ATIR MAHMOOD, J. ---. Brief facts of the case are that on 19.07.2003, respondents No, 1 & 2 (hereinafter called "the plaintiffs") filed a suit for declaration before the learned Senior Civil Judge, District Sargodha with the averments that they being successors of Abdul Rehman (father) and Mst. Fatima (mother) are entitled to their shares according to Muhammadan Law but they have been deprived of their share by the present petitioner and respondents No, 3 to 8 (hereinafter called "the defendants") as they have got sanctioned mutations in favour of respondents No, 1 to 3 fraudulently. The defendants filed contesting written statement. Issues were 'framed. However, the plaintiffs withdrew the suits through their counsel vide order dated 12.01.2009.
2. Afterwards, on 01.04.2010, the plaintiffs filed an application under Section 12(2), C.P.C. alleging that they had withdrawn the suit on assurance of the defendants out of the Court that they will give due share to the plaintiffs out of the inheritance left by their parents but later on, they backed out from the promise. Defendants contested the application by filing written reply. They also filed application under Order VII, rule 11, C.P.C. for rejection of the application. The latter application was allowed by learned Trial Court and application of the plaintiffs was dismissed vide order dated 10.03.2011.
Feeling aggrieved, the plaintiff filed revision petition which was accepted by learned Additional District Judge, Sargodha vide judgment dated 20.02.2014. Hence this writ petition has been instituted by one of the defendants.
3. Learned counsel for the petitioner-defendant mainly contends that since the suit was withdrawn by the plaintiffs themselves without permission of the Court to file fresh one, the application under Section 12(2), C.P.C. was hit by Order Vii, rule 11, C.P.C. and not proceedable, therefore, this writ petition be allowed, the impugned judgment passed by learned lower revisional Court be set aside and order of learned Trial Court be restored. In support of his arguments, learned counsel for the petitioner-defendant has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in cases Mst. Shabana Wan v. Muhammad Shaft Khan and others (2009 SCM R 40) and Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCM R 1050).
4. On the other hand, learned counsel for the respondents No, 1 & 2 (plaintiffs) has vehemently opposed this writ petition and fully supported the impugned judgment. He has placed reliance on the dictums laid down in cases Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCM R 236) and Malik Shahid Mehmood v. Malik Afzal Mehmood and others (2011 SCM R 551).
5. Arguments heard. Record perused.
6. The contents of the plaint reveal that the plaintiffs had sought their share in the property left by their parents while alleging that the mutations impugned in the suit in favour of respondents No, 1 to 3 were based on fraud and fabrication. The suit was withdrawn by the plaintiffs through a statement made by their counsel on 12.01.2009. The withdrawal was also a simpliciter withdrawal and neither permission to file fresh suit was prayed for nor was granted by learned Trial Court in order dated 12.01.2009. The plaintiffs in their application under Section 12(2), C.P.C. has also not denied rather admitted that their learned counsel withdrew the suit on their instructions. However, they have taken plea in the application that the defendants, out of the Court, assured the plaintiffs that they will give due share to the plaintiffs out of the inheritance left by their parents and requested to withdraw the suit which was acceded to by the plaintiffs and they withdrew the suit but afterwards, the defendants backed out from their words and then manifested upon the plaintiffs that the defendants had deceptively convinced the plaintiffs to withdraw the suit, as such, fraud has been committed by the defendants with the plaintiffs. This assertion has though been denied by the defendants in their written reply. Nevertheless, this is a question of fact which could not be decided summarily and without recording of evidence. There is a plethora of judgments on the point that where there are disputed questions of facts including the allegations of fraud, fabrication and misrepresentation, the Court should resort to recording of evidence first and then decide such matters. However, where the situation is not, so, the application under Section 12(2), C.P.C. can, however, be decided without framing of issues and recording of evidence.
7 In this case, the plaintiffs in their application under Section 12(2), C.P.C. has specifically asserted fraud and misrepresentation on the part of the defendants. According to Black's Law Dictionary, the word "misrepresentation" means:-- "misrepresentation, n.
1. The act of making a false or misleading assertion about something usu. with the intent to deceive. The word denotes riot just written or spoken words but also another conduct that amounts to a false assertion.
2. The assertion so made; an assertion that does not accord with the facts."
(Emphasis provided)
In the said dictionary, misrepresentation has been defined as under-- "A misrepresentation, being a false assertion of fact commonly takes the form of spoken or written words. Whether a statement is false depends on the meaning of the words in all the circumstances, including what may fairly be inferred from them. An assertion may also be inferred from conduct other than words. Concealment or even non-disclosure may have the effect of a misrepresentation... An assertion need not be fraudulent to be misrepresentation. Thus a statement intended to be truthful may be a misrepresentation because of ignorance or carelessness, as when the word 'not' is inadvertently omitted or when inaccurate language is used. But a misrepresentation that is not fraudulent has no consequence... unless it is material."
(Emphasis provided)
A 'material misrepresentation' has further been defined as:--- "material misrepresentation.
1. Contracts. A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent.
2. Torts. A false statement to which a reasonable person would attach importance in deciding how to act in the transaction in question or to which the maker knows or has reason to know that the recipient attaches some importance.
(Emphasis provided)
Perusal of above meaning and definition, it is evident that the fraud and misrepresentation was asserted by the plaintiffs in their application under Section 12(2), C.P.C. when they say that the defendants posing dishonestly and deceivingly asked the plaintiffs that they were ready to give their share in the inherited property but later on, they refused to do so. So far as the observation of learned Trial Court that since the alleged misrepresentation took place out of the Court, it was not worthy to be taken cognizance thereof is concerned, the provisions of Section 12(2), C.P.C. do not speak about misrepresentation within or outside the Court, therefore, wherever the alleged misrepresentation took place does not matter and the Court was bound to take cognizance thereof. Therefore, I am not in acquiescence with the observation that since no misrepresentation was committed before the Court, this application was not proceedable. Even otherwise, the claim of the plaintiffs pertains to their share in inheritance lelt by their parents and it is settled law that no limitation runs in inheritance cases having the recurring cause of action and a party having its right in the inherited property can claim the same at any time. Therefore, the application under Section 12(2), C.P.C. required its decision on merits after recording of evidence and it could not be dismissed summarily.
8. Perusal of judgment passed by learned lower Appellate Court reveals that it has observed that application under Order VII, rule 11, C.P.C. was not maintainable having been filed against an application under Section 12(2), C.P.C. as the former application talks rejection of the plaint whereas the latter was an application and not a plaint. I am not in consonance with this observation of learned lower Appellate Court as the application under Section 12(2), C.P.C. is a substitution of the fresh suit and it is to be decided like that of a suit, as such, the application under Order VII, rule 11, C.P.C. was maintainable.
9. The judgment passed by learned lower Appellate Court to the extent that the application under Section 12(2), C.P.C. involving disputed questions of facts was required to be decided on merit after recording evidence of the parties is in accordance with law. Learned counsel for the petitioner has not been able to point out any illegality therein. The case-law relied upon by learned counsel for the petitioner being distinguishable on facts is not applicable to the case in hand. No interference is called for.
10. For the afore-mentioned reasons, this writ petition fails which is accordingly dismissed.