1. ' MUZAFFAR ALI, J.--- Through this petition under section 12(2), C.P.C., the petitioners assailed, the decree, dated 16-6-2005, passed by this Court and the decree, dated 8-4-2002 passed by the learned Civil Judge No,2 Gilgit, with the contention that, both the impugned decrees have been obtained, through fraud, collusion and misrepresentation.
2. ' The gist of the facts, became bone of the longstanding dispute between the parties, is that, late Shaheen Khan, who has been impleaded through his legal representatives in this petition, was a Government Contractor. In the year 1987, he was awarded the contract of construction and metalling of three toner road from Degree College Gilgit to village Nomal. The contract was to be completed within four years, but the work was not completed within the stipulated period and the parties to the contract entered into intricated disputes, resultantly, the contractor filed the Suit No,57 of 2002 in Civil Court for recovery of Rs,58,54,48/43 as cost of his work done. The present petitioners filed their written statement and contested the suit. The learned trial Judge, after going through the procedural stages of the trial, finally decreed the suit in favour of the plaintiff (the contractor) to the tune of Rs,50,47,330/30, by refusing the remaining claim. The parties to the suit took the matter, before this Court and the then Honourable Division Bench of this Court remitted the matter to the trial Court vide judgment, dated 29-4-2000, with some directives to the parties and to the trial Court to meet and for de novo trial of the case. After remand, the learned trial Court received amended plaint and amended written statement and after going through the procedural stages, partial decree dated 8-4-2000 to the tune of Rs,10,55,139/11 with 8% compound interest was passed, in favour of the plaintiff, the rest of the claim was declined.
3. ' Being dissatisfied from the rider decree, the defendants filed 1st appeal before this Court, while, the plaintiff also filed cross-objections. This Court heard the parties and dismissed the appeal as well as the cross-objections and maintained the impugned decree passed by the learned trial Judge vide his judgment/decree, dated 16-6-2006. The respondents assailed the decree passed by this Court before the Honourable Supreme Appellate Court N.As., but withdrew the same unconditionally from the apex Court, hence the instant petition, before this Court.
4. ' We have heard the learned counsel for the parties and also have gone through the record of the case. The learned counsel for the petitioners found his case on the points that (a) The respondent No,11 (the attorney of the plaintiff) through misrepresentation obtained the contract under question, for his personal benefits (b) That it has been revealed that, the contract work under the suit was obtained by the respondent No,11 through false statement and deception (c) That the respondentNo,11 misused his office of membership of Northern Areas Council at the time of execution of the work and left the work incomplete. (d) That the respondent No,11 received all the cheques in his own name, in due time, but despite receiving the payments filed the recovery suit against the petitioners. (e) That, the respondent No,11 succeeded in committing the fraud and misrepresentation at the time of obtaining the contract work, in collusion with the respondents Nos.12 to 18 who were responsible officers of the petitioner's department and the respondents Nos.12 to 18 concealed the facts from the petitioners, hence the impugned decrees are liable to be set aside under section 12(2), C.P.C.
5. ' In response to the above points, the learned counsel for the respondents urged that (a) all the points raised by the learned counsel for the petitioners relate to the events prior to institution of the suit and the petitioners might have taken all the above points in their written statement as defence and the petitioners had ample chance to do so, as the proceedings before the Courts of law have completed two rounds (b) that the petitioners have challenged the impugned decree passed by this Court, before the Honourable Supreme Appellate Court N.As. And have withdrawn the same unconditionally as the impugned decree is not the final one which could be challenged under section 12(2), C.P.C. Hence the petition is liable to be dismissed.
6. 'In the light of the points raised by both the learned counsel, we went through section 12(2), C.P.C.
7. To ascertain whether the instant petition comes within the ambit of the same or not. Indeed section 12(2), C.P.C. Provides a remedy to a person affected by a decree obtained by fraud, misrepresentation or the decree is challengeable for want of jurisdiction and the plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action under section 12, C.P.C. The plain reading of section 12(2), C.P.C. Inspires one's A judicial mind with the interpretation that (a) the remedy under section 12(2), C.P.C. Is confined to three points that the plaintiff must to prove that, the judgment, order or the decree has been obtained by fraud, misrepresentation or validity of the same is challengeable for want of jurisdiction. Since in the instant petition, plea of fraud and misrepresentation, have been taken as such we try to define the 1st two points leaving aside the third point i,e, want of jurisdiction.
8. Fraud and misrepresentation.--- Fraud means, untrue statements by a person, who did not believe the same to be true and active concealment of facts, while misrepresentation has been defined by Ballentine's law dictionary as under:--- "The statement of an untruth. A misstatement of fact which if accepted lead the mind to an apprehension of a condition other and different from that which exists distinction between fraud and misrepresentation is one of knowledge and intention.
9. 'Keeping in view the above definitions, now we go through section 12(2), C.P.C. For ascertaining to what extent the provision accepts the fraud and misrepresentation for recalling a decree, order or judgment and we are in consonance that, the pre-suit or proceeding fraud and misrepresentation made by a party against another could not be a ground to entertain any application under section 12(2), C.P.C. And to attract the provision of this section, it is incumbent upon the petitioner to prove that the fraud or misrepresentation has been committed by the opposite party in connection with the proceedings. Petitioners under section 12(2) must plead and prove that the fraud or the misrepresentation committed against him was out of his knowledge or sight and was concealed from him by the party himself or in collusion with any person or persons, as to prevent the effected person to place his case before the Court during course of proceedings in defence, otherwise a person could not be allowed to reopen the past and the closed transactions in this regard. We are supported by the following case-law in holding the above judicial note on the subject. (1) 1983 SCMR page 1064, (2) 1995 CLC page 1200 (3) 1993 MLD page 1555 (4) 1994 CLC page 2112 (5) 2003 SCMR page 1050.
10. ' After establishing the rider legal note on the scope and attraction of section 12(2), C.P.C., if we come to the merits of the instant case and go through the points taken by the learned counsel for the petitioners and the grounds placed before this Court through petition, obviously, the grounds having no substance to attract our jurisdiction under section 12(2), C.P.C. For the reasons:--
(a) That all the grounds taken in the petition relate to the matters alleged to be happened prior to the institution of the suit or proceedings and the same could be taken in the written statement as defence, and the defendants had ample opportunity to make the grounds as basis of their defence for the reason that the suit was rounded twice upto this Court and in second round the parties submitted amended plaint and written statement as per direction of this Court, hence the grounds do not attract section 12(2), C.P.C.
(b) That the grounds taken by the petitioner apparently seem to be related to the transaction between the parties and, the petitioners in a way want to reopen the matter which has been finally disposed of as such, the grounds do not attract the provisions of section 12(2), C.P.C. As the section is not construed to reopen any matter already decided.
(c) That during course of arguments, the learned counsel raised the points that, the respondent No,11, in collusion with the respondents Nos.12 to 18 concealed the facts from the petitioners as such the petitioners failed to place the grounds before the Court of law at the time of submission of written statement. The plea is not sufficient to attract the mind of a person of common prudence for the reasons that, the respondents Nos.12 to 18 are admittedly employees of the petitioner department, enjoyed very responsible posts, some of them have been sent to pension honourably and some enjoying their services in the department and till today no inquiry in this regard against them by the department, is in our knowledge moreover, we have gone through the petition, though the persons have been arrayed in the list of respondents, but we found no para. In the petition which levels any kind of collusion with the respondent No,11 or 10 by the respondents Nos.12 to 18, hence the point is in deviation of the pleading as such could not be relied upon.
(d) That during course of arguments, the learned counsel for the petitioners levelled all the allegations of fraud and misrepresentation against the respondent No,11 and stated that wrongs have been done by him for his personal gain, but the learned counsel forgot, the fact that, the respondent No,11 is not the plaintiff in the suit and no decree has been passed in his favour.
11. Last but not the least, the learned counsel for the respondents have taken the point that the impugned decree passed by this Court is not final, for the reason, that, the same has been challenged by the petitioners, before the learned Supreme Appellate Court N.As. And has been withdrawn unconditionally as such the petition is liable to be dismissed, but we differ with the contention of the learned counsel for the reason that the appeal filed before the Honourable Appellate Supreme Court against the impugned decree has been withdrawn and the learned apex Court has neither entertained nor refused the appeal on merits as such the impugned decree stands final. We have taken this view with the support of (1) 2001 SCMR page 1062 (2) 2005 SCMR page 900.
12. 'The nutshell of the above discussion is that, the application under section 12(2), C.P.C. Is dismissed and the impugned decrees are maintained. File.