1988 PLP 2037 (CLC)

(d) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 12(2)‑‑Fraud‑‑Compromise decree‑‑Suit brought out quite honestly could end in collusive decree. Periamurugappa Asari and another v. Manicka Chetty A I R 1926 Mdd. 50 rel. Ch. Mushtaq Ahmad Khan for Petitioner. Aamar Raza A. Khan and Muhammad Abdullah Bajwa for Respondent. Date of hearing: 15th November, 1987. This is an application by a third party under section 12(2), C.P.C. calling in question on the ground of fraud etc. a compromise decree dated the 29th of April, 1985 passed by this Court in F.A.0. No. 127 of 1977.

2. The land in dispute belonged to respondent No. 1 Sardar Bakhsh, under the foot of a gift made in his favour vide Mutation No. 87 dated 9‑6‑1960 by his maternal grandmother Mst. Bandhi who held it as a customary widow. His real Khala viz. Mst. Sahib Khatoon brought the suit on 23‑4‑1965 to challenge the gift under Custom. She died in the meantime and probably due to failure to bring her legal representatives on the record, it was held to have abated. Am appeal was preferred before the learned Additional District Judge who accepted the same and remanded the case for trial on merits. This order was challenged in F.A.O. No. 127 of 1977, which ultimately was compromised to the effect that the suit be decreed. The land consequently was to pass on to successors‑in‑interest of the deceased plaintiff Mst. Sahib Khatoon. This was the one fact of the events taking place between the parties to the suit.

3. The other facet was that while the above mentioned suit was still pending, the Land Refornis Regulation 1972 came into force whereunder the respondent Sardar Bakhsh surrendered this land being in excess of the limit of holding prescribed therein. The present applicants claiming themselves to be the tenants of the land asserted a prior right before the Land Commission for transfer of the area on the basis of its cultivation during the material crops and as a consequence were allowed the same. The respondent, however, agitated subsequently before the Land Commission that since a civil suit in regard to the validity of the gift was already pending, resumption of the land from him may be provisional subject to the result of the litigation. It appears that his request was granted presumably without hearing the applicants and his name was re‑entered as owner. This factum came known to them in the course of consolidation proceedings whereupon they attempted to show themselves to be its owners particularly having already paid the necessary dues therefor. They were refused the relief and in the sequel they brought Writ Petition No. 3774 of 1981, but that too was dismissed in limine suggesting them rather to become a party in the suit. They did not adopt that course and instead re‑agitated the matter before the Land Commission to get themselves recorded as owners and in a way were even successful to show themselves to be the tenants under the Provincial Government by order dated 11‑11‑1982 (Annex: 'C'). Despite efforts, however, they could not get this order implemented.

4. Their contention in the present application was that it behoved the respondents to have impleaded in the suit either the Provincial Government or themselves as potential owners, but without impleading them they collusively got the F.A.O. accepted tending to transfer the land to the legal representatives of the deceased plaintiff Mst. Sahib Khatoon. They maintained that material facts regarding the provisional resumption of the land by the Government and its transfer to them as cultivating tenants were suppressed and that the compromise was like committing fraud on the statute viz. Land Reforms Regulation, whereunder the land had already. been resumed and transferred in their favour.

5. Maintainability of the application under consideration was seriously assailed primarily on the ground that by virtue of Notification No. OS‑656!73!1625‑LC(II) dated 23‑4‑1973 issued under sub‑para (8) of para 4 of the Land Reforms Regulation, 1972, resumption of the land by the Land Commission was provisional subject to the result of the litigation and that since the decision, though in the form of compromise, happened to convey the land to the plaintiffs in the suit, it was no more available for resumption under the Land Reforms Regulation for further transfer to the applicants etc. Secondly, it was urged that section 12(2), C.P.C. in terms did not apply to the applicants inasmuch as they did not follow the direction of the High Court in their own writ petition No. 3774 of 1981 asking them to seek impleadment in the suit, but they stayed away mala fide on the fence till the suit was finally disposed of. Thirdly, they submitted that "collusion" alleged in the application did not amount to fraud or misrepresentation forming corner stone of section 12(2) ibid. The two expressions were said to be way apart in their connotations. Fourthly, they emphasised that the suit having been brought in 1965 to challenge the gift made in 1960 could not by any stretch of imagination be treated to be collusive so as to avoid application of Land Reforms Regulation enforced during its pendency. They observed that right to challenge the gift was quite squarely available to the deceased lady Mst. Sahib Khatoon in those days and that she could not be deprived of the, same by any subsequent change in law. Lastly, it was claimed that by virtue of the rule laid down in Abdul Bari Khan, Advocate v. The Collector, Land Acquisition and others P L D 1984 S C 407, the land had been rightly received by the plaintiffs under devolution and that the same was unexceptionable.

6. In reply Ch. Mushtaq Ahmad Khan, Advocate refuted these points one by one in his own way. His contention was that the applicants were very much entitled to invoke section 12(2), C.P.C. in that they were "persons" affected by the decree as by the time they had already been transferred the land as tenants by the Land Commission. He relied upon Ch. Jalal Din v. Mst. Asghari Begum and others 1984 S C M R 586 for the view that the right to apply under the said provision was not restricted to the parties to a suit, and that on the contrary it was available even to a third .person who might show that his interest in the subject‑matter of the suit was somehow jeopardised. I think the law has been clearly spelt out by the Supreme Court authorising even a third person to come in through such an application to challenge a decree or order on the ground of fraud, misrepresentation etc. The mere fact that the applicants failed in their writ petition No. 3774 of 1981 and also omitted to apply to be made .a party to the suit, would not deny them their further right of assailing the decree under section 12(2), C.P.C, right or wrong, over the period they were allowed title to the land in dispute after resumption. They were not just squatters, simply sitting on the fence as they had acquired quite a perceptible interest in the corpus of the land and could reasonably ask for protection thereof.

7. The point that resumption of the land was provisional subject to the result of litigation was in a way conceded on behalf of the applicants, but was claimed to be further subject to their super right to urge collusion or for that matter fraud about the final order passed in the litigation. The expression, "provisional" may have had some significance between the parties to the litigation, but it cannot take away the right of a third party which of necessity has had to be independent resting on the phenomenon of fraud etc. contemplated by section 12(2), C.P.C. .If it could be demonstrated that‑ decision of the litigation was intended to perpetrate fraud on a Statute, it may not escape invocation of section 12(2), C.P.C. As shall be presently discussed, the circumstances of the case entirely justified the application.

8. The contention that "collusion" did not amount to fraud, seems also settled in Zafarullah etc. v. Dost Muhammad etc. P L D 1984 Lah. 396 and Abdul Rauf and others v. Abdul Rahim Khan, Advocate P L D 1982 Pesh.

172. The facts of the case provide easy grounds for believing that the compromise decree was not free from collusion. The land had already been resumed though provisionally and even transferred to the applicants. They were closely chasing it. Any settlement between parties to the suit tending to deprive the applicants of getting the land transferred to themselves would speak for itself. It can't but be held to be collusive, and the collusion in the above cited cases well nigh amounted to fraud envisaged by subsection (2) of section 12, C . P. C . Elaborate commentary is available particularly in the Zafarullah's case wherein "collusion" was shown to be a synonymous expression for fraud. On no reason the impugned decree can be said to be free from fraud as it plainly operated to set at naught the effect of the Land Reforms Regulation. It may not be denied that the suit brought in 1965, much earlier than enforcement of the Land Reforms Regulation may not be easily dubbed to be collusive. It may nonetheless turn out to be collusive qua its finale. Such a view was adopted in Periamurugappa Asari and another v. Manicka Chetty AIR 1926 Mad. 50 where a suit initially brought quite honestly was said to have ended in a collusive decree. This analogy clearly applies to the compromise decree under attack.

9. Since the suit was brought under Custom, Ch. Mushtaq Ahmad for the applicants asserted that it was hit by the provisions of section 2‑A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (Ordinance XIII of 1983); which in fact took away jurisdiction from this Court in passing the impugned decree on 29‑4‑1985. He argued that the appeal pending before this Court had abated and that the decree passed therein was coram non judice. Mr. Aamer Raza A. Khan for some of the respondents took exception to this contention urging that even the application of the said Ordinance would result in the same devolution of the land as has already been arranged. A careful consideration of this point really seems to lend support to the applicants. Since they had locus, standi to come in, it is open to them to urge that the decree was hit by the. aforesaid Ordinance. There was no gainsaying the fact that the suit was resting upon reversionary rights, which in turn were i . an incidence of Customary Law. Section 2‑A of the Ordinance clearly applied to it making any pending proceeding in connection with such reversionary rights abate forthwith. The result obviously was that the gift challenged on the basis of reversionary rights will remain intact, that is the property of the respondent Sardar Bakhsh from whom it had been resumed under the Land Reforms Regulation 1972. Protection available to the applicants on this score cannot be done away with on any ground whatsoever. The rule laid down in Abdul Bari Khan's case will render no assistance to the respondents. As a result of the above discussion, the application is accepted and the compromise decree assailed therein is set aside. In the sequel even the suit as also the F.A.0. brought to challenge the gift shall) stand abated. Parties shall bear their own costs. M. Y. H./S‑151/L Petition allowed‑