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2023 M L D 1911
[Lahore]
Before Ch. Muhammad Iqbal, J
HASTAM ASHRAF MANN---Petitioner
Versus
MUHAMMAD MOHSIN and others---Respondents
C.M. No. 1 of 2019 in W.P. No. 33665 of 2015, decided on 18th April, 2023.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Fraud, misrepresentation or want of jurisdiction---Application under
S. 12(2), C.P.C.--- Remedy, insertion of---Objective---Matter of partition of joint
Khata, comprising around forty (40) co-sharers, remained pending before revenue
hierarchy and was finally disposed off after one of the co-sharers invoked
constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani)
moved an application under S. 12(2) of Civil Procedure Code, 1908, in said
disposed of Writ Petition alleging that the name of his deceased father was arrayed
instead of legal heirs(including the petitioner)---Validity---Provision of S. 12(2) of
the Civil Procedure Code, 1908, was inserted with the purpose to provide a short-
cut remedy to the aggrieved party and also to save the party from the vagaries of
further litigation by conferring a legal right to a party to challenge the final
judgment, decree or order obtained through fraud , misrepresentation or without
jurisdiction within the same proceedings/forum through an application under S.
12(2), C.P.C., 1908, instead of filing a separate independent civil suit---Second suit
or second application on the same cause of action between the same parties was
barred under S. 12(2), C.P.C., 1908, however, such a final judgment, decree or
order could be challenged through an application under S. 12(2), C.P.C, 1908,
having indispensible ingredients of fraud, misrepresentation and want of
jurisdiction---Petitioner had failed to point out any ingredient falling under S. 12(2)
of the C.P.C., 1908 in the impugned proceedings---Application was dismissed, in
circumstances.
(b) Contract Act (IX of 1872)---
----Ss. 17 & 18---Civil Procedure Code (V of 1908), S. 12(2)---Application under
S. 12(2), C.P.C.---Fraud and misrepresentation, meanings of---Words "fraud",
"misrepresentation" and "want of jurisdiction" have not been defined in the Civil
Procedure Code, 1908,---It is appropriate to borrow plain meanings of 'fraud' and
'misrepresentation' from the dictionary as well as from Ss. 17 & 18 of the Contract
Act.
(c) Civil Procedure Code (V of 1908)---
----S. 12(2) & O. VI, R. 4---Application under S. 12(2), C.P.C.---Mandatory
ingredients (fraud and misrepresentation), absence of---Allegations levelled in
cursory manner without mentioning details---Matter of partition of joint Khata,
comprising around forty (40) co-sharers, remained pending before revenue
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hierarchy and was finally disposed off after one of the co-sharers invoked
constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani)
moved an application under S. 12(2) of Civil Procedure Code, 1908, in said
deposed of---Writ petition alleging that the name of his deceased father was
impleaded instead of the legal heirs(including the petitioner)---Validity---Party
(three in persons) who had initiated partition proceedings stated in their application
for partition that they though had ownership of about 13% of joint Khata but they
were not in possession of the same, instead other parties including the petitioner
and his relatives (legal heirs of father of petitioner) were enjoying the
possession/benefits of the property owned by them(original partition applicants)---
Member Board of revenue had pointed out certain (three) parties who were in
possession of land in excess of their share---Record revealed that although
predecessor of the petitioner had died before initiation of partition proceedings,
however, relevant inheritance mutation was entered in the revenue record three
years after the application for partition had been filed, which meant that all the co-
sharers of joint Khata, including predecessor of petitioner, as per revenue record,
were arrayed as party in the application for partition---Petitioner had failed to bring
on record that at the time of filing application for partition , the names of legal heirs
of predecessor of the petitioner were available in revenue record---Under the
partition proceedings, the respective shares and possession whereof was delivered
to all owners including all the legal heirs of predecessor of the petitioner---Out of
said legal heirs, only the petitioner had filed application under S. 12(2) of the
C.P.C., 1908---Petitioner had merely raised oral allegation that land given to him in
partition was of inferior quality but in said regard no documentary evidence had
been brought on record---Petitioner had come up with his application under S.
12(2) of C.P.C. 1908, without disclosing therein the mandatory ingredients
regarding the existence of fraud, misrepresentation and want of jurisdiction---Non-
mentioning the said mandatory pre-requisites of the said provision dismantled the
substratum of the application---Mere raising of cursory/illusory allegation of fraud
and misrepresentation did not bring the application within ambit of S. 12(2) of
C.P.C, 1908, rather such allegation should specifically have been mentioned in
detail as required under O. VI, R. 4 of C.P.C., 1908---Application under S. 12(2) of
the Civil Procedure Code, 1908, was dismissed, in circumstances.
Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development
Finance Corporation, Karachi PLD.2002 SC 500 and Sain v. Government of NWFP
through Secretary, Auqaf and 2 others 2007 SCMR 1848 ref.
(d) Civil Procedure Code (V of 1908)---
----S. 12(2)---Fraud, misrepresentation or want of jurisdiction---Application under
S. 12(2), C.P.C.---Jurisdiction of the Court---Scope---Court while determining an
application under S. 12(2) of the Civil Procedure Code, 1908, did not enjoy the
jurisdiction to sit as a Court of appeal, rather it had to restrict itself to the extent of
allegation of fraud, misrepresentation or want of jurisdictional defects only without
going into the reappraisal of evidence on merit of the case.
Khairpur Textile Mills Ltd. and 7 others v. National Bank of Pakistan and another
2003 CLD 326; Messrs Ilyas Marine and Associates v. Muhammad Amin Lasania
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and another 2004 MLD 1008 and Masjid Ahl-e-Hadees through President and
General Secretary v. Mst. Karam Noor and others 2009 CLC 1421 ref.
(e) Civil Procedure Code (V of 1908)---
----S. 12(2) & O. VI, R. 4---Fraud, misrepresentation or want of jurisdiction---
Application under S. 12(2), C.P.C.---Prejudice, absence of---Matter of partition of
joint Khata, comprising around forty (40) co-sharers, remained pending before
revenue hierarchy and was finally disposed off after one of the co-sharers invoked
constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani)
moved an application under S. 12(2) of Civil Procedure Code, 1908 in said
disposed of writ petition alleging that the name of his deceased father was arrayed
instead of legal heirs (including the petitioner)---Validity---Respondents filed
application for partition of joint khata eighteen (18) years ago, which (application)
was though accepted after ten (10) years but due to pendency of matter before
revenue hierarchy as well as the High Court, they (respondents) were still waiting
to avail the benefits of their respective share---Petitioner had failed to point out any
prejudice caused to him by the decision passed by the High Court---No case for
interference had been made out in the judgment in question---Application under S.
12(2) of the Civil Procedure Code, 1908, was dismissed, in circumstances.
Barrister Ch. Aitzaz Ahsan, Ch. Shokat Ali Javed and Tayyab Jan for Petitioner.
Tasnim Bari Saleemi for Respondents Nos. 4 to 6.
Barrister Haris Azmat for Respondents Nos. 37 to 39.
ORDER
CH. MUHAMMAD IQBAL, J.---Through this application under section 12(2),
C.P.C. the applicant has assailed the order dated 07.11.2018 whereby the titled Writ
Petition [No. 33665/2015] was dismissed by this Court.
2. Brief facts of the case are that respondents Nos.4 to 6 filed application for
partition of joint Khata measuring 7832-Kanals 02-Marlas comprising Khewat
No.6, Khatooni Nos.82 to 142 situated in Mouza Mashrala, Tehsil and District
Nankana Sahib. Assistant Collector-I/ Tehsildar, Nankana Sahib accepted the
application vide order dated 21.02.2013. Respondents Nos.2 and 3 challenged the
said order through an appeal, which was dismissed by the Additional District
Collector, Nankana Sahib vide order dated 03.12.2013. They filed revision petition
under section 164 of the West Pakistan Land Revenue Act, 1967 which was allowed
by the Additional Commissioner (Rev.) Lahore Division, Lahore (Camp at Nankana
Sahib) by setting aside order dated 03.12.2013 passed by the Additional District
Collector, Nankana Sahib vide order dated 10.03.2014. Against the said order,
respondent No.1/Muhammad Mohsin and others filed ROR Nos.489/2014,
703/2014 and 704 of 2014 which were dismissed by the Member (Judicial-I), Board
of Revenue, Punjab vide Order dated 14.09.2015. Muhammad Mohsin etc. assailed
the said orders through Writ Petition No.33665/2015 which was dismissed by this
Court vide order dated 07.11.2018. Hence, the present application.
3. Learned counsel for the petitioner submits that the petitioner is owner of land
measuring 12 Acre in joint khata with respondents; that the petitioner is resident of
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Finland; that in March, 2019 he came to know about the passing of the order dated
07.11.2018 passed in Writ Petition No.33665/2015; that the father of the petitioner
namely, Nadeem Ashraf was arrayed as respondent No.22 before the
Tehsildar/Collector; that Nadeem Ashraf expired on 13.11.1998, as such fraud was
committed by the respondents by not arraying legal heirs of Nadeem Ashraf Mann
in the petition for partition. Learned counsel lastly submits that all the proceedings
may be set aside and the case in hand may be remanded to the Tehsildar/Collector
for fresh decision.
4. Learned counsel for the respondents have requested for dismissal of instant
application.
5. I have heard the arguments of learned counsel for the parties and have gone
through the record with their able assistance.
6. In this case, at first it is appropriate to pour a summary glance at the objective
of enactment and creation of the remedy under section 12(2), C.P.C. The provision
of section 12(2), C.P.C. was inserted in statute book through Ordinance X of 1980
with the purpose to provide a short-cause remedy to the aggrieved party as well as
to save the party from the vagaries of further litigation by conferring a legal right to
a party to challenge the final judgment, decree or order obtained through practicing
fraud, misrepresentation or without jurisdiction within the same proceedings or
forum through an application under section 12(2), C.P.C. instead of filing a separate
independent civil suit. For ready reference section 12, C.P.C. is reproduced as
under:-
12. (1) Where a plaintiff is precluded by rules from instituting a further suit in
respect of any particular cause of action, he shall not be entitled to institute
a suit in respect of such cause of action in any Court to which this Code
applies.
(2) Where a person challenges the validity of a judgment, decree or order on the
plea of fraud, misrepresentation or want of jurisdiction, he shall seek his
remedy by making an application to the Court which passed the final
judgment, decree or order and not by a separate suit."
Although the second suit or second application on the sane cause of action between
the same parties is barred under section 12(1), C.P.C. with exception that such a
final judgment, decree or order can be challenged through an application under
section 12(2), C.P.C. having indispensable ingredients such as fraud,
misrepresentation and want of jurisdiction. The words "fraud", "misrepresentation"
and "want of jurisdiction" have not been defined in Code of Civil Procedure, 1908
so it is appropriate to borrow its plain meaning from sister law as well as the
relevant dictionaries to serve the purpose.
7. The word "Fraud" has been defined in section 17 of the Contract Act, 1872 as
under:-
Fraud means and includes any of the following acts committed by a party to a
contract, or with his connivance, or by his agent, with intent to deceive
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another party thereto or his agent, or to induce him to enter into the
contract:-
1) the suggestion, as a fact, of that which is not true, by one who does not
believe it to be true;
2) the active concealment of a fact by one having knowledge or belief of the
fact;
3) a promise made without any intention of performing it;
4) any other act fitted to deceive;
5) any such act or omission as the law specially declares to be fraudulent.
Similarly in Black's Law Dictionary the word "fraud" means "an intentional
perversion of truth for the purpose of inducing another in reliance upon it party
with some valuable thing belonging to him or to surrender a legal right. 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. Anything calculated to deceive, whether by a single act
or combination or by suppression of truth, or suggestion of what is false, whether it
be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or
gesture. A generic term, 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 unfair way by which another is cheated."
The respondents Nos.3 to 5 [petitioners in partition application] filed application
for partition on 17.10.2005 and stated therein that they are owners of land
measuring 487 Kanal 11 Marla in a joint khata but they are not in possession of the
same. They further stated that the respondents in the said application are enjoying
the possession and fruits of land owned by them, as such the joint khata may be
partitioned. In the said application, notices were issued for the service of the
respondents but nobody appeared and when no one appeared despite publication in
the newspaper, ex-parte proceedings were initiated against them. Thereafter,
Naqsha Alif, Bay, Jeem were prepared and the joint khata measuring 7832 Kanal 02
Marla was divided into two wanda-jats; one of land owned by respondents Nos.3 to
5 [petitioners in partition application] and other of the remaining land owned by
different persons including the present petitioners. The said application was
accepted vide order dated 21.02.2013. Out of all the co-owners in the khata, only
Muhammad Shafiq and Taimoor Sultan challenged the order 21.02.2013 through an
appeal which was dismissed by the Additional District Collector, Nankana Sahib
vide order dated 03.12.2013, however, some modification was made in Naqsha
Jeem. Muhammad Shafiq and Taimoor Sultan assailed the said order through a
revision petition under section 164 of the West Pakistan Land Revenue Act, 1967.
In the said proceedings, a compromise was affected between the parties on which
basis the revision petition was accepted on 10.03.2014 and the order dated
03.12.2013 was set aside. Against the above decision, Muhammad Mohsin, Fida
Mohsin wife of Muhammad Mohsin, Minal Mohsin (minor), Ali Haider alias
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Haider Ali son of Muhammad Ashiq filed ROR No.489/2014, Gul Abbas filed ROR
No.703/2014, whereas Sabeel Tariq filed ROR No.704/2014 which were dismissed
by the Member, Board of Revenue, Punjab vide consolidated order dated
14.09.2015 with the observation that the respondents in the partition application are
in possession of excess land than that of their share. The detail of excess land as
mentioned by the Member, Board of Revenue in order dated 14.09.2015 is charted
below:
Name of Owner Ownership Possession Excess area in
possession
Haider Ali and Family 785-K 19-M 980-K 5-M 194-K 6-M
Mohammad Shafique 672-K 7-M 827-K 0-M 155-M 13-M
and Family
Mohammad Mohsin 760-K 0-M 761-K 1-M 0-K 19-M
and Family
8. As per the stance of the petitioner, his predecessor namely, Nadeem Ashraf
Mann died in 1998 but his inheritance mutation was got entered in the revenue
record in the year 2008. The partition application was filed in 2005 by arraying the
name of all the co-sharers of joint khata as per revenue record, including said
Nadeem Ashraf Mann as party in the said application. Accordingly, wanda jats were
prepared in 2013 and the legal heirs of Nadeem Ashraf enjoy possession of their
respective shares as shown from Khasra Girdawari for the year 2015. The petitioner
failed to bring on record that at the time of filing the application for partition, the
names of the legal heirs of Nadeem Ashraf were available in revenue record. Even
Mohsin and Muhammad Shafiq are in possession of excess land than their share.
They filed a civil suit in which their application for interim relief was dismissed
and appeal thereof was also dismissed. Thus, it can safely be observed that the
petitioner has miserably failed to establish any element of fraud committed by the
respondents.
9. The word "misrepresentation" has been defined in section 18 of the Contract
Act, 1872 as under:-
Misrepresentation:- means and includes-
(1) The positive assertion in a manner, not warranted by the information of the
person making it, of that which is not true, though he believes it to be true:
(2) Any breach of duty which, without an intent to deceive, gains an advantage
to the person committing it, or any one claiming under him, by misleading
another to his prejudice or to the prejudice of any one claiming under him;
(3) Causing, however innocently, a party to an agreement to make a mistake as
to the substance of the thing which is the subject of the agreement.
In the Black's Law Dictionary the word "misrepresentation" is defined as 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,
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leads the mind to an apprehension of a condition other and different from that
which exists.
10. Under the partition proceeding the respective shares and possession whereof
was delivered to the owners including Nadeem Ashraf Mann, father of the
petitioner, who was survived by Nighat Robina (widow), Zeenat and Hadia Nadeem
(daughters) and petitioner/ Hastam Ashraf Mann (son) but out of above owners
only the petitioner has filed application under section 12(2), C.P.C. whereas rest of
the legal heirs have not assailed the decision of the partition application before any
forum. When the question confronted to learned counsel for the applicant that
whether after partition of the land in question, the share of Nadeem Ashraf Mann
was reduced or any loss caused to the right of said land owner, he learned counsel
has not referred any document in this regard rather only urged that the applicant has
been given land of inferior quality.
11. So far as the stance taken by learned counsel for the petitioner that land of
inferior quality has been given to the petitioner, suffice it to say that other legal
heirs of Nadeem Ashraf Mann enjoy the possession of their respective shares and
they never raised any such objection before any forum. The petitioner and other
legal heirs of Nadeem Ashraf Mann have been given their respective due share as
per law from the joint khata and they are in possession of the same. The petitioner
has merely raised oral allegation that land given to him in partition is of inferior
quality but in this regard no documentary evidence has been brought on record.
12. As per available record, the petitioner has come up with instant application
under section 12(2), C.P.C. without disclosing therein the mandatory ingredients
regarding the existence of fraud, misrepresentation and want of jurisdiction.
Whereas non-mentioning the said mandatory prerequisite of the above provision,
dismantle the substratum of the petition. Further, mere raising of cursory/illusory
allegation of fraud and misrepresentation does not bring the petition within the
ambit of section 12(2), C.P.C., rather such allegation shall specifically be
mentioned in detail as required under Order VI, Rule 4, C.P.C. but even by applying
microscopic scanning the averments/pleas taken in application, the same do not
qualify the standard requirements of the aforesaid provisions of law, which
constitutes the non compliance of the above plain provision, and this flaw is
considered fatal, which dismantles the very foundation of the-application. Reliance
is placed on case cited as Messrs Dadabhoy Cement Industries Ltd. and 6 others v.
National Development Finance Corporation, Karachi (PLD.2002 SC 500) and Sain
v. Government of NWFP through Secretary, Auqaf and 2 others (2007 SCMR
1848).
13. Moreover, the Court while determining application under section 12(2),
C.P.C. does not enjoy the jurisdiction to sit as a Court of appeal rather it has to
restrict itself to the extent of allegation of fraud, misrepresentation or jurisdictional
defects only without going into the reappraisal of evidence on merit of the case.
Reliance is placed on the cases reported as Khairpur Textile Mills Ltd. and 7 others
v. National Bank of Pakistan and another (2003 CLD 326), Messrs Ilyas Marine
and Associates v. Muhammad Amin Lasania and another (2004 MLD 1008) and
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Masjid Ahl-e-Hadees through President and General Secretary v. Mst. Karam Noor
and others (2009 CLC 1421).
14. Learned counsel for the petitioner has not pressed the ground of want of
jurisdiction, as such there is no need to discuss or render any finding on the same.
15. Even otherwise, the respondents filed application for partition of joint khata
in 2005 which was accepted on 21.02.2013 but due to pendency of the matter
before revenue hierarchy as well as before this Court, they are still waiting to avail
the benefits of their respective share. Further, the applicant has failed to point out
any prejudice caused to him by the decision dated 07.11.2018 passed by this Court,
as such no case for interference has been made out warranting any interference the
judgment in question.
16. Resultantly, this application being devoid of any merits is hereby dismissed.
MQ/H-7/L Application dismissed.
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