MUHAMMAD IJAZ KHAN, J.- Through the instant writ petition, the petitioners have prayed as under.
"On acceptance of this writ petition the judgments and orders passed by both the courts below i.e. 06.11.2020 passed by the Court of Additional District Judge-A Abbottabad and dated 26.05.2016 passed by the Court of Civil Judge-1, Abbottabad be set aside and the application filed by the petitioners under section 12(2) CPC be accepted.
2. This case has got a checkered history which is reproduced below in its chronological order:- i. As per the stance of the present petitioners they have purchased the suit property vide mutation No. 5541 attested on 28.06.1993 in Khasra No. 769 and 847 to the extent of 3 Kanal and 13 Marlas and later on they have also constructed a hotel on the same and the aforesaid entry with respect to the aforesaid mutations are duly reflecting in the subsequent Jamabandies of the year, 1994-95, 1998- 99 and 2002-03, 2006-07, 2010-11 and till date. ii. It was on 21.12.2002 when the present respondents namely Muhammad Khalid and 2 others had filed a suit for declaration to the effect that mutation No. 3355 attested on 30.08.1989 in favour of defendant No. 1 to 6 by defendant No. 7 is based on fraud and thus is the result of collusion with defendant No. 8 and thus ineffective upon the rights of the respondents/ plaintiffs which suit was duly contested and ultimately it was decreed in favour of respondents/plaintiffs vide judgment and decree dated 23.01.2010. iii. When the present petitioners got knowledge about the aforesaid judgment and decree they filed an application under section 12(2) CPC on 20.10.2010. iv. On the other hand since the judgment and decree dated 23.01.2010 was an ex-parte decree, therefore, some of the respondents filed an application for setting aside that judgment and decree, however, their application was initially dismissed by the learned trial Court vide order dated 03.07.2010 and then the appeal filed there-against was also dismissed vide order dated 22.10.2010 and thereafter Civil Revision No. 33 of 2011 was filed before this Court which came up for hearing on 19.04.2013 and the same was allowed vide judgment and order dated 19.04.2013 whereby both the orders dated 03.10.2010 and 22.10.2022 were set aside and the cases were remanded back to the Civil Judge, Abbottabad for trial denovo. v. The record would further reveal that after the remand, the suit was pending adjudication before the Civil Judge-I, Abbottabad, whereas, the application of the present petitioners filed under section 12(2) CPC was also pending before the Civil Judge-I, Abbottabad, however, through an administrative order dated 22.09.2022 the 12(2) petition was transferred from Civil Judge-I, Abbottabad to Civil Judge-V, Abbottabad in which statements of Patwari as well as SOK were also recorded and learned counsel representing the respondents also cross-examined them. Learned counsel for the petitioners vehemently pressed hard that the present respondents were being represented by one and single counsel namely Malik Muhammad Asif Ali, Advocate in the civil suit as well as in 12(2) petition but he did not disclose the factum of pendency of 12(2) petition to the Civil Judge-I, Abbottabad. vi. The aforesaid suit was ultimately decreed vide judgment and decree dated 28.05.2013, thereafter, the petitioners when got knowledge of the aforesaid subsequent judgment and decree he withdrew his earlier petition filed under section 12(2) CPC and filed a second application which was initially dismissed by the Civil Judge vide order dated 26.05.2016, however, when revision was filed the same was allowed and the impugned judgment and decree dated 28.05.2013 was set aside and the learned trial Court was directed to implead the present petitioners in the main case and decide the case afresh. vii. Being aggrieved of the aforesaid order the present respondents filed WP No. 652-A of 2017 which was allowed and the order and judgment of the learned appellate Court was found short of legal requirement of Order 41 Rule 31 CPC, therefore, the case was remanded to the learned revisional Court to decide the case within one month. After the remand the learned revision Court vide impugned order and judgment dated 06.11.2020 dismissed the revision petition of the present petitioner, hence, through the instant writ petition, petitioners have challenged the order dated 26.05.2016 & 06.11.2020.
3. Arguments of learned counsel for the parties were heard in considerable detail and the appended record was also gone through with their able assistance. The main emphasis of the learned counsel for the petitioners was that though the respondents/ plaintiffs have filed the suit in the year, 2002, however, they have appended the Jamabandi of the year, 1982-83. He further stressed that had they been annexed the current Jamabandi then the clear position would have been before the learned trial Court as the names of the present petitioners are continuously reflecting in the revenue record since 1994 till date. He further stressed that the respondents were being representing by a single counsel namely Malik Muhammad Asif Ali, Advocate, however, he did not disclose the factum of pendency of the civil suit or proceedings in 12(2) petition to either of the Court. As against this learned counsel representing the respondents argued that under the principle of Caveat Emptor it was the duty of the present petitioners to have been vigilant while purchasing property from respondent Muhammad Irshad etc. as mutation in favour of respondent bearing No. 3353, 3354 and 3355 have since been cancelled in the year 1989, therefore, the protection as available under Section 41 of The Transfer of Property Act 1882 could not be given to the petitioners. He further argued that the present petitioners should have been brought a damages suit or recovery suit against their vendor.
4. The record of the case would show that the present petitioners had purchased suit property from Muhammad Irshad, Abdul Waheed, Muhammad Sajawal, Qaiser Mehmood and Abdur Razzaq sons of Abdul Aziz vide mutation No. 5541 attested on 28.06.1993 in Khasra No. 769 and 847 measuring 3 Kanal and 13 Marlas situated at Revenue Estate Mirpur, Abbottabad. The aforesaid entries regarding the purchase of the present petitioners are duly reflecting in the subsequent Jamabandi of the years, 1994-95, 1998-99, 2002-03, 2006-07, 2010-11 and till date they are part of the revenue record, however, the instant suit was filed by Muhammad Khalid and 2 others on 21.12.2002 (respondent No. 1 to 3 herein against the rest of the respondents) for declaration to the effect that the plaintiffs are the owners of the land Khasra No. 769 and 847 measuring 3 Kanal and 13 Marlas on the basis of inheritance and that mutation No. 3355 attested on 30.08.1989 in the name of defendant No. 1 to 6 by defendant No. 7 is fake, fictitious and thus ineffective upon their rights. It may be clarified that said defendant No. 1 to 6 namely Muhammad Irshad and others are the vendors of the present petitioners as petitioners have purchased the property vide mutation No. 5541 from them. It is also relevant to mention here that in the said suit as relief "D" the respondents/plaintiff No. 1 to 3 have also sought the cancellation of mutation No. 3355 attested on 30.08.1989. The aforesaid suit alongwith other two suits were contested, however, initially their suit was dismissed but on appeal the case was remanded back to the learned trial Court and after the remand the defendants therein remained absent, therefore, they were placed ex-parte and ultimately an ex-parte judgment and decree dated 23.01.2010 was passed.
5. In view of the above factual aspects, it would be relevant to mention here that on one hand the property purchased by the present petitioners vide mutation No. 5541 attested on 28.06.1993 is the part of the revenue record and the said factum of purchase by the present petitioners is duly reflecting in all the subsequent Jamabandies till date i.e. from 1994 till date, however, one failed to understand that when respondent No. 1 to 3 filed the aforesaid suit on 21.12.2002 he instead of annexing Jamabandi zer-e-kar annexed the Jamabandi of the year 1982-83. Had the respondents No. 1 to 3 filed Jamabandi zer-e-kar then of course the factum of the purchase of the suit property by the present petitioners would have been surfaced then and there but astonishingly respondents/plaintiffs for reasons best known to them had opted to have annexed the Jamabandi of the year 1982-83 and thus have kept the Court in total dark about the transaction which has taken place from 1982-83 till the filing of the suit on 21.12.2002. This conduct on the part the respondents/ plaintiffs is on one hand is highly illogical and on the other hands it speaks volume of their hiding agenda as prima facie they want to keep the Court in dark regarding the purchase of the present petitioners from Muhammad Irshad and others.
6. It was also noted that initially, the proceedings in 12(2) CPC petition of the present petitioners and the proceedings in the main civil suit after the remand were pending adjudication before one and the same Court, however, subsequently through an administrative order dated 22.09.2022 the proceedings in the applications under section 12(2) CPC were transferred to Civil Judge-V, Abbottabad but the counsel of the respondents namely Malik Muhammad Asif Ali, Advocate, who was representing the respondents/plaintiffs in the main case was also defending them in application under section 12(2) CPC but he did not disclose the factum of pendency of civil suit and of proceedings in 12 (2) petition to either of the Court which his active concealment too speaks of their ill design and their unsuccessful attempt to get a favourable decree from the Court of law by making intentional concealment of the above fact.
7. During the course of arguments, the main emphasis of the learned counsel for respondents was that under the principle of Caveat Emptor petitioners should have been vigilant and since the mutations in favour of their vendor namely Muhammad Irshad and others bearing No. 3353, 3354 and 3355 have been cancelled, therefore, when they were no more owners then they could not have sold their property to the present petitioners, however, such stance of the learned counsel for petitioners is misconceived for three fold reasons; firstly, the aforesaid mutations have not been cancelled till date as evident from Ex PW-1/1, nevertheless, they have been submitted for their review only but till date no cancellation order has been issued by the revenue hierarchy, secondly had these mutations been cancelled then why the respondents/plaintiffs in clause (d) of their plaint has sought the cancellation of mutation No. 3355 attested on 30.08.1989 which obviously means that it is still in field and thirdly when the names of vendor of present petitioners namely Muhammad Irshad etc. are duly reflecting in the revenue record as owners then the petitioners have demonstrated a reasonable vigilance by purchasing the same from recorded owners and when subsequently the possession of purchased property was also handed over to them and they have also constructed a hotel therein and thus in the given facts and circumstances the principle of Caveat Emptor could not be pressed against the present petitioners.
8. In view of the above discussion, when the present petitioners have purchased the suit property vide mutation No. 5541 attested on 28.06.1993 and when their names are duly reflecting in the revenue record and till Jamabandi zer-e-kar then respondents/plaintiffs should have been impleaded them in the suit as a defendants but as as stated hereinabove that the respondents/plaintiffs instead of filing their suit on the basis of Jamabandi zer-e-kar have opted to file their suit on the basis of twenty years old Jamabandi pertaining to the year of 1982-83 then in such an eventuality it appears that respondents/decree holders have intentionally and willfully kept the present petitioners out of the contest. Had the petitioners been impleaded in the main suit? they would have proved that they have purchased the suit property from an ostensible owner and they have also been given possession on the spot and it remained an open possession as they have also constructed hotel thereupon but due to their non-impleadment they have been deprived of an opportunity to prove his good faith qua the purchase of suit property.
9. It was also noted that the learned trial Court while passing the impugned judgment and decree has based its findings that the revenue record pertaining to 1994-95 and 1998-99 were placed on file by the Patwari Halqa, however, learned trial Court too did not bother to have gone through the names of the recorded owners. Had it been bothered, it would have been noted that the present petitioners too are recorded owners in the said Khasra numbers and then no decree would have been passed in favour of the respondents in absence of the present petitioners. The mala fide on the part of the respondents/plaintiffs is also evident from this fact alone that despite having the knowledge of the pendency of an application under section 12(2) CPC they willfully kept mum and neither brought this fact to the notice of the trial Court nor they arrayed the petitioners as party therein, therefore, all the aforesaid facts when seen in juxtaposition it prima facie shows that the respondents/plaintiffs have used the process of the Court to get a favourable decree by making active and intentional concealment regarding the suit property being purchased by the present petitioners, therefore, such judgment and decree could not legally sustain.
10. It is relevant to mention there that before 1980, any decree obtained on fraud or misrepresentation could be challenged by an aggrieved person by filing a suit however, thereafter sub section (2) was inserted in section 12 of the CPC, where under an aggrieved person could file an application for setting aside such a decree, the same being relevant is reproduced below:- [12. Bar to further suit. (1)] Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
[(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation 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.] The aforesaid provision of law un-mistakenly show that the validity of a judgment, decree or order could be challenged by an aggrieved person, if such judgment/decree or order has been obtained on the basis of fraud and misrepresentation or if judgment, decree or order is suffered for want of jurisdiction. It is also relevant to mention here that for maintaining a 12 (2) petition the nature and extent of fraud and misrepresentation or jurisdictional defect to be pleaded specifically and then it has to be proved through positive evidence. In the case of "Allah Wasava and 5 others v. Irshad Ahmad and 4 others" reported as 1992 SCMR 2184 the Apex Court has held that "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 a fact by one having knowledge or belief of the fact".
Similarly, in the case of "Mst. Zulaikhan Bibi through LRs and others v. Mst. Roshan Jan and others" reported as 2011 SCMR 986, the Hon'ble Supreme Court has held that "fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any court of law before whom they are produced in any proceedings". Similarly, in the case of "Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others" reported as 2003 SCMR 1050, the Hon'ble Apex Court has held that the concealment of material facts by a person having knowledge or belief of such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of the opposite-party. There can be no exception to the rule of law that without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify, an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. Thus, a summary of the above jurisprudence of the Hon'ble Supreme Court is that Fraud encompasses all acts and omissions whether by suppression of truth or suggestion of fact, which are deliberate and intended to cause benefit to oneself and to cause the other to suffer a loss or the risk of loss. It includes the element of intent and the actual act or omission which follows from such an intent. However, in circumstances there may not be a deliberate intent, yet the act or omission may be so reckless so as to constitute Fraud. Where allegation of Fraud is raised, such an allegation must be specific and must be proved by the party alleging such a Fraud.
11. In view of the above discussion, this writ petition is allowed and the impugned order of learned trial Court dated 26.05.2016 and that of revisional Court dated 06.11.2020 are set aside and consequently the judgment and decree passed in suit No. 65/1 dated 28.05.2013 is also set aside and the case is remanded back to the learned trial Court for decision afresh in the suit in accordance with the law after impleadment of present petitioners as defendants. Order accordingly.