MUHAMMAD ILYAS, J. -This civil revision relates to sale of certain land made by Mst. Rashida Begum in favour of one Amir Khan, by means of registered sale deed, dated the 27th March, 1975. The respondent, Muhammad Saeed-ud- Din Khan alias Muhammad Saadat-ud-Din Khan filed a suit, on 25th March, 1976, for possession of the said land, through pre-emption. That suit was decreed by a Civil Judge on 29th January, 1977. Thereafter, on 10th September, 1976, one Qatal Khan brought a suit for pre-emption in respect of the same land alleging that he cultivated it as a tenant at the time of its sale. His suit was decreed on 25th March, 1978 by a Collector. Having obtained decree from the learned Collector. Qatal Khan instituted a declaratory suit against the respondent contending that the judgment and decree obtained by the respondent did not affect the judgment and decree passed in his favour by the learned Collector. It was alleged by him that the respondent had secretly obtained the judgment and decree in his favour in consequence of ' (J?'j {{URDU TEXT}} between the respondent and the vendee, Amir Khan. The Civil Judge before whom suit was filed by Qatal Khan, dismissed his suit on the ground that it was not competent and that the proper course for him (Qatal Khan) was to make an application under section 47 of the Code of Civil Procedure. Qatal Khan died during the pendency of his suit. The petitioners, Sarwar and others, who are his legal heirs, therefore, filed an appeal against the judgment and degree by which Qatal Khan was non-suited. Their appeal was also dismissed by an Additional District Judge. View taken by the learned Additional District Judge was that section 47 read with Order XXI, rule 103, of the Code of Civil Procedure did not allow Qatal Khan to file the suit. It was further held by the learned Additional District Judge that since it had been alleged by Qatal Khan, in his suit, that parties to the suit brought by the respondent had "misrepresented certain facts", the suit of Qatal Khan was also barred by sub-section (2) of section 12 of the Code of Civil Procedure. Resultantly, the appeal was dismissed by the learned appellate Court. The petitioners have, therefor, come up revision to this Court.
2. The only question argued before me was whether the suit of Qatal Khan was hit by. The provisions of sub-section (2) of section 12 of the Code of Civil Procedure which reads as follows: "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".
3. It was contended by the learned counsel for the petitioners that since Qatal Khan had not raised the plea of fraud, misrepresentation or lack of jurisdiction, the suit filed by him did n6t come within the mischief of sub-section
(2) of section 12 of the Code of Civil Procedure. According to him, the suit was for a declaration, aimed at> avoiding the decree obtained by the respondent, and, therefore, it was competent.
4. On the other hand, it was urged by the learned counsel 'for the respondent that the allegations contained in the plaint of the suit brought by Qatal Khan were clearly to the effect that the respondent had obtained the decree by fraud and misrepresentation and, therefore, his suit was hit by the provisions of sub-section (2) of section 12 of the Code of Civil Procedure. He maintained that even if Qatal Khan had raised the plea of collusion and not that ol baad there was little difference between collusion and fraud. In this connection, he placed reliance on Zafarullah and 3 others versus Civil Judge. Hafizabad arid 3 others (PLD 1984 Lahore 396), Sardar Bakhsh. Versus Mst.
Sahib. Kliatoon (1988 CLC' 2037V(Lahore1. Iqbal versus Mst. Jainan Bibi (1991 CLC 553) (Lahore) and Abur Rauf and others versus Abdur Rahim Khan. Advocate (PLD 1982 Peshawar 172), Argument proceedes that it can be clearly gathered from the allegations contained in paragraph 3 of the plaint of the suit of Qalal Khan that he had assailed judgment and decree obtained by the respondent, on the ground of fraud and misrepresentation. The said paragraph makes the following reading:- {{URDU MISS}} It was pointed out by learned counsel for the respondent that although in the suit brought by the respondent, the vendee, namely, Amir Khan had filed a written statement contesting the suit, yet, ultimately a consent decree was passed in that suit.
5. In reply to arguments of learned counsel for the respondent, it was submitted bv the learned counsel for the petitioners that by using the words & and in paragraph 3 of his plaint, the petitioners' predecessor-in-interest did not intend to convey that the judgment and decree obtained by the respondent were tainted with fraud. {{URDU MISS}}
6. I have consulted various dictionaries with a view to arriving at a correct conclusion. According to Feroz-ul-Lughat (Urdu) (Jamae), New Edition, one of the meanings of is According to Kitabistan's Twentieth Century Standard Dictionary, by Bashir A. Qurcshi M.A., is plot; conspiracy; and plot to defraud others. Some of the meanings of fraud given in the Shorter Oxford English Dictionary, Second Edition, are as follows:--
1. The quality of being deceitful.
Criminal deception; the using of false representations to obtain an unjust advantage or to injure the rights or interests of an-other.
3. An act or instance of deception, a dishonest trick.
4. A fraudulent contrivance.
According to A New English Dictionary by Dr James A.H. Murray, 190 f Edition, Fraud, inter alia, means' the quality or disposition of being deceitful, an ac t or instance of deception, an artifice by which the right or interest of another is injured, a dishonest trick or stratagem, a method or means of defrauding or deceiving; a fraudulent contrivance, and to withhold (something)-fraudulently. In the Stroud's Judicial Dictionary, 19^2 Edition, fraud's meaning, is given as dishonesty or grave moral culpability. According to English to English and Urdu Dictionary, published, by Ferozsons (Pvt).
Limited, (Nevs Edition), collusion inter alia means and . Meanings of fraud as disappearing' in Chambers Twentieth Century. Dictionary by A.M. Macdonald, 1973 Edition, are deccipt, imposture, a snare, a cheat.
7. According to section 17 of the Contract Act, 1872, active, concealment, of a fact also means fraud.
Misleading another and causing a party to make a mistake is misrepresentation within meanings of section 18 of the Contract Act.
8. In view of the use of the words cut and the Words and looking at the meanings of , fraud, collusion and misrepresentation referred to above, I am of the considered view that the petitioners, predecessor-in-interest levelled the allegation of misrepresentation and of collusion, if not of fraud, qua the judgment and decree obtained by the respondent. As held by me earlier, in case of Zafarullah and 3 others versus Civil J urine. Hafizabad and 3 others (PLD 1984 Lahore 396) collusion is synonymous with fraud, and my view has been followed by my learned brothers, Akhtar Hassan and Gul Zarin Kiani JJ. In the cases of Sardar Bakhsh versus Mst. Sahib Kliatoon (1988 CLC 2037)
(Lahore1 arid Iqbal versus Mst. Jainan Bibi (1991 CLC; 553) (Lahore) respectively. It was followed even by the Peshawar High Court in the case of Abdur Rauf and others versus Abdur Rahim Khan.
Advocate (PLD 1982 Peshawar 172). Looked from any angle, therefore, tile petitioners' predecessor- in-interest had challenged the judgment and decree passed in favour of respondent on the ground of fraud and misrepresentation. This he could do by making an application under sub- section (2) of- section 12 of the Code of Civil Procedure and not by a separate suit as laid down in the said provisions of law.
7. What emerges from the above discussion is that the suit brought. By Qatal Khan, the predecessor-in-interest of the petitioners, was -buried by concluding portion of sub-section (2) of section 12 of the Code of Civil Procedure. The suit was, therefore, liable to be dismissed and the appeal preferred by him also deserved the same fate.
8. Resultantly, this civil revision fails and is, therefore, dismissed. Jhool-. Are, however, left to bear their own costs.