' One Mian Gohar Mobashir Hamid, the applicant in this case has challenged the validity of the decree passed by this Court in Suit No,665/88 dated 28-11-1988 under section 12(2), C.P.C. On the ground that the same has been obtained by misrepresentation and fraud.
2. The facts of the case, briefly stated, are that defendants Zafar Saleem & Brothers (Pvt.) Ltd., through their Attorneys Farooq A. Shaikh and Mian Hameed Amad had entered into an agreement with the applicant to create their ownership in two plots viz., Plots Nos.21 and 22 situated at Jauharabad for a total consideraton of rs1,00,000 (Rupees one lac). The Agreement of Sale, according to the applicant, had been duly executed and registered at Lahore in the office of the Sub-Registrar, Model Town, Lahore vide Document No,2315 page 257 Volume-I, dated 10-2-1987, after the payment of the entire sale price to the Vendor. However, no sale-deed could be executed for the reason that full proprietary rights had not been conferred on the defendants by Thal Development Authority and certain formalities had yet to be fulfilled. Subsequently, after the defendants got full proprietary rights in the property in question, the applicant approached them for execution of the sale-deed and possession of the plots in question, but without any success, and consequently, the applicant filed a suit for possession and specific performance against the defendants and their Attorney Mian Hameed Ahmad in the Court of Civil Judge, Joharabad and obtained an interim injunction against the defendants restraining them from alienating property in question. However, the defendants, in the meanwhile, mortgaged the said property by conditional sale to the plaintiffs for a consideration of rs1,00,000 (Rupees one lac). The Mortgage Deed was registered in the office of Sub-Registrar, Khoshab vide Document No,166, Extra Behi No,1, Volume No,122(E) dated 1-4-1987. The applicants came to know for the first time about the said mortgage in June, 1987 and consequently he filed another suit (Suit No,211/88) in the Court of Civil Judge, Khushab at Joharabad against the plaintiffs and the defendants and the said Mian Hameed Ahmad and obtained an ad interim injunction from the said Court against the plaintiffs and the defendants by suspension of the operation of the said Mortgage Deed. In the meanwhile, the plaintiffs filed Suit No,665/88 before this Court against the defendants without joining the applicant as a party and obtained a consent decree dated 28-11-1988, for foreclosure and sale of the mortgaged property.
3. The contention of the applicant now is. That the said decree has been obtained by the plaintiffs and the defendants by suppression of material facts and fraud, because neither the applicant, who was a necessary party in the suit, had been joined as a defendant, nor the plaintiffs and the defendants disclosed' before this Court the factum of pendency of the previous litigation between the parties and issuance of an ad interim injunction by the Court at Khushab suspending the operation of the mortgage deed and consequently, the consent decree, dated 28-11-1988 is liable to be recalled under section 12(2), C.P.C.
4. The application has been resisted by the plaintiffs and the defendants and the allegations in regard to misrepresentation and fraud have been denied. It has been denied that the applicants were the purchasers of the property in question or that they were put in possession thereof at any time thereafter. The agreement dated 9-2-1987, allegedly entered into between the defendants and the applicant was also bogus. Apart from the same the applicant, according to the plaintiffs was through out aware of the filing of the suit (Suit No,665/88) by them against the defendants in this Court and they deliberately failed to join the proceedings in the said suit. Although it has been admitted that the plaintiffs were a party to the suit filed in respect of the said mortgage, but they had not been joined as a party to the other suit.
5. I have heard Mr. A.R. Akhtar, learned Counsel for the applicant and Mr. Mansoorul Arfm, learned counsel for the plaintiffs. None had appeared on behalf of the defendants.
6. Mr. Mansoorul Arfin has first contended that validity of a judgment,' decree or order on the ground of fraud or misrepresentation or for want of jurisdiction cannot be challenged by any party unless the party is itself an aggrieved party. Consequently, according to the learned Counsel, it must first be established that there was an agreement of sale in favoar of the applicant in respect of the suit property and since no such evidence has been produced before the Court, the decree is not liable to be set aside. Reliance has been placed by he learned Counsel on the case of Ismail Brothers v. Kevairam PLD 1981 SC 545 wherein it was held that the allegations of fraud general raise mixed questions of law and fact which must be established by an elaborate enquiry. In this regard it may be pointed out that both the counsel appearing on behalf of the applicant as well as the plaintiffs did not express any desire to lead evidence in the case other than the respective affidavits already filed by the parties in support of their respective contentions. No doubt, every person cannot be permitted to challenge the validity of a judgment or decree or order as pointed out by Mr. Mansoorul Arfin but the circumstances under which the Court would be obliged to act under section 12(2) of the Code of Civil Procedure would depend upon the facts of each case. A person challenging the validity of a judgment, decree or order must clearly establish before the Court that the same has been obtained by fraud or misresentation or for want of jurisdiction and only when such fraud or misrepresentation or want of jurisdiction is clearly spelled out from the circumstances of the case, the Court would interfere with the judgment or decree passed by the Court. In the present case, although one of the main contentions of the plaintiffs and the defendants is that no such agreement of sale as claimed by the applicant had been executed between him and the defendants and the alleged written agreement relied upon by him in this regard is bogus and no evidence has been produced by the applicant before this Court which can conclusively establish the execution of such document by the said parties or entering into an agreement by them, however, the Court at the same time cannot be oblivious of the fact that two suits in this regard had been filed by the applicant against the defendants and in the second suit filed by him (Suit No,211/88) the plaintiffs are also a party. In both the suits, as is evident from the copies of the respective plaints filed with the present application, the defendants are alleged to have entered into such transaction with the applicant. No doubt, such allegations are yet to be established by the applicant before the Court before which such suits have been filed but the documents attached with the present application clearly establish a prima facie case as set out in the present application by the applicant. It may be pointed out that although the question whether the decree dated 28-11-1988 had been obtained by fraud or misrepresentation has to be determined from the entire circumstances of the case but misrepresentation or fraud can still be inferred by the Court keeping in view the other surrounding circumstances of the case, notwithstanding the fact that the applicant has failed to conclusively establish before this Court that the applicant had entered into an agreement with the defendants to purchase the property in question.
7. Turning to the next question viz., whether any fraud or misrepresentation has been committed by the plaintiffs or the defendants in the present case, the word "Fraud" has been defined by Ballentine's Law Dictionary, Third Edition, at page 496 as "....Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of truth, or other device contrary to the plain rules of common honesty"
"Misrepresentation" has been defined by the same Dictionary at page 807 as "the statement of untruth. A misstatement of fact, which if accepted, leads the mind to an apprehension of a condition other and different from that which exists." Fraud and misrepresentation are, therefore, more or less synonymous. In the present case, admittedly both the plaintiffs and the defendants failed to disclose before this Court that there was litigation already pending before the Civil Court at Khushab in respect of the suit property. Although the plaintiffs were not a party to Suit No,62/88 which had been filed by the applicant against the defendants for specific performance of the said sale agreement but admittedly both the plaintiffs and the defendants were parties to the second suit. Viz., Suit No,211/88 which had been filed by the applicant against them in respect of the said mortgage. It is also pertinent to point out that whereas in the first case, the Court by an interim injunction had restrained the defendants from further alienating the suit property, in the second case, Clause No,1 of the mortgage had been suspended by the learned Civil Court pending final disposal of the suit. It is also pertinent to point out that in the second suit (Suit No,211/88) the validity of the mortgage had been. Questioned on the ground that the defendants having received the entire sale consideration for the suit property and having parted with its possession, had no further interest left in the suit property. This factual position is further supported by a copy of the registered sale agreement filed by the applicant alongwith the present application. Mr. Mansoorul Arlin has, however, argued that the result of Suit No,665/88 which resulted in the passing of the consent decree dated 28-11-1988 would have no bearing on the litigation already pending against the plaintiffs and the defendants in the Civil Court, Khushab. I am unable to agree with this contention because not only the operative part of the mortgage itself was under suspension by the order passed by the learned Civil Court at Khushab but if Suit No,212/88 or Suit No,62/88 were decreed in favour of the applicant before the disposal of Suit No,665/88, the same might have rendered the said mortgage invalid. The decree passed in the two suits, therefore, certainly had bearing on Suit No,665/88 which as pointed out earlier was decreed by a consent order passed by this Court.
Although, the two suits in the Civil Court; Khushab had been filed for specific performance of the sale agreement and declaration and permanent injunction to render the said mortgage null and void respectively and the suit before this Court was filed for foreclosure of the said mortgage but in all the said suits the validity of the mortgage was either directly or indirectly in issue. Therefore, even if the matter in the said, suits may not be directly or substantially in issue in the strict sense, it would be erroneous to assume that the said suits had no bearing on each other. It may also be pointed out that the decree already obtained by the plaintiffs in Suit No,665/ may also render the other litigation pending between the parties infructuous.
8. Turning to the question whether the plaintiffs and the defendants deliberately suppressed the aforesaid facts from this Court in Suit No,665/88, although there is no evidence on the point nor it is possible to get any but it cannot be denied that the plaintiffs and the defendants were under legal and moral obligation to disclose the factum regarding the pendency of the earlier litigation. The very fact that such important fact was suppressed by them clearly leads to an inference that there was an element of dishonesty or misrepresentation in the same. Although it has been contended on behalf of the plaintiffs that the applicant was aware of the pending litigation before this Court, however, assuming that the same is true, the mere fact that the applicant himself failed to make an application for being joined as a party to such proceedings can hardly absolve the plaintiffs or the defendants of their own obligation to disclose all the material facts before the Court. Any judgment or order obtained by fraud or misrepresentation would be a nullity in the eyes of law and thus liable to be set. Aside.
9. In the result, I accept this application and order recall of the consent decree dated 28-114988. It may be clarified that boa the plaintiffs and the defendants would be at liberty to amend their respective pleadings bringing all the material facts to the notice of the Court and the matter shall be decided accordingly by the Court. The parties are, however, left to bear their own costs.