2010 S C M R 1097
[Supreme Court of Pakistan]
Present; Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ
C.P. No.1923 of 2004
LAHORE DEVELOPMENT AUTHORITY---Petitioner
Versus
FIRDOUS STEEL MILLS (PVT.) LTD ---Respondent
(On appeal from the order dated 10-2-2004 passed by Lahore
High Court, Lahore in C.M. No.1 of 2001 and 1 of 2003 in Writ Petition No.1271 of 1995)
C.P. No.366/L of 2004
MUHAMMAD ISMAIL QURESHI---Petitioner
Versus
FIRDOUS STEEL PVT. LTD.---Respondent
(On appeal from the order, dated 10-2-2004 passed by Lahore High Court, Lahore in Criminal Original
No.1124/W of 2001 in Writ Petition No.1271 of 1995).
C.P. No.1923-L and Cr.P. Nc.366-L of 2004, decided on 24th October, 2005.
(a) Civil Procedure Code (V of 1908)---
----S.12(2)---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud---Remedy---
Decree on such grounds could be set aside either on application under S.12(2), C.P.C., or through an appeal, a
revision or review, if available under law.?
(b) Words and phrases---
----"Fraud"---Definition.?
Blacks Law Dictionary Fifth Edition ref.
(c) Words and phrases---
----"Misrepresentation"---Definition.
Blacks Law Dictionary fifth Edition ref.
(d) Words and phrases---
----"Collusion"---Definition.?
Blacks Law Dictionary fifth Edition ref.
(e) Fraud---
----Fraud not provable by direct evidence, but would be inferred from surrounding circumstances and conduct of
parties.?
(f) Fraud---
----Fraud would vitiate most solemn proceedings.?
Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549; Lal Din and another v.
Muhammad Ibrahim 1993 SCMR 710 and Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil
Khan and others PLD 1975 SC 331 rel.
(g) Constitution of Pakistan (1973)---
----Arts. 185(3) & 199---Civil Procedure Code (V of 1908), S.12(2)---Constitutional petition before High Court--
-Maintainability---Land acquisition by Lahore Development Authority (LDA)---Refusal of LDA to exempt plot
of 16 Kanals in lieu of acquired land of petitioner, over which Steel Mills existed---Order of High Court
accepting constitutional petition in view of consenting report and parawise comments filed by officials of LDA---
Application under S.12(2), C.P.C., by LDA for setting aside such order of High Court---Application by LDA for
amendment of application under S.12(2), C.P.C.---Dismissal of both such applications by High Court---Validity--
-Officials of LDA by filing consenting report and parawise comments in violation of ground realities existed at
spot and policy of LDA, had colluded with petitioner and secured order from High Court in his favour---Such
application under S.12(2), C.P.C., could be decided without framing issues---High Court had erred in law not to
allow such application for amendment---Both parties produced all relevant documents before Supreme Court,
which proceeded to decide case itself instead of remanding same to High Court---Respondent had placed his case
on basis of observation of Town Planner mentioned in award coupled with exemption policy of LDA---Such
observation for not being based on any provision of law could not give any right to petitioner---Petitioner for
maintaining constitutional petition was bound to show violation of statutory provisions by LDA---Constitutional
petition was not maintainable as there was no violation of statutory rules of LDA---Contents of constitutional
petition and both such applications, if put in juxtaposition, would bring petitioner's case in area of disputed
question of fact, which could not be decided in constitutional jurisdiction---Petitioner could not take benefit of
exemption policy of LDA for being applicable only to residential plots--No discriminatory treatment with
petitioner was found---Acceptance of petitioner's claim for exempting hint 16 Kanals land would be
discriminatory to other inhabitants of area, who had secured only 10 Marlas---Supreme Court dismissed
constitutional petition in circumstances.
?
Mst. Izat and others v. Khuda Baldish PLD 1959 Kar.221; Abdul Razzaq Hawaldar v. Sheikh Muhammad
Shafi PLD 1962 SC 134; Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184;
Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655 and Zafarullah and others v. Dost Muhammad and
others PLD 1984 Lah.396 ref.
Rehmat Ali v. Muhammad Younas Haji and others PLD 1963 SC 191; Ghulam Muhammad v. M. Ahmad
Khan and 6 others 1993 SCMR 662; Government of Sindh through the Chief Secretary and others v. Khalil
Ahmed and others 1994 SCMR 782; Ali Mir's case 1984 SCMR 433; Muhammad Younis's case 1993
SCMR 618 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 rel.
(h) Land Acquisition Act (1 of 1894)--
----S.11---Award of land acquisition, observation in---Validity---Such observation, if not based on provision
of law, could not give any right to landowner.?
(i) Constitution of Pakistan (1973)---
----Art.199---Constitutional petition against Development Authority (LDA)---Absence of violation of
statutory rules by LDA---Effect---Petitioner was bound to show violation of statutory provisions by LDA as
a condition precedent for maintaining such petition---Constitutional petition was not maintainable, in
circumstances.?
(j) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Disputed questions of fact---Validity---Such questions could not be
decided in constitutional jurisdiction of High Court.?
Muhammad Younis's case 1993 SCMR 618 rel.
Muhammad Rashid Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for
Petitioners (in both petitions).
Muhammad Saleem Sh. Advocate Supreme Court for Respondent (in both petitions).
ORDER
CH. IJAZ AHMAD, J.--- We intend to decide following petitions by one consolidated order having similar
facts depending upon each other:
(1) C.P.No.1923-L of 2004
(ii) Criminal Petition No.366-L of 2004.
2. Brief facts out of which C.P. No. 1923-L of 2004 arises are that the respondent filed Constitutional
Petition No.1271 of 1995 with the following prayer:---
"In the circumstances it is most respectfully prayed that
(i) The respondent be directed to proceed in accordance with the law and the rules on the subject and
adjust the land of the petitioner under Firdous Steel Mill measuring 16 Kanals contained in Khasra
No.1173/437 measuring 5 Marlas, 439 measuring 9 Kanal 12, Marlas, 1386/1177/437 measuring 1
Kanal, 11 Marlas 1171/438 measuring 4 Kanals, 12 Marla be adjusted as it is after getting
development charges at the rate of Rs.13,000 per Kanal.
(ii) The respondent be directed not to acquire the portion of land under the Steel Mill measuring 5
Kanal, 6 Marla, 30 Sft. for the widening of the Road unless they pay the market value of this land or
exempt commercial plots of an equal value in lieu of the acquisition of this land".
3. The petitioner filed conceding report and parawise comments in the said writ petition. In view of report
and parawise comments of the petitioner, the constitutional petition was accepted vide judgment dated 13-9-
1999. The petitioner being aggrieved filed an application under section 12(2), C.P.C. for setting aside the
judgment dated 13-9-1999. During the pendency of the application, the petitioner also filed C.M. No.1 of
2003 under Order VI, rule 17 read with section 151, C.P.C. seeking permission to amend petition under
section 12(2), C.P.C. and to produce additional documents for factual determination of the dispute between
the parties. The afore-said applications were dismissed by the Lahore High Court vide order dated 10-2-
2004. Hence, the present petition.
4. Brief facts out of which Criminal Petition No.366-L of 2004 arises are that respondent filed contempt
petition against the petitioner as the petitioner failed to comply with judgment dated 13-9-1999 passed in
Writ Petition No.1271 of 1995. The contempt petition was disposed of by the learned High Court vide order
dated 10-2-2004 directing the petitioner to comply with the judgment dated 13-9-1999 within a period of 40
days and to submit compliance report to the Additional Registrar of the said Court. Hence, the present
petition.
5. The learned counsel for the petitioner submits that report and parawise comments filed by the officials of
the petitioner accepting the claim of the respondent is factually and legally incorrect. He further submits that
petitioner had filed an application under section 12(2), C.P.C. along with application under Order VI, rule 17
for amendment of the application under section 12(2), C.P.C. The learned Lahore High Court erred in law to
dismiss the applications as the amendment could be allowed at any stage of the proceedings. He further
urges that petitioner has made a foundation in the application to show that there was no Steal Mill existed at
the spot as is evident from the contents of the application bearing C.M.No.1 of 2003. He further urges that
respondent secured judgment in its favour in connivance with the staff of the petitioner as the staff of the
petitioner had filed report and parawise comments by accepting the claim of the respondent in spite of the
fact that it was not in accordance with the ground realities. He further submits that private respondent failed
to bring the case within the parameters of Article 25 of the Constitution as the facts and circumstances of
the Asif Block are entirely different. Even otherwise the case of the Asif Block was approved by the Chief
Minister/Chairman of the LDA on their representation keeping in view the ground realities whereas the case
of the respondent is entirely different and has no similarity with the case of Asif Block.
6. Learned counsel for the respondent submits that constitutional petition was rightly accepted by the learned
High Court vide judgment dated 13-9-1999 after perusing the report and parawise comments which was filed
by the competent officer of the petitioner, therefore, petitioner could not wriggle out from the stand taken by
the officer of the petitioner on the well-known principle of estoppel and waiver. He further submits that
petitioner has not taken a single ground in terms of ingredients of section 12(2), C.P.C. as is evident from the
contents of application under section 12(2), C.P.C. He further urges that petitioner had filed an application
under section 12(2), C.P.C. after considerable delay, therefore, learned Single Judge was justified to ignore
the same in the impugned order. He further urges that learned Single Judge was justified that petitioner has
filed application under section 12(2), C.P.C. for the purpose of re-hearing of the constitutional petition which
was not in consonance with the mandatory provisions of section 12(2), C.P.C. He further submits that
judgment of the Lahore High Court dated 13-9-1999 is final between the parties. He further submits that
case of the petitioner is similar to the case of Asif Block, therefore, judgment of the learned High Court
dated 13-9-1999 is in accordance with the Article 25 of the Constitution as the Constitution did not allow
any authority to take different actions qua the cases of the citizen whose cases are similar in nature. He
further urges that private respondent had submitted various applications before the petitioners in terms of the
observation of the Town Planner as is evident from the contents of the award. He further urges that petitioner
had failed to take any action on the applications of the respondent, therefore, learned Single Judge was
justified to take note of the inaction of the petitioner. He further submits that exemption policy of the
petitioner is relatable to the residential plots whereas the land underneath of the Steal Mill is not covered by
the said policy, therefore, action of the respondent is without lawful authority which fact was duly noted in
the judgment of the learned High Court dated 13-9-1999.
7. We have given our anxious consideration to the contentions of the learned counsel of the parties and
perused the record ourselves. It is better and appropriate to reproduce section 12(2), C.P.C. to resolve the
controversy between the parties:---
Section 12(2), C.P.C..---"where a person challenges validity of the judgment, decree or order on the
plea of fraud, mis?representation or want of jurisdiction, he shall seek his remedy by making any
application to the Court which pass the final judgment, decree or order and not by a separate suit".
(It is pertinent to mention here that under lines are ours)
8. The remedy under section 12(2), C.P.C. to seek annulment of a decree on the ground of want of
jurisdiction, misrepresentation or fraud is not the only remedy. A decree may be set aside through an appeal,
a revision and review, if available under law. In this view of the matter, the contention of the learned counsel
of the respondent that petitioner has filed an application under section 12(2), C.P.C. for re-hearing of the
main writ petition and the judgment dated 13-9-1999 is final between the parties, has no force.
9. Before proceeding further it is appropriate to know the meaning of words "fraud" or "misrepresentation"
used in section 12(2), C.P.C. on the basis of dictum laid down by the Supreme Courts and in the Legal
Dictionary.
"Fraud"
"Every representation made to a Court which is deliberately false amounts to a fraud and would
vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221."
"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh
Muhammad Shafi PLD 1962 SC 134).
"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who
does not believe it to be true and the active concealment of fact by one having knowledge or believe
of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).
"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret
agreement between the two person that one should institute a suit against the other in order to obtain
a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sarni Ullah Khan
1986 CLC 2655).
"For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion is as good as
the plea of fraud" (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lah. 396).
"Fraud"
"A false representation of a matter of fact, whether by words or by conduct, by false or misleading
allegations, or by concealment of that which should have been disclosed, which deceives and is
intended to deceive another so that he shall act upon it to his legal injury"???"A generic tern,
embracing all multifarious means which human ingenuity can devise, and which are resorted to by
one individual to get advantage over another by false suggestions or by suppression of truth, and
includes all surprise, trick, cunning, dissembling, and any un?fair way by which another is cheated"
(Blacks Law Dictionary Fifth Edition).
"Misrepresentation"
"Any manifestation by words or other conduct by one person to another that, under the
circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact.
An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a
condition other and different from that which exists. Colloquially it is understood to mean a
statement made to deceive or mislead." (Blacks Law Dictionary Fifth Edition).
"Collusion"
"An agreement between two or more persons to defraud a person of his rights by the forms of law, or
to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment
of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose". (Blacks
Law Dictionary Fifth Edition).
10. It is settled proposition of law that fraud cannot be directly proved, it has to be inferred from the
surrounding circumstances and conduct of the parties. It is also well-settled law that fraud vitiates the most
solemn proceedings. Reference may be made to the following cases:-
(i) Talab Hussain and others v. Member Board of Revenue and others 2003 SCMR 549, (ii) Lal Din
and another v. Muhammad Ibrahim 1993 SCMR 710 and (iii) Chief Settlement Commissioner
Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
11. It is pertinent to mention here that all the ingredients of collusion are proved in the present case by
submitting report and parawise comments of the representative of the petitioner wherein the claim of the
respondent was accepted in violation of the ground realities existed at the spot. This fact alone is sufficient to
establish that private respondent is a beneficiary and secured judgment from the High Court in
connivance with the representative of the petitioner.
12. Now we examine the present case in the light of afore-said principle laid down by the superior Courts. It
is admitted fact that respondent had filed Constitutional Petition No.1271 of 1995 wherein the present
petitioner had filed consenting report and parawise comments on the basis of which judgment dated 13-9-
1999 was secured by the respondent. In case the report and parawise comments filed by the petitioner in the
said writ petition and contents of G.M. No.1 of 2001 and C.M. 1 of 2003 are put in juxta position, then it is
crystal clear that the petitioner secured the judgment from learned High Court dated 13-9-1999 with the
collusion of the Officer/Official of the petitioner which is not in consonance of the ground realities at the
spot and is violative of the policy of the petitioner. The learned High Court also erred in law not to allow the
application of the petitioner for amendment of the application under section 12(2), C.P.C. under Order VI,
rule 17, C.P.C. which is against the law laid down by this Court in Rehmat Ali v. Muhammad Younas Haji
and others PLD 1963 SC 191. In view of controversy involved in this case, this application can be decided
without framing the issues as the law laid down by this Court in Ghulam Muhammad v. M. Ahmad Khan
and 6 others 1993 SCMR 662.
13. In view of what has been discussed above, the petition is allowed and is converted into appeal and the
same is allowed in view of afore-said discussions. The impugned order dated 10-2-2004 of the learned High
Court is set aside. Consequently application filed by the petitioner under section 12(2), C.P.C. and under
Order VI, rule 17, C.P.C. are allowed. Resultantly, judgment dated 13-9-1999 is set aside.
14. As both the parties have brought on record all the relevant documents and also argued the main
constitutional petition before us by the learned counsel of the parties, therefore, we intend to decide the
constitutional petition ourselves instead of remanding the same to the learned High Court to decide the case
afresh in view of longstanding litigation pending adjudication before different fora. Even otherwise
remanding of the case to the learned High Court would amount to increase the worries of the parties who had
already suffered a lot due to submitting report and parawise comments by the petitioner's representative in
violation of ground realities. This Court declined to remand the case to the High Court concerned in
somewhat similar circumstances. Reference may be made in Government of Sindh through the Chief
Secretary and others v. Khalil Ahmed and others 1994 SCMR 782.
15. The respondent has based his claim on the basis of the observation of the town planner mentioned in
award dated 12-6-1980 at page 71 of the paper book coupled with exemption policy of the petitioner. The
observation in the award cannot give any right to the respondent unless and until the observation is based on
provision of law. The respondent's counsel failed to point out any provision of law on the basis of which
claim of the respondent is based. It is a condition precedent to show violation of the statutory provisions by
the petitioner for maintaining a constitutional petition. Therefore, constitutional petition is not maintainable
as there is no violation of statutory rules. In this regard reference is made to Ali Mir's case 1984 SCMR 433.
Moreover, if the contents of the constitutional petition and contents of C.M. 1 of 2003 under Order VI, rule
17 and C.M. 1 of 2001 under section 12(2), C.P.C. are put in juxta position, then it brings the case of private
respondent in the area of disputed question of fact which cannot be decided in the constitutional jurisdiction
as the law laid down by this Court in Muhammad Younis's case 1993 SCMR 618.
16. The petitioner in writ petition had taken a stand that on the land in question a Steel Mill existed
whereas the true factual position at site is totally different. Similarly, exemption policy of the respondent is
only applicable to residential plots, therefore, respondent cannot take the benefit of exemption policy.
17. We also do not find any discriminatory treatment with the respondent if the facts of Asif colony and the
case of the petitioner are put together. Asif Colony being residential colony was allowed to be adjusted in
another housing scheme i.e. Asif Block of Allama Iqbal Town by the petitioner. On the contrary Firdous
Steel Mill (respondent) even remotely has no resemblance of housing / development scheme. This Court has
laid down the principle for interference qua violation of Article 25 of the Constitution (discrimination) in
I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041. The relevant observation is as
follows:---
(i) That equal protection of law does not envisage that every citizen is to be treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated
alike;
(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or
reasonable basis;
(iii) That different laws can validly be enacted for different sexes, persons in different age groups,
persons having different financial standings, and persons accused of heinous crimes;
(iv) That no standard of universal application to test reasonableness of a classification can be laid
down as what may be reasonable classification in a particular set of circumstances may be
unreasonable in the other set of circumstances;
(v) That a law applying to one person or one class of persons may be constitutionally valid if there is
sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any
rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) That equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;
(vii) That in order to make a classification reasonable, it should be based
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from
those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification"
18. The learned counsel of the respondent failed to bring the case within the parameters prescribed by this
Court in the afore-said judgment of I.A. Sherwani's case, therefore, we do not find any discriminatory
treatment with the petitioner. In case contention of the learned counsel of the private respondent is accepted,
then it would hit by principle of discrimination to the other inhabitants of the area who has secured only 10
Marlas plot whereas the petitioner through this constitutional petition want to secure 16 Kanals land which is
not permissible under any canon of justice, fair play, equity and under the exemption policy of the petitioner
and within the mandate of the Constitution.
19. In view of what has been discussed above, we do not find any force in the contention of learned counsel
of the respondent and in the constitutional petition, therefore, same is dismissed with no order as to costs.
Since the constitutional petition has been dismissed by us, therefore, order dated 10-2-2004 passed in
Criminal Original No.1124/W of 2004 is also set aside and the Criminal Petition No.366-L of 2004 is
converted into appeal and same is allowed in view of the afore-said discussions.
S.A.K./L-
7/SC???????????????????????????????????????????????????????????????????????????????????????????????
Petition dismissed.
;
