1. ' NADEEM AZHAR SIDDIQI, J.--- By filing this judicial miscellaneous application the applicant has prayed for setting aside the compromise judgment and decree dated 20-3-2003 passed in Suit NO,1466.
2. ' In the affidavit filed in support of the application the applicant submits that on 27-11-2001 he entered into an agreement to purchase Property NO,196, 41st Street, Phase VIII, DHA, Karachi, with respondent NO,2 by paying Rs,3,00,000 to her through demand draft.
3. ' The respondent NO,2 failed to execute sale deed hence he filed Suit NO,954 of 2002. From publication appeared in daily DAWN dated 28-1-2003 the applicant came to know about the selling of the property by respondent NO,2 and the applicant has obtained the status quo order on 31-1-2003 in Suit NO,954 of 2002. On 20-3-2003 the respondents Nos.2 to 6 entered into compromise in Suit NO,1466 of 2000. Whereby they illegally, fraudulently and surreptitiously relinquished the said property in favour of respondent NO,1 against another property belonging to the deceased Ishrat Butt. The said act was intended to fraudulently defeat the applicant's sale agreement and his claim in the said property. In applicant's Suit NO,954 of 2002 the respondent NO,2 admitted the factum of sale agreement with applicant and has also admitted that after execution of sale agreement the compromise was entered by her with respondent NO,
1. The respondent NO,1 has also filed an application in Suit NO,954 of 2002 for being impleaded as intervenor. It was alleged in the application that compromise decree was obtained by concealment of material facts and that compromise decree was obtained during status quo order dated 31-1-2003 in Suit NO,954 of 2002 and that compromise decree was collusively obtained through fraud, concealment of material facts and misrepresentation.
4. ' The respondents NO,1 filed counter-affidavit wherein she has denied that the compromise decree was obtained through fraud, misrepresentation, concealment of facts or is without jurisdiction and submits that the filing of application under section 12(2), C.P.C. Is without any cause of action. The respondent NO,1 also denied that the respondent NO,2 was owner of the property in que 'on. It was further alleged in the counter-affidavit that sale agreement between the applicant and respondent NO,2 is void and respondents Nos.2 to 6 could not sell the property which never belonged to them as the properties were purchased by her in the name of her son.
5. ' The respondent NO,2 has also filed her counter-affidavit wherein she has denied that compromise decree was obtained through fraud, misrepresentation, concealment of facts, etc. And submits that the pendency of Suit NO,1466 of 2000 was in the knowledge of the applicant. In her written- statement filed in Suit NO,954 of 2002 she has also disclosed about the pendency of Suit NO,1466 of 2000 and that the respondent NO,2 being a widow could not afford lengthy litigation and as such had conceded to the factual position and compromised the suit with her mother-in-law.
6. ' Mr. M. Hassan Akbar, learned counsel for the applicant, has contended that the compromise decree was obtained by fraud, collusion and by concealment of facts. He submits that the respondents were aware about the pendency of Suit NO,954 of 2002, the status quo order passed therein and claim of the applicant over the plot in question and that while obtaining the compromise decree the Court was not informed about the pendency of Suit NO,954 of 2002 and claim of the plaintiff/applicant in that suit. He further submits that the Nazir who was appointed guardian of respondents Nos.3 to 6 was not informed and the compromise was effected without notice of hearing to him and the suit was decreed in violation of mandatory provisions of law as contained in Order XXXII, rule 7, C.P.C.
7. ' Mr. Mushtaq A. Memon, learned counsel for respondent NO,1, contended that the ingredients of fraud and misrepresentation are lacking and no specific allegation of fraud has been levelled against respondent NO,1 and that the application has not been made bonafidely. He submits that alleged sale agreement was entered into during pendency of Suit NO,1466 of 2000 and that the agreement between the applicant and respondents Nos.2 to 6 was collusive to deprive the respondent NO,
1. He further submits that no fraud was committed with the Court and that the right claimed by the applicant was concealed by respondents Nos.2 to 6 and not by respondent NO,1 who was not aware about the pendency of Suit NO,954 of 2002. The learned counsel for respondent NO,1 relied upon the following reported cases:---
(1) Allied Bank of Pakistan Ltd. v. Messrs Tawakkal Garment Industries Ltd, and others 2002 CLD 689.
(2) International Multi Leasing Company v. Capital Assets Leasing Corporation Limited and another 2004 CLD 1.
8. ' Ms. Shahana Advocate who was holding brief for Mr. Kh. Naveed Ahmed, Advocate for respondent NO,2 stated that the latter would come and argue the matter during the course of day but he had not turned up and case was reserved for judgment.
9. ' I have heard the learned counsel for the parties and perused the record.
10. ' The contention of learned counsel for the applicant is that the compromise decree was obtained by way of concealment of pending litigation and that compromise was effected without the consent of the guardian of respondents Nos.3 to 6 against the specific provisions of law.
11. ' The word conceal is defined in legal terms and phrases by M. Ilyas khan as under:--- "Conceal: The word conceal in its ordinary dictionary meaning denote secreting, hiding, suppressing."
12. 'The word "conceal" according to its dictionary meaning, involves the act of hiding, secreting, disguising, so as not to make known what one wishes to keep secret. These obviously one does not do unless he has a guilty mind and desires to deceive someone else. Does this not then also cannot a conscious suppression of such fact as in law ought to be made known.
13. ' The word concealment is defined in the same book as under:--- "Conceal ment: Implies non-disclosure of a fact which ought to be disclosed according to law."
14. 'The word "Fraud" is defined in the same book as under: "Fraud: When a person deceives another with the motive of being 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."
15. ' Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, or to induce him to enter into 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 filled to deceive; (5) any such act or omission as the law specifically declares to be fraudulent.
16. ' From the perusal of the above definition of "fraud" it appears that concealment includes in the definition of fraud. The word "fraud" has not been defined in C.P.C., therefore, the above definition is being relied upon.
17. ' It is established from the record that while obtaining compromise decree the pendency of Suit NO,954 of 2002 was concealed from the Court as well as the status quo order dated 31-1-2003.
18. Keeping in view the stand of respondent NO,2 in Suit NO,1466 of 2000. It is strange that she has compromised with the respondent NO,1 and surrendered the plots which were in the name of her husband in favour of respondent NO,
1. From the record it is also established that the Nazir was appointed guardian ad litem of minors on 29-3-2001 by the Additional Registrar of this Court. The compromise was accepted without notice to the Nazir and the provisions of Order XXXII, rule 7 and Sindh Amendment made therein have been ignored which provides that any agreement entered into on behalf of the minors without leave of the Court shall be voidable against the parties other than the minor. It is duty of the Court to safeguard the interest of the minors, Rule 7, C.P.C. Prohibits any agreement or compromise without the express leave of the Court. In Sindh provision of Order XXXII, rule 7(IA) laid down a detailed procedure. Before entering into compromise the leave of the Court is necessary which is lacking in the matter. The compromise decree was passed without protecting the interest of minors and they were deprived from the valuable properties owned by their late father. The compromise decree was passed when the order of status quo was operating in Suit NO,954 of 2002 and the compromise decree is also in violation of the status quo order. The concealment was there and the Court was not informed and decree was obtained by way of concealment of material facts. It will be upon the Court to accept or not the compromise decree if the facts came to the knowledge of the Court but the premium of concealment of tact cannot be given to a party who has concealed the facts from the Court. Concealment of facts was fraud and by itself was sufficient for setting aside the judgment on the ground of F fraud. In the judgment of International Multi Leasing Company (supra) cited by the learned counsel for respondent NO,1 wherein it has been held that when fraud and misrepresentation is alleged in the pleadings particulars thereof must be given so that the other party could put on guard to answer the same. In the other reported case of Allied Bank of Pakistan Limited, it was held that mere falsity of claim to knowledge of person to forward claim could not be ground for setting aside ex parte decree on the ground of fraud. In this case the respondents have committed fraud by concealment of facts and a collusive decree has been obtained. The applicant has highlighted the facts, which amounts to fraud. Furthermore, the compromise was accepted without notice to the guardian and without completing the procedure laid down under Order XXXVII, rule 7(IA), C.P.C. Although, this ground was not taken in the affidavit filed in support of application under section 12(2), C.P.C. But since this is a legal ground the same was allowed to be G urged.
19. ' In view of the above discussion the compromise order and decree dated 20-3-2003 passed in Suit NO,1466 of 2000 is recalled and set aside.
20. ' The office is directed to fix Suit NO,1466 of 2000 for hearing of C.M.A. NO,1582 of 2003 after notice to the parties, guardian ad litem of minors and the applicant in this case for a date to be fixed by it according to roster.
21. ' In view of the above, this judicial miscellaneous application stands allowed with no order as to cost.