1999SCMR1334 (PLP)

IRSHAD HASAN KHAN, J.

The dispute. herein relates to a piece of land measuring 29 Kanals in Chak No.260-HR, Tehsil Fort Abbas, District Bahawalnagar. The land in dispute was sold by Mst Zaiban in favour of respondents Nos.2 and 3 herein and one Ahmed Yar, in consideration of Rs.18,000 Vide sale-deed dated 17-7-1978. The sale was pre-empted by Muhammad Ramzan respondent No. l herein through a suit, which was however, dismissed on 5-7-1981. Appeal against the said judgment and decree of the trial Court was accepted by the learned Additional District Judge vide order dated 23-5-1985. F.A.0. No.29 of 1985 was also filed against the said order, which was disposed of vide order dated 18-8-1985 and the case was remanded to the learned Additional District Judge, who disposed of the matter vide order dated 13-10-1985. Against the said judgment and decree dated 13-10-1985 R.S.A. No.9 of 1991 was filed, which was dismissed vide order dated 7-10-1991.

2. The petitioners herein, legal heirs of Wali Muhammad, moved an application under section 12(2), C.P.C. on the ground that the order dated 13-10-1985 were obtained through fraud and misrepresentation, inasmuch as, after the dismissal, of the suit by the trial Court on 5-7-1981, the suit land was gifted by the vendees Ghulam Muhammad, Zulfiqar Ali and Ahmad Yar in favour of their father Wali Muhammad vide sale-deeds dated 29-7-1981 and 12-9-1981. On these premises, it is contended that Wali Muhammad though a necessary party was not impleaded in appeal either before the Additional District Judge or in F.A.0. whereby case was remanded and again before the Additional District Judge, who decided the appeal on remand vide order dated 13-10-1985 and finally in the R.S.A., which was disposed of on 7-10-1991. The learned Judge in Chamber dismissed the petition being barred by time, inasmuch as, a final decree was passed by the High Court on 7-10-1991 in R.S.A. No.9 of 1991 but the petitioner filed an application on 5-11-1995, admittedly having been filed after a lapse of three years period provided in Article 18 of the Limitation Act. The learned Judge in Chambers also came to the conclusion that the plaintiff/respondent could not be held responsible for a fraud. In this behalf it would be advantageous to reproduce the following observations:- "It is very strange that after the dismissal of the suit on 5-7-1981, all the three vendees gifted the land in dispute, in favour of their father Wali Muhammad who kept this alienation concealed either from the Court of first appeal and even from the High Court where the proceedings kept on pending from 23-5-1985 upto 7-10-1991. It is also fact that Wali Muhammad is the father of original vendees and it does not stand to reason that he must not be in the know of this litigation which had been going on between Muhammad Ramzan and his sons Ghulam Muhammad and others. All these facts clearly show that the present petitioners' predecessor-in-interest Wali Muhammad were in the know of litigation going on between that parties for years together, and it .is he who is responsible for concealing this alienation and thereby practising fraud upon the Courts."

3. Learned counsel for the petitioners vehemently argued that the questions of fraud and misrepresentation, in view of the petitioners' allegations levelled in the application under section 12(2), C.P.C., the learned Judge in Chambers ought to have formulated issues and extended an opportunity to the parties to produce evidence and failure to do so has resulted in grave miscarriage of justice. In support of his contention reliance is placed on Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494, and in particular paragraph 7 of the report, which reads thus:- "

7. The power to decide the application was available to the High Court at all relevant times and particularly the amendment brought about of in subsection (2) of section 12 of the Civil Procedure Code affirms his position. This is not all. The statute law has made another important provisions, namely, that in case like the present one, where a person challenges the validity of the judgment, decree or order of the High Court on the plea of fraud, misrepresentation or want of jurisdiction, he shall have to seek his remedy by making an application to the High Court and 'not by a separate suit'. In this case, the petitioner could not have filed a separate suit as it stood barred by the abovereferred law. It was, therefore, necessary for her to have made an application before the High Court if she wanted to challenge the order dated 26-10-1980 on the allegation of fraud and misrepresentation as made in the application dated 2-12-1980. That being the position, the High Court was required to hold the enquiry and adjudicate this aspect of the matter Muhammad Akhter's case (1981 SCMR 878)." There 'is no cavil with the proposition of law advanced by the learned counsel for the petitioners that determination of allegations of fraud and misrepresentation ordinarily involve investigation into the questions of fact and in such cases an inquiry should ordinarily be held to adjudicate upon the matter in issue. But is not the requirement of law that the Court while dealing with the allegation under section 12(2), C.P.C. must in all circumstances frame issues, record evidence and follow the procedure prescribed for decision of the suit. The question whether or not the issues are to be formulated and evidence of the parties recorded in resolving the allegations of fraud and misrepresentation, depends upon the facts of each case in consonance with justice. Refer Ghulam Muhammad v. M. Ahmad Khan (1993 SCMR 662). In the instant case, the High Court, after thorough scrutiny of the material on record was right in holding that Wali Muhammad remained silent for a period of six years and never approached the Court claiming ownership on the basis of the gift mutations in question.. This conduct also militates against bona fides of Wali Muhammad whose predecessor-in-interest, could not be allowed to make any premium for the conduct of the later.

5. The learned Judge in Chambers recorded a specific finding that the petitioner' predecessor-in-interest Wali Muhammad was aware of the litigation which was going on between parties for a pretty long time and it was Wali Muhammad who was responsible for concealing this alienation from then Courts by not making an appropriate application within prescribed period of limitation. Clearly, the said finding has not been recorded in disregard/misreading of any material on record. The inference drawn by the learned Judge in Chambers is supported by material on record. No exception, therefore, can be taken to the impugned order whereby the application filed by the petitioners under section 12(2), C.P.C. was dismissed without formulating issues and recording evidence of the parties. Needless to observe that the impugned order was passed by the learned Judge in Chambers after hearing both the parties but the petitioners never sought permission to produce evidence in support of their application nor there was and prayer for formulation of issues at the time of hearing of the application. The petitioners are, therefore, estopped to take up this plea for the first time in these proceedings. This is another circumstance for dismissal of this petition.

6. Resultantly, the petition fails and is hereby dismissed. Leave is refused. A.A./A-108/S Leave refused.