Fraud or misrepresentation

Fresh application under S.12(2) of C.P.C. was filed before the Appellate Court, earlier such application was returned by the High Court

Appellants contended that the earlier filed (memo of) application before the High Court was a public document so respondent was to present exactly the same memo/file before the Appellate Court

Held, that there was no bar either under O.VII, R. 10 of Civil Procedure Code, 1908 or in any other provision of C.P.C., 1908, which precluded the plaintiff/applicant from filing fresh suit/application in case the plaint/application, filed earlier in the Court, was returned on the ground that the Court had no jurisdiction in the matter but subject to limitation

Filing of fresh application, in the present case, for all intent and purposes, was merely a continuation of the old proceedings in the former Court.

Appellants/plaintiffs contended that the Appellate Court had no jurisdiction to entertain and decide the application under S. 12(2) of C.P.C. filed by the respondent as he had previously filed such application before the High Court

Held, that initially (in the year 2004) the respondent filed application under S. 12(2) of C.P.C., in the civil revision before the High Court , however, the said application was returned for filing the same before the concerned (Appellate) Court

Thereafter, the respondent filed a fresh application under S. 12(2) of C.P.C., before the concerned Court, instead of presenting the memo of application returned by the High Court which was right.

Contention of the appellants/plaintiffs was that the respondent, being a stranger to the (original ) suit, had no locus standi to file an application under S.12(2) of C.P.C.

Held, that the person not party to the suit could file application S.12(2) of Civil Procedure Code, 1908, as in the said provision the word 'person' was used

Words like 'judgment-debtor' or 'his successor-in-interest' or 'party to the suit' had not, purposely and intentionally, been stipulated in S.12(2) of C.P.C.

Aggrieved person, whose rights were jeopardized by the decree obtained by fraud or misrepresentation, had locus standi to file application under S.12(2) of Civil procedure Code, 1908

Appeal was dismissed, in circumstances.

Change in view of the Superior Courts regarding jurisdiction of the Court to adjudicate the application under S.12(2) of C.P.C.

Scope and effect

Contention of the appellants was that the Appellate Court had no jurisdiction to entertain the application under S.12(2) of C.P.C. filed by the respondent as during the pendency of the said application before it (Appellate Court), the earlier view (regarding forum of filing)expressed by Superior Courts was changed

Validity

Earlier view of the Superior Courts was that the application under S.12(2) of C.P.C. could be filed in the Court which had passed the final order

Supreme Court subsequently changed the view and held that final decree/order of the last Court in the series (even if such decree was of affirmation) should be considered and treated to be final judgment/decree/order in terms of S.12(2) of C.P.C and the last Court in the series would be the forum for adjudication of such application

Judgments of the Superior Courts were prospective in nature

Appellate Court, in the present case, had jurisdiction to adjudicate the application under S.12(2), C.P.C. filed by the respondent

Appeal was dismissed, in circumstances.

Any transaction/document which was the result of fraud or misrepresentation could neither be perpetuated nor could it be protected on the ground of expiry of the period of limitation, whenever such transaction was assailed in a Court of law.

Trial Court having reached the conclusion as to the commission of fraud or misrepresentation, applicants were not permitted to first determine themselves that fraud had been committed avoiding the limitation, as if they were free from the fetters of limitation

If application under S. 12(2), C.P.C. was found to be beyond limitation, there would be no need to consider the same.

Grievance of petitioners was that authorities had cancelled allotment of land in question alleging that the same was allotted with fraud and misrepresentation

Validity

None of the parties alleged fraud in the matter and the question was taken note of by Member Board of Revenue himself

Member did not lack jurisdiction to examine question of fraud and in case he was satisfied that fraud had been committed, he was required to follow provisions of section 30(2) of Colonization of Government Lands (Punjab) Act, 1912

Parties were to be confronted and were given reasonable opportunity to defend themselves and thereafter an appropriate order would have been passed

Parties were never confronted with question of fraud and Member, Board of Revenue unilaterally and in isolation considered question of fraud and passed order directing resumption of land in question, as such the same constituted illegality, in exercise of jurisdiction and was fatal to the order

Petitioners as well as respondent were condemned unheard and had been presented with fait accompli without having been given reasonable opportunity to present their point of view

High Court set aside order passed by Board of Revenue resuming land in question and directed to confront petitioners as well as respondent with allegation of fraud, grant them reasonable opportunity of showing cause to present their point of view as envisaged by section 30 (b) and other provisions of Colonization of Government Lands (Punjab) Act, 1912 and remanded the matter to Board of Revenue, to pass an appropriate order in accordance with law

Petition was allowed accordingly.