ABDUL HAMEED BALOCH, J. Through the instant petition the petitioners assailed order dated 13th November, 2011 (impugned order) passed by learned Qazi Sarawan Mastung (trial court), whereby application under section 12(2), Civil Procedure Code (C.P.C.) tiled by the petitioners was dismissed.
2. Concise facts of the case are that the petitioners filed an application under section 12(2), C.P.C. before Qazi Sarawan Mastung contending that the plaintiffs filed suit No. 42 of 2010 for declaration, possession and permanent injunction against the defendants which was decided by the learned trial court vide order and decree dated 8th May, 2010. It was case of the petitioners that they were not made party to the suit, as such they were not in knowledge of filing of the suit and on coming to know about passing of order and decree dated 8th May, 2010 the petitioners filed an application under section 12(2), C.P.C. for setting aside of the order and decree dated 8th May, 2010 with the prayer that the parties to the suit fraudulently obtained order and decree. The application under section 12(2), C.P.C. was contested by respondents Nos. 1 to 6 by filing rejoinder to the application and vehemently denied the averments made in the application, whereas the proforma respondents did not appear. The trial court framed issues on 14th November, 2011. The petitioner got examined witness Abdul Sattar, whereafter; the learned trial court due to non production of witnesses by the petitioners closed their side under Order XVII, Rule 3, C.P.C. vide order dated 21st March, 2012. The petitioners filed application under section 151, C.P.C. for recalling of order, but same was dismissed on 23rd May, 2012, against which the petitioners filed civil revision petition No. 153 of 2012 before this court which was allowed vide Order dated 14th May, 2013 and trial court was directed to provide opportunity of leading evidence and thereafter, decide the application in accordance with law. After remand the learned Qazi vide order dated 13th November, 2013 dismissed the application, hence this revision petition.
3. Heard and perused the record. The record transpires that the respondents Nos. 1 to 6/plaintiffs filed a suit for declaration and permanent injunction before Qazi Sarawan Mastung against the respondents Nos. 7 to 11/defendants. The respondents Nos. 7 to 11/ defendants despite opportunity failed to appear and file written statement, as such the trial court struck off the defence and decreed the suit vide order and decree dated 8th May, 2010.
4. The petitioners were not party to the suit, as such filed an application under section 12(2), C.P.C. for setting aside of the order and decree dated 8th May, 2010 of the trial court. The respondents Nos. 1 to 6/plaintiffs appeared and filed rejoinder to the application under section 12(2), C.P.C. The trial court framed issues. The petitioners produced one witness whose statement was recorded, but due to non-production of other witnesses the trial court dismissed the application under Order XVII, Rule 3, C.P.C. Being aggrieved the petitioners filed application under section 151, C.P.C. for recalling of the order dated 21st March, 2012, which was also dismissed. The petitioners filed civil revision petition No. 153 of 2012 before this court which was accepted vide order dated 14th May, 2013 and matter was remanded to the trial court with direction to decide the case on merit. The trial court vide order dated 13th November, 2013 dismissed the application.
5. It appears from the record that the suit property was mutated in the record of rights in the names of the respondents Nos. 1 to 6/plaintiffs under khata No. 5, khatooni No. 8, Khasra No. 179, situated at Behram Shahi Mastung during settlement proceedings. Due to interference the respondents Nos. 1 to 6/plaintiffs filed above referred suit. The respondents Nos. 7 to 11/defendants did not contest the suit; as such the trial court decreed the suit vide order dated 8th May, 2010.
There is no procedure provided to decide the application under section 12(2), C.P.C. Fraud and misrepresentation used to obtain judgment was regarded sufficient to recall the judgment and decree. The legislature has provided a remedy to a person to challenge the judgment by way of filing application under section 12(2), C.P.C. instead of filing independent suit. The main question is that whether the judgment was obtained through fraud and misrepresentation and want of jurisdiction. The word fraud and misrepresentation defined in Black's Law Dictionary as under: "Fraud, n. (14c)
1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her determent. Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime, -- Also termed intentional fraud. [Cases: Fraud 1, 3, 16, 68] 2. A misrepresentation made recklessly without belief in its truth to induce another person to act. [Cases: Fraud 13(3)] 3. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her determent. [Cases: Fraud 13(2), 13(3), 16] 4. Unconscionable dealing; esp. in contract law, the unfair use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain.
Misrepresentation, n. (17c)
1. The act of making a false or misleading assertion about something, usu. with the intent to deceive. The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. [Cases: Fraud 9] 2. The assertion so made; an assertion that does not accord with the facts. --- Also termed false representation; (redundantly) false misrepresentation."
Reliance is placed on case Mrs. Rubab through Attorney v. Aftab Ahmed 2015 MLD 756 [Sindh], wherein it was observed: "____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 fade 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."
The petitioners produced witnesses but none of them stated about fraud and Misrepresentation committed by the respondents Nos. 1 to 6/plaintiffs. Mere bald allegation without substantive the plea by cogent reliable evidence, the judgment/order cannot be recalled/set aside. The petitioners failed to point out any illegality or irregularity in the impugned order of the trial court, as such the same is upheld and petition being devoid of any merit is hereby dismissed. No orders as to costs.