ABDUL HAMEED BALOCH, J.---Through this common judgment I intend to dispose of Civil Revision Petitions Nos.40 and 109 of 2014, arising out of the common order dated 13th November, 2013 (impugned order) passed by Additional District Judge-VI, Quetta, (appellate court), whereby the applications filed by the petitioners of both the petitions under section 12(2), C.P.C. were dismissed.
2. Concise facts of the case are that the predecessors of respondents Nos. 1 to 13 of Civil Revision Petition No. 40 of 2014 i.e. Khair Muhammad, Sher. Muhammad, Ainuddin and Malik Agha Muhammad, filed a suit for declaration and permanent injunction against the respondents Nos. 14 to 18, which was contested by them by filing written statements. The trial court (Civil Judge-I, Quetta) framed issues, on which the parties produced pro and contra evidence. On conclusion the trial court dismissed the suit vide judgment and decree dated 27th September, 1997. Being aggrieved the, predecessors of respondents Nos. 1 to 13 filed appeal before Additional District Judge-III, Quetta (appellate court), who vide judgment and decree dated 22nd August, 1998 set aside the judgment and decree of the trial court and decreed the suit. After decree of the suit the decree holders filed execution application. Whereafter, the petitioners Shams-ud-Din and Atta Muhammad of Civil Revision No. 40 of 2014 and Government of Balochistan through Senior Member Board of Revenue of Civil Revision No. 109 of 2014 filed two separate applications under section 12(2), C.P.C. before appellate court for setting aside of the judgment and decree dated 22nd August 1998, which were contested by the respondents Nos. 1 to 14 (Civil Revision No. 40 of 2014). The learned appellate court after hearing the parties dismissed the applications under section 12(2), C.P.C. vide order dated 27th December, 2007. Being' aggrieved the petitioner of Civil Revision No. 109 of 2014 filed Civil Revision No. 15 of 2008, which was allowed vide order dated 29th June, 2009, against which Civil Petition for Leave to Appeal No. 114-Q of 2009 was filed before Honorable Supreme Court of Pakistan, which was allowed and application under section 12(2), C.P.C. was remanded to the appellate court for disposal of the same after recording of evidence, if any, in accordance with law. While the Civil Revision No. 22 of 2008 filed by petitioners of Civil Revision No. 40 of 2014 before this court was allowed and matter was remanded to the appellate court with direction to decide the application under section 12(2), C.P.C. after recording evidence, if any, in accordance with law. After remand both the applications under Section '12(2) C.P.C. were transferred to the files of Additional District Judge-VI, Quetta. In the applications issues were framed, on which the petitioners produced their evidence. Thereafter, the appellate court vide impugned order dated 13th November, 2013 rejected both the applications under section 12(2), C P.
C . Being aggrieved of the impugned order the petitioners of both the petitions are before this court.
3. Learned counsel for the petitioners (Civil Revision No. 40 of 2014) contended that the judgment of the appellate court dated 13th November, 2013 is contrary to law and facts. The predecessor of private respondents through fraud and misrepresentation concealed material facts and obtained the decree. The petitioners are owners in possession of the property which was within the knowledge of the private respondents, but intentionally they did not array them in the suit. The private as well as official respondents have no right over the suit land.
4. Learned Additional Advocate General in Civil Revision Petition No. 109 of 2014 stated that the suit land is unsettled one. The respondents have no concern with the suit property. The petitioner is owner of the land. The judgment/decree could not be passed in absence of the petitioner. The plaintiffs got the judgment by means of fraud and misrepresentation. The appellate court while deciding the application under section 12(2), C.P.C. has failed to appreciate the record. Learned Additional Advocate General prayed for acceptance of the application under section 12(2), C.P.C. and setting aside of the decree.
5. Conversely the learned counsel for the private respondents/ plaintiffs stated that the judgment and decree passed by the appellate court is according to law. The Board of Revenue was party in appeal but the referred to respondents (Board of Revenue) has not failed appeal against the judgment of trial court dated 22nd August, 1998. The petitioner (Civil Revision No. 109/2014) filed instant revision petition with the delay of more than twenty days without affording plausible explanation, as such prayed for dismissal of the petition. He placed reliance Muhammad Basher v.
Province of Punjab 2003 SCMR 83.
6. Heard and perused the record. The trial court rejected application under section 12(2), C.P.C. and upheld by appellate court. It would be appropriate to reproduce section 12(2), C.P.C., which reads as under: "Section 12(2), C.P.C: Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree or order and not by a separate suit."
7. The record depicts that the petitioner of Civil Revision No. 109 of 2014 (Board of Revenue) was arrayed in the suit. The trial court after recording evidence dismissed the suit of respondents/ plaintiffs. Being aggrieved of the same the respondents/plaintiffs filed appeal before Additional District Judge-III, Quetta. The counsel for the appellant (respondents/ plaintiffs) and learned ADA appeared before the appellate court argued the matter. The appellate court accepted the appeal and decreed the suit, but the petitioner (Board of Revenue) has not assailed the judgment of the appellate court and after lapse of considerable time filed application under section 12(2), C.P.C. The decree may be set aside through appeal, revision and review. In the instant case the petitioner of Civil Revision No. 109 of 2014 has not filed appeal, instead filed application under section 12(2), C.P.C. for annulment of decree on the ground of misrepresentation and fraud. Before proceeding further it is appropriate to define the words "fraud" and "misrepresentation" used in section 12(2), C.P.C.
"Fraud"
"Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others u. Khuda Bakhsh) PLD 1959 Kar. 221. "
"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi) PLD 1962 SC 134).
"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).
"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two person that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655).
"For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud" (Zafarullah and others v. Dost Muhammad and others PLD 1984 Lah. 396).
"Fraud"
"A- false representation of a 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 legalinjury"----"A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated"
(Blacks Law Dictionary Fifth Edition).
"Misrepresentation"
"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement offact. 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." (Blacks Law Dictionary Fifth Edition).
8. The scope of section 12(2), C.P.C. is limited. While exercising jurisdiction under section 12(2), C.P.C. the court has to confine itself only to the extent of deciding question of fraud and misrepresentation. The petitioners have not mentioned the particular details of fraud. Mere allegation of fraud and misrepresentation has not qualified the allegation of fraud. The petitioners have failed to point out with whom collusion the fraud has been committed. The petitioner in Civil Revision No. 109 of 2014 was party to the suit, appeared before the appellate court, but failed to assail the judgment of appellate court meaning thereby that the petitioner was in knowledge of the outcome of the suit. In case Mrs. Rubab v. Aftab Ahmed 2015 MLD 756, it was held: "---During the arguments, learned counsel for the appellant has failed to point out any substantial evidence to establish the factum or element of fraud and misrepresentation played out in obtaining the order against the appellant. It is not out of place to state here that under the law the full particulars of fraud and misrepresentation are required to be given in the 'application with the supporting evidence to establish ex facie the plea of fraud and misrepresentation. The Court would proceed to examine such application if it is alleged that during the proceedings in the Court the fraud or misrepresentation has been practised. The provisions under section 12(2), C.P.C. would not be attracted when the fraud or misrepresentation is not alleged in connection with the pending proceedings. A consequent order, which is consciously assented, by the parties or their counsel cannot be normally interfered with unless it is brought through reliable evidence which is apparent on the face of the record that the same was obtained by practicing fraud and misrepresentation.
The facts of the present case do not speak out any particulars of fraud or misrepresentation, as alleged by the appellant, to have been practiced upon her. Nor the application under section 12(2), C.P.C. gives out the necessary and requisite details of fraud and misrepresentation as required by the law. As observed above, the learned counsel for the appellant has also failed to point out the factum of alleged fraud and misrepresentation having been practiced on obtaining the order dated 15-12-2010, which admittedly was passed with the consent of the counsel of the appellant.
Besides, no illegality in the impugned order has been argued by the learned counsel for the appellant to justify its reversal."
9. The plea of fraud and misrepresentation are pre-condition for application under section 12(2), C.P.C. Whenever the fraud and misrepresentation is alleged by the party, the particulars of fraud and misrepresentation with detail have to be mentioned in the application. Besides the party who alleged the fraud and misrepresentation must bring the detail facts of fraud on record. There is no cavil to this proposition that the party who alleged some thing must prove the same. Under Article 117 of the Qanun-e-Shahadat Order, 1984 (Order 1984), the party desire the order or judgment from the court must prove their contention. Article 117 of the Order, 1984 reads as under: "Article 117: Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
10. So far petition (Civil Revision No. 109 of 2014) is concerned the petitioner filed petition with the delay of more than 20 days without sufficient cause.
11. Under section 115 subsection (1), second proviso of Code of Civil Procedure the limitation for filing revision petition is ninety (90) days. The section reads as under: "Section 115, C.P.C. Revision. [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court-and in which no appeal lies thereto, and if such subordinate Court appears -
(a) ------------
(b) -----------
(c) ----------- ----------- Provided further that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months."
12. Section 5 of the Limitation Act, 1908 is not applicable in revision petition. Where special or general law had itself prescribed a period of limitation Section 5 of the Limitation Act, 1908 is not applicable. Reliance is placed on case Allah Dino v. Muhammad Shah 2001 SCMR 286, wherein it was held: "5. We have given our anxious thought to the proposition under examination. There is no cavil with the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a Whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P. C. then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, as held in the cases (i) The Canara Bank Ltd. v. The Warden Insurance Co. Ltd. (AIR 1935 Bombay 35), (ii) Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 572), (iii) Ali Muhammad and another v. Fuai Hussain and others (1983 SCMR 1239), (iv) Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi (PLD 1999 Karachi 76) and (v) Haji Muhammad Ashraf v. The State and 3 others (1999 MLD 330)."
13. Where the party seeks condonation of delay, the same is required to explain each day's delay, as valuable right accrued to other party cannot be taken away lightly. The period of delay is condoned provided that the applying party succeeded to establish each day's delay was due to some unavoidable reason. The party has to be vigilantly pursue his/their case. The record reflects that the appeal was dismissed on 10th November, 2018, whereas instant petition was filed on 17th April, 2019. The arguments of the petitioner could be considered that he was implicated in NAB case, but the petitioner was granted ad-interim bail on 11 the March, 2019, but he filed instant revision after more than (35) days. The petitioner has not alleged in his application that due to negligence of counsel the petition was filed belatedly. In Nasrullah Khan's case, 2020 SCMR 2101, it was held: "8. We may point out here that limitation is not merely a technicality. The importance of the law of limitation has been beautifully explained in the case of Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) in the following terms: "From the various dicta/pronouncements of the superior court, it can be deduced without any fear of contradiction that [the law of limitation] is founded upon public policy and State interest. This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking relief's/remedies relating to such cause of action and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law... The law of limitation requires that a person must approach the Court and take. recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire."
Reliance is also placed on cases Imtiaz Ali v. Alta Muhammad PLD 2008 SC 462, City District Government Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676, Provincial Corporative Bank Ltd. v. Secretary Government of Pakistan, Ministry of Defence NLR 2000 Civil 88.
14. The record reflects that the petitioner in Civil Revision No. 109 of 2014 (SMBR), learned ADA appeared before the appellate court and argued the matter. The decision of the case has not been passed behind the back of petitioner. In such circumstances the allegation of fraud and misrepresentation is after-thought.
In view of above discussion the C.M.A. No. 314 of 2014 filed by the petitioner of Civil Revision Petition No. 109 of 2014 is dismissed. In such circumstances Civil Revision Petition No. 40 of 2014 is dismissed on merit, whereas Civil Revision Petition No. 109 of 2014 is dismissed being barred by time as well as on merit and the judgment and decree dated 13th November, 2013 passed by Additional District Judge-VI, Quetta is upheld. The parties have to bear their own costs.