SHAKEEL AHMAD, J.- Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitione rs have called in question the judgment dated 12.11.2018, passed by learned District Judge, D.I.Khan, whereby , the Revision Petition filed against the order dated 27.9.2017 of learned Civil Judge-III, D.I.Khan dismissing the application filed by the petitioners under section 12(2) Code of Civil Procedure, 1908, was dismissed.
2. Brief facts of the case are that the respondent No.1 filed suit No.62/1 of 2011 against respondents No.2 to 4 and sought a decree for making rule of the court an arbitration award dated 16.4.201 1 in respect of land measuring 06 kanal 1-1/2 marla, detail whereof was given in the head note of the plaint. The suit was decreed with the mutual consent of the respondent No.1 and 2 to 4 vide judgment and decree dated 25.6.201 1. On 18.2.2012, the petitioners challenged the validity of the said judgment and decree through an application filed under section 12(2)
Code of Civil Procedure, 1908, alleging therein, that the arbitration award has been made rule of the court by practicing fraud, misrepresentation and want of jurisdiction. It was asserted in the petition that, in fact, the decretal property was agreed to be sold by the respondent No.2 vide agreement dated 26.11.2008, wherein, it was agreed that out of 06 kanal 07 marla, land measuring 04 kanal 15 marla adjacent to the petrol pump of the petitioners was to be transferred in lieu of sale consideration of Rs.10,00,000/- per kanal as per contents of agreement deed, the sale consideration was agreed to be paid in easy installments and so far an amount of Rs.48,30,000/- has been paid to the respondent No.2 through cheques. The respondent No.2 insisted to purchase the entire property measuring 06 kanal 07 marla, however , it was not acceptable to the petitioners and they wanted to purchase an area of 04 kanal 16 mrla out of 06 kanal 07 marla adjacent to the petrol pump, in consequence thereof, the respondent No.2 is under obligation to transfer the suit property to the petitioners, learnt about consent decree when they approached the Patwari Halqa for transfer of land in dispute in their favour through mutation, hence, necessitated to file an application under section 12(2) Code of Civil Procedure.
3. After service of summon, the respondents put their appearance, contested the petition by filing written reply separately raising therein many legal and factual objections. After filing written reply, the respondents absented themselves from the court proceedings, therefore, placed exparte vide order dated 23.4.2016. From the divergent pleadings of the parties, following issues were framed.
1. Whether the petitioners have got cause of action?
2. Whether respondents have got the decree in suit No.621/4 through fraud, misrepresentation?
3. Relief
4. The petitioners were directed to produce their exparte evidence. In support of their contention, the petitioners produced Sami Ullah, Patwari Halqa Mouza Korayi who produced register schem e No.130 for the year 1979-80, Khasra Girdawari for the year 2011 and Fard Zer e Kaar for the year 1979-80 as Ex.Pw-1/1, Ex:Pw-1/2 & Ex:Pw- 113 respectively . The petitioner No.2 as Pw-2 reiterated his stance as narrated in the petition and tendered copy of agreement to sell dated 26.1 1.2008 as Ex:Pw-2/2 and closed their evidence.
5. Learned trial court after hearing the arguments dismissed the petition vide judgment dated 27.9.2017. Not contented with the same, the petitioners filed a revision petition before the District Judge, D.I.Khan, which too, was dismissed vide judgment dated 12.11.2018, hence, this petition.
6. It has been argued by learned counse l for the petitioners that the impugned judgment and decree is illegal and the same was obtained by practicing fraud and misrepresentation. He further contended that findings of both the Courts below on the agreement deed dated 26.11.2008 executed by the respondent No.2, wherein, he agreed to sell his property to the petitioners has been ignored which resulted in gross miscarriage of justice, therefore, the impugned judgment is liable to be set aside.
7. Perusal of the record reveals that whole claim of the petitioners is based on the agreement deed dated 26.11.2008, wherein, the respondent No.2 agreed to sell land measuring 04 kanal 15 marla out of 06 kanal 7 marla adjacent to the petrol pump of the petitioners. It is an admitted fact that the petition ers have not yet acquired title of the suit property nor filed any suit for specific performance on the basis of agreement deed dated 26.11.2008, allegedly executed by the respondent No.2 in favour of the petitioners.
8. Moreso, perusal of the statement of petitioner No.2 (Zafar Ali) reveals that he did not utter even a single word that the impugned judgment was obtained by the respondent No.1 by practicing fraud and misrepresentation or decree obtained by him suf fers from jurisdictional defect.
9. It is by now settled that proceedings under section 12(2) Code of Civil Procedure, 1908 is in the nature of declaratory suit, seeking declaration to the effect that the decree passed by the civil court was the result of fraud and misrepresentation. A bare reading of sub-section 2 of section 12 Code of Civil Procedure, 1908 reveals that it has authorized a person aggrieved to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction and where the material on record fails to indicate element of fraud or misrepresentation or want of jurisdiction section 12(2) is not attracted. In this respect, reliance can be made on the case reported as Nigar Bibi through LRs vs Salah ud Din Khan Alizai and 3 others (PLD 2009 Lahore 67).
10. Likewise, it may not be lost sight that for invoking section 12(2) of the Code of Civil Procedure, 1908 qua a judgment, decree or order , it is to be shown that the same was result of fraud, misrepresentation or want of jurisdiction. On consideration of the mate rial on record thoroughly , I have not been able to discover that there was any element of 'fraud' or `misrepresentation' in the matter or there was any 'want of jurisdiction' of the court. The provisions of section 12(2) of the Code of Civil Procedure, 1908 are thus neither attracted nor there is any infirmity in the judgments dated 27.9.2017 and 12.11.2018 passed by learned trial courts whereby the petition under section 12(2) Code of Civil Procedure, 1908 was dismissed on merit of the matter .
11. The petitioners neither alleged nor proved fraud, misrepresentation nor could prove the same despite opportunity given to them, therefore, no case of fraud and misrepresentation is made out for calling interference by this Court.
12. In the context mentioned above, the view taken by the Courts below holds good and as nothing substantial has been brought forth which could impair or erode the factual or legal efficacy of the same, therefore, the instant petition stands dismissed in limine.