2017 PLP 423 (YLRN)

FAHEEM AHMED SIDDIQUI, J.

This petition is directed against the order dated 19-11-2015 passed by the learned District Judge Ghotki under a civil revision whereby maintained the order dated 13-08-2015 passed by learned Senior Civil Judge, Ghotki on an application under section 12(2) of C.P.C., in FC Suit No.48/2009.

2. Briefly the facts of the case are that the aforesaid suit was brought by private respondents against the petitioners for declaration and permanent injunction in respect of some landed property. The suit was proceeded and service was done upon the defendants/petitioners but they did not file the written statement. Since, after service, they remained failed to file W.S therefore initially they were declared ex-parte vide order dated 03-12-2009 but on application under Order IX Rule 7, they were permitted to file WS vide order dated 31-3-2010. Subsequently, they filed WS wherein they denied all the allegations levelled in the plaint. The trial court, relying on the pleadings, framed issues and the parties have an obligation to discharge their onus in respect of their assertions by leading evidence before the court. Respondents being plaintiffs led their evidence and respondent/ plaintiff No.1 and his witness entered in the witness box and described the whole affairs in respect of allotment of the suit property as well as the different rounds of litigations before revenue courts. In support of their claim, the respondents produced documentary evidence before the trial court during the examination-in-chief. The petitioners/defendants did not bother to cross-examine the respondent No.1 and his witness as such their assertion remained unrebutted, and the trial court pronounced the verdict against the petitioners by decreeing the suit of respondents. After judgment, the petitioner could not appear for a considerable period of time and then they filed an application under section 12(2), C.P.C. which was dismissed by the trial court. The petitioners challenged the order of the trial court before learned District Judge by preferring a revision application, which was also dismissed through the impugned order.

3. While opening his arguments, the learned counsel for the petitioners submitted that the trial court as well as the appellate court did not consider the factual aspect of the case. He contended that the application under section 12(2) of C.P.C. was dismissed by the trial court solely on the ground that the petitioners did not file an appeal and the same ground was also adapted by the appellate court. According to him, the trial court as well as the appellate court could not appreciate that the disputed land is reserved for the entire village as 'Asaish Land'. According to him, the petitioners did not appear before the trial court after filing written statement as they were refrained by the respondents by giving them assurance that they would privately settle the dispute, which is a clear-cut fraud and by practicing this fraud and cheating, they got the suit decreed in their favour. He argued that the trial court as well as the appellate court failed to appreciate the fact of fraud committed by the respondents by putting them on false and hollow hopes in respect of settlement of the issue through private mediation. He also submitted that the previous advocate of the petitioners acted with inclusion of the respondents and he was won over by the respondents; and petitioners have filed a complaint against him before the Sindh Bar Council. He took reliance from 2001 SCMR 1, 2010 SCMR 1097 and 2001 CLC 1976.

4. Conversely, the learned counsel for the respondents argued that the orders of the trial court as well as the lower appellate court are a just and proper. He submitted that the land was allotted to respondents in accordance with the law in the year 1982. He pointed out that the petitioners firstly approached the revenue authorities but their appeal was dismissed by concerned Additional Commissioner on 24-05-1984. They filed revision before Member Board of Revenue which was also dismissed on 21-07-1985. He further submitted that the petitioners never challenged the order of the revenue authorities before a civil court as such the same attains finality. According to him, the respondents have paid all the instalments and got mutation in their names on 08-11-1996. The petitioners then started another round of litigation before Additional Commissioner which was dismissed on 29-11-1999 and subsequent appeal before EDO was also dismissed on 04-02-2009. He added that as the petitioners denying the rights of the respondents on the land in question and they encroached upon some portion of the same therefore a suit was filed which was ultimately decreed by following the settled legal norms and procedures. Regarding the application filed by the petitioners under section 12(2), C.P.C., the learned counsel for the respondents submitted that the conduct of petitioner itself is very obvious and could not produce any material in respect of obtaining a decree by playing fraud and misrepresentation. He submitted that the ground taken by the petitioners about putting them on false hope for private settlement is nothing but afterthought and words of mouth, which are not believable.

5. They learned DAG submitted that the fraud could not be established by the petitioners before the trial court as well as the appellate court. He contended that no material was placed by the petitioners regarding fraud or misrepresentation. He further submitted that the petitioner could not submit any application against the previous counsel and no material in support of an application under section 12(2) is available.

6. Having heard learned counsel for the parties, I am of the view that the petitioners failed to prove their case and the concurrent findings of the courts below neither reflect anything contrary to settled legal principles to warrant interference. First, because admittedly the service upon the petitioners was properly done before the trial court, and they were declared ex-parte but subsequently they were allowed to file written statement and take part in the litigation, but after filing written statement, they again slumbered deep and resultantly. the suit was decreed in favour of the respondents. Second, as far as "service" and "participation" of the petitioners in the litigation and then refraining from appearance are concerned, nothing on the record is available to attract fraud or misrepresentation, which are the two main ingredients to attract the provision of section 12(2) of C.P.C.

7. It is a settled rule that a fraud is fatal for a party, who obtained any order, judgment and decree based on such fraud or misrepresentation. In the case of Muhammad Younus Khan v. Government of N.W.F.P. (1993 SCMR 618), the Apex Court has observed as under: "There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings." Keeping in view of the above legal principle, I divert towards the instant case to see whether a fraud was really done by the respondents to obtain the judgment and decree in their favour. It is contended on behalf of the petitioners that the respondents have persuaded them to believe that they would resolve the issue through a private mediation. Per counsel for petitioners, on such persuasion they did not appear before the trial court for taking part in litigation after filing written statement. In my humble view, these are only the words of the petitioners and the same are not sufficient to attract fraud or misrepresentation. The act of 'fraud' is always presumed or inferred from the circumstances or facts and conduct of the parties. It was observed by the Hon'ble Supreme Court in the case of Abdul Wahid v. Mst. Zamrut (PLD 1967 SC 153) as: "A question of fraud is never a pure question of law. It involved firstly a finding in regard to facts, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case to fraud. The latter may be regarded as a question of law arising in relation to the particular facts." Hence, it is necessary to analyse the facts or circumstances in the backdrop of the conduct of the parties to reach a fair conclusion about the fraud. The suit was filed by the respondents before the trial court in the year 2009 and till 2009, the petitioners wrangled over the respondents before the Revenue Authorities regarding the same piece of land. They remained unsuccessful in their struggle before Revenue Authorities. In fact, they had contested multiple rounds of litigations with respondents before the Revenue Authorities since 1984. The second round of litigation was ended in the year 2009 when they remained unsuccessful before EDO Revenue. It is worth noting that they remained shy to appear before civil courts and never challenged the verdict of revenue courts before the competent civil courts. It is hard to believe that the petitioners would so easily console by the mere words of respondents especially when they were persecuted them since decades. On the other hand, the conduct of the respondents is also obvious. They succeeded in getting relief from the Revenue Authorities in multiple rounds of litigations. In such a situation, there is no need for them to play fraud and to deprive themselves of the fruit of their long litigation. I am of the view that the conduct of both the parties is sufficient to negate any fraud in this case.

8. As far as the case laws cited by the learned counsel for the petitioner are concerned, the case of Messrs Hafiz Brothers v. Messrs PICIC Ltd. (2001 SCMR 1) pertains to proceedings against the dead person, hence is not applicable. Similarly, the case of the Lahore Development Authority v. Firdous Steel Mills (Pvt) Ltd. (2010 SCMR 1097) deals with collusive suits as such distinguishing to the present case. The case of Fayyaz Rasool v. Government of N.W.F.P. (2001 CLC 1976) regarding the question of disposal of the cases on merit instead of non-prosecution provided the same should be within time with convincing grounds. The said case is also not applicable to the present case because in the present case, the judgment and decree was passed on 16-05-2012 while the applicants appeared before the trial court after about two years without any plausible explanation for the delay.

9. Now, I am coming to another aspect of the case in hand. The suit was proceeded before the trial court. The petitioners appeared before the trial court up to the extent of filing written statement or thereafter but they did not turn up and avoided to conduct cross to the witnesses of respondents. They have not intimated the trial court about any intended mediation process by filing an application. Prior to dismissal of the suit, they approached revenue authorities, where their efforts would not bear fruit of success. When the trial court pronounced judgment and decree, they remained in their deep slumber and did not file an appeal. After passing considerable time, they suddenly approached the trial court with an unbelievable story to agitate against the judgment and decree on the ground of fraud. As the petitioners remained failed to avail the remedy of appeal, and subsequently attempted to resort to section 12(2) of C.P.C., which is not permissible under the law. Section 12(2), C.P.C. is no substitute for an appeal and can only be invoked, if it is shown that the judgment/decree has been obtained on the back of a party by playing fraud upon the Court. In the instant matter, there is no such case and the petitioners were duly and properly served and they have appeared before the trial court but later they abstained from appearance in court without any valid reason. In the existing scenario, there is no ground to interfere in the concurrent findings of the two courts below in the writ jurisdiction. The instant petition stands dismissed. ZC/A-8/Sindh Petition dismissed.