1. ' WALI MUHAMMAD KHAN, J.---Allah Wasaya and others, appellants herein, through leave of the Court have called in question the judgment dated 25-5-1991 passed by a learned Single Judge of the Lahore High Court, Multan Bench, whereby their Writ Petition No,126/91 challenging the judgment of the Additional District Judge, Multan dated 24-4-1991, was dismissed in limine. The leave granting order is as follows:-- "Leave to appeal is granted to examine whether it was not on facts admittedly a case falling under section 12(2), C.P.C. As held by High Court on account of following facts:--
(i) The date of death of Hassan Bux 29-12-1982.
(ii) His signatures on power of attorney 8-12-1985.
(iii) Representation of heirs of Hassan Bux as their submissions to compromise.
2. ' Security 5,000. Status quo maintained."
3. ' The facts of the case briefly stated, are that Khuda Bakhsh, respondent No,4 herein; Hassan Bakhsh, predecessor-in-interest of appellants 1 to 5; and Mukhtar Ahmad, appellant No,6; purchased land measuring 54 Kanals 3 Marlas vide Mutation No,347 attested on 30-8-1980 for a sum of Rs,54,000 from one Hafeez Ahmad which gave rise to a pre-emption suit filed by Irshad Ahmad, Mst. Faiz Ilahi and Sultan Ahmad, respondents 1 to 3 herein. Mukhtar Ahmad was shown as minor and Khuda Bakhsh was appointed as guardian ad litem for him. The suit was contested by the defendants and they in their written statement denied the superior right of preemption of the plaintiffs/pre-emptors and claimed to have purchased the suit land for a sum of Rs,82,000. During the course of proceedings an over was made by the plaintiffs/pre-emptors that if Khuda Bakhsh defendant No,1 states the exact amount spent by him on the purchase of the suit land through oath on the Holy Qur'an, they are ready to accept the same as sale consideration. Khuda Bakhsh defendant No,1 accepted the offer and by taking oath on the Holy Qur'an stated that the defendants had spent Rs,81,700 on the acquisition of the suit land through purchase. He also accepted the superior right of pre-emption of the plaintiffs/precemptors on account of their being collaterals of the vendors. On the bais of this oath the suit of the plaintiffs/pre-emptors was decreed vide judgment and decree dated 18-5-1986 in lieu of Rs,81,700.
4. ' Allah Wasaya and others, appellants herein, filed an application under section 12(2) of the Civil Procedure Code on 30-9-1987 challenging the judgment and decree dated 18-5-1986 on the ground of fraud and collusion on the plea that specific permission of the Court on behalf of the minor was not secured according to law and that Hassan Bakhsh defendant having already died prior to the offer of oath and his heirs having not been brought on the record the decree obtained on the strength of oath was as a result of collusion between the plaintiffs/pre-emptors and Khuda Bakhsh defendant/respondent. This application was resisted, necessary evidence led pro and contra on the allegation made by the parties recorded and the learned Civil Judge vide his judgment and decree dated 13-6-1990 accepted the application under section 12(2), C.P.C. And set aside the decree passed by him on 18-5-1986 and ordered the de novo trial of the suit after bringing in the legal representatives of Hassan Bakhsh deceased/defendants on the record. This was challenged by the plaintiffs/decree-holders in the appellate Court through a revision petition which was accepted vide judgment dated 24-4-1991 and by setting aside the order dated 13-6- 1990, and the original decree for possession through preemption dated 18-5-1986 was restored.
5. Allah Wasaya and others appellants herein, haivng no other legal remedy invoked the Constitutional jurisdiction of the High Court for setting aside the revisional order of the Additional District Judge but with no success vide the impugned order dated 25-5-1991. Hence the instant appeal through leave of the Court.
6. ' We have heard Mr. Muhammad Aqil Mirza, Advocate, for the appellants, Rana Muhammad Sarwar, Advocate, for the respondents; and have perused the record of the case.
7. ' As discussed above, Mukhtar Ahmad appellant No,6 was shown as minor in the heading of the plaint with Khuda Bakhsh defendant No,1 as guardian ad litem for him and nobody on behalf of the minor came forward to challenge the appointment of Khuda Bakhsh as guardian of Mukhtar Ahmad on any ground whatsoever or that he had any conflicting interest with that of the minor.
8. Hassan Bakhsh defendant No,2 was undisputedly alive at the time of the institution of the suit and according to the version of the appellants he had appointed a counsel to defend him in suit. On his death during the pendency of the suit, his heirs appellants 1 to 5 herein,' were aware of the proceedings in the pre-emption suit filed by Irshad Ahmad and others, respondents 1 to 3 herein, and they ought to have participated in the further proceedings of the suit if they were not satisfied with the conduct of the suit by Khuda Bakhsh defendant/respondent. Under Order XXII, Rule 3 the plaintiffs, no doubt, have to apply to bring on record the legal representatives of the deceased/defendant but thier failure to do so is no longer fatal to the suit as under the amended provision even if the proceedings are continued against a dead person a decree can be passed against him notwithstanding his death during the pendency of the suit. Consequently the non- impleadment of his legal representatives could not legally hamper the progress of the suit. At the same time it was equally the responsibility of the heirs of the deceased/defendant Hassan Bakhsh to have brought the factum of his death to the notice of the Court and requested for bringing in his L.Rs, on the record. Their inaction in this respect can lead to the only conclusion that they had left the conduct of the case in the hands of Khuda Bakhsh co-vendee with them and were satisfied rather acquiesced in his performance.
9. ' The plaintiffs/pre-emptors had based their claim on the ground of being collaterals of the vendor, Khewatdar in the estate and Khewatdar in the suit land. Defendant No,1 was admittedly a Khewatdar according to para.5 of the plaint but he had sunk with the co-vendees/defendants 2 and 3 who were strangers. In the written statement in para. 3 of the preliminary objections defendant No,1 alone claimed the superior right of pre-emption on account of being tenant of the suit land but it was not specifically pleaded in the written statement as to whether the other defendants/co-vendees had any right of preemption or not. The suit was filed on 30-7-1981 and the offer of oath was made on 18-5-1986. Obviously much of the evidence must have been recorded in the meantime. It appears that the defendants/vendees were not seriously contesting the superior right of pre-emption of the plaintiffs/pre-emptors but wanted the refund of expenses like District Council fee and other allied charges incurred on the finalisation of the sale transaction. To resolve this controversy the plaintiffs/pre-emptors wanted Khuda Bakhsh defendant No,1 to take oath which he accepted. He also specifically stated while taking the oath that the plaintiffs have the superior right of pre-emption being the collaterals of the vendor which was followed by the decree of the Court.
10. The appellants have challenged the decree passed by the competent Court of law on the ground of fraud and collusion under section 12(2) of the Civil Procedure Code and the burden heavily lay upon them to establish that the fraud had been practised by the decree-holders on the Court in the obtaining of the impugned decree. 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. In the instant case the plaintiffs/decree- holders neither misstated any fact nor concealed anything from the Court to obtain the impugned decree. There is not an iota of evidence to show that there was any collusion between Khuda Bakhsh defendant/co-vendee and the pre-emptors/decree-holders, rather they were at variance till the last moment so far as the sale consideration was concerned. As stated earlier, Mukhtar Ahtnad appellant No,6 was duly shown as minor in the heading of the plaint and Khuda Bakhsh was appointed his guardian-ad-litem which was never objected to even by Mukhtar Ahmad himself when he attained majority as, according to his own admission his mother had the knowledge of the suit. As regards the non-bringing of the heirs of Hassan Bakhsh deceased on record after his death during the pendency of the suit, their non-impleadment was not legally fatal for the progress of the suit and failure on the part of the plaintiffs/pre-emptors to apply for bringing on the record the heirs of the deceased Hassan Bakhsh cannot amount to fraud. The impugned decree does not amount to a decree on the basis of compromise but it is a decree passed aftrer contest by the Court in view of the admissions and confessions made by the respective parties and it could not be legally assailed through an application under section 12(2), C.P.C.
11. In view of what has been stated above the judgment of the learned Additional District Judge, Multan dated 24-4-1991 was perfectly legal and was rightly maintained by the High Court through the impugned order. Finding no merit in the instant appeal, the same is hereby dismissed with no order as to costs.