' KHALID ALI Z. QAZI, J.--- Through this application under section 12(2), C.P.C. Defendant/applicant has prayed that judgment and decree, dated 14-1-2006 in Suit No,1738 of 1999 may be set aside as the same has been obtained by suppression and concealment of admitted facts and playing fraud upon this Court.
2. Brief facts of the case are that the, plaintiff has purchased two plots of land bearing Nos.FL.2 and FL.3 measuring 4840 sq. Yards each. The plots were duly transferred in its name and a lease deed was also executed by the defunct K.D.A. In favour of the plaintiff. After the purchase of the plots, the plaintiff applied for amalgamation of both the plots which application was granted and the plots were amalgamated and were given Plot No,FL-2. Site plan was also issued by K.D.A. And the plot was duly demarcated by the Survey Department of Government of Sindh. Thereafter the plaintiff submitted a plan for construction which was also approved. It is further the case of the plaintiff that defendants Nos.1 to 8 are land grabbers and encroached upon part of this plot. However, on the basis of title documents, unlawful encroachers were removed through the help of police. The plaintiff apprehending that encroachers might again occupy the plot, hence, the plaintiff filed the present suit for declaration and permanent injunction.
' Mr. Nasir Jafri learned counsel for the defendant/applicant contended that plaintiff has filed the above suit on or about 14-2-1999 alleging that it has purchased flat site Plot bearing Nos.FL-2 and FL-3, measuring 4840 sq. Yards, each situated in Block No,4, Scheme No,36, Karachi. It is further stated that according to the plaintiff these two plots were impliedly allotted originally to others and from them the plaintiff had allegedly purchased and then got these plots mutated from K.D.A. In its name. The plaintiff had also alleged that the Survey Department of Government of Sindh had issued certificate dated 7th of May, 1997 certifying these plots to be part of Block No,4, Scheme No,36, Karachi. Accordingly, on amalgamation of these two plots, giving its No,FL-2 only, prepared a site plan showing the same in Block No,4 of Scheme No,36, Karachi. Thereafter a building plan was got prepared and then started construction thereon. It is further contended that as per the - plaintiff while starting construction it was bounded by a boundary wall. This means that despite amalgamation of the two plots the building plan, which was said to have been approved, was for each plot separately. Further case of the plaintiff was that the defendants in the suit were allegedly land grabbers and they had started claiming the plots in question forming part of Katchi Abadi. On these plots they were said to have established Hazara Mughal Goth, Chishti Nagar in collusion with local authorities. They were then removed by the local police but were again threatening to occupy suit plots. Accordingly, they sought a declaration that the plaintiff alone is exclusively owner of the suit plots and that the defendant in that suit be restrained from occupying any portion of the suit plot.
4. It is further contended by the learned counsel for the applicant/defendant that while filing the above suit, the plaintiffs also sought inspection of the suit plots per application under Order XVIII, rule 18 read with Order XXVI, rule 9, C.P.C., as also interim injunction under Order XXXIX, rules 1 and 2, C.P.C. It is further pointed out that on coming to know about the suit, counter-affidavits to both these applications bearing C.M.A. No,10459 of 1999 and C.M.A. No,10458 of 1999, were filed on behalf of the defendant No,1 on 3-4-2000. According to the diary of this Honourable Court, by order dated 9th of February, 2000, Official Assignee was appointed to inspect the suit property with notice to the parties. However, Official Assignee does not appear to have made any inspection but as per diary of this Court order, dated 20th April,. 2000, i,e, after filing of counter-affidavits referred to above, Nazir of this Court was directed to inspect the area and to submit report accordingly. At the same time, the parties, more particularly the plaintiffs, were directed not to encroach upon any further land. This means that the plaintiffs were encroaching the land. The matter was then repeatedly adjourned apparently at the behest of the plaintiffs.
5. It is further contended by Mr. Nasir Jafri that as per Court diary it appears that Suit No,165 of 1996, earlier filed by the defendant No,1 was ordered to be connected with the above suit. On 10th of March, 2003, the report of Official Assignee was shown to have been brought on record with a direction not to take any action thereon as the Nazir of this Court was shown to have been appointed as Commissioner and who had earlier submitted his report in Suit No,165 of 1996 direction to the plaintiffs was given to place the report of Nazir on record of this suit per order, dated 10th of March, 2003. Later on, by order, dated 7-4-2003 Suit No,165 of 1996 was ordered to be tagged with the above suit and the matter was fixed for hearing and the decision of the two C.M.As.
Filed by the plaintiff.
6. It is urged by the learned counsel that two C.M.As. Nos.10458 and 10459 of 1999 were always adjourned as generally none appeared on behalf of the plaintiff therefore, the matter remained without any tangible proceedings. It is also urged that it is for the first time after about two years by order, dated 12-11-2005, the office was directed to pass order for non-filing the written statement by the defendants and the plaint in respect of the defendants Nos.3 to 18 in the suit was struck off for non-prosecution. Accordingly, by order, dated 26-11-2005 the defendants Nos.1 and 2 in the suit were ordered to be proceeded ex parte and finally vide order, dated 14-1-2006 the suit was decreed.
7. It is further contended by the learned counsel that defendant No,1 had filed counter-affidavits to the two C.M.As. Nos.10458 and 10459 of 1999, however, the same were neither mentioned in the office diary nor in the Court diary and further that these two applications filed by the plaintiffs were also never heard. Not only this but it appears from the record that on 3-5-2003 the Assistant Registrar D-II (0.S.) had submitted before the Honourable Court that Suit No,165 of 1996, earlier filed by the defendant No,1 and which was ordered to be tagged with the above suit, had been transferred to the Civil Court; therefore, orders were solicited whether Suit No,165 of 1996 be recalled and fixed along with the above suit or the plaintiff be directed to file proper application for transfer of the said suit under section 24, C.P.C. It appears that the second proposal was approved by Additional Registrar (O.S.I) vide order, dated 5-5-2003. However, it appears that neither the plaintiffs made any application under section 24, C.P.C. As directed nor there is any indication in the entire Court diary whether the order of tagging the Suit No,165 of 1996 with the above suit was recalled at any stage.
8. It is further contended that Suit No,165 of 1996 was ordered to be tagged with the above suit to facilitate the disposal of the two miscellaneous applications filed by the plaintiff, as referred to above and such applications were never heard nor disposed of. In Suit No,165 of 1996 Nazir of this Court had twice inspected the site of the defendant No,1 Goth and had observed that not only hundred of persons were physically residing there but the area which has been under their occupation was originally certified to be part of Block No,4-A as back as in the year 1985. Necessary documents were annexed to the report of the Nazir. It was pertinently submitted that this Court had directed the production of the two reports of the Nazir, and were in Suit No,165 of 1996, but the plaintiff deliberately suppressed the first report and submitted only the second report. In any case, even the second report of Nazir as well as the documents annexed to it never came for consideration till the decree was passed in favour of the plaintiffs. It is also contended that the whole case of the plaintiff in the suit was that two plots allegedly purchased by it, and were then after amalgamation mutated in its favour by the K.D.A., are situated in Block No,4 of Scheme No,36, which statement was apparently and impliedly falsified by Nazir's report. It is further urged that as per the Master Plan Gulistan-e-Jauhar has, besides others, two independent Blocks viz. 4 and 4-A and so the area of Block No,4-A is in possession of the applicants/ defendant since much prior to 1985. Therefore, the Director Katchi Abadi had itself recommended its regularization as Katchi Abadi per letter, dated 5-3-1993. In such a situation that the area in possession of defendant/applicant has also never been allotted to anyone. The plaintiff, therefore, if is the allottee of any plot, it is in Block No,4 and has no concern with Block No,4-A, therefore, the decree obtained by its ex parte cannot be executed against the plot in possession of the defendants, particularly when on the plot which is claimed by plaintiff a mosque etc. Is in existence since long. It is further reasserted, the defendant No,1 are the occupants of Block No,4-A since much prior to be certified as part of Katchi Abadi. On the basis of their continuous possession for over 30 years, and because of this area being part of Katchi Abadi, the defendant had filed their suit as back as in the year 1996 for regularization etc. And which is still sub judice. Accordingly, the suit of the plaintiff could not have been proceeded independently, more particularly in violation of the orders for tagging Suit No,165 of 1996 with the above suit. The plaintiffs thus fraudulently and suppressing the material fact manoeuvred to have an ex parte decree against the defendant and now they are attempting to execute the ex parte decree.
9. Notice of this application was ordered to be issued to respondent/decree-holder. In response to the said notice Mr. Khawaja Shamsul Islam, Advocate has appeared and has stated that the listed application in the suit has been filed only to delay the execution proceeding. But no counter- affidavit to such application has been filed to controvert the facts stated in the application. He has supported the decree and submitted that no fraud, misrepresentation and concealment of facts has been played by the respondent/plaintiff.
10. I have heard Mr. S. Nasir Hussain Jafri, learned counsel for the applicant and Mr. Kn. Shamsul Islam, learned counsel for the respondent/plaintiff and perused the material available on record.
11. In order to ascertain the contention of learned counsel for the applicant that whether the Suit No,165 of 1996 earlier filed by defendant No,1 was, ordered to be connected with the above suit, I have examined the diaries of the case, which show that vide order, dated 7-4-2003 my learned brother Azizullah M. Memon, J. Was ordered that Suit No,165 of 1996 to be tagged with the above Suit No,1738 of 1999 for the purpose of proper hearing and decision of two C.M.A. No,10458 of 1999 under Order XXXIX, rules 1 and 2, C.P.C. And C.M.A. No,10459 of 1999 under Order X, rule 18, C.P.C. Filed by plaintiff. It appears from perusal of record that C.M.As. Nos.10458 and 10459 of 1999 were adjourned time and again and matter remained pending without any tangible proceedings. The defendant No,1 filed counter-affidavit to the above noted applications but the same were neither mentioned in the office diary nor in the Court diary and it seems that these two applications filed by plaintiff remained undecided. On examination of record I find that on 3-5-2003, the Assistant Registrar D-II (0.S.) had submitted before this Court that Suit No,165 of 1996 earlier filed by defendant No,1 and which was ordered to be tagged with the above suit had been transferred to the District Court (East), therefore, orders were solicited whether Suit No,165 of 1996 be recalled and fixed along with the above suit or the plaintiff be directed to file proper application for transfer of the said suit under section 24, C.P.C. It appears from perusal of record that second proposal was approved by Additional Registrar (0.S.I) on 5-5-2003. For the convenience the same is reproduced as under:-- "Submitted ' It is submitted that the above matter which came up for hearing on 10-3-2003, when the office specifically pointed out that suit No,165 of 1996 was transferred to the District Court (East). The Honourable Court was pleased to order, inter alia, that the Nazir of this Court who has submitted report in Suit No,165 of 1996 be placed on record, as undertaken by the counsel for the plaintiff.
Order, dated 10-3-2003 may kindly be perused at flag "A".
' It is further submitted that the above matter again came up for hearing on 7-4-2003, when the plaintiff instead of making necessary compliance in terms of above order, stated that Suit No,165 of 1997 needs to be tagged along with the above suit for the purpose of proper hearing and decision of C.M.A. No,10458 of 1999 and C.M.A. No,10459 of 1999. Order, dated 7-4-2003 may kindly be perused at flag "B".
' As pointed out earlier that Suit No,165 of 1996 has already been transferred to the District Court
(East) on account of amendment in section 6 of the Sindh Civil Court Ordinance, 1962, enhancing the pecuniary jurisdiction of the lower Court to try and dispose of the cases upto the value of Rs,3 million.
' In view of the above submissions, orders are respectfully solicited as to whether Suit No,165 of 1996 which has already been transferred to the District Court (East) may be recalled and be fixed along with the above suit. OR ' The plaintiff may, if so advised, file proper application for transfer as provided under section 24, C.P.C.
' Submitted for favour of perusal and orders.
(Sd.) 3-5-2005 Assistant Registrar D-II (O.S.)
(Sd.) 5-5-05 Additional Registrar."
12. From perusal/examination of the record it appears that neither the plaintiff made any application under section 24, C.P.C. As directed nor there is any indication in the entire Court diary whether the order of tagging the Suit No,165 of 1996 with the above suit was recalled at any stage.
13. Before deciding the above assertion of learned counsel in respect of fraud and misrepresentation, it will be appropriate to examine the meaning/definition of the word "fraud" and "misrepresentation". In K.J. Aiyar's Judicial Dictionary 13th Edition 2001 at page 430, the word "fraud" has been defined which reads as under:-- "According to Halsbury's Laws of England, a representation is deemed to have been false, and, therefore, a misrepresentation, if it was at the material date false in substance and, in fact, section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another.
' From dictionary meaning or even otherwise, fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction can be of assistance in determining fraud in administrative law. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provisions of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shade. It arises from the deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or Tribunal. It most result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised.
But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud.
There is no fraud if what a person honestly believed to be true turned out to be false."
14. In Webster's Third New International Dictionary, fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black Law Dictionary, fraud is defined as 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 surrender a legal right, a false representation of 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. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. So for definition of misrepresentation is concerned, misrepresentation has been defined by Black Law dictionary VIth volume 1990 Edition at Page 1001, 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 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".
15. Keeping in view the above definitions, it can be observed that the difference between fraud and misrepresentation is one of intent but both the terms are more or less synonymous. Reference is invited to Muhammad Yaqoob Ali v. Mohsin Ali and another 1999 CLC 1173.
16. In the instant case as was rightly submitted by Mr. S. Nasir Hussain Jafri learned counsel for the applicant that plaintiff/respondent had full knowledge about the order passed by this Court on 7- 4-2003 and about the proceedings of the suit No,165 of 1996 between the parties but the plaintiff concealed all these facts from this Court and obtained the ex parte proceedings order, judgment and decree by misrepresentation and fraud as alleged on oath by the applicant in J.M. No,9 of 2006. No counter-affidavit has been filed by the plaintiff/respondent to controvert the facts narrated in J.M. No,9 of 2006 on oath. Under the peculiar facts and circumstances of the case it appears on record that elements of misrepresentation or fraud are attracted to the facts and circumstances of the case. Office note dated 3-5-2003 and two C.M.As. Nos.10458 and 10459 of 1999 were fixed for hearing before this Court from 12-5-2003 to 26-9-2005 without any proceedings but on 7-11-2005 they were not fixed for hearing but matter was fixed for obtaining ex parte order in favour of plaintiff/respondent. The office and plaintiff did not point out about the pendency and non-disposal of office note dated 3-5-2003 and two C.M.As. It was also not pointed out that R&P of Suit No,165 of 1996 is not tagged with the above suit in compliance of order, dated 7-4-2003. It results in exercise of jurisdiction which otherwise would not have been exercised.
17. Mr. S. Nasir Hussain Jafri learned counsel for the applicant rightly contended that Suit No,165 of 1996 was ordered to be tagged with the above suit to facilitate the disposal of two applications filed by the plaintiff as referred hereinabove were never heard or, disposed of. According to Mr. Jafri in Suit No,165 of 1996 Nazir of this Court had twice inspected the site of the defendant No,1 Goth and had observed that not only hundreds of persons were physically residing there but the area which has been under their occupation was originally certified to be Katchi Abadi under the law and a part of Block No,4-A as back as in the year 1985. Necessary documents were annexed with the report of the Nazir. On perusal of record I find that R&P of Suit No,165 of 1996 was not available for consideration of this Court at the time of passing the order dated 26-9-2005 declaring the defendants Nos.1 and 2 ex parte and judgment, dated 14-3-2006 without compliance of order, dated 7-4-2003.
18. It is well-settled now that when any order, judgment or decree is obtained by fraud, misrepresentation or such order, judgment or decree is-passed by a Court having no jurisdiction, any person aggrieved by it has inherent right to challenge it and get it recalled as an aggrieved persons cannot be left without any remedy. After the incorporation of section 12(2), C.P.C. No other recourse was left with an aggrieved person but to make an application under section 12(2), C.P.C. In present case there is nothing on record to indicate that plaintiff had filed an application under section 24, C.P.C. As directed by the Court for the transfer of Suit No,165 of 1996 which was ordered on 7-4-2003 to be tagged along with above suit. Thus, the order, dated 26-9-2005, judgment, dated 14-3-2006 and decree dated 20-4-2006 in above suit based on misrepresentation.
19. For the foregoing reasons and peculiar facts and circumstances of the case, the ingredient of section 12(2), C.P.C. Has been established in the present application. Moreover the judgment and decree were not passed on merits without considering the all material available on record of present suit viz. Suit No,1738 of 1999 and record of Suit No,165 of 1996, therefore, present application merits consideration, same stand allowed with no order as to costs. Consequently, order, dated 26- 9-2005, judgment, dated 14-3-2006 and decree, dated 20-4-2006 are hereby recalled and set aside.