2004 PLP 501 (MLD)

(3) Whether valuation of the suit is correct? (4) Whether the description of the suit‑land is proper? (5) Whether the plaintiffs are in possession of the land in dispute? (6) Whether the plaintiffs are estopped by their conduct to bring the present suit? (7) Whether the plaintiffs have purchased the suit‑land from defendants Nos. 1 and 2. (8) Whether the plaintiffs and defendants Nos.1 to 3 entered into a lawful agreement to sell the suit‑land? (9) What is the effect of the subsequent sale of the suit‑land by defendants Nos. 1 to 3 in favour of defendants Nos. 4 to 9? (9.A) What is the effect of the pre‑emption decree passed in favour of Qadir Bakhsh against Abdul Hameed etc.? (9‑B) Whether defendants Nos. 1 to 3 agreed to sell 32 Kanals of land specified in the plaint in favour of the plaintiffs for a sum of Rs.3200/‑? (9‑C) Whether the plaintiffs have been ready and willing to perform their part of the contract? (9‑D) Whether the plaintiffs are entitled to a decree of specific performance of the contract in respect of the said 32 Kanals of land, if so, on what terms? (10) Relief.

5. After recording land appreciating the evidence of the parties, pro and contra, the learned trial Court vide, its judgment and decree dated 13‑5‑1968 decreed the suit in favour of the plaintiffs against the defendants declaring the decree dated 18‑11‑1964 in favour of defendant No. 10 and against defendants Nos.4 to 9 in the Civil Suit No .234 of 1964 as based on misrepresentation of fact and fraud and ineffective qua the rights of the plaintiffs.

6. Feeling aggrieved thereby the defendants preferred an appeal which came up for hearing before the learned District Judge Sargodha, who vide, his judgment and decree dated 18‑11‑1968 partly accepted the appeal to the extent of setting aside the decree of the Civil Court arid dismissed the suit of the plaintiffs to that extent. The defendants /present petitioners, filed an appeal (Regular Second Appeal No. 181 of 1969) in this Court which was dismissed on 15‑6‑1995. The defendant/petitioners herein filed leave to appeal against the judgment and decree of the High Court dated 15‑6‑1995 which was granted by the Supreme Court vide order dated 12‑2‑1996 and finally dismissed the Civil Appeal No.887 of 1996 filed by the petitioners vide judgment and decree dated 7‑6‑2001 affirming finding of the trial Court as well as the appellate forum.

7. The petitioners seek setting aside the said judgment and decree passed by all the Courts, through the instant application under section 12(2). C.P.C.

8. I have heard the arguments of the learned counsel and perused the record.

9. This Court had passed the impugned judgment on 15‑6‑1995 and the present application under section 12(2) C.P.C. has been filed on 21‑6‑2003 after the expiry of period of 8 years. This application was required to be moved within three years from the date of judgment of the High Court but the same has been filed after the expiry of a period or three years. Reference in this context may be made to the cases of Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others 1998 SCMR 1078, Javed Akhter and another v. Sher Muhammad and others 1998 SCMR 292, Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062. In the said cases, it was observed that Article 181 of the Limitation Act 1908 has provided three years for filing a petition under section 12(2) C.P.C. This period should be computed from the date of cause of action accrued. Petitioners were party in the suit as well as in the appeal as defendants‑respondents therefore, cause of action accrued to them during pendency of the suit and from the date when they had filed their written statement denying the averments of the plaintiffs and from the date of passing of the judgment by the High Court. If fraud has come to the knowledge of the petitioners, they should have filed the application within the prescribed period but their Civil Appeal No.887 of 1996 was pending before the Supreme Court since 12‑2‑1996 to 7‑6‑2001 and during the pendency of the said appeal, petitioners failed to urge before the apex Court the alleged fraud and misrepresentation committee by the plaintiff/respondents. If the petitioners failed to file the instant application within three years under Article 181 of the Limitation Act from the date when alleged fraud came into their notice and if the matter was pending before the Supreme Court, the same could not be made subjudice in any other Court. In this context reference may be made to the case of Muhammad Sheerin and others v. Muhammad Sareer and others 2001 CLC

196. In view of above, the revision petition being barred by limitation is liable to be dismissed.

10. Application under section 12(2) C.P.C. is maintainable before the Court which has passed the final judgment and decree. Final judgment, decree or order would mean a judgment, decree or order so far as Court rendering it is concerned, is unalterable if it is not to be stayed, modified, reversed or amended by preferring an appeal, revision or review.

11. Under section 12(2) C.P.C. a party must go to that Court which had finally decided the matter, if it desires to secure a reversal of its judgment, decree or order on the ground of fraud or misrepresentation; or want of jurisdiction. The word `final' can mean the last in series of judgments, decrees or orders, which have beers passed.

12. Petitioners in the present case desire reversal of the judgments and decrees passed by the trial Court up to the Supreme Court.

13. Learned counsel for the petitioners when confronted that when the final judgment has been passed by the Supreme Court, the application in this Court is not maintainable has referred to the case of Muhammad Yousuf and others v. Noor Din and others PLD 2002 SC 391, wherein it has been observed that if the Supreme Court merely reaffirms judgment or order of the High Court by refusing leave to appeal, the final judgment in terms of section 12(2) C.P.C. will be of the High Court and not of the Supreme Court. If, however, the Supreme Court reverses a judgment of a High Court and records a finding on question o: fact or law contrary to what was held by the High Court, the final judgment or order will be of the Supreme Court, for the purpose of section 12(2) C.P.C. In this case the petition for leave to appeal was dismissed by the apex Court therefore the final judgment in that case was the judgment passed by the High Court. There is no disagreement with this dictum laid down by the Supreme Court. But in the instant case, the leave was granted by the Supreme Court and final judgment was passes on merits, after examining respective contentions of the parties, relevant provision of law and record of the case. The relevant portion or paragraph‑7 of the judgment is reproduced for further ready reference:‑ "

7. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of the relevant provisions of law and record of the case. We have minutely perused the judgment and decree passed by the learned trial Court by means of order dated 13-5‑1968, judgment of the learned District Judge Sargodha dated 18‑11‑1968 and the impugned judgment. We have also thrashed out the entire evidence led by the parties to substantiate their claim." In paragraph‑8 of the said judgment, the Honourable Supreme Court further observed which reads as under:‑ "We have also examined the entire evidence which according to the learned Advocate Supreme Court on behalf of appellant, has been misread or non‑read. A careful analysis of the evidence as led by the appellants would show that they have substantiates their claim by producing cogent and convincing evidence." In paragraph‑9 of the said judgment the apex Court further held as under:‑ "The evidence led in rebuttal by the appellants has been perused with care and caution." In paragraph‑11 it was also observed that:‑ "we are conscious of the fact that concurrent finding of facts it based on insufficient evidence misreading of evidence, non -consideration of material evidence, erroneous assumptions of facts, or arbitrary exercise of power and where unreasonable view on evidence has been taken can be reversed otherwise no 'interference is called for. The findings of facts recorded by three Courts below have not been shown to have suffered from any legal infirmity or non‑consideration of any material piece of evidence. As mentioned hereinabove the possession of the land in question was obtained by the respondents in pursuant to agreement (Ex.P/1) duly executed and proved by producing convincing evidence as discussed hereinabove and in such view of the matter the contention that suit for specific performance should have been filed being misconceived hardly needs any further consideration." The Honourable Supreme Court finally dismissed the appeal being devoid of merit.

14. From the above facts it is established that the petitioners from the trial Court up to the apex Court had been contesting the case of the plaintiffs raising factual as well as legal objections against the judgment and decree passed by the concerned Court. But at last of all the stages of the proceedings of the case, to deprive the plaintiffs/decree‑holders of the fruits of the decree passed by the Supreme Court, they have filed this petition mala fidely. As is evident from the above facts the Supreme Court passed the final judgment and decree on the appeal filed by the petitioners. It was not a case of refusal of the leave to appeal to the petitioners which was a final judgment passed by the Honourable Supreme Court after granting leave to appeal to the petitioners. The case law referred to by the counsel for the petitioners that a petition under section 12(2) C.P.C. is maintainable in the High Court is not attracted to the case in hand. It was not re‑affirming the judgment of the High Court and the lower Courts, by declining leave to appeal, it was final judgment passed by the Supreme Court and the application under section 12(2) C.P.C. was not maintainable before this Court. This argument is strengthened by the finding of the Honourable Supreme Court in case of Mubarak Ali v. Fazal Muhammad and another PLD 1995 Supreme Court

564. In this case two separate applications were filed by the appellant under section 12(2) C.P.C. before the Lahore High Court for recalling of its decision on Regular Second Appeal Nos. 176 and 177 of 1984, passed vide order dated 27‑3‑1985 on the ground that these have been secures by fraud practised by the respondents. It was pleaded by the appellant that the power of attorney given by him authorized the attorney to deal with his property covering only 65 P.I. Units but when he obtained a certified copy of the same, he found that 658 P.I. Units had been recorded therein. The case of the appellant was that the figure "8" hat been added after the figure "65" and that this manipulation to defraud him came to light after the regular second appeals were decided. Since the appellant had preferred two petitions for leave to appeal against the decision passed in the second appeals before the apex Court, which were withdrawn on 24‑1‑1987, the learned Single Judge of the High Court returned the applications under section 12(2) C.P.C. to the appellant for filing the same before the Supreme Court as he felt that the Court had last dealt with the matter and therefore, the jurisdiction to deal with such applications lay with it. Being aggrieved by the said two orders, the appellant petitioned the Supreme Court for leave to appeal, which leave was granted to consider the question whether in view of the fact the petitions for leave to appeal were not pressed, it could still be said that the final judgments in the two suits had been passed by this Court (Supreme Court). The honorable Judges while dealing with the maintainability of the petition under section 12(2) C.P.C. observed that the party must go to that Court which has finally decided the matter and a decision can only be treated as final if it is unalterable, except by any of the means provided by the Code of Civil Procedure or by any special procedure and thus the apex Court observed that the leave to appeals dismissed as withdrawn were not final judgments and observed that has leave been granted, the decision in two appeals would have been definitely led to final judgments or decrees. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere whilst the decisions lasted.

15. Following the above opinion/observation of the Honourable Supreme Court in the case of Mubarak Ali (supra), I have no hesitation in observing that the final judgment on merit was passed by the apex Court in Civil Appeals Nos. 886 and 887 titled 'Abdul Hameed and others v. Jehan Khan and others. The instant petition under section 12(2), C.P.C. before this Court is not maintainable. Further, from the contents of this civil miscellaneous case of fraud and misrepresentation or want of jurisdiction is not made out. Fraud means and includes, inter alia, the suggestion as a fact of that which is not true, by one who does not believe, it to be true and the active concealment of a fact by one having knowledge or belief of the fact. Reliance in this context can be placed to the case of Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184. Learned counsel for the petitioners has not been able to establish the misstatement or concealment of the facts by the plaintiffs to obtain the impugned decree. If for the sake of argument, any fraud was concealed or any misstatement was made by the plaintiffs/respondents herein, the petitioners who were defendants in the previous litigation could point out or controvert before the trial Court up to the Honourable Supreme Court.

16. For the forgoing reasons, this application being devoid of force, barred by limitation and not maintainable is dismissed in limine. W.A.M./A‑1063/L Dismissed in limine.