1. This revision petition under section 115, Civil P.C. was against an order of the trial Court passed under section 12(2) ibid by which it set aside its decree dated 30-11-1980 making an award Mark Exh. C-II Rule of the Court in respect of property in dispute, on grounds of fraud and misrepresentation.
2. Brief facts giving rise to it are:-Bahoo son of Nawab was allotted a piece of State land in Chak No.107-Janubi of Tehsil Sargodha under the Ejected Tenants Scheme. Since the allotted land fell within the Municipal Limits of Sargodha, Collector Sargodha rescinded the allotment and gave alternate piece of State land measuring 34 Kanals in Chak No. 87-Janubi of Tehsil Sargodha in allotment to Bahoo, on 15-6-1979. Upon payment of dues, proprietary rights in respect of this piece of land were conferred on Bahoo on 18-8-1980. A formal conveyance-deed in this behalf was executed in favour of Bahoo on 30-9-1980.
3. Bahoo agreed for the sale of above land (34 Kanals) in Chak No. 87--Janubi in Tehsil and District Sargodha to Wazir Ali for a stated sum of Rs.2,00,000. Since there was a dispute between them for finalization of the sale, they entered into an agreement on -8-11-1980 for the decision through the arbitration of one Abdul Majeed son of Fateh Muhammad, Jat by Caste, resident of Chak No. 89- Shamali in Tehsil and District Sargodha. Agreement for reference to sole arbitration of Abdul Majeed was reduced in writing. It was dated 8-11-1980. Bahoo and Wazir Ali thumb-marked it. Nazar Muhammad and Muhammad Saeed witnessed its execution. Arbitrator gave the award on 10-11- 1980 in favour of Wazir Ali in respect of the above land. An application under section 14 of the Arbitration Act for filing of and making the award Rule of the Court was submitted to the Civil Court at Sargodha. On agreement of the parties recorded on 30-i1-1980, the award was made Rule of the Court and a decree was passed on it on the same day.
4. Upon the complaint of residents of the Chak, the Commissioner of Sargodha Division recalled the conveyance-deed of the land allotted to Bahoo in Chak No. 87-Janubi and rescinded its allotment from his name on the ground that it was Charagah. Instead, allotment of alternate State land was recommended for Bahoo by the Commissioner of the Sargodha Division. Copy of the order made by Commissioner Sargodha Division was not on file. However, alternate State land (57/1-2 Kanals) in Chak No.157-Shamali Sargodha was made to Bahoo by order dated 21-9-1986. Proprietary rights were conferred on Bahoo in respect of alternate land allotted to him. However,, before conveyance-deed could be issued in his favour, Wazir Ali intervened and laid claim to the transfer of the alternate land to him on the basis of a Court decree in his favour. On 14-12-1986, Collector Sargodha District made an order in his favour.
5. Instead of appealing from the order of the Collector, Bahoo presented a petition under section 12(2), Civil P.C. on 23-12-1986 in the Civil Court at Sargodha for setting aside of the Court decree passed on 30-11-1980 making award the Rule of the Court. It was asserted that he had neither sold his land to Wazir Ali nor had he entered into an agreement for arbitration with him. He further denied to be a party to the Arbitration Award and proceedings taken on it in the Civil Court for making it a Rule of the Court. In nutshell, Bahoo denied all the steps taken 'in this behalf from the agreement for arbitration to the final act of the Court making award Rule of the Court. He described all these acts and events as fraudulent and fabrication on the part of Wazir Ali. In the application under section 12(2), Civil P.C., Province of Punjab was made defendant No.l and Wazir Ali was defendant No.2. Respondents contested the application under section 12(2), Civil P.C. It was mainly submitted that the application under section 12(2), Civil P.C. was barred by limitation and that Bahoo was a party to the arbitration proceedings from their commencement to their eventual end and that he had also appeared in the Court for agreeing to the award being made Rule of the Court.
6. On 1-3-1987, the trial Court settled following issues for determination:--
(1) Whether impugned decree, award, arbitration agreement are product of fraud and liable to cancellation?
(2) Whether petitioner is entitled to relief prayed for?
(3) Whether petition is not maintainable in its present form?
(4) Whether petition is time-barred?'
7. (5)Relief, Bahoo died on 10-9-1989. Thereupon, his legal representatives were substituted on record and an amended application was filed in Court. In support of the averments contained in the application, the petitioners now respondents examined two witnesses and one of them namely Allah Ditta appeared as a party witness. It was deposed that neither Bahoo had sold the land to Wazir Ali nor had he entered into an agreement for the arbitration for the appointment of the sole arbitration of Abdul Majeed. It was further deposed that Bahoo was not a party to the award and the proceedings taken on it in the Civil Court for making it Rule of the Court. Testimony of witnesses was consistent on this point. Arbitration agreement, award and proceedings taken in the Civil Court for making it a Rule of the Court were all described as acts of fraud and misrepresentation. This evidence led on the side of respondents was not rebutted by the petitioner. So much so, the petitioner did not choose to appear himself in the witness-box to refute the allegations of fraud and misrepresentation leveled against him and sought to be established in evidence adduced at the trial. In this state of record, the trial Court allowed the application and set aside the decreeof the Court making award Rule of it.
8. Petitioner presented a revision before learned District Judge. It was transferred to the file of learned Additional District Judge, who on 6-12-1993 found that in view of amendments introduced in section 115, Civil P.C., he had no jurisdiction to proceed and consequently returned the revision for its presentation to the Court of competent jurisdiction. Thereupon, this petition was filed in this Court.
9. It was urged that application under section 12(2), Civil P.C. for setting aside the agreement for reference to arbitration and the award based on it was, incompetent. In this behalf, learned counsel referred to the case in Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197. It was further urged that from the date of the decree, application for setting aside of it was barred by limitation under Article 181 of Schedule I of the Limitation Act, 1908.
10. It was also urged that respondents had failed to prove that the decree based on award was tainted with fraud or misrepresentation or was made without jurisdiction.
11. As far the first contention, a later judgment of the Supreme Court in Muhammad Yasin v. Sh. Hanif Ahmad and 4 others 1993 SCM R 437, successfully meets it. It holds that provisions in section 12(2) of Civil P.C. attracted to such a situation. As far bar of limitation, suffice it to say that terminus a quo of period of three years provided in Article 181 of the Limitation Act commenced upon discovery of fraud. Said Article read with principle contained in section 18 of the Limitation Act, 1908 entitled the person who was victim of fraud to apply, when the fraud was discovered or known to him.
12. Successors of Bahoo gave sufficient evidence to establish that Bahoo was not a party to the documents i.e. arbitration agreement, award and proceedingsin the Court culminating in the final decree against him and that upon gaining knowledge of the essential facts immediately applied to the Court for relieving him of the ill-effects of fraud committed by the petitioner. Upon this view, the application under section 12(2), Civil P.C. could safely be held to have been filed in time prescribed in Article 181 of the Limitation Act. As regards the last contention, petitioner as respondent omitted to give evidence to refute and rebut the material brought on file by successors of Bahoo to establish fraud and misrepresentation for obtaining the decree of the Court. Not to say of producing other evidence in rebuttal, petitioner himself did not step in the witness-box to make his own statement on oath in support of his defence. This I was a strongest circumstance against truth of his case. He knew the facts. These were in his special knowledge and yet he did not come forward to speak on oath in Court and subject himself to cross-examination by his adversary to elicit truth in the process. No reason was assigned for withholding of the petitioner from the Court.
13. Upon this view of the record, the trial Court rightly set aside the decree earlier passed. by it under section 12(2), Civil P.C. for relieving the respondents of the fraud perpetrated upon their predecessor-in-interest. In consequence, civil revision must fail in limine and is dismissed accordingly.
14. Original records shall be returned.