P L D 1984 Lahore 396 (PLP)

4. Impugned the view expressed by the learned revisional Court, it was submitted by learned counsel for the petitioners that the plea of collusion raised by the respondents was, in fact, the plea of fraud and misrepresenta tion and, therefore, their suit was barred by subsection (2) of section 12 of the Code of Civil Procedure. In this connection, reliance was placed by him on Black's Law Dictionary, Wharton's Law Lexicon and abdur Rauf and others v. Abdur Rahim Khan, Advocate (P L D 1982 Pesh.172).

5. On the other hand, it was urged by learned counsel for the respon dents that since the Legislature has not used the word `collusion' in subsec tion (2) of section 12 of the Code of Civil Procedure, the same could not be read into it. It was also maintained by him that collusion is nothing but an agreement between two persons and it was not same thing as fraud. He placed reliance on Stroud's Judicial Dictionary. Additionally, it was submitted by learned counsel for the respondents that since the respondents were not judgment‑debtors qua the declaratory decree nor their successors‑in‑interest as defined in Muhammad Ryas v. Azhar Hafeez Sheikh and 3 others (P L D 1981 Lah. 353) they could not make use of the said provisions of law.

6. While dealing with the last argument of learned counsel for the respondents, it was maintained by learned counsel for the petitioners that an application under subsection (2) of section 12 of the Code of Civil Procedure could be made by any person aggrieved by a decree by raising the plea of fraud, misrepresentation or want of jurisdiction and, therefore, the respondents could file such an application to assail the decree in question. For this pro position, reliance was placed by him on the aforementioned case of Abdur Rauf and others.

7. In the first instance, I will like to find out if the collusion as alleged by the respondents in their suit amounts to fraud within the meanings of subsection (2) of section 12 of the Code of Civil Procedure. The respondents averment in this behalf finds mention in paragraph 2 of the plaint which reads as follows :‑ In Black's Law Dictionary, 5th Edition, following meanings of the word `collusion' have been given: ‑ Collusion.‑An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object for bidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accom plishment of a; unlawful purpose. Tomiyosu v. Golden, 81 Nev. 140,400 p. 2d 415,

417. A secret combination, conspiracy, or concert of action between two or more persons for fraudulent or deceitful purpose. According to Wharton's Law Lexicon, 14th Edition, the word 'collusion' means as under :‑ "Collusion, to unite in the same play or game, and thus to unite for the purposes of fraud or deception, an agreement or compact between two or more persons to do some act in order to prejudice a third person, or for some improper purpose. Collusion in judicial proceedings is a secret agreement between two persons that the one should institute a suit against the order, in order to obtain the decision of a judicial tribunal for some sinister purpose ". In the case of Abdur Rauf and others, it was held by a learned Judge of the Peshawar High Court that if a decree is sought to be challenged on the ground of collusion, this can be done by making an application under subsection (2) of section 12 of the Code of Civil Procedure. Relevant observa tions made by him read as under: ‑ The question of fraud, misrepresentation etc. on which the application under section 12(2), C. P. C. is based can be gone into by the learned Civil Judge because the decree in Suit No. 176/1 appears to be a collusive decree. The Distionary meanings of the word `collusion' given in Wharton's Law Lexicon are as to unite in the same play or game, and thus to unite for the purposes of fraud or deception, an agreement or compact between two or more persons to do some act in order to prejudice a third person, or for some improper purpose. Collusion in judicial proceedings is a secret agreement between two persons that the one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose. In this view of the matter it cannot be said that the learned Civil Judge had no jurisdiction to proceed with the application."

9. So far I have dealt with the authorities cited by learned counsel for the petitioners to demonstrate that for the purpose of subsection (2) of section 12 of the Code of Civil Procedure the plea of collusion is as good as the plea of fraud. The authority quoted by learned counsel for the respon dents for the contrary view held by him is the Stroud's Judicial Dictionary, Vol. 1, 1952 Edition, in which the meanings of the word 'collusion', to which reference was made by learned counsel for the respondents, are given as follows "Collusion.‑(1) `Collusion' only signifies, agreeing together (per Bramwell, B., Gill V. Continental Gas Co. L. R. 7 Exh. 337) So, of s. 1, c. 51, Consolidated Statutes of British Columbia, which nullifies judgments, etc. of insolvents obtained `by collusion', which means, 'by agreement, or acting in concert' (Edison Co. v. Westminster, Etc. Tramway Co. 1897 A C 193; approving Martin v. McAlpine, 8 Ortario App. 675). So, as regards, interpleader, R. S. C., Ord. 57 r. 2(b), `collusion' does not connote anything morally wrong; the appl,cant must not be `applying the same game' as either of the claimants ; that is the literal meaning of 'collcuding' (per Wills, J. Murielte v. South American Co., 62 L. J. Q. B. 396 ; see also Wood v. Wood, L. R. 9 Exh 190 ; See Ann. Pr.). (2) But not infrequently 'collusion' is 'a deceitful agreement, or compact, between two or more, for the one party to bring an action against the other for some evil purpose" (Cowel). See also Termes de la Ley ; Jacob. Cp. Confederacy."

10. It is true that in the Stroud's Judicial Dictionary it has been stated at one place that "collusion" does not connote anything morally wrong but it has also been added therein that "not infrequently `collusion' is a deceitful agreement, or compact, between two or more, for the one party to bring an action against the other for some evil purpose." This last meaning is not much different from the following meaning of the word "collusion" given in the Black's Law Dictionary :‑ "A secret combination, conspiracy, or concert of action between two or more persons for fraudulent or deceitful purpose." Similar is the position of the following meaning appearing in Wharton's Law Lexicon :‑ Collusion in judicial proceedings is a secret agreement between two persons that the one should institute a suit against the other, in order to obtain the decision of a judicial trial for some sinister purpose . According to the respondents' allegations contained in paragraph 2 of their plaint,, the petitioners, who were vendors in the sale in dispute, and Talib Hussain and three others, who were vendees therein, had agreed to the passing of a collusive decree in the declaratory suit brought by the petitioners for causing injury to the respondents, without impleading them (respondents) as parties to the suit. The injury referred to by the respondents was the loss of the land involved in the said sale which they had acquired as a result of the pre‑emption decree. In other words, the respondents complained of a secret compact between the parties to the declaratory suit for an evil and fraudulent purpose. The declaratory suit, according to the respondents, was the kind of an artifice employed by the parties to that suit to deceive the respondents. Thus, the collusion pleaded by the respondents was fraud not only according to the Black's Law Dictionary and Wharton's Law Lexicon but also in terms of the Stroud's Judicial Dictionary inasmuch as it was not an innocuous agreement but, to use the language of Stroud's Judicial Dictionary, a deceitful agreement for an evil purpose. 'According to the definition of "fraud" as given in the Black's Law Dictionary, any kind of artifice to deceive another is fraud. I, therefore, hold that although the respondents had not used the word "fraud" or its Urdu equivalent in para graph 2 of the plaint yet by making the averments contained therein they had pleaded fraud.

11. Besides alleging fraud as aforesaid the respondents had raised the plea of misrepresentation. They had stated in said paragraph of the plaint that the declaratory suit was against facts. By saving so, they wanted to convey that the petitioners bad misrepresented facts in their declaratory suit inasmuch as the sale denied by them had actually taken place. Thus, mis representation on the part of the petitioners had been alleged by the respon dents, though the language used in this behalf was not very appropriate. And we all know that, more often than not, pleadings drafted by the mufassil lawyers are not happily worded. Taking paragraph 2 of the plaint as a whole I agree with learned counsel for the petitioners that the plea of misrepresenta tion had also been advanced by the respondents.

12. It has been held above that the respondents had challenged the declaratory decree on the basis of fraud and misrepresentation. This they could do by making an application under subsection (2) of section 12 of the Code of Civil Procedure and as such the separate suit brought by them was barred. Similar view was taken by the Peshawar High Court in the case of Abdur Rauf and others.

13. This brings me to the contention of learned counsel for the respon dents that since the respondents are not judgment‑debtors qua the declaratory decree secured by petitioners or their (judgment‑debtors') successors‑in interest, as defined by me in the aforesaid case of Muhammad Ilyas, they (respondents) could not file application under subsection (2) of section 12 of the Code of Civil Procedure. In the case of Muhammad Ilyas, I had not defined the expression "successor‑in‑interest of the judgment‑debtor".‑ I had simply referred to the legal representative of the judgment‑debtor and the person claiming under him as his successor‑in‑interest. I had decided the case of Muhammad Ilyas in view of the peculiar circumstances of that case. The facts of the case in hand are identical to those of the case of Abdur Rauf and others. In that case it was during the pendency of the pre‑emption suit relating to a sale that the makers of the sale had obtained a decree declaring this the sale was void and therefore the pre‑emptor had challenged the decree by making an application under subsection (2) of section 12 of the Code of Civil Procedure. It was ruled by a learned Judge of the Peshawar High Court that the pre‑emptors were entitled to attack the declaratory decree by means of the said application. The view taken in the case of Abdur Rauf and others has been approved by the Supreme Court in Ch. Jalal Din v. Mst. Asghari Begum and others (1984SCMR 586). Therefore, respectfully following the said view, I hold) that the respondents could assail the declaratory decree passed in favour of the petitioners by making application under subsection (d) of section 12 of the Code of Civil Procedure.

14. The upshot of the above discussion is that the suit of the respon dents, which has given rise to this petition, is barred by the provisions of sub section (2) of section 12 of the Code of Civil Procedure. I, therefore, accept this writ Petition and set aside the impugned orders of the two Courts below. The learned Civil Judge shall now act in the light of the above observations and according to law. There shall be no order as to costs. M. Z. M. Appeal dismissed.