YASMIN ABBASEY, J.--- By this appeal under section 3 of Law Reforms Ordinance, 1972 order passed on J.M. 28 of 1994 on 13-9-1995 has been assailed whereby the application of appellant, A Karachi Development Authority, moved under section 12(2),C.P.C. in Suit No,444 of 1992 decreed on 2nd July, 1992, was dismissed on the ground that appellant K.D.A. was not a party to the suit wherein impugned decree was passed.
2. Facts leading to this appeal are that according to respondent No,2 Jalaluddin lease of 50 acres: land Naclass No,29, Deh Surjani was granted to him'on 14th May, 1965 prior to the announcement of Scheme known as Surjani Township Karachi, K.D.A. Scheme No,41. The land leased out to respondent No,2 on 14-5-1965 was cancelled on 22-1-1978 on account of respondent No,2's own expressed inability to use the land for agricultural-cum-Poultry farming. His request to utilize the same for residential .purpose was not accepted by Deputy Commissioner, Karachi West, with further objection that lessee has raised unauthorized construction including office with a view to grab the valuable government land for selling it to other persons.
3. Thereafter it was allotted to Yousuf, Abdullah and Muhammad Ibrahim which again was cancelled on 29-6-1982 and 20-7-1982, but that is not the subject-matter of this dispute.
Subsequently, Sindh Government intended to utilize this land for residential Scheme, therefore, by publication in newspaper on 12-5-1982 objections from general pubic were called. After expiry of time given for filing objections, an area of 6600 acres of District West Karachi, vide Sindh Government Gazette Notification dated 20-1-1983 was handed over to Sindh Government for : regularizing the Scheme of Surjani Township.
4. Coming back to the point in dispute, after cancellation of lease from the name of respondent No,2 Jalaluddin, and in between the time of handing over 6600 acres of land to Sindh Government including disputed land, respondent No,2 challenged cancellation of his lease at different forums.
In this first attempt a revision bearing No,57/80 was filed before Additional Commissioner, Karachi- II which was rejected on two grounds, first that respondent No,2 himself is not willing to use the land for the purpose leased out to him, secondly, that respondent 'No,2, is utilizing the land for housing purpose. Being aggrieved by that judgment, respondent No,2 preferred a constitutional petition bearing No,577 of 1984. There too he could not succeed. In the intervening period of dismissal of his revision No,57/80 by Additional Commissioner and filing of constitutional petition No,577/84 before High Court in 1984, respondent No,2 filed another Civil Suit No,6388/82 in the Court of VII Senior Civil Judge, Karachi, against the Board of Revenue impleading K.D.A. as one of the defendant. In that suit he succeeded in obtaining an injunction order in his favour. However, in Civil Revision bearing No,125/87 filed by K.D.A., appellant injunction order granted in Suit No,6388/82 in favour of the respondent No:2 was vacated on 15-1-1991 with the observation that:-- "In view of apprehension expressed by the learned counsel for applicant Authority (K.D.A.) about the misuse of continuing interim order in the relevant suits and the pendency of such suits, the applicant authority would be free to publicise the correct position of the matter in the news media in consonance with the true fact germane to these controversies and these lands.
In terms of the foregoing above revision application is allowed to the extent indicated."
5. The conduct of respondent No,2 to avail the benefit as he deems fit for himself at all cost coveted him to open series of litigations and in continuation of that a Civil Suit No,727/86 was also filed by respondent No,2 against Revenue Authorities concealing the fact of pendency of earlier suits filed by him. This suit of respondent No,2 was decreed ex parte on 31-5-1986. When this fact came in the knowledge of appellant K.D.A. he moved an application under section 12(2), C.P.C. in Suit No,727/86 and by order dated 5-7-1993 the judgment and decree' obtained by respondent No,2 were set aside and the K.D.A. was joined as defendant No,2 in that suit. This order was challenged by respondent No,2 by filing revision application No,204 of 1994 before this Court. In the meanwhile, in compliance of the direction given in civil revision No,125/87, notices were got published in newspaper by appellant, K.D.A., as one Hadi Bux Memon was selling out the disputed land by bifurcating it into plots.
6. Again' in 1992 respondent No,2 managed to filt, a suit bearing No,444/92 in this Court through Ammer Housing Service (Pvt.) Limited against himself; Qalandar Khan and Raziuddin for specific performance, declaration, permanent injunction and damages and obtained a collusive decree therein by filing an application under Order XXIII, rule 3, C.P.C. with the following prayer:--
(a) A decree directing the defendants, their attorneys, and/or anyone else claiming or acting through or under them to execute and register the requisite conveyance deed/lease deed in favour of the plaintiffs with respect to the 10 acres of land as specifically shown in the sketch site plain (with Annexures "A/1 and A/2") bearing Survey No, Naclass No,29 (Part) in Deh Surjani Tappo Manghopir, Taluka and District Karachi West, Karachi on receipt of the balance sale consideration in terms of the sale agreements dated 9-2-1992 and 28-3-1992 and on failure of the defendant's to do so direct the Nazir of this Honourable Court to do the aforesaid acts and deeds.
(b) A decree directing the defendant's their attorneys and/or anyone else claiming or acting through or under them to get the 10 acres of land in suit as specifically shown in the sketch site plan along with' Annexures "A-1 and A-2") in the land bearing Survey No, Naclass No,29 (part) measuring 50 acres situated in Deh Surjani, Tappo Manghopir, Taluka and District Karachi West Karachi officially surveyed, demarcated, divided, sub-divided and also get the lay-out plans, maps, charts etc. as may be required for implementation of prayer (A) from all relevant Departments and Authorities as the cast, may be and on failure of the defendants to do so direct the Nazir of this Honourable Court to do the aforesaid acts and deeds.
(c) For permanent injunction restraining the defendants their attorneys, agents, employees and/or anyone else claiming or acting through or under them from directly or indirectly selling, gifting, transferring, disposing or alienating in any form or manner whatsoever the land measuring 50 acres bearing Survey No, Naclass No,29 (part) in Deh Surjani Tappo Manghopir Taluka and District West Karachi and more specifically the 13 acres thereof as expressly stipulated in the sketch site plan along with the agreements dated 9-2-1992 and 28-3-1992 (Annexures "A-1 and A-2").
(d) In the alternative if specific performance for any reason whatsoever not being granted for a decree for Rs,80,60,000 in terms of para.11 of the plaint which elucidates the loss and damages arising therefrom.
(e) Costs of the suit.
(f) Any other relief(s) which this Honourable Court may deemed fit and proper in the circumstances of the case."
7. This collusive decree or so-called compromise decree passed on 2-7-1992 was challenged by appellant through J.M. No,28 of 1994, an application under section 12(2), C.P.C. which was dismissed on 13-9-1995 and is subject-matter of this appeal.
8. Contention of learned counsel for appellant is that respondent No,2 was holding the disputed land as lessee but even after rejection of lease of disputed property from his name on 22-1-1978 vide order of Deputy Commissioner, Karachi, West, he went on agitating the same and again in remand order, dated 23-10-2002, it was observed that; the fact of execution of power of attorney authorizing some other person to look after the leased out land indicates that he was no more interested in the lease of the land. Site was also inspected by the Commissioner, Karachi and it was observed by him that applicant had established an office of Real Estate Agency to sell the leased out land in small plots for residential purpose but in spite of that; respondent No,2 was running from pillar to post to gain his object.
9. All these facts reflect the mala fide intention of Jalaluddin coupled with the fact that knowingly that lease of disputed property has been cancelled and he had not paid lease money after the year 1976-77, as observed in C.P. No,577 of 1984 on 22-8-1984 he is and was struggling enough to get the disputed property which is nothing but a fraud practised by him on the Courts.
10. In the circumstances discussed above We cannot hold ourselves to say that.to agitate for the justified grievance is the fundamental right of a person. Whereas the term fraud implies the intended deprivation of property by concealing the true fact. A continuous act of such misrepresentation manifest, rather more prove the wrongful gain to one person as is appearing in the case. The conduct of respondent No,2 of dishonestly setting up a title for himself by obtaining injunction order in Suit No,6388/82 in his favour further establish the fraud played by him and his act of continuous misrepresentation before the Court of law. As in the next step when true facts came before the Court after appearance of K.D.A. in Civil Revision No,125 of 1987 as discussed above, that injunction order was set aside and the department was allowed to publicize the correct position of the matter in news media.
11. The term 'Fraud" as defined in section 17 of Contract Act is very much relevant in this background:-- "17. "Fraud" defined.--- "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 another party thereto or his agent, or to induce him to enter into the contract:--
(1) the suggestion, as to 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) promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or commission as the law specially declares to be fraudulent."
The above proviso reveals that fraud like any other act can be proved through circumstantial evidence. Each circumstance by itself may not mean so, but if they are taken all together, as is appearing in present case, they disclose the fraudulent and dishonest plan of respondent No,2. As again the institution of Suit bearing No,727/86 concealing the fact of pendency of Suit No,6388/82 and the order passed in Constitutional Petitions Nos,125 of 1987 and 577 of 1984 and succeeding in getting an ex parte order in his favour on 31st May, 1986 in Suit No,727/86 is nothing but a fraud perpetrated with Court. As in pursuance of this ex parte order, he got executed lease deed in his favour through Nazir of the Court on 4-12-1991. This conduct of respondent No,2 is the conclusive proof of fraud played by him on Courts.
12. The term. "fraud" has further been explained in Black's Law Dictionary "an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of E fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed".
13. It is pleaded by learned counsel for appellant that concealment of facts before judicial forums amount to fraud and misrepresentation as committed by respondent No,2 as not in a single case he had made a reference of other suits and petitions instituted by him at different levels. In each and every representation respondent No,2 has deliberately tried to conceal the true fact. To elaborate the term "fraud", in context with the case in hand we would like to refer Ballentine's Law Dictionary, third Edition, page 496 that:-- ".... Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of truth, or other device contrary to the plain rules, of common honesty. "In the same context, term "misrepresentation" has been defined as "the statement of untruth."
Mr. Ilyas Khan in his Handbook of Legal Terms and Phrases has also expressed that term "fraud" means:- "Fraud.--- When a person intentionally deceives another with the motive of having some illegal gain or advantage for himself or with the purpose of putting the person so deceived or cheated in wrongful loss and disadvantage, he is said to have committed fraud."
14. If in the light of these definitions the case of respondent No,2 is examined it will reflect that in spite of obtaining ex parte decree in his favour and even after execution of lease deed when there was a delay in mutation of record he attempted his best effort by moving applications for mutation of the same and requested that all concerns be directed not to interfere with the above land" and his this practice extended up to 1988. Though respondents Nos,1 and 2 in their counter-affidavit have denied the allegations and the factual aspects discussed and detailed by the appellant but the fact of fling suit bearing No,444/92 in spite of succeeding to get the lease deed executed in his favour through execution application filed in Suit N.727/86 again initiate the mala fide intention of respondent dNo,2.
15. The perusal of contents of plaint of Suit No,444/92 show that respondent No,2 got filed this suit through Ammar Housing Service (Pvt.) Limited as a plaintiff and himself, Qalandar Khan and Raziuddin as defendants. The suit was presented on 24-6-1992 and just after few days on 2-7- 1992'a compromise application was moved on behalf of the parties in the very suit. By that compromise respondents Nos,l and 2 obtained a collusive decree in their favour. Thus, having two decrees in hand to get the possession of suit-land from either of two, indicates the intent of respondents Nos,1 and 2. In such-like circumstance any representation made to a Court by a party who seeks to impeach it for fraud affecting his ownership cannot be debarred on the ground that he was not a party in the suit wherein impugned decree was passed.
16. The appellant being the real owner of property has every right to challenge the impugned order as section 12(2), C.P.C. read as under does not debar any stranger to a suit to challenge a judgment and decree obtained by fraud and misrepresentation when his right and interest in said property is being effected by it.
"Section 12(2), C.P.C. 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."
17. The intention of Legislature of using term "person" in the referred section is with the object not to confine the opportunity provided in.it only to the extent of parties in proceeding, but to extend it to all person whose interest and right have been adversely affected by that judgment and decree procured by practising fraud and misrepresentation on Court.
18. The term person has been widely discussed in PLD 1982 Pesh. 172, in case of Abdur Rauf and others v. Abdur Rahim Khan and has also been referred in 1984 SCMR 586 and 1993 SCMR 662 is quoted as under:-- "It is obvious that in section 12(2), C.P.C. the word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word person. Had the intention of the law-maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the judgment-debtor or his successor-in-interest or a person who was party thereto, then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit, although his right may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualised in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."
19. In such case of fraud and collusion the whole proceedings will be deemed to be fibula non judicium. On proof that a judgment and decree has been obtained by fraud and collusion that fact will affect its I force, executability and value. And the Court is competent to vacate such-like judgment and order if it is proved that it was obtained by manifest fraud.
20. Following the definition of fraud,. the term collusion as defined in section 17 of Contract Act has been explained in Law of Evidence by C.D. Field's Volume at page 2404 as:-- "a deeentful agreement or compact between two or more persons J. to do some act in order to prejudice judicial proceedings is a secret agreement between two persons that the one should institute a suit against the other, in order to obtain the decision of a judgment tribunal for some sinister purpose."
21. The :above discussion reveals that the decree was obtained in Suit. No,444/92 on 2-7-1992 concealing the fact that at the time of execution of decree Jalaluddin respondent No,2 was no more owner of the suit-land and had no right to sell or transfer it. It will be worthwhile to mention that the fact of cancellation of disputed property from his name as back as on 22-1-1978 has not where been disputed by him. However, by concealing the true facts and filing different suit and petition one after the other when he succeeded in getting lease deed executed in Suit No,726/86, he abruptly executed sale-deed in favour of subsequent purchasers on 9-2-1992 and 28-3-1992 which were fraudulently got stamped by him in the decree of Suit No,444/92 vide order dated 2-7- 1992 ignoring the principle of Islamic Jurisprudence as ordained in Surah Baqra 2.283: "You shall not withhold testimony. He that withholds it will have sinful heart. Allah has knowledge of all your actions."
22. Respondent No,1 in his objection has tried to show that he is a bona fide purchaser for valuable consideration in accordance with the decree passed in Suit No,444/92, but has not been able to controvert the fact that at the time of execution of this indenture on 4-12-1991, in execution of decree in Suit No,726/86 or at the time of decree in Suit No,444/92 on 2-7-1992 respondent No,2 Jalaluddin had no locus standi on the suit-land to execute the sale-deeds dated 9-2-1992 and 28- 3-1992. All the above discussion reveals that respondent No,2 was not bona fide in his attempts and acts throughout in all litigation.
23. The facts and circumstances discussed above vitiate the judgment and decree obtained in Suit No,444/92. Hence they are hereby set aside. Appeal of appellant is allowed accordingly.