2004 PLP 843 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑The petitioners seek leave to appeal against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 13‑2‑2002, whereby Constitutional petition filed by the respondents has been accepted.

2. Land measuring 406 Kanals, 9 Marlas subject matter of this petition was owned by Haji Muhammad deceased who according to the petitioners gifted the same to them on 25‑2‑1987 through deed of Tamleek (Exh.D.1). A suit was filed by the petitioners against Haji Muhammad for declaration that they were the owners of the property in pursuance of the said Tamleek. The father of the petitioners was the attorney of Haji Muhammad who appeared in the suit and gave a consent for passing of the decree as prayed for, on the basis whereof consent decree was passed on 6‑11‑1998. Haji Muhammad died on 9‑11‑1988. The respondents who were the sons of Haji, Muhammad on 3‑12‑1988 filed an application under section 12(2), C.P.C. alleging that the said consent decree has been obtained through fraud, collusion etc. which was accepted by the trial Court through order dated 4‑4‑1993 by holding that the decree had been obtained through undue haste and the same was collusive. The revision petition filed by the petitioners was accepted by the learned District Judge through judgment dated 20‑7‑1993 by holding that no allegation of playing fraud on the Court in obtaining the decree had been made, therefore, if the respondents wanted to challenge the Tamleek they should have filed a separate suit.

3. The Constitutional petition filed by the respondents has been accepted through the impugned judgment against which leave is sought.

4. We have noticed that the learned Judge in Chamber of the High Court has held that as a consequence of the setting aside of the consent decree the suit in which the same was passed shall be deemed to be pending which shall be decided on its own merits.

5. We have heard the learned counsel for the petitioners and have perused the record. It would be appropriate to reproduce subsection (2) of section 12, C.P.C. which reads as under:‑ "12(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not a separate suit. " A bare reading of this provision would show that it was not necessary that fraud in obtaining the decree should have been played on the Court which passed the decree but if a decree had been obtained through fraud between the parties inter se by concealment of true facts, the same could also be set aside. The learned Additional District Judge while passing the order in revision petition ignored the fact that the filing of suit by the respondents would have served no purpose, for, consequence of setting aside of the decree was that the suit in which the same was passed would be deemed to be pending and the question of validity, existence or otherwise of the Tamleek Nama was to be decided on merits inter se between the parties, therefore, the order passed by the trial Court in, setting aside the decree was unexceptional in law and it has been rightly so held by the High Court in the impugned judgment.

6. The High Court while setting aside the judgment of the learned Additional District Judge passed in revision petition has rightly held that it was not sustainable in law as it had been passed on wrong premises which judgment does not call for any interference by this Court.

7. For the foregoing reasons, this petition has no merits which is dismissed and leave refused. M.H./M‑631/S Petition dismissed.