This Civil Miscellaneous application has been moved by Sardar Shaukat Ali and two others under section 12 (2), C. P. C., praying for the recall of the judgment dated 29-1-1980, passed by a learned Single Judge of this Court in W. P. No. 1121/11 of 1979, on the ground that it was procured by Mirza Shamim Ahmad Baig, respondent, by practising fraud and misrepresentation on the Court.
2. Briefly put the facts, which led to the confrontation of the parties and the institution of the writ petition by the respondent are, that the latter was temporary allottee of land measuring 104 kanals 17 marlas situate in village Keer Khurd, within the urban area of Lahore, which was cancelled by the Additional Commissioner (Revenue.), on 8-8-1972 and allotted to one Kanwar. Aftab Ali Khan, who sold it away to the petitioners. On the respondent's move, that he was a co-sharer in a claim, for agricultural land, which was filed with the permission of the Central Government, and was by then to be verified, the Additional Commissioner on 16-9-1972, recalled his order dated 8-8-1972. He held that the respon--dent was entitled to retain the land till the verification of his claim. The petitioners challenged this order through W . P. No. 612/11 of 1972. Inter alla on the plea that they were not heard.
This writ petition has been allowed by me and the case remanded to the Settlement authorities, for a. Fresh decision in accordance with law.
3. The facts concerning the verification of the respondent's claim, which have come to light during the course of the arguments may, be enumerated hereunder.
One Mst. Riaz-un-Nisa a displaced person from. Hyderabad Deccan, approached the authorities, for permission to file a time-barred claim in Schedules I and V but time and again her request was turned down, alongwith others for the reason that she had not filed M. R. 1 (written statement) under Para. 3 of M. L. R. 84, within the prescribed period, !;It appears that eventually she sought permission- for filing claim in Schedules I and VI only and succeeded in obtaining such permission.
Under the Rehabilitation and Works Division's letter No. F. 13 (6)/69-SLI, dated 12-5-1970, her time- barred claim was registered on 23-5-19.70 and allocated No 148321T. Seemingly, while. Filing claim in Schedule I, she also tagged therewith, a duly filled in form, meant for claim in Schedule V. It is however, contended by the petitioners that Schedule V was smuggled in by her at a later stage.
The claim in Schedule I, for urban property, was verified on 12-8-1970 but the verification of her claim in Schedule V was refused. This refusal was maintained even by the Chief Settlement and Rehabilitation Commissioner, under his order dated 5-4-1973. She then agitated the matter before the Central Government and the Rehabilitation and Works Division, again issued U. O. No. F. 13 (6)/109-SI dated 6-8-1974 directing that clam for agricultural land, filed by her on 23-5-1970, would be deemed to be pending on the date of the promulgation of M. L. R.
89. It may be observed that under Schedule V, she claimed 1/8th share in the land measuring 790 acres left by her father namely, Nawab Ghulam Mohi-ud-Din in village Usmanpura District Aurangabad Hyderabad Deccan. The claim was verified for 100 acres, by an Additional Claims Commissioner, by his order dated 8-5-1975. In Column No. 6 of Schedule V there is an entry that out of her 1/8th share, an area measuring 15 acres was gifted by her to Shamim Ahmad Baig respondent.
4. The apparent reason which drove the respondent to file W. P. No. 1121/R of 1979 was that on 27-9- 1979 he moved an application before the learned Member, Board of Revenue (S & R) for verification of his share in the claim for agricultural land, filed by Mst. Riaz-un-Nisa. This application was rejected by him on 19-10-1979 by maintaining that Shamim Ahmad Baig was not a necessary party to the claim. The latter then invoked the writ jurisdiction of the Court, to assail this order, with a.
Further prayer that Claim Registration No. 14832/T be sent to some officer, nominated under section 2 (2) of Act XIV of 1975, for verification of his share in the said claim. He asserted that on 13-5-1972, he moved an application before the Additional Settlement Commissioner, to be impleaded, as a party, in the claim, which Mst. Riaz-un-Nisa was permit--ted to file; the Additional Settlement Commissioner by his order dated 8-6-1972 directed that the application be put up on 19-6-1972 but thereafter no final decision was given thereon. The respondent's case, as disclosed in the writ petition, was that 13 acres area, was gifted to him by Nawab Ghulam Mohi-ud-Din Khan but he died in the year 1945 and the gift could not be brought on the record and that in 1946, Mst. Riaz-un- Nisa in deference to the wishes of her father, made a gift of 15 acres to the respondent, out of the land inherited by her. He thus founded his case, on the entry in Column No. 6 of her claim in Schedule V and pleaded that he was a necessary party to the proceedings, culminating in the verification order dated 8-5-1975.
5. The learned Single Judge referred to the entry in Schedule V and inferred from it that the respondent acquired a title to the land, gifted in his favour. In this context, the contention raised by the latter, that he was a co-sharer in the land described in Schedule V of Mst. Riaz-un--Nisa and thus under para. 3 of Chapter IV of the Manual of Instructions of the Claims Organizations, verification of the claim, should have been made in his name, prevailed with the learned Judge, who also took note of the respondent's application dated 13-5-1972 which was said to have remained undisposed of and Mst. Riaz-un-Nisa's claim verified without notice to the respondent.
On the basis of the documents, constituting annexures of the writ petition, the learned. Judge accepted the writ petition and in compliance with his order, the Additional Claims Commissioner, Lahore on 14-10-1980 verified respondent's claim for 11i acres, as co--sharer of Mst. Riaz-un-Nisa. It may be mentioned here that the writ petition was filed by the respondent through his attorney, Ch. Muhammad Altaf, Advocate, who was earlier the counsel for Mst. Riaz-un-Nisa in her claim case.
6. For completion of the narration of the facts, it may further be added that on the strength of verification of her claim, Certificate QPR-V was issued to her for 100 acres and on 16-7-1975, she applied for payment of cash compensation. Accordingly, a sum of Rs. 68,000 was paid to her by means of a Cheque dated 25-6-1969. When the respondent also applied for an entitlement certificate, seemingly the Department was countenanced with a difficulty. Inevitably, the verification order made in favour of Mst. Riaz-un-Nisa, much against her wishes, was reviewed and the area verified in her name reduced from 100 acres to 88J acres. This was done by the Additional Claims Commissioner by his order dated 18-1-1981.
7. I have heard the learned counsel for the parties quite at some length and with their assistance, thoroughly examined the entire available record. It has been argued on behalf of the petitioners that in order to grab the land, the respondent learned to acquire the status of a claimant. Mst. Riaz- un-Nisa was completely a stranger to the respondent and was not even known to him. Ch. Muhammad Altaf, Advocate, provided a link between the two, a story of the gift was concocted and fraudulently an entry inserted in Column No. 6 of Schedule V, in a different ink. The learned counsel for the petitioners has also pointed out interpolations of figure "790 as "890" in the claim form and tampering with other entries thereof and so also the verification order. He also referred to the registration of a case under sections 498, 469, 471 and 806 read with section 420i506 P. P. C, against the respondent at the instance of the Additional Settlement Commissioner. Particularly, he laid emphasis, on the Additional Claims Commissioner's orders dated 14-10-1980 and 18-1-1981, to hint at various interpolations and forgeries, made in the record and alluded to therein. It was submitted that the application dated 13-5-1972, has been smuggled in the claims record and the order dated 8-6--1972 allegedly passed thereon is a spurious one and outcome of the respondent's conni--vance with the subordinate officials of the Department. The learned counsel has also assailed the entertainment of Mst. Riaz-un-Nisa's time-barred claim in Schedule V by the Central Government and consequently respon--dent's entitlement resting on the gift was categorized as wholly illegal. -It was thus urged that as the respondent procured the judgment dated 29-1-1980 by practising fraud on the High Court, it was liable to be recalled.
8. There is no cavil with the proposition that on discovery of fraud) A the Court on whom the fraud is practised, is bound to re-open the case. However, in the instant case, what the learned Single Judge did was that he acted upon the copies of the claims record, filed with the writ petition and there was no reason to go behind the same. If these documents are held to be genuine and the gift found to have been really made, it is quite evident that the premises put before the learned Single Judge, irresistibly gave rise to the inferences drawn by him. The question thus arises as t whether or not the fraud has been practised on the High Court. On the petitioners own showing, the record of Claim Organization was tampered with, documents were smuggled therein and the orders forged.
Upon these facts. Manifestly, it was the Claims Organization on whom the forgeries were committed. It would be thus for those authorities to intervene and rescind the orders obtained from them by fraud. In this connection a reference to Chief Settlement Commissioner v. Muhammad Fazil Khan (PLD 197. SC 331) will provide :- "It seems to us that while there are cases in which the power of a court or tribunal of special or limited jurisdiction to suo motu recall r review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which the fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud "
Thus, if the documents in question and the premises on which the High Court's judgment is founded, are tainted with fraud, neither it would have the effect of whittling down such fraud nor it stands in the way of the tribunals below, to investigate the matter.
9. The other reason to dissuade the High Court from launching an enquiry in the matter, is, that during arguments, allegations have also been made against Mst. Riaz.Un-Nisa. But she is not a party to these proceedings. It is thus not possible to affectively adjudicate upon the issues raised by the petitioners.
10. It is to be put on the record that on behalf of the respondent, his learned counsel denied all the allegations made against him by the peti--tioners. But since I am not inclined to determine the question of fraud and leaving it to the tribunal below, 'I have avoided to express any opinion on the controversial issues.
11. Before parting with the case I may dispose of another objection raised by the respondent's learned counsel that the petitioners have n locus standi to call in question the validity of the verification order dated 14-10-1980.
12. There is hardly any merit in this contention. The petitioner are directly affected by this order, inasmuch as if the respondent is adjudged to be a non-claimant his entitlement to retain the land, is bound to be jeopardised. They have, therefore, every right to establish that the respondent, in reality is not possessed of the status which he professes.
13. For the foregoing reasons I am of the view that the petitioners remedy lies in moving the tribunals concerned. No ground has been mad out for interference by this Court under section 12 (2), C. P. C. The Civil Miscellaneous application is disposed of accordingly, with no order a to costs.