Fraud and misrepresentation

Petitioners (Principal of power of attorney )moved an application under S.12(2), C.P.C. before the Trial Court for setting aside the judgment and decree on which order was passed with direction to re-register the case file while filing amended suit, after impleading the petitioners in the suit, however, Appellate / District Court set-aside the said order

Validity

Record revealed that on the basis of the power attorney, the attorneys (respondents ) filed a suit and the matter went up to the Appellate Courts to assail adverse orders and in all the proceedings the petitioners along with co-sharers were named as contesting party

However, prior to final disposal of case by the Trial Court, the suit was withdrawn with permission to file a fresh suit, but in the newly fresh instituted suit, the petitioners were not made a party to the proceedings, while they were under the impression that since they had already executed power of attorney in favour of attorneys and the said attorneys were pursuing the case

But, the attorneys excluded the names of petitioners and after trial, obtained judgment and decree in their favour which the petitioners were claiming to be the product of fraud and misrepresentation

On coming to know about passing of said decree while missing their names, the petitioners immediately approached the Trial Court and apprised the entire situation by filing an application under S.12(2), C.P.C.

Trial Court rightly appreciated the legal position of the case by setting-aside the impugned order, but the Appellate Court without considering the legal aspect of the case had wrongly interfered in it and set aside the order of the Trial Court, which otherwise was well-reasoned

Petitioners, who were already party in the first round of litigation, could not be delisted from the proceedings by the attorneys without any cogent or lawful reason, when otherwise they were the shareholders in the same property, which was devolved upon them from their forefathers

Therefore, any effective decree could not be passed without impleading the petitioners in the proceedings and even if the Trial Court kept in field its earlier decree, then at the time of execution, again third party interest would be accrued

Thus it would be in the best interest of justice and parties that all the shareholder shall be impleaded in the proceedings

It had been established that the petitioners were necessary parties in the suit being filed in respect of ancestral property

High Court set-aside the impugned order passed by First Appellate Court and directed the Trial Court to commence with the proceedings of the case

Revision was accepted accordingly.

An application under S. 12(2), C.P.C., 1908, filed before the Appellate/District Court by a respondent (in decided appeal) was dismissed, against which dismissal revision was filed

Stance of the petitioner (applicant under S. 12(2) C.P.C.) was that he had no knowledge about the pendency of appeal as no notice/summon was served to him and neither he appeared before the Appellate/District Court nor appointed any counsel, hence, order and decree (passed in appeal) was result of fraud and mis-representation

Validity

Record contradicted said stance of the petitioner as his name was mentioned as respondent No.3 and his address was the same in (said decided)appeal as he had mentioned in his application under S. 12(2), C.P.C. and also in the present civil revision

Appellate/District Court issued notice to petitioner/applicant (being respondent) by adopting due process and even after publication of advertisement in newspaper but he did not appear before the Appellate / District Court and was ultimately proceeded against ex-parte and thereafter( on the basis of statements of the contesting parties), the appeal was accepted by modifying the judgment and decree of the Trial Court

All the parties to the suit and appeal were closely related to each other and close relatives of petitioner

Hence, it could not be believed that petitioner was not aware of the proceedings in suit and appeal

Thus, the District Judge had rightly dismissed the application of the petitioner after properly discussing in detail the un-rebuttable facts of the case

No infirmity, legal or factual, had been pointed out in the impugned order

Revision was dismissed in limine, in circumstances.

Plea raised by respondents was that issues were required to be framed by Court prior to setting aside judgment in question

Validity

Application under S. 12(2), C.P.C. can be decided without framing of issues and recording of evidence, which is not obligatory for Court

It is the satisfaction of Court either to frame issues, record evidence or decide such applications as it may deem fit and proper after considering circumstances of each case

No yardstick can be fixed for adjudication of such application

Determination of allegations of fraud and misrepresentation usually involves investigation into questions of fact but it is not in every case that Court is under obligation to frame issues, record evidence of parties and follow procedure prescribed for decision of suit

Relevant authorities did not find any record of RL-II pertaining to land in question, available in record

No RL-II pertaining to land in question was issued either to respondents or others

If on the basis of void order/judgment, subsequent orders were passed either by same authority or by other authorities, the whole series of such orders, together with superstructure of rights and obligation built upon, them, must unless some statue or principle of law recognizing as legal, the changed position of the parties is in operation, fall to ground because such orders have as little legal foundation as the void order on which they are founded

In the present case there existed no need to frame issues and record evidence

High Court in exercise of powers under S. 12(2), C.P.C. set aside the order passed by authorities

Application was allowed in circumstances.

Petitioner was aggrieved of dismissal of his application under S. 12(2), C.P.C. on the ground that attorney of petitioner did not have any authority to file such application

Validity

Attorney was acting on behalf of principal for his benefit in relation to subject property with clear power to safeguard interest of petitioner

General Power of Attorney had granted powers to the attorney to do all things on behalf of the principal in relation to protecting his rights

Trial Court and Lower Appellate Court could not deprive the attorney from exercising his power to file a suit, written statement or, from filing an application under S. 12(2), C.P.C., on behalf of his principal

Such interpretation was in the context of facts and circumstances peculiar to the matter of petitioner

Application of rules of interpretation regarding the punctuation slash (/) had different outcomes depending on the facts and circumstances of each case

High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for decision on merits after recording of evidence, as the attorney was duly authorized and competent to file application under S. 12(2), C.P.C.

Constitutional petition was allowed accordingly.

Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908 (C.P.C), alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court

Trial Court, after recording evidence , dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court

Validity

Record revealed that the petitioner entered into a sale agreement with respondents/vendors who was located on the ground floor of the Apartments (building) while respondents, at the same time, resided on the fourth floor of the same building

Yet the petitioner did not bother to check in with any of them before entering into a sale agreement

Petitioner took no steps to safeguard his interest, and he now had to live with the consequences of the risk he took

In the said circumstances, the petitioner could neither take benefit of proviso to S.41 of the Transfer of Property Act, 1882, nor he was able to establish that he was a bona fide purchaser for valuable consideration without notice under S. 27(b) of the Specific Relief Act, 1877

Petitioner/applicant did not act prudently

Petitioner had remedies available to him for the redressal of his grievance, including filing a suit for specific performance, yet he took the path less travelled by attempting to prove his title by filing a S.12(2), C.P.C., application

No illegality or material irregularity had been noticed in the impugned Orders passed by both the Courts below

Constitution petition was dismissed, in circumstances.

Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908, (C.P.C) alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court

Trial Court, after recording evidence, dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court

Validity

Burden of proof was on the Petitioner (applicant under S.12(2) of the Civil Procedure Code, 1908), who led evidence through eight witnesses

Most of the witnesses of the petitioner were his relatives (his son-in-law, blood brothers, and son), his estate agent, and one (witness) was called from Quetta just because the petitioner asked him to come from Quetta

According to the testimonies of witnesses, almost all of them, during cross-examination, for the majority of the questions put to them claimed lack of knowledge; they conceded they did not prepare the affidavits; only signed affidavits because they were told to do so and admitted that they were illiterate/did not understand English

Finally, no-one from any of the legal heirs of alleged vendors/respondents stepped into the witness box

Further, the petitioner also did not bother to move the Trial court to summon and compel the attendance of said crucial witnesses

Petitioner was to prove that fraud / misrepresentation / concealment of material facts had been played on the Court when Civil Suit was filed in the year 2012, even though the petitioner executed the Sale Agreement with Respondent (Defendant / vendor ) almost three years later

Petitioner/Applicant pointed out no substantial evidence to establish the factum or element of fraud and misrepresentation or concealment of facts by respondent No.1/plaintiff in obtaining the decree

Mere assertion of fraud in the S.12(2), C.P.C., application without proof was not sufficient to set aside the decree

No illegality or material irregularity had been noticed in the impugned orders passed by both the Courts below

Constitution petition was dismissed, in circumstances.

Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908, (C.P.C) alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court

Trial court, after recording evidence , dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court

Validity

There was no reason for respondent No.1/plaintiff to implead the petitioner/applicant for the reason that petitioner/applicant neither had nor could establish legal character or right on the basis of the Sale Agreement

Sale Agreement by itself could not confer any title on the petitioner/applicant also because the same was not a title deed, and such agreement did not confer any proprietary right

Thus, impleading petitioner/applicant before he had established his right in the flat would have been meaningless

No illegality or material irregularity had been noticed in the impugned orders passed by both the Courts below

Constitution petition was dismissed, in circumstances.

Petitioner sought setting aside of judgment and decree under S.12(2), C.P.C., passed in favour of respondent on the plea of fraud

Validity

Plea of fraud and misrepresentation were pre-conditions for application under S.12(2), C.P.C.

Whenever fraud and misrepresentation was alleged by a party, the particulars of fraud and misrepresentation with detail were to be mentioned in the application

Party who alleged fraud and misrepresentation was to bring detail facts of fraud on record

Party who alleged something must prove the same under Art. 117 of Qanun-e-Shahadat, 1984

Revision was dismissed, in circumstances.

Petitioners were aggrieved of cancellation of registered general power of attorney and mutation of transfer of land by revenue authorities on the plea of fraud and misrepresentation

Validity

Cancellation of general power of attorney and mutation on the ground of fraud and misrepresentation could only be challenged before competent Court of civil jurisdiction by invoking provisions of Ss. 39 & 42 of Specific Relief Act, 1877, through a suit for declaration for cancellation of instrument declaring the same to be void or voidable

Registered document could not be cancelled without intervention of a civil Court of competent jurisdiction

Revenue officer or revenue Court could not examine authenticity of a registered instrument in exercise of powers, conferred under the provisions of Khyber Pakhtunkhwa Land Revenue Act, 1967, in view of the provisions contained in S.39 of Specific Relief Act, 1877

Revenue Official exceeded his power by declaring registered general power of attorney and mutation in question as executed by practicing fraud and misrepresentation

Scope of S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967 was entirely different, it only excluded jurisdiction of civil Court for taking in hand functions assigned to revenue officers or revenue Courts under S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967, including correction of any entry in record of rights, periodical record or register of mutations

High court in exercise of Constitutional jurisdiction set aside orders passed by revenue authorities and question to the genuineness, authenticity and legality of general power of attorney and mutation in question was to be determined by competent civil Court

Constitutional petition was allowed accordingly.

Lower Appellate Court on application of respondent/defendant restored appeal in exercise of jurisdiction under S.12(2), C.P.C.

Validity

Fraud could not be directly proved it had to be inferred from surrounding circumstances

Fraud vitiated the most solemn proceedings

Respondent / defendant filed her appeal by appointing counsel who withdrew it without consent and authorization, which gave undue advantage to petitioner / plaintiff who had become the sole beneficiary on the withdrawal of appeal

All essential ingredients of collision, were proved and verdict of Trial Court in favour of petitioner / plaintiff remained intact due to withdrawal of appeal by the counsel of respondent / defendant unilaterally and making false statement that he was under instruction of respondent / defendant to withdraw the same

Withdrawal application was accepted by Trial Court in violation of ground realities existed on the spot

Such was sufficient to establish that petitioner / plaintiff was a beneficiary and secured order of withdrawal in connivance with counsel of respondent / defendant

Doctrine of ubi jus ibi remedium, was rightly pressed into service to hold that order of withdrawal of appeal of respondent / defendant by her counsel was without authorization, consent and the same was the result of fraud, misrepresentation and collision with petitioner

High court declined to interfere in order passed by Lower Appellate Court as there was no illegality, irregularity or jurisdictional defect in order passed by Lower Appellate Court

Revision was dismissed in circumstances.

Applicants / petitioners assailed their dispossession from land in question by Federal Land Commission but their petition was dismissed as withdrawn

Applicants/petitioners sought restoration of their petition on the plea of fraud

Validity

Earlier revision petition regarding resumption of land of declarant was dismissed on merit by Federal Land Commission and that dismissal order was maintained by Supreme Court

Without disclosing earlier facts, Second revision petition filed by respondent containing same set of facts, same property, same cause of action and between same parties was not maintainable under the principle of res-judicata

Order dismissing petition as withdrawn was set aside and the case was restored to its original number

High Court quashed the orders of ejectment of petitioners from land in question as the same were passed in presence of status quo order

High Court directed revenue authorities to immediately restore possession of land in question to applicants/petitioners

Order passed by Federal Land Commission was passed in violation of Art. 189 of the Constitution, as the matter had already been finalized upto Supreme Court and the matter was hit by principle of res judicata, therefore, the order was passed without jurisdiction

Constitutional petition was allowed accordingly.

Plaintiffs (legal heirs of daughter of predecessor-in-interest of parties) claimed of having no knowledge of inheritance mutations

Held, that averments in the plaint were not seriously denied by the petitioners/defendants

No one could be deprived of his/her ancestral property on the basis of fraud merely on account of limitation

Even one of the respondents/defendants deposed that plaintiffs initially had no knowledge of inheritance mutations

Limitation could not be pleaded as hurdle in way of respondents/plaintiffs, thus the question of limitation was rightly decided by both the Courts below

Civil revision was dismissed, in circumstances.

Simply by moving an application on the grounds of fraud and misrepresentation to cover his negligence to pursue the matter and to make an attempt to neutralize vires of judgment subsisting against borrowers would not protect them from the repercussion, which were bound to follow them

In absence of any convincing evidence, no misrepresentation or fraud could be alleged to have been contrived by respondent/Bank to obtain a decision in its favour, which came into being mainly due to failure of appellant/defendant to put up appearance before the Court in pursuance of the notices and summons issued to him

Banking Court considered material facts including settlement between the parties

Amount paid by appellant/defendant was deducted from the amount claimed by respondent/Bank

Nothing was available on the record, which could show that appellant/defendant while acting upon settlement reached between him and the Bank in year 2013 had either fulfilled terms of that settlement and/or had paid outstanding amount due against him to respondent/Bank

In absence of any proof in respect thereof, filing of application under S. 12(2) of C.P.C. lacked bona fide on the part of appellant/defendant

High Court declined to interfere in order passed by Banking Court as there was no concealment of facts and/or misrepresentation on the part of respondent/Bank as alleged by appellant/defendant

Appeal was dismissed, in circumstances.

During pendency of revision petition before High Court, applicants sought setting aside of judgments and decrees under S.12(2), C.P.C.

Entire family had been part of litigation and three Local Commissions visited the spot which had been constituting the cause of dispute in instant litigation but nowhere could the applicants become aware of pendency of litigation

Such stance was unbelievable and nothing more than a false plea and an afterthought

If such practice was allowed, then there would be no end to abuse of process of Court and there could be no finality ever in litigation between parties

Application was an effort of the nature of abuse of process of Court and deserved to be buried at very first instance

Petition was dismissed, in circumstances.

Factum of allotment to non-evacuee citizens of enemy state came to the knowledge of Chief Settlement Commissioner who by declaring order of allotment as result of fraud and misrepresentation withdrew the same and cancelled allotment vide subsequent order dated 17-7-2009 and committed no illegality

High Court declined to interfere in the order passed by Chief Settlement Commissioner, as it was neither perverse nor illegal and there was no jurisdictional defect

Constitutional petition was dismissed, in circumstances.

Party applying to set aside an ex parte order for fraud and misrepresentation in service of summons would be expected to inspect Trial Court's record of service and only then plead fraud in its application with sufficient particulars

Court may but is not necessarily required to frame an issue on the question of actual service raised in an application under S.12(2), C.P.C.

Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, could not be procedurally classified as in all jurisdictions it unredeemedly vitiated the very solemnity of adjudication, a wrong that could not be countenanced and must be remedied through dynamic application of equitable principles of law

Such approach had been approved by the Supreme Court in a good number of cases.

Application under S. 12(2), C.P.C. must plead and prove that misrepresentation and fraud was committed by parties to suit while obtaining judgment, decree or order

Burden to prove was upon applicants to prove plea of fraud and misrepresentation and they were to show their legal title and right vested in them in respect of property in question

Applicants claimed their right more than 24 years after institution of suit by respondents

Such conduct showed ignorance of applicants about pending litigation between respondents

High Court in exercise of revisional jurisdiction declined to interfere in orders passed by two Courts below

Revision was dismissed, in circumstances.

Defendant being owner of suit property had entered into an agreement to sell with the plaintiff and had settled the matter

Defendant had never entered into any transaction or agreement with the present petitioner

Alleged agreement to sell with the petitioner had been executed on behalf of attorney of defendant during pendency of suit when restraining order with regard to further alienation of suit property was in the field

No fraud or misrepresentation had been committed by the defendant with the petitioner or with the Court

Petitioner had purchased suit property during pendency of suit and no fraud or misrepresentation was visible from the material placed on file on the part of defendant

Transaction which had taken place during pendency of suit had no protection as it was hit by the principle of 'lis pendens'

Findings recorded by the Courts below were based on proper appreciation of facts and law applicable thereto

If any fraud or misrepresentation had been committed on the part of general attorney of defendant then same could be remedied through suit for damages and recovery of amount paid by the petitioner

Constitutional petition was dismissed, in circumstances.

Contention of applicant was that he was not party to the suit and compromise decree had been obtained through fraud and misrepresentation

Petition for setting aside of compromise decree was dismissed concurrently

Validity

Petitioner had appeared before the Trial Court as a witness in the suit in which compromise decree had been passed

Applicant was well aware with regard to pendency of suit between the parties and he had not filed an application for his impleadment in the said suit

Witnesses of petitioner had not substantiated his claim as they had not uttered a single word with regard to fraud and misrepresentation

Petitioner had failed to prove any misrepresentation or fraud on the part of respondents in obtaining impugned decree

Petitioner had not filed copies of pleadings and documents with the revision petition therefore, same was not maintainable

No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below

Concurrent findings of facts rendered by the Courts below were based on proper appreciation of evidence

Revision was dismissed, in circumstances.

Jurisdiction of civil Court would be ousted only when declaration was sought against the Custodian of Evacuee Property, however, when the dispute was of civil nature between the parties then jurisdiction of civil Court could not be claimed to have been ousted

Compromise decree had been passed on the statement of plaintiffs

Plaintiffs could not take an inconsistent position by saying that fraud had been committed

General allegation of fraud could not be accepted until the details and manner of commission of fraud was proved by the party

Appeal was dismissed, in circumstances.

Written statement filed by the defendant-brother was completely silent with regard to essential details of the oral sale transaction

Further, there was no mention of the value at which the land was allegedly purchased by the defendant

Plaintiffs were illiterate village ladies, who were unaware of the technicalities and worldly affairs

Defendant, real brother of the plaintiffs, was in position of a fiduciary on whose advice they were relying

Confidence and reliance of plaintiffs was betrayed by the defendant, who admitted in his cross-examination that neither the children nor husband of any of his sisters was present when the impugned mutation was sanctioned

Such fact casted serious doubts about the validity of transaction and the sort of advice (if any) that the ladies received and their understanding of what was being transacted

Person who attested the mutation being one of its marginal witnesses expressed his ignorance about whether the sale consideration was paid before the attesting officer or at home

Said witness conceded that it was not paid in his presence and also conceded that possession was not delivered to the defendant in lieu of the transaction rather he was exclusively enjoying possession of the property in question from the day of death of father of the parties

Most material witnesses namely the Revenue Officer and Halqa Patwari,who entered and attested the impugned mutation, were withheld and no effort was made to produce them in Court

Defendant failed to prove the sale which constituted basis of the mutation or even the mutation itself

Appeal by defendant was dismissed.

Suit was dismissed against which appeal was filed wherein attorney of defendant got recorded his statement that he had no objection on acceptance of appeal and suit was decreed

Applicant filed application for setting aside of judgment and decree on the ground that fraud and misrepresentation had been committed

Application for setting aside of impugned judgment and decree was dismissed

Validity

Petitioner was bound to plead, explain and mention the mode and manner in which fraud was played before the Court and facts were misrepresented

Applicant had not given factum of fraud and misrepresentation in the application

Attorney was required to get permission of principal whenever an act was to be done on the basis of powers so delegated but when said powers had not been disputed then no such permission from principal was required

Statement of attorney had been recorded on behalf of principal within the powers so delegated and he had stated that he had received the sale consideration of suit property

Applicant had failed to prove the fact of misrepresentation before the Court below at the time when statement of his attorney was recorded

Attorney was equipped with all the powers of principal to plead before the Court

Attorney had been authorized with power of attorney executed in his favour to enter into compromise on behalf of principal

Principal could not plead otherwise once the powers had been given and admitted by him in favour of attorney

Revision was dismissed in limine, in circumstances.

Decree which was to be set aside was passed on 13-10-1970 when a separate suit was maintainable on the grounds of fraud, collusion and lack of jurisdiction

Generally, all laws would apply prospectively except those affecting procedure

Matters with regard to remedy and jurisdiction were to be considered to be procedural in nature

If retroactive operation of even a procedural statute did cause inconvenience or injustice then Court was not to favour an interpretation giving retrospective effect to the statute

Present revision petition had been filed after forty years from passing of impugned decree, which was time barred

Court had power to set aside its own judgment, decree or final order which was fraudulently or collusively obtained but party asserting fraud and misrepresentation must narrate full particulars of fraud and misrepresentation not only in the petition but must also prove the same through cogent evidence

Mere asserting fraud without proof of the same was not sufficient for setting aside a decree

When suit was filed then petitioners were minor and their father was defendant in the said suit

Father of petitioners did not challenge the impugned decree during his life time

Petitioners had failed to prove fraud through evidence, in circumstance

No mis-reading or non-reading of evidence or any illegality or irregularity had been pointed out in the impugned orders passed by the Courts below

Revision petition was dismissed, in circumstances.

Pleadings without specifying essential details per se were not sufficient to declare the order having been obtained by practising fraud

Petitioner had failed to make out a case of fraud and misrepresentation whereas other grounds were not enough to bring his case within the ambit of relevant provision

Any order passed erroneously or illegally could not be assailed under S.12(2), C.P.C.

Application under S.12(2), C.P.C. would lie only if order/judgment / decree was obtained by practising fraud

Section 12(2), C.P.C. was not substitute of an appeal and same could not be equated or treated at par to the remedy of review or revision

Remedy provided under S.12(2), C.P.C. could not be availed on the ground that decree had been obtained on the basis of perjured evidence

Questions with regard to credibility of evidence produced in the case was to be decided therein

Application under S.12(2), C.P.C. would not be maintainable merely on the ground that claim was false or lis was incompetent

Decree could not be challenged on merits when applicant was aware of the facts forming the application but had not asserted the said facts in the Court before whom proceedings had been finalized

Findings based on wrong exercise of jurisdiction could only be agitated under S.96 or 115, C.P.C.

Scope of S.12(2), C.P.C. was restricted and applicant was required to prove that fraud and misrepresentation had been committed by the adversary in connection with the proceedings

Applicant could not be allowed to reopen the matter which had been finally disposed of

Applicant prior to filing of present petition had already preferred an appeal and had remained unsuccessful in the same

Applicant against the impugned judgment had three remedies i.e. appeal, review and an application under S.12(2), C.P.C. and one remedy did not exclude the other

Once petitioner had availed the remedy of appeal then Court could not entertain application under S.12(2), C.P.C.

Applicant had no lawful excuse or justification to re-agitate the settled controversy again by resorting to another/different remedy

Revision being not maintainable, was dismissed, in circumstances.

Written statement was silent with regard to essential details qua venue, date and names of witnesses to assert as to when, where and before whom original transaction was settled leading to execution of impugned sale deed

Plaintiff while appearing in the witness box had fully endorsed his pleadings

Onus had shifted upon the beneficiary of sale deed not only to rebut the allegations raised by the adversary but to prove that actually a fair deal of sale was effected and alleged consideration had been paid and plaintiff had voluntarily appeared before Stamp Vendor, Scribe and Sub-Registrar as well

Plaintiff had admitted that his signatures/thumb impressions were procured but with clarity that same were obtained in garb of his affidavit to be submitted for his treatment and admission in the hospital

Defendant being beneficiary was bound to prove the contents of document on which the executant had admitted his signature

Mere admission of putting thumb impression or signatures by any person on some disputed instrument without proving the content thereof would not amount to proving its execution

Whenever execution or validity of a registered document had been denied then such instrument would lose its sanctity of being presumed to be correct rather veracity of registered document would depend upon quantum and quality of evidence to be produced to prove its execution

Only restricted presumption under S.60 of Registration Act, 1908 was attached that registration proceedings had regularly and honestly been carried out by the attesting officer

Said presumption attached to certificate of the document was always rebuttable

Whenever execution of an instrument had been denied then presumption would be deduced to have been sufficiently rebutted and onus would lie upon the person who had alleged execution to prove that the document was executed/registered for the transaction effected between the parties

Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who had admitted the execution before the attesting officer was not an imposter but the genuine one

Possession of suit property had never been handed over to the defendant

Payment of sale consideration followed by delivery of possession was mandatory for sale transaction

Mere registration of sale deed without payment of sale consideration and delivery of possession would not be operative to pass title to the vendee

Neither Lumberdar nor Councilor of concerned revenue estate was accompanying at the time of attestation of impugned sale deed rather Lumberdar of city had identified the vendor which had created doubt to the attestation of sale deed

Identifier, Stamp Vendor and Sub-Registrar were independent witnesses but they had not been produced before the trial Court

Non-production of said witnesses would constrain the Court to infer that had they been examined they would have gone hostile to the beneficiary

Court should appreciate the statement of a party as per its substance and pith

No one should be non-suited while turning out one or two sentences of his deposition

Admission which was wrong on a point of fact or was made in ignorance of a legal right could not be given binding effect

Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed

Second appeal was allowed in circumstances.

Such information when furnished did assume the character of an admission of the parties and result in a decision of the lis on the basis thereof

Where a person was called upon to decide the suit after receiving evidence and hearing arguments or collecting material then his role could not be termed as of a referee

Where referee proceeded to examine the witness, hear the parties to reach a conclusion or resolve the dispute then his conclusion would be a decision which could not be treated by the Court as a statement of the referee

Trial Court had proceeded in a mechanical manner and passed a decree on the assumption as if it was statement by referee

Appointment of a counsel as referee could not denude the petitioner of his right to object and challenge the report on the ground of collusion and transgression of mandate as referee

Parties, in the present case, never agreed that referee should record statement but dispute was entrusted to the referee for decision

Mere using of the word "referee" could not render the report to be deemed to be an information in his personal knowledge to make it an admission under Art. 33 of Qanun-e-Shahadat, 1984

No evidence had been recorded by the referee nor any inquiry had been conducted before filing report before the Court

Report of referee could only be treated as award which could not be admitted unless the parties were afforded opportunity to file their objections

Impugned decree had been passed without proper hearing to the petitioner and without permitting objections, therefore, the same was without jurisdiction and void ab initio

Impugned order passed by the Trial Court was set aside and application under S.12(2) of C.P.C. was accepted

Matter was remanded to the Trial Court with the direction to decide the same afresh after affording opportunity to the parties to file objections to the report of referee and lead evidence in support thereof

Revision was allowed, in circumstances.

Constitutional petition was filed wherein High Court directed Mukhtiarkar to handover possession of subject land to the petitioner according to her entitlement

Contention of applicant was that impugned order had been obtained through fraud and misrepresentation and matter was subjudiced before Civil Court

Validity

Serious allegations had been levelled by the applicant against the petitioner for committing fraud upon High Court through misrepresentation of facts

High Court observed that evidence was required to resolve factual controversy between the parties

No evidence could be recorded in constitutional petition by the High Court

Parties should approach the competent forum to resolve their entitlement in the subject land

High Court could not determine the claims and counter claims of the parties on the subject land in a disposed of matter

Member Board of Revenue was directed to probe the matter and determine the entitlement of the parties on the subject land

Petition for setting aside of impugned order was disposed of accordingly.

Application filed for compromise of a suit had signatures of plaintiff and attorney of defendant but not of the defendant

Defendant was the owner of suit property but he had not signed the application for compromise of a suit

Impugned decree passed on the basis of an application filed under O.XXIII, R.3, C.P.C. was collusive and had been obtained through misrepresentation and fraud

Impugned order and decree passed on the application for compromise were set aside, in circumstances.

Decrees obtained on the basis of consent/compromise were not challengeable until and unless the same were proved to be obtained by way of fraud and misrepresentation.

Contention of applicants was that impugned decree had been obtained through fraud and misrepresentation by concealing that suit land was part of a village

Validity

Board of Revenue while conceding to impugned decree did not play any fraud on the Court nor made any misrepresentation

Impugned decree against Board of Revenue was essential for restitution of suit land to the respondents

Fraud or misrepresentation could not be inferred solely on the ground that applicants (alleging fraud) were not made party to the suit

Applicants were to first demonstrate that impugned judgment and decree had infringed their right or interest

No grant in favour of applicants had been cancelled by the Board of Revenue in result of impugned judgment and decree

Applicants had never challenged cancellation of allotment letter through independent proceedings

Court was not bound to frame issue and record evidence before disposing of application under S. 12(2) of C.P.C.

Application was dismissed, in circumstances.

Contention of applicant was that impugned order had been obtained through fraud and misrepresentation and dead petitioner could not be replaced by a new petitioner

Validity

Provisions of Civil Procedure Code, 1908 were applicable to the constitutional petition

Section 12(2) being part of Civil Procedure Code, 1908 was applicable to the constitutional petition

Attorney of dead petitioner had not disclosed her death in the memo of constitutional petition

Impugned orders obtained in the constitutional petition by way of fraud and misrepresentation were illegal and nullity in law and void ab initio

No period of limitation did run against such void orders

Dead petitioner in the constitutional petition was replaced by a new petitioner but factum of her death was not disclosed to the Court

Fraud and misrepresentation had been played upon the Court in circumstances

Constitutional petition filed on behalf of dead person through her attorney was nullity in the eye of law

Impugned order passed in the constitutional petition was result of fraud and misrepresentation and same was void ab initio having no legal effect

General power of attorney in the present case did not confer any right on the attorney to alienate the principal's property in his name

Court in a proceedings filed on behalf of a dead person had no jurisdiction to grant an application under O. I, R. 10, C.P.C.

Fraud and misrepresentation would vitiate the most solemn proceedings

Court even suo motu could set aside such orders which had been obtained by way of fraud and misrepresentation

Constitutional petition was not only nullity but also incompetent and same was liable to be dismissed

Impugned orders passed in the constitutional petition were set aside

Petition was accepted, in circumstances.

Trial Court dismissed petition for setting aside of compromise decree but Appellate Court remanded the matter for decision afresh after recording of evidence

Validity

Petitioners had raised specific plea of fraud and misrepresentation which had been denied by the respondent while submitting reply of petition

Parties should have been provided reasonable opportunity to produce their evidence, in circumstances

Framing of issues in every application under S.12(2), C.P.C. was not necessary but in certain cases issues should be framed and evidence was required for just conclusion

No illegality or irregularity had been pointed out in the impugned order passed by the Revisional Court

Constitutional petition was dismissed, in circumstances.

Special power of attorney did not contain any clause authorizing the attorney to execute the arbitration agreement or refer any matter for arbitration

Alleged arbitration agreement and subsequent proceedings on the basis thereof were not legal or operative in law to make such award a rule of the court

Impugned order making award a rule of the court was without jurisdiction and result of fraud which was rightly annulled

Where award did declare or assign rights in the immovable property then it would not have any legal effect unless it was registered

Property worth more than Rs. 100/- could not be conveyed nor any declaration of title could be given with regard to immovable property through an award which was unregistered

Invalid award was made a rule of the court through concealment of facts and misrepresentation

No mis-reading or error of law had been pointed out in the impugned orders passed by the Courts below

Findings recorded by the Courts below were based on correct analysis of evidence

Constitutional petition was dismissed, in circumstances.

Applicant during pendency of suit purchased suit property and moved application for impleadment of defendant but same was dismissed

Suit was decreed and sale deed was executed in favour of decree-holder/petitioner

Applicant applied for setting aside of said decree but same was dismissed by the Trial Court

Appellate Court remanded the matter to decide the same after framing of issues and recording evidence of the parties

Validity

Suit was filed on 20-04-1990 and applicant purchased suit property on 19-05-2003

Principle of lis pendens was applicable and applicant could not be impleaded as party in the main suit

Court was not bound to frame issues in each and every case before deciding an application under S.12(2), C.P.C. rather it could decide such application without framing of issues while considering material made available on the record

Mere allegation of fraud and misrepresentation was not sufficient to undo the judgment of a court of competent jurisdiction

Party who had asserted fraud and misrepresentation had to bring on record cogent and plausible material in order to substantiate his such plea which was lacking in the present case

Revisional Court had erred in law while setting aside order passed by the Trial Court thus had committed illegality culminating into passing of an order which was perverse and perfunctory

Impugned order could not be allowed to hold the field further

High Court was competent to exercise its constitutional jurisdiction in circumstances

Impugned order passed by the Revisional Court was set aside and that of Trial Court was restored

Constitutional petition was allowed accordingly.

During pendency of suit filed by the plaintiff-company, attorney of the plaintiff filed an application under O. XXIII, R. 3 C.P.C. claiming that the matter between the plaintiff and defendants had been settled

Trial Court allowed said application and dismissed the suit as not pressed

Plaintiff contended that order by Trial Court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record

Plea of attorney of plaintiff that under the provisions of O. III, R. 1 C.P.C. the power to plead a case before a Court also enjoined upon a counsel to withdraw the same and there could not be any exception to it

Held, that such plea put forward by the attorney may be true in ordinary circumstances when a litigant signed a Vakalanama in person and engaged a counsel for all acts, which at times also empowered the counsel to withdraw or even compromise the case

However, the facts of the present case were different as the principal/plaintiff was abroad and had executed a power of attorney to a law firm which in turn had nominated its employees to act as attorneys

In this entire transaction it was not the case of attorney (employee of law firm) that he had any direct instructions either for instituting the suit or for withdrawing it

In fact the attorney had not come to contest present proceedings and defend himself

Furthermore the power of attorney itself had no specific powers either for compromise and or withdrawal

Assuming that the principal/plaintiff itself wanted to withdraw the proceedings, it would have definitely issued a separate memo of instructions to the law firm (and not to any of the attorneys individually) and on its presentation before the Court, appropriate orders could have been passed

Since such instructions were missing in the present case, the attorney was acting without any such instructions, therefore, the provisions of O.III, R.1 C.P.C. would not apply to the present case stricto-sensu

Order passed by Trial Court was obtained by way of misrepresentation and fraud in that the attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit

Application under S.12(2) C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits.

During pendency of suit filed by the plaintiff-company against the defendant-companies, attorney of the plaintiff filed an application under O.XXIII, R.3 C.P.C. claiming that the matter between the plaintiff and defendants had been settled

Trial Court allowed said application and dismissed the suit as not pressed

Plaintiff contended that order by Trial Court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record

Held, that perusal of the power of attorney reflected that the plaintiff-company had appointed the agents severally as the company's attorneys in question to do the acts deeds and things in connection with and arising out of the subject consignment and for its delivery and transportation from Egypt to Ethiopia

Said purpose had been so stated and it clearly spelt out that the principal/plaintiff-company wanted these attorneys to act in furtherance of the said act

Though a specific power for compromise was not available in the power of attorney but even if the word "comprise" used therein was understood as "compromise" (treating it as an inadvertent error or a typographical mistake) by no stretch of imagination it could be held that this also provided power for withdrawing the proceedings

Word 'withdrawal' had been purposely left out from the Power of Attorney

Admittedly, no separate withdrawal power was available in the Power of Attorney

Order passed by Trial Court was obtained by way of misrepresentation and fraud in that the Attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit

Application under S. 12(2) C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits.

Decree holder on the basis of agreement to sell did not acquire any right or interest in the subject properties unless sale deed was executed in his favour by the vendee or by the Court on behalf of judgment debtor

If order or judgment and/or decree was obtained by practicing fraud and misrepresentation then aggrieved person was left with no other remedy except as provided under S.12(2), C.P.C.

Court had to examine whether the facts and circumstances of the case required further probe into the allegations or not

If further inquiry was required to probe into the allegations then issues were to be framed and Court to record evidence

If Court was of the opinion that no inquiry was required then it could proceed to decide the application and it was not incumbent on the Court to frame issues in each and every case

Fraud and misrepresentation, in the present case, was apparent and no evidence was required to be adduced

Fraud could not be directly proved but it had to be inferred from the surrounding circumstances and conduct of the parties

If judgment/decree or order had been procured without impleading a party whose rights were involved then such decree could not be allowed to remain in field

Impugned judgment and decree were obtained by fraud and misrepresentation which were set aside

Application for setting aside of a decree was accepted and matter was remanded to the Trial Court with the direction to join the applicants as defendants and decide the suit on merits

Revision was allowed, in circumstances.

Contention of applicants was that impugned order was obtained through fraud and misrepresentation without impleading them as party in the proceedings

Validity

Where one was not party to the proceedings and was being adversely affected by the order/ proceedings, such objector had to satisfy the conscience of the Court that said party had the knowledge of proceedings

Neither applicants, in the present case, were party nor proceedings were conducted through a publication as done in the cases of representative character, knowledge, in circumstances, could not be inferred

Period of three years for filing of application under S. 12(2), C.P.C. had been provided from the date of "knowledge"

Constitutional petition by the respondents was defective as the relief claimed was bound to prejudice the interest of applicants

Respondents were bound to have impleaded the applicants as a party in the proceedings

Petitioners/ respondents were directed to amend the constitutional petition and implead the applicants as a party accordingly

Impugned order was recalled in circumstances

Application for setting aside of order was accepted.

Petition did not disclose any fraud and misrepresentation committed by the Courts below while passing the judgments and decrees rather petitioners contested the proceedings

No case of fraud and misrepresentation had been made out

Revision was dismissed in circumstances.

Contention of applicants was that impugned decree was obtained by means of misrepresentation and material points were concealed from the court

Petition for setting aside of decree was dismissed concurrently

Validity

Computerized National Identity Card of respondent-plaintiff had been blocked by NADRA authorities as alien after due process on the report of Federal Investigation Agency

Respondent-plaintiff was afforded opportunity of being heard by the NADRA authorities

Said information subsequently came to the knowledge of NADRA after obtaining judgment and decree by the respondent

Serious allegation was on record against the respondent plaintiff

Courts below were supposed to decide the case on merit instead of deciding the same on mere technicalities and thus committed miscarriage of justice

Impugned judgments and decrees passed by the courts below were perverse and suffered from conjunctures and surmises and not sustainable which were set aside

Case was remanded to the Trial Court with the direction that matter be decided afresh after providing opportunity to the parties

Constitutional petition was allowed in circumstances.

Contention of applicant was that he was in jail during pendency of suit and no opportunity of hearing was afforded to him and impugned decree was passed in his absence

Petition for setting aside of decree was dismissed concurrently

Validity

Applicant was not only represented during proceedings in the suit but he also preferred appeal and thereafter revision after dismissal of his appeal

Petitioner at no stage during proceedings had ever complained of not being properly represented or prayed for providing further opportunity of pursuing his case after release from jail

Petitioner had sought re-trial and re-opening of the case through complete trial proceedings in application under S. 12(2), C.P.C.

No fraud, misrepresentation or lack of jurisdiction had been pointed out in the impugned judgment

Non-participation of applicant in the proceedings could not be regarded as fraud or misrepresentation on the part of respondents or even lack of jurisdiction of the Court

Courts below were justified to dismiss the application of petitioner under S. 12(2), C.P.C.

Petitioner had tried to deny the fruits of decree passed in favour of respondents which could not be countenanced by the Court on any ground whatever

Constitutional petition was dismissed in circumstances.

Plaintiffs were estopped to file suit for right of inheritance and challenge mutation on the basis of fraud and collusion in circumstances

Plaintiffs and their predecessor lost their locus standi and cause of action due to their conduct with the afflux of time

Appellate Court had properly appraised the evidence on record

Suit being also time barred, revision was dismissed, in circumstances.

Applicant prior to purchase of suit land was having the knowledge that the same was mortgaged in favour of Bank in lieu of loan

Respondent-Bank having right over the suit property should be signatory of alleged agreement to sell

Bank was not party or signatory to the agreement to sell

Necessary ingredients of fraud must be pleaded and proved in the application filed under S. 12(2), C.P.C.

General and bald allegations of fraud and misrepresentation could not form basis to upset a decree otherwise validly passed by a Court of competent jurisdiction

Applicant had failed to prove fraud and misrepresentation by the respondent Bank for obtaining ex parte judgment and decree against him

Impugned decree had been passed on the basis of Banking documents including finance agreement

Banking Court had rightly dismissed application for setting aside of ex parte judgment and decree

No illegality or perversity had been pointed out in the impugned order passed by the Banking Court

Appeal was dismissed in limine.

Contention of applicant was that prior to institution of suit, suit property had been transferred to him and decree in question had been obtained by means of fraud and misrepresentation

Trial Court set aside the impugned decree but Appellate Court dismissed the application for setting aside of ex-parte decree

Validity

Suit property had already been transferred in favour of petitioner prior to institution of the suit

Appellate Court had erred in law while dismissing the application under S.12(2), C.P.C.

Impugned order passed by the Appellate Court was result of mis-reading and non-reading of evidence which was set aside

Revision was allowed in circumstances.

Beneficiary of document was bound to prove its execution but when same was challenged on account of some fraud and misrepresentation then initial burden to prove such fraud and forgery would rest upon the party who alleged as such

Plaintiff could not prove through any cogent evidence that deceased was under any mental disability at the time of execution of gift deed

Defendant had established execution of impugned gift deed in his favour through production of marginal witnesses

Plaintiff had failed to produce any doctor who treated the deceased nor any medical record was produced

Revision was dismissed in circumstances.

Mere using the words fraud and misrepresentation itselves were not sufficient to bring the case within the scope of S.12(2), C.P.C.

Question of alleged fraud and misrepresentation did not arise in the present case

Remedy available under S.12(2), C.P.C. was not like the remedy as in the regular suit

Court could dispose of application under S.12(2), C.P.C. without framing issues and recording evidence of the parties or otherwise following the procedure for trial of the suit

Lack of knowledge was not a good/enough reason for bypassing the available legal remedies

No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below

Constitutional petition was dismissed in circumstances.

Contention of applicant was that suit property was in the ownership of deceased and he being sole legal heir of the deceased was entitled to inherit his property

Validity

Applicant had failed to file suit with regard to suit land

Contentions raised by the applicant were not supported by any cogent reasoning

Applicant had failed to establish his possession on the suit property

No fraud, misrepresentation or want of jurisdiction had been demonstrated with regard to impugned order

Mere allegations of fraud and misrepresentation devoid of any corroboration would not warrant investigation in every case

Applicant had failed to establish his entitlement to agitate his claim on the basis of documentation purportedly favoring a third party

Application for setting aside the decree was dismissed in circumstances.

Respondents moved application under O.VII, R.11, C.P.C. which was dismissed by the Trial Court but Appellate Court accepted the same on the ground that application under S.12(2), C.P.C. was not competent for setting aside of ex parte decree

Validity

When it had been alleged in the application that by practicing fraud upon the Court or through misrepresentation a decree was obtained, Court was competent to set the same at naught irrespective of the fact whether decree was passed ex parte or otherwise

Grounds for setting aside of an ex parte decree under O.IX, R.13, C.P.C. were different from those mentioned in S.12(2), C.P.C.

Under O.IX, R.13, C.P.C. applicant/defendant had to show a sufficient cause for his absence from the Court and if Court came to the conclusion that absence of defendant was not wilful or deliberate or he was not duly served with summons, the Court could set aside the ex parte decree

If decree was passed without jurisdiction or some fraud had been practiced upon the Court or through misrepresentation decree was obtained then Court should set it aside under S.12(2), C.P.C.

If fraud was committed between the parties even then decree passed upon such fraud could be set at naught

Facts alleged in the present petition were questions of facts which could be resolved after recording evidence

Order passed by the Appellate Court was set aside

High Court held that application under S.12(2), C.P.C. was to be deemed to be pending and directed the Trial Court to decide the application on merits

Writ petition was allowed in circumstances.

Employer's insurer suspected that defendant was grossly misrepresenting (exaggerating) the extent of his injuries, but nevertheless settled the claim for about £135, 000 as in its opinion there was a real risk that a court would believe the defendant

Insurers subsequently received sufficient proof that defendant had not only exaggerated his injuries, but that he had fully recovered from his injuries by the time of the settlement

Insurer's brought action against the defendant for rescission of settlement agreement and to recover damages on the grounds of deceit and fraudulent misrepresentation

Held, that where an insurer suspects fraud but had nevertheless chosen to settle a claim, it would be entitled to set aside the settlement under the tort of deceit, if it subsequently discovered proof that it was in fact fraudulent

In a claim for deceit based upon alleged misrepresentation it had to be shown that the defendant had made a materially false misrepresentation which had been intended to induce, and had induced, the representee to act to his detriment

As a matter of law it was not necessary to prove that the representee believed the misrepresentation to be true although the representee's state of mind might be relevant to the issue of inducement-Claimant alleging deceit (lid not have to show that he had believed the misrepresentation and his reasonable belief as to whether the misrepresentation was true was not the test

Representee might in the circumstances of a case have to settle the claim on the basis that he thought the misrepresentation would be believed by the judge

Fact that the insurers in the present case did not wholly believe the defendant did not preclude them from having been induced to reach a settlement by the defendant's misrepresentations

Qualified belief or disbelief did not rule out inducement, and it was sufficient to establish that the fact of the misrepresentation had been a material cause of the defrauded representee (insurer) entering into the settlement-Questions whether the insurers had been induced to enter into the settlement agreement and whether doing so had caused them loss were questions of fact which had been correctly decided in the insurers' favour

[Per Lord Toulson: Defendant's deceitful conduct was intended to influence the mind of the insurers, not necessarily by causing them to believe hint, but by causing them to value his litigation claim more highly than it was worth if the true facts had been disclosed, because the value of a claim for insurers' purposes was that which the court was likely put on it

Defendant achieved his dishonest purpose and thereby induced them to act to their detriment by paying almost ten times more than they would have paid but for his dishonesty]

Supreme Court (UK) set aside the settlement agreement and held that the defendant should be awarded a much reduced sum of £14, 720 to reflect the actual extent of his injuries

Appeal was allowed accordingly.