1993 PLP 710 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine the scope of section 12(2) of the Code of Civil Procedure, with a view to ascertain whether it included the ground that a judgment had been obtained on the basis of a forged document.

2. The appellants, sons of Rana had instituted in 1980/1981 a suit challenging the alienations purportedly made by Rana by Mutation No‑.243 attested on 26‑1‑1961 and Mutation No.244 attested on 13‑6‑1961. This suit was based on the sole plea that their father had died on 10‑1‑1960. Their suit was dismissed on 25‑3‑1985. The appeal against the dismissal of the suit was also dismissed on 1‑12‑1985. While their revision was pending in the High Court they on 23‑2‑1986 decided to invoke section 12(2) of the C.P.C. and withdrew their revision with a view to avail of that remedy. It was their case that their suit and appeal were dismissed for the sole reason that the defendant/ respondent had produced a copy of the Death Register (Exh.D.l) showing the death of Rang, their father, 10‑6‑1966.

3. The Additional. District Judge, before whom the application under section 12(2) of the C.P.C. was filed noted the case set out therein as hereunder:‑‑ "The main contention of the petitioners is that during the pendency of their civil suit and the appeal they could not get the death certificate from the Union Council and that instead only a certificate was issued to them which was, however, not relied upon by the Court and that the death certificate produced by the respondent as Exh.D‑1 showing that deceased Rana had died on 10‑6‑1966 was a forged and fictitious document. The petitioners have contended that as they have now been able to obtain the certified copy of death register showing that deceased Rana had died on 10‑1‑1960, therefore, the document relied upon by the respondent was forged and fictitious one and hence the judgment and decree of the learned trial Court and of this Court were procured by the respondent by way of misrepresentation and fraud and are, therefore, liable to be cancelled." He (the Additional District Judge) while rejecting the contention as outside the purview of section 12(2), C.P.C. observed as hereunder:‑‑ "The petitioners had failed to produce any certified copy of the death register showing that the death of the deceased Rana had taken place on 10‑1‑1960. On the other hand the respondents had produced such certified copy showing that the death of deceased Rana had taken place on 10‑6‑1966. The petitioners had failed to discharge the onus of proof of issue No.6 that the impugned mutations were against law and facts and inoperative against their rights. The mere fact that the petitioners have not been able to obtain some copy of the death register cannot be a ground for interference in the previous judgment through an application under section 12(2), C.P.C. as it was all on merits that the suit filed by the petitioners was dismissed and their appeal has also met the same fate. The case of the petitioners, therefore, cannot be covered under section 12(2), C.P.C. and hence this petition is hereby dismissed in limine."

4. The High Court by the impugned revisional order/judgment affirmed that finding and rejection recorded by the Additional District Judge by observing as hereunder:‑‑ "It was, at best, a case, in which the decree was obtained by false' evidence or by producing a false document. It is well settled that no suit lies to have a decree or order set aside on the ground that it was obtained by perjury or false evidence. (See Kadirvellu v. Kuppuswami (1918) 45_ Indian Cases 774 (FB); and on the same principle, the decree in question cannot be set aside by a petition under section 12, subsection (2) of the Code of Civil Procedure. The reason of the rule is that all questions concerning the credibility of witnesses called or genunineness or otherwise of documents produced, in a suit, relate to that suit and must be decided therein; otherwise, "there would be an end to the doctrine of res judicata. There would be no finality in litigation, because either party might alternatively bring these cross -actions with varied results ad infinitum". (See Bhikaji Mahadev Gund v. Balvant Ramchandra Kulkarni (AIR 1927 Bombay 510)." The High Court additionally relied on Mst. Izat and another v. Kadir Bux (PLD' 1959 Kar. 221) and Mst. Safia Bibi v. Mst. Aisha Bibi (1982 SCMR 494) and held as under:‑‑ "Applying this test to the facts of this case, it appears to me that it was a case in which the respondent's claim was false to his knowledge and was supported by a false document and the ground, on which the decree is sought to be set aside, cannot, therefore, avail the petitioners

Indeed, an inquiry is necessary, where the ground of fraud is available. But where, as here, the facts alleged do not amount to fraud within the meaning of section 12(2) of the C.P.C., to insist upon an inquiry is .to insist upon an exercise in futility."

5. After hearing the learned counsel for the parties what we find is that the first and the more important question to be determined in such a case was whether the use of forged document in Court proceedings for obtaining and in fact obtaining a judgment on its basis amounts to fraud or not. We would like to answer this simple question equally simply. Suppose a forged copy of the Court's judgment is used to bar the suit. The suit is held barred on its basis. The defendant had all the opportunity to file a correct/true copy of the judgment. He did not file it in the proceedings. He could challenge, the correctness of the copy of the judgment filed in the proceedings. He did not do it. Will these factors preclude him from agitating against the forged judgment by recourse to section 12(2), C.P.C. or earlier to it by a separate suit. If the falsity of the document was known to the party during the proceedings, then on account of inter‑parties contest, the party having the knowledge may be precluded from invoking that provision, or earlier to it of instituting a first suit. The law on what is fraud has been correctly stated and the statement is inclusive of the exception as laid down in the case of Mst. Izat, in the following words:‑‑ "Every representation made to a Court which is deliberately false amounts‑to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree, because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the party has deliberately put forward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party."

6. We have used the copy, of the judgment by way of illustration only to establish its identity as a statutory public record with the copy of entry of death made in a Register of Deaths and kept as provided under the Births, Deaths and Marriages Registration Act, 1886. A certified copy of both is admissible without further proof of it.

7. The ground that the plaintiffs had the opportunity to detect the forgery or to produce the un-forged document is not directly relevant to the issue at all.

8. In deciding such a question as has arisen, the principle governing, it should have been kept in view, recognized and strengthened. The underlying principle has been enunciated in the case of the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), in the following words:‑‑ "It seems to us that while there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo motu recall or review an‑order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud."

9. In the circumstances and for the foregoing reasons this appeal is allowed, the impugned judgments are set aside. The application under section 12(2) of the Code of Civil Procedure shall stand remanded to the District Judge for entrustment to the appropriate Court for decision in accordance with law. No order is made as to costs. M.BA./L‑59/S Order accordingly.