2001 PLP 196 (CLC)

4. Today the learned counsel for the petitioners while arguing the maintainability of the instant petition submitted that plaintiffs‑respondents 1 to 19 committed fraud and misrepresentation by concealment of the earlier decree and judgment, dated 9‑1‑1973 in Civil Suit No.439/1‑Nim (copy of the said judgment has already been appended). The learned counsel for the petitioner also produced a photo copy of the plaint in Civil Suit No.207/1 of 1972 which was decided ex parte and an ex parte decree was granted to the plaintiffs‑respondents 1 to 19 on 4‑11‑1972. The learned counsel for the petitioners also submitted an application today for permitting them to lead evidence on the question of fraud. He also referred to certain books to elaborate his assertion regarding fraud.

5. The learned counsel for respondents 1 to 19 'While refuting the submissions of the opposite side objected to the maintainability of the instant petition on the ground of mala fide and submitted that the objection raised in the instant petition could have been raised in the written statement. The petitioners could not derive title from respondent No.20 who herself was not an owner of the disputed land and she has never, objected to the ex parte decree in favour of plaintiffs-respondents 1 to 19.

6. Since the instant petition was riot properly documented despite opportunity given, I felt it necessary to go through the record of Civil Revision No.395/1 and for that matter I adjourned the case for order for today. Perusal of record reveals that the alleged fraud was also agitated by Mian Inayatullah Jan one of the legal heirs of Arshadullah the original owner of the suit‑land in C.M. No.218 of 1995 filed on 3‑4‑1995 for impleadment as party to revision petition, where in para.2(a) the ground agitated herein was explicitly taken. The C.M. carne up for hearing before the Court on 1‑6‑1995. Petitioners herein did not oppose the C.M. but respondents I to 19 oppose it on the ground that subject‑matter of dispute herein and the earlier litigation are altogether different and after an elaborate discussion and after holding that the present petitioners have joined hands with the applicant therein so as to prolong the litigation, it was observed that the suit was filed in 1972 which was decreed ex parte on 4‑11‑1972, at one stage the trial Court returned the plaint for want of jurisdiction on 20‑9‑1982 which was set aside in appeal and the case was remanded for holding the trial vide judgment, dated 30‑5‑1983. After remand the suit was decreed on 10‑2‑1990, also, maintained in appeal vide judgment, dated 29‑9‑1991. In this background the applicant was found disinterested with the property in dispute for his slackness for about 23 years and thus, his prayer for impleadment was turned down.

7. As against the petitioners herein the fraud or misrepresentation agitated in the instant petition had come in their knowledge on 3‑4‑1995 when the application for impleadment was made disclosing the alleged fraud on the basis of concealment of the earlier judgments. Had the petitioners intended to proceed under section 12(2) of the C.P.C. they were required to file the same within three years under Article 181 of the Limitation Act from the date when the alleged fraud came into their notice. If some case‑law is needed on the point, the following can be referred to:‑‑

(1) Government of Sindh and others v. Khalil Ahmad 1992 CLC 1958, (2) Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197, (3) Mst. Amtul Kabir and others v. Safa Khatoon and others 1991 SCIYIR 1022, (4) Mst. Fatima Bibi and others v. Additional District Judge 1992 MLD 1395 and (5) Land Acquisition Collector v. Abdul Ghafoor Khan 1991 MLD 554.

8. The petitioners herein have seriously contested suit of the respondents 1 to 19 filed in 1972 upto the Supreme Court of Pakistan. When the decree was put to execution and warrant for possession was issued, the petitioners filed the instant petition to deprive the decree‑holders to reap the crop of the decree after 28 long years which shows the mala fide of the petitioners. In such‑like circumstances it was laid down in Government of Sindh and another v. Ch. Fazal Muhammad arid another PLD 1991 SC 197 as follows: "Further, as will appear from the above‑quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under, section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under section 12(2), C.P.C. because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of section 12(2), C.P.C. for their own acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the legislature as the same would be against public policy." In the same circumstances, the Sindh High Court in Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366 has observed as follows:‑‑ "I am, therefore, of the clear view that if the Court comes to the finding that an application under section 12(2), C.P.C. is improper, mala tide and has been made only to protract the proceedings and to abuse the process of the Court, the Court can dismiss the same summarily without framing any issues or recording any evidence. To hold that the Court should frame issues and record evidence in every application filed under section 12(2), C.P.C. even before 'dismissing it would amount to give a licence to unscrupulous litigants to protract the proceedings and perpetuate their unlawful possession and to see that there is no end to the proceedings."

9. The petitioners have also stated in the instant petition that review petition filed by them against the refusal of granting leave to appeal is still pending in the august Supreme Court of Pakistan. The matter pending in the Supreme Court & Pakistan cannot be made sub judice in any other Court. 9‑A. For the foregoing discussion I find no substance in this petition under section 12(2), C.P.C. which is hereby dismissed alongwith C.M. No.502 of 2000 with costs. Q.M.H./M.A.K./184/P Petition dismissed.