint of the suit brought by Qatal Khan were clearly to the effect that the respondent had obtained the decree by fraud and misrepresentation and, therefore, his suit was hit by the provisions of subsection (2) of section 12 of the Code of Civil Procedure. He maintained that even if Qatal Khan had raised the plea of collusion and not that of fraud there was little difference between collusion and fraud. In this connection, he placed reliance on‑ Zafarullah and 3 others v. Civil Judge, Harizabad and 3 others (PLD 1984 Lahore 396), Sardar Bakhsh v. Mst. Sahib Khatoon (1988 CLC 2037) (Lahore), Iqbal v. Mst. Jainan Bibi (1991 CLC 553) (Lahore) and Abdur Rauf and others v. Abdur Rahim Khan, Advocate (PLD 11982 Peshawar 172). Argument proceeds that it can be clearly gathered from the allegations contained in paragraph 3 of the plaint of the suit of Qatal Khan that he had assailed judgment and decree obtained by the respondent, on the ground of fraud and misrepresentation.' The said paragraph makes the following reading:‑‑ It was pointed out by learned counsel for the respondent that although in the suit brought by the respondent, the vendee, namely, Amir Khan had filed a written statement contesting the suit, yet, ultimately a consent decree was passed in that suit.

5. In reply to arguments of learned counsel for the respondent, it was submitted the learned counsel for the petitioners that by using the Words mili bhagat and poshida rakhtay huay in paragraph 3 of his plaint, the petitioners' predecessor‑in‑interest did not intend to convey that the judgment and decree obtained by the respondent were tainted with fraud.

6. I have consulted various dictionaries with a view to arriving at a Correct' conclusion. According to Feroz‑ul‑Lughat (Urdu) (Jamae), New Edition, one of the meanings of mili bhagat is sazish According to Kitabistan's‑Twentieth Century Standard Dictionary by Bashir A. Qureshi MA. Mili bhagat is plot; conspiracy; and plot to defraud others. Some of the meanings of fraud given in the Shorter Oxford English Dictionary, Second Edition, are as follows:‑ (1) The quality of being deceitful. (2) Criminal deception; the using of false representations to obtain an unjust advantage or to injure the rights or interests of another. (3) An act or instance of deception, a dishonest trick. (4) A fraudulent contrivance According to A New English Dictionary by Dr. James A.H. Murray, 1901 Edition, fraud, inter alia means the quality or disposition of being deceitful, an act or instance of deception, an article by which the right or interest of another is injured, a dishonest trick or stratagem, a method or means of defrauding or deceiving; a fraudulent contrivance, and to withhold (something) fraudulently. In the Stroud's Judicial Dictionary 1972 Edition, fraud's meaning is given as dishonesty or grave moral culpability. According to English to English and Urdu Dictionary, published, by Ferozsons (Pvt.) Limited (New Edition), collusion inter alia means sazish , khufia sazish and mili bhagat Meanings of fraud as appearing in Chambers Twentieth Century Dictionary by A.M. Macdonald, 1973 Edition, are deceit, imposture, a snare a cheat.

7. According to section 17 of the Contract Act, 1872, active concealment of a fact also means fraud. Misleading another and causing a party to make a mistake is misrepresentation within meanings of section 18 of the Contract Act.

8. In view of I the use of the words mili bhagat and, the words poshida rakhatay huay and looking at the meanings of mili bhagat, fraud, collusion and misrepresentation referred to above, I am of the considered view that the petitioners' predecessor‑in‑interest levelled the allegation of misrepresentation and of collusion, if not of fraud, qua the judgment and decree obtained by the respondent. As held by me earlier, in case of Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others (PLD 1984 Lahore 396) collusion is synonymous with fraud, and my view has been followed by my learned brothers, Akhtar Hassan and Gul Zarin Kiani, JJ. in the cases of Sardai Bakhsh v. Mst. Sahib Khatoon (1988 CLC .2037) (Lahore) and Iqbal v. Mst. Jainan Bibi (1991 CLC 553) (Lahore) respectively. It was followed even by the Peshawar High Court in the case of Abdur Rauf and others v. Abdur Rahim Khan, Advocate ~PLD 1982 Peshawar 172). Looked from any angle, therefore, the petitioners' predecessor‑in‑interest had challenged the judgment and decree passed in favour of respondent on, the ground of fraud and misrepresentation. This he could do by making an application under subsection (2) of section 12 of the Code of Civil Procedure and not by a separate suit as laid down in the said provisions of law.

9. What emerges from the above discussion is that the suit brought by Qatal Khan, the predecessor‑in‑interest of the petitioners, was barred by concluding portion of subsection (2) of section 12 of the Code of Civil Procedure. The suit was, therefore, liable to be dismissed and the appeal preferred by him also deserved the same fate

10. Resultantly, this civil revision fails and is, therefore, dismissed. Parties are, however, left to bear their own costs. A.A./S‑180/L Revision dismissed.