2009 PLP 653 (MLD)

SYED ASGHAR HAIDER, J.

Reply to the application has been filed by the contesting respondents Nos. 1, 2 and 5 opposing the grant of application made. The respondents Nos. 3 and 4 have no objection to the grant of prayer made.

2. After hearing the learned counsel at some length, it appears that non-appearance of the learned counsel was unintentional and therefore, the lapse is condoned and the petition restored to its original number subject to the condition that it will be argued today. Main Matter

3. The petitioner, allegedly is the owner of the disputed property vide sale-deed No.1696, dated 24-12-1990, thereafter the house was rented out to the family of Zameer Ahmad and his widow Mst. Shehar Bano, respondent No.3. The petitioner filed a suit for declaration and consequential relief, which was decreed ex parte. The respondent (Anjuman) also filed a suit for declaration and permanent injunction, the same was decreed. The matter ultimately came before this Court in R.F.A. No.114/2008 filed by Mst. Shehar Bano and others v. Anjuman -e-Ansar Ahle Bait etc. and the same was dismissed on 1-7-2008. An application under section 12(2), C.P.C. was filed with the trial Court with a prayer that the impugned order and the judgment and decree, dated 4-3-2008 be set aside as it is based upon fraud and misrepresentation. This application was dismissed on 23-7-2008, aggrieved thereof, the present petition by the petitioner.

4. The learned counsel for the petitioner contended that a patent fraud and misrepresentation was committed by the respondent Anjuman, impact and import of the sale-deed and the earlier decree obtained was not disclosed, therefore, the judgment and decree and the impugned order are not tenable.

5. The learned counsel for the respondents Nos.1, 2 and 5 stated that the matter in issue and the one decided by this Court in R.F.A. No.114 of 2008 is similar and identical as the cause of action and the subject matter of the dispute is the same. The order/judgment passed in R.F.A. No.114/2008 was not challenged in the apex Court, therefore, it has attained finality and now no exception can be taken to it. The present petition is mala fide and meant just to drag and prolong the proceedings.

6. The counsel for respondents Nos. 3 and 4 supported the contention of the petitioner.

7. Heard.

8. Bare perusal of the application under section 12(2), C.P.C. makes it clear that is a ploy and instrument to prolong and drag on the proceedings, which are collusive as Mst. Shehar Bano, respondent No.3 and the petitioner are hand in glove to take over an "imambargah" in violation of law and evidence. The matter was adjudicated earlier in R.F.A. No.114 of 2008, but was never challenged in the apex Court, thus the judgment attained finality. Section 12(2), C.P.C. is limited and restricted to fraud, misrepresentation and error of jurisdiction, Order VI rule 4 clearly enjoins, mandates and stipulates that ingredients of fraud committed are required not only to be mentioned but are to be elucidated and detailed. This is conspicuously missing in the present application. The learned counsel for the petitioner adverted to para. 8 to plead that reference has been made to fraud but as adverted to earlier, no details of any fraud have been mentioned, therefore, the application was not maintainable and rightly dismissed, thus the impugned order warrants no interference.

9. Consequently, this petition has no merits, and is dismissed. M.H./A-25/L Petition dismissed.