The facts of the case are that the suit land "was sold by respondent No. 6 Abdul Qadir in favour of respondents Nos. 1 to 5. Two separate suits were filed in order to pre-empt the sale of the land, one by the appellant's and the other by respondent No. 7, Qasim A.I. Both the suits were consolidated and disposed of by the same judgment by the learned trial Court. It is significant to note that the appellants who were defendants in tile suit filed by respondent No. 7, raised a plea that the suit filed by him was collusive and vas for the benefit of the vendees and as such was liable to be dismissed on that ground alone. A regular issue was framed in this regard by the learned Civil Judge trying the said suit and ulti--mately the said plea was rejected by him. Qasim A.I, respondent No. 7 was found having superior right of pre-emption as against the appellants and a decree for possession by pre-emption was passed in his favour on payment of Rs. 2,500.00 on or before 1-4-1958. It was further held by the learned trial Court that if the said amount was not deposited by Qasim A.I then his suit would stand dismissed and the appellants would be entitled to the possession of the suit land byway of pre-emption on payment of the above-mentioned amount on or before 12-4-1958 and in case they failed to deposit the amount then their suit would also stand dismissed.
2. It is admitted that respondent No. 7, Qasim A.I deposited the said amount within time and 1 /5th of the pre emptive price which had been deposited by the appellants was withdrawn by them. The present suit out of which the appeal has arisen was filed by the appellants on 26-4-61 for possession of the land in suit, on the ground that the decree was obtained in the suit filed by respondent No. 7, Qasim A.I by collusion and fraud by respondents Nos. 1 to 5 and 7. It was alleged that the said suit was actually filed for the benefit of respondents Nos. 1 to 5, the vendees, in order to defeat the suit of the appellants. It has been further alleged in the present suit that the pre- emption money was actually deposited by respondents Nos. 1 to 5, no mutation of sale in favour of respondent No. 7 by way of pre-emption was got entered in the relevant revenue record and the decree was also not got executed against respondent Nos. 1 to 5 who are still in possession of the suit land as owners.
3. This suit was contested by respondents Nos. 1 to 5 and 7 jointly and written statement was filed on their behalf denying any collusion or fraud on their part in order to defeat the suit of the appellants. It was further alleged that the pre-emptive price was deposited by respondent No. 7 himself and the decree passed in his favour was not got executed on account of adjustment and understanding arrived at between him and respondents Nos. 1 to 5 after the decision of the suit in his favour. It was further pleaded that the present suit was barred by res judicata as the issue with regard to the bona fides of respondent No. 7 Was framed and decided in the previous suit against the appellants and the same would operate res judicata against them. The learned trial Court framed the following issues on the basis of the pleadings of the parties.
(1).Whether the pre-emption decree dated 28-2-1958 so far as defendant No. 7 is concerned is illegal and inoperative as against the plaintiffs on account of fraud ? O. P. P.
(2) Whether the alleged point, of fraud is res judicata ? O. P. D.
(3) Whether the plaint fails to disclose a cause of action ? O. P. D.
(4) Whether the suit is within time ? O. P. P.
(5) Whether on account of a previous decision of pre-emption suit the plaintiffs have the right to sue ? O. P. P.
(6) Whether the defendants are entitled to special costs under section 35-A, C. P. C. If so, to how much of the amount ? O. P. D.
(7) Relief.
The learned trial Court found issues Nos. 1 and 5 against the appellants and issue No. 4 in their favour while issues Nos. 2, 3 and 6 were decided against respondents. The suit of the appellants was dismissed on account of the findings on issues Nos. 1 and 5. The appellants filed appeal against the judgment and decree passed by the learned trial Court but the same was dismissed by the learned District Judge, Sialkot, vide his judgment and decree dated 20-7-1963.
4. In order to prove issue No. 1 that the pre-emption decree dated 28-2-1958 was obtained by respondent No. 7 by fraud and misrepresenta--petition, the plaintiffs examined P. W. 1, Muhammad Shafi son of Ghulam Muhammad and Muhammad Shafi son of Ahmad Yar one of the plaintiffs -- appellants. P. W. 1 has deposed that respondent No. 7 never got the pre--emption decree executed and the suit land was in possession of respondents Nos. 1 to 5 uptill now. He further stated that the pre-emption decree was obtained by respondent No. 7 for the benefit of the said respondents. He, however, admitted that any talk in regard to collusion between respondent No. 7 and respondents Nos. 1 to 5 never took place in his presence. However, it was known to every body that the pre- emption suit was filed by respondent No. 7 at the instance of the said respondents. This statement has been supported on all material facts by P. W. 2 Muhammad Shafi son of Ahmad Yar one of the plaintiffs.
5. It is admitted that after the pre-emption decree was passed, the same was not got executed and no effort was. Made to get the necessary mutation effected in this behalf. The entries in he relevant revenue records (Exh. P. 3) show that the., land in question ,continued to be in possession of the vendee i. e. respondents Nos: 1 to, 5 even after the pre-emption decree was passed in favour of respondent No. 7. The learned District Judge in his impugned judgment while discussing issues Nos. 1 and 5 has not accepted the explanation of respondent No. 7 that respondents Nos. 1 to 5 were in possession of the suit land as his tenants and the land in question has been leased out by him to them after the pre-emption decree. He has however, held that respondent No. 7 came to some understanding with respondents Nos. 1 to 5 after the said decree, on the basis of which he did not get the same executed against them. He is of the view that since the said understanding or arrangement between respon--dent No. 7 and respondents Nos. 1 to 5 was reached after the decree therefore, it cannot be said that the same was obtained by respondent No. 7 by fraud.
6. It has been vehemently argued by the learned counsel for the appellants that the conduct of respondent No. 7, as discussed above, clearly shows that the pre-emptive decree in question is collusive and has been obtained by fraud for the benefit of respondents Nos. 1 to 5 only and respondent No. 7 instituted his pre-emption suit at their instance. The question which arises for consideration is as to whether the said conduct of the respondent No. 7 is sufficient to hold that the decree in question has been obtained by fraud. No direct evidence has been produced to prove A issue No. 1. Even this has not been tried to be proved that the pre-emption amount was deposited by respondents Nos. 1 to 5 and not by respondent No. 7 as alleged by the appellants. No effort has been made by the appellants to get the relevant receipt regarding the payment of the said amount produced in the Court. Respondent No. 7 however, was not obliged to produce the said receipt unless required by the Court to do so. In order to prove that the decree in question was obtained by fraud it was necessary to prove that there was collusion between respondent No. 7 and respondents Nos. 1 to 5 before the institution of the pre-emption suit by respondent No 7. The appellants want the Court to draw inference from the conduct of respondent No. 7 as well as respondents Nos. 1 to 5 adopted by them after the award of the decree in question. It is possible as held by both the Courts below that the said respondents may have entered into some arrangement after respondent No. 7 was awarded the decree for pre-emption of the land. Nothing has been brought on record to show that at the time when the suit far pre-emption was instituted by respondent No. 7 he was not honest to pursue the same or that some understanding already existed before the institution of the suit or reached during the pendency of the same. The learned counsel for the appellants has relied upon Ganesh Chandra Ba,u v. Basu Lasker and others (1), Grindlay's Bank Limited v. Murree Brewery Compan v Limited (PLD 1954 Lah. 74.5), Mst. Izzat and another v. Kadir Bux PLD 1959 Kar. 221) and Chhajju Ram v. Neki and others 1943 1 C 177) in order to show that fraud vitiates the decree and the pleaof res-judicata cannot be taken in a case where validity of the decree has been challenged on account of fraud having been practised on the party or the Court.
7. The facts of the case as reported in PLD 1958 Dacca 295 are that the compromise deed which was accepted was presented before the Court purported to have been signed by all the parties.
Thereafter one of the defendants in the case, filed an application under section 151, C. P. C. Stating that he was not at all aware of the compromise .End he did not even sign the compromise deed and had not authorised his lawyer to file the same. It was further stated that another defendant was also not present in the city on the date when the compromise deed was presented and as such the power purported to have been filed on his behalf was forged and fraudulent document and that the lawyer in collusion -with the decree-holder pleaded false with the Court and filed the compromise deed against the interest of the defendant. The parties led evidence after the said application was filed under section 151, C. P. C. For setting aside the decree obtained by fraud. The evidence led by the defendant-applicant was to the effect that the said compromise deed was filed without his as well as others' knowledge and consent. It was found by the Court on the basis of the evidence led by the parties that fraud had been exercised and that the compromise deed was not the outcome of any mutual agreement between the parties and that except one of the defendants none else was present at the time of the talk of the compromise and his consent was also obtained by false statement of facts. It was further found that there was absolutely no reason to hold that the compromise deed was drafted and filed in the presence of the defendants. This order of the learned trial Court was challenged in the High Court but the same was upheld on the ground that the trial Court was genuine in entertaining the application under section 1.51, C. P. C. In the special circumstances of the case and set aside the decree obtained by fraud. The circumstances as discussed above do not indicate as stated above that any fraud was played during the pendency of the suit while in the case cited above all the incidence leading to fraud happened during the pendency of the proceedings before the Court.
8. The facts of the case as reported in PLD 1954 Lah. 745 are that certain directors of the Murree Brewery Company Limited obtained an order from the High Court for holding a general meeting of the Company were still the property of certain other director of the Company and not of the Bank to which it was alleged the shares had been transferred by that Director in order to escape liability for acts committed by said Director against the interest of the Company while one Director from amongst the Directors who had obtained the order on the above representation had been negotiating for the purchase of self same shares from the transferee Bank and had in fact purchased the shares three days before obtaining the order for a general meeting. It was held by the High Court that the order for a general meeting was obtained by legal fraud and all the proceedings that flowed from that order were void. In the case cited above misrepresentation of facts was made before the Court and as such fraud was played upon it. This is not the position in the present case. Nothing has been brought on record to show that respondent No. 7 made any mis--representation with regard to the facts of the case. No misrepresentation of facts is alleged to have been made by respondent No. 7 or respondents Nos. I to 5 during the proceedings pending before the trial Court. Both the parties fought the case on merits and after the decree for possession of the Land through pre-emption was awarded, the parties appear to have entered into some arrangement. The conduct of the parties with regard to the alleged fraud relates to the period after the award of the decree and not to the period when the proceedings were pending. As such it is not proved satisfactorily that the decree in this case is the outcome of any fraud.
9. The case reported in PLD 1959 Kar. 221 is also not helpful to the appellants. The main point involved in the case is as to whether the plea of resjudicara can be taken in a case where the validity of the decree has been challenged on account of fraud. The respondent in that case had included surreptitiously in the suit, property of the petitioners before the High Court. It was held that since the property of the petitioners had nothing to do with the cause of action, therefore, the decree in the circumstances of the case was obtained by fraud. The plea of res jiidicata was raised in the case and it was urged that the previous suit being between the same parties and in respect of the same subject-matter the decision therein will operate resjudicata against the petitioners.
This contention was repelled being strange. It was held that where the decree was being challenged on account of fraud plea of res-judicata could not be taken. If the decree is obtained by fraud, then the same is a nullity in the eye of law and question of res judicata will not arise. In the case cited above fraud was tried to be practised on the Court as well as . The opposite-party by including land in the suit which did not belong to the respondent. It is, however, to be seen in such a case as to whether the representation made to the Court is deliberately false and if so, then it will amount to a fraud and will vitiate the decree. However, mere falsity of a claim to the knowledge of the person putting forward the same cannot be a ground for setting aside the decree on account of fraud.
10. In the present case, no direct evidence has been led to prove that any false representation was made to the Court deliberately by the said respondents, while in the case cited above it was alleged that the property of the opposite-party had been included in the suit deliberately in order to obtain decree by fraud.
11. Similarly the case reported as Chhuju Ram v. Neki and others also ones not lend any support to the Contention raised on b9h4lf of the appellants. The facts of the case are that the plaintiffs therein sued for possession of certain land by pre-emption and obtained a decree condition-- ally on the payment of certain sum. At the time of the mutation they made a request that the same may be effected in the names of certain other persons as well as their own on the ground that the said persons were partners with them in the pre-emption case who had paid 2/3rd of the price and were non-agriculturists. According to law prevalent at that time, the said persons had no right to bring a suit for pre-emption being non-agriculturists. It was held in the circumstances of the case that the plaintiffs were not suing for themselves alone, but for other persons also and as such were not entitled to a decree for pre-emption. In the present case, respondent No. 7 sued for possession of the land in question alone and according to him he paid the price of the land also.
The allegation made by the appellants that the price of the land was paid by respondents Nos. 1 to 5 has not been proved, as discussed above. The case was fought on merits by all the respective parties. Nothing has been brought on record to show that there was collusion between re9pondent No. 7 and respondents Nos. 1 to 5 during the proceedings of the case. The conduct of respondent No. 7 as well as of respondents Nos. 1 to 5 subsequent to the award of the decree has been questioned in order to draw inference as discussed above, that there was collusion between them in order to obtain the decree by fraud. It has not been proved that any such collusion existed between them before the institution of the pre-emption suit by respondent No. 7 or that such collusion was made during the proceedings of the case. In the circumstances it cannot be said that respondent No. 7 actually sued for pre-emption for the benefit of respondents Nos. 1 to 5.
12. The learned counsel for the respondents has supported the decree passed in his favour on the plea of res judicata, though repelled by the trial Court. He is entitled to do so under Order XLI, rule 22, C. P. C., whereby it has been provided that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him iii the Court below, but take any cross-objection to the decree which he could have taken away of appeal. It has been argued that in the previous suit for pre-emption filed by respondent No. 7 against respondents Nos. 1 to 6, wherein the appellants were also made party, an objection was taken by the appellants that respondent No. 7 was a benamidar and had instituted the suit for the benefit of respondents Nos. 1 to 5. Issue was framed by the learned trial Court in this regard but the same was found by him, by his judgment dated 28-2-1958, Exh. `D/1', against the appellants. The same plea has again been raised in the present case, wherein it has been alleged that the suit of respondent No. 7 was actually filed for the benefit of said respondents and as such fraud was played upon the Court as well as upon them. The question to be seen is as to whether the present suit, in the circumstances is hit by the provision of section 11, C. P. C. Or not. It is true that in a. Case where the validity of a decree is challenged plea of res judicata cannot be raised, but if in a previous suit the said plea has already been taken and decided, then subsequent suit on the basis of the same plea will be barred by res judicata. Under section 11, C. P. C. No Court shall try a suit or issue in which thematter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. As mentioned above, the plea that respondent No. 7 was only a benamidar and had filed the pre--emption suit for the benefit of respondents Nos. 1 to 5 was raised by the appellants, but the same was rejected by the trial Court after framing issue and taking evidence in this regard. If such plea had not been taken in the previous suit, then the position would have been different. In the case of Mst. Izzat and another v.
Qadir Bakhsh relied upon by the learned counsel for the appellants in order to show that plea of res judicata cannot be taken in a case where decree has been challenged on account of fraud, no such plea was taken in the trial Court that the decree in that case was being obtained on account of misrepresentation and fraud. The appellants after having taken the plea of benamidar in respect of respondent No. 7, which amounted to show that the suit had been filed for the benefit of respondents Nos. 1 to 5 and, as such fraud was being played upon the Court as well as them, failed to prove the same. Since the e matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, therefore, the present suit would be hit by res judicata. The learned trial Court as well as the learned lower Appellate Court failed to appreciate this aspect of the case. The judgment and decree passed against the appellants is upheld on other grounds as well as on this ground.
13. For the aforesaid reasons, there is no force in the appeal, which is hereby dismissed. The parties are, however, left to bear their own costs.