' QAZI MUHAMMAD FAROOQ, J.---This is an application under section 12(2) of the Code of Civil Procedure whereby the Land Acquisition Collector, Tarbela Dam Resettlement Organization, the Government of N.-W.F.P. Through the Deputy Commissioner/Deputy Collector, Haripur and WAPDA through its Chairman have prayed that the Award, dated 2nd February, 1980 of the Referee Court, Haripur allowing enhancement of compensation, the judgment, dated 14th April, 1981 of this Court in R.F.A. No,72 of 1980 and the judgment, dated 20th April, 1982 of the Supreme Court of Pakistan in C.P.L.A. No,206-R/81 may be set aside on the ground that the respondents had obtained the same by fraud. It arises in the circumstances that the entire estate of village Khabbal, Tehsil Haripur including the land comprised in Khata Nos.427, 428, 430 and 431 etc. Was compulsorily acquired at public expense for the public purpose of construction of Tarbela Dam. The compensation was awarded through Award No,32 dated 17-11-1971. Taking exception to the quantum of compensation as well as its apportionment in regard to the land comprised in the aforementioned Khata No,427 etc. The respondents Himat Khan and Col. Muhammad Jallat Khan, who are brothers inter se and residents of village Topi, Tehsil Swabi, filed an objection petition under section 18/30 of the Land Acquisition Act before the Collector who referred it to the learned Additional District Judge-II, Haripur. The learned Referee Court, 'vide judgment dated 18-1-1977, dismissed the claim of the respondents for change of classification of the acquired land in dispute and enhancement of its compensation in the light of the observations made in the judgment of this Court reported as PLD 1976 Peshawar 50 but held them entitled to get compensation to the extent of 62-1/2 + 1-2/3 Sarsais. Feeling aggrieved, the respondents filed a Regular First Appeal on 11th April, 1977 in the Circuit Bench of this Court at Abbottabad which was allotted No,61 of 1977 and having been transferred to the Principal seat is fixed for final hearing today. During the pendency of the said appeal another reference for enhancement of the compensation of the land in dispute drawn up on a second objection petition under section 18/30 of the Land Acquisition Act filed by the respondents on 25-12-1971 was received by the Referee Court which was answered on 2-2-1980 in the following terms:--- "Consequently the objection petition is accepted and the reference is answered to the effect that the Collector has under-valued the landed property of the objectors, the fair compensation of which is fixed as under alongwith 15% compulsory acquisition charges and 8% compound interest over the excess amount from the date of possession till payment:--- Chahi, Abadi Rs, 6,741 per Kanal Bari Rs, 3,370.80 per Kanal.
Maira Rs, 1,635.40 per Kanal Rakkar Rs, 1,123.00 per Kanal Banjar etc. Rs, 561.80 per Kanal ' An appeal (R.F.A. No,72 of 1980) was filed by the Land Acquisition Collector against that judgment in this Court but it was dismissed on 14-4-1981 and the petition for special leave to appeal was also dismissed by the Supreme Court of Pakistan in limine on 20-4-1982. Thereafter, an application under section 12(2), C.P.C. Was made by the petitioners before the Supreme Court of Pakistan but they were directed to move this Court and hence the present application.
2. Shortly stated, the allegations made in the application are that the first objection petition filed by the respondents, which contained a prayer for enhancement of compensation also, was dismissed by the Referee Court and the appeal filed by them was still awaiting disposal but in spite of that they had succeeded in getting the compensation enhanced by manipulating another objection petition and suppressing the factum of dismissal of their earlier objection petition and pendency of appeal at all the forums. That the fraud committed by the respondents had surfaced during the execution proceedings.
3. In their written reply the respondents admitted in clear words that they had filed two objection petitions of which the first one was dismissed and their appeal in respect thereof was still pending in this Court. However, they strenuously resisted the application by denying the allegation of fraud and contending that the objection petitions filed by them were wholly different in content. It was also contended that the application was barred by the principle of res judicata because the allegation of antedating the second objection petition and smuggling it in the Court was agitated by the applicants before the Referee Court and was also made the subject-matter of Issues Nos.3 and 4 but it was decided against them by the Referee Court whose judgment was upheld by this Court as well as the Supreme Court.
4. The averments of the parties were embodied in the following issues:---
(1) Whether the petitioners have any cause of action for filing their instant application under section 12(2), C.P.C.?
(2) Are the two cases of the respondents originated through their Objection Petitions Nos.341/4 of 1972 and 113/4 of 1977 of the same subject-matter?
(3) Whether the respondents in their Objection Petition No,113/4 of 1977 have deceived the Referee Judge, the High Court and Supreme Court by fraudulently suppressing the factum of their other Objection Petition No,341/4 of 1972, the judgment, dated 18-1-1977 of the Referee Judge passed therein and the factum of having filed by them R.F.A. No,61 of 1977 in the High Court against the said judgment of the Referee Judge and of the pendency of that R.F.A. No,61 of 1977 in the High Court? If so what bearing these facts have on the said judgment of the Referee Judge dated 2-2-1980, the High Court dated 14-4-1981 and the Supreme Court dated 20-4-1982 passed in favour of the respondents in their Objection Petition No,113/4 of 1977 in question?
(4) Whether the Court has jurisdiction to annul the judgment of the Supreme Court dated 20-4- 1982 in the C.P.L.A. No,206/R of 1981 which had arisen out of the respondents Objection Petition No,113/4 of 1977 in question?
(5) Whether the instant application under section 12(2), C.P.C. Is barred under the principle of res judicata?"
5. Issues Nos.1, 2 and 3.-2-These issues being interlinked can be conveniently taken up and decided together.
6. The petitioners have sought annulment of the impugned judgments on the ground of fraud. The particulars of fraud mentioned in the application are as under:---
(i) The respondents had filed two objection petitions for enhancement of compensation of the same landed property.
(ii) This fact was suppressed by the respondents throughout that they had filed an objection petition earlier also but it was dismissed by the Referee Court and the appeal filed by them was pending.
(iii) The second objection petition was ante-dated as 25-12-1971 and was smuggled into Court on 17-6-1977.
(iv) The first objection petition was addressed to the Collector while the second to the Additional District Judge, Haripur.
(v) In the previous objection petition the name of the respondent Col. Muhammad Jallat Khan was mentioned before the name of his younger brother Hikmat Khan but in the subsequent objection petition his name was not only written after the name of his brother but his rank was also omitted.
(vi) The subsequent objection petition was initialled by a notoriously corrupt Land Acquisition Collector named Raja Muhammad Aslam who had been dismissed from service and against whom several criminal cases had been registered on similar charges.
(vii) In the reference made on the previous objection petition the vendors and the vendees of the sale mutations reflected in the one year average produced by the Patwari were not produced but in the reference drawn on the basis of the subsequent objection petition the vendors and the vendees were examined in the light of the observations made in PLD 1976 Peshawar 50 on the basis of which the prayer for enhancement of compensation was turned down by the Referee Court during the first round.
7. The learned Additional Advocate-General elucidated the above mentioned particulars of fraud in his arguments at length and maintained that the fraud practised by the respondents stood established in the light of the record of the two objection petitions, certified copies of various judgments etc. Available on the record of this application, the admission of the respondents in regard to filing of two objection petitions and the unchallenged statement of Iqbal Hussain Shah, Tehsildar Legal Tarbela Dam (A.W.1) that the second objection petition did not bear the signature of the then Land Acquisition Collector Mr. Abdul Hafeez Asar who was transferred on 19-1-1973.
Reliance was placed on Abdus Salam and others 1990 CLC Peshawar 17.
8. The learned counsel for the respondents on the other hand contended that the burden of proof of the alleged fraud was placed on the respondents but they had singularly failed to discharge it.
He further contended that the allegation of fraud was misconceived and devoid of substance because the first objection petition bearing No,341/4 of 1972 filed by the respondents pertained to the apportionment and enhancement of compensation of the disputed area while the Second Objection Petition bearing No,113/4 of 1977 pertained to the undisputed acquired land of the respondents situated in village Khabbal Taraf Samma for which the compensation assessed by the Collector had been paid to them. It was next contended that the petitioners had no cause of action because the question of authenticity of the second objection petition was decided by the Referee Court against them under Issue No,3 and they had not challenged the findings before this Court or the Supreme Court. It was further contended that the allegation of fraud was frivolous as the enhanced compensation awarded in favour of the respondents was at par with the enhanced compensation awarded to other affectees. It was lastly contended that the petitioners had withheld the payment of enhanced compensation, to the respondents on several flimsy pretexts and the allegation of fraud was the latest one.
9. In order to set the main controversy stemming from the alleged fraud at rest it is necessary to ascertain the meanings of the expression 'fraud'. This expression has been defined in section 17 of the Contract Act but the definition having been made in a particular context is not exhaustive, therefore, its Dictionary meanings will serve the purpose and fill up the vacuum. According to Black's Law Dictionary, revised Fourth Edition, "fraud" means "An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury"...A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated".
10. After giving the contentions raised at the Bar our anxious consideration, scrutinizing the entire record thoroughly, and testing the particulars of fraud furnished by the petitioners on the touchstone of the definition of fraud we are convinced that the impugned judgments and decrees were obtained by the respondents by fraud and as such are not sustainable.
11. The respondents have admitted in most unequivocal terms that they had filed two objection petitions. However, they have qualified their admission with the assertion that the objection petitions were different in content because the first objection petition was filed under section 18/30 of the Land Acquisition Act and pertained to the area regarding which their title was disputed while the second objection petition was under section 18 of the Land Acquisition Act and pertained to the undisputed area owned by them. The assertion is unfounded inasmuch as the record makes it manifest that both the objection petitions were identical in substance and merits vis-a-vis the question of enhancement. Of compensation of the acquired land. Enhancement of compensation of the same acquired property was sought in both the objection petitions and both were filed under section 18/30 of the Land Acquisition Act though the prayer for apportionment of compensation was omitted from the latter. The record of R.F.A. No,61 of 1977 also shows that a prayer for enhancement of compensation was made by the respondents in addition to the prayer for apportionment of compensation. These glaring facts were suppressed by the respondents during the second round and this concealment clearly falls within the ambit of 'fraud'. The authority 1990 CLC (Peshawar) 17 cited by the learned Additional Advocate-General applies to this case squarely because in that case also some affectees of Tarbela Dam had filed a second objection petition regarding the same acquired land and had obtained a favourable decision without - disclosing the fact of decision of earlier objection petition but the decision was held to be fraudulent and was set aside as such.
12. The remaining particulars of fraud are also amply supported by the record. The first Objection Petition bearing No,341/4 was filed by the respondents before the Collector, Tarbela Dam on 28-12- 1971. It bears the seal of, the office. Of the Land Acquisition Collector-1 and Diary No, 2424 dated 28- 12-1971. It was referred to the learned Additional District Judge, Haripur by Mr. Abdul Hafeez Asar the then Land Acquisition Collector-I, Tarbela Dam Resettlement Organization, vide his detailed Letter No,TRO/LAC/2 (42)/722339, dated 16-11-1972, who according to the Office Order No,RST/PO-116/E (copy Exh.A.W.1/9) had relinquished the charge of his post on 19-1-1973. The Second Objection Petition bearing No,113/4 is, dated 25-12-1971. It does not bear the seal of the office of the Land Acquisition Collector No,1 or. Diary No, and also does not indicate the date on which it was received by the Collector. It is addressed to the Additional District Judge, Haripur through Collector and not to the Collector. The order of the names of the respondents is changed and the rank of the respondent Jallat Khan is also omitted. The covering letter is sketchy and neither bears the signature of Mr. Abdul Hafeez Asar nor the date on which the Objection Petition was referred to the learned Additional District Judge, Haripur. Besides, it was received in the Court of the learned Additional District Judge, Haripur on 17-6-1977. It does not stand to reason that the Collector had kept it in his office for a noticeable period of five and a half years. The obvious that follows is that it was ante-dated and smuggled in the Court through the back door in order to offset the ill-effects of the dismissal of the first objection petition.
13. There is no force in the contention raised by the learned counsel for the respondents that the petitioners had no cause of action to file this application in the face of the findings of the learned Referee Court on Issue No,3 that the objection petition had been referred by a competent Collector.
Much can be said about the findings of the learned Referee Court but to say the least the Referee Court not only overlooked the aforementioned intriguing circumstances reflecting on the authenticity of the Objection Petition but also the admissions contained in the statement of Raja Muhammad Aslam, on which the findings were based, that he had not put any date under his signatures on the covering letter and the statement under section 19 of the Land Acquisition Act and that he was compulsorily retired from service in the year 1976. Be that as it may, the findings of the Referee Court being restricted to the maintainability of the Objection Petition can have no bearing on the main question agitated in this application that the respondents had committed fraud by filing two Objection Petitions for enhancement of compensation of one and the same acquired land and concealing the fact that the Objection Petition filed by them earlier was dismissed. Needless to mention that this element of fraud is by itself sufficient for setting aside the impugned judgments on the ground of fraud.
14. As regards the contention that the element of fraud was missing because the compensation awarded in favour of the respondents, was enhanced at the same rate on which it was enhanced in respect of the other affectees it would suffice to say that dismissal of the application in hand on this ground would amount to putting premium on fraud which vitiates most solemn proceedings and is incompatible with justice and equity. Issues Nos.1, 2 and 3 are, therefore, decided in favour of the petitioners.
Issue No,4:
15. This issue was not pressed by the learned counsel for the respondents and rightly so because the application under section 12(2) of the Code of Civil Procedure moved by the petitioners before the Supreme Court was dismissed on 19th October, 1983 in the following terms:- "As C.P.C. Is not applicable to this Court, the petitioner should go to the High Court under section 12(2) of the C.P.C. Dismissed."
' This issue, therefore, stands decided in the affirmative. Issue No,5:
16. It was contended by the learned counsel for the respondents that the application was hit by the principle of constructive res judicata because the petitioners were fully aware of the dismissal of the objection petition filed by the respondents earlier as well as the appeal filed by them and as such the plea of fraud ought to have been raised before the Referee Court. The contention has not impressed us. The knowledge attributed to the petitioners cannot be gathered from the evidence on record. In any event the issue of enhancement of compensation was not decided finally during .The first round and the plea of fraud within the contemplation of section 12(2) of C.P.C. Had become available to the petitioners after the dismissal of their appeal by the Supreme Court of Pakistan. This issue is, therefore, decided against the respondents.
In the result this application is accepted with 'costs and the impugned judgments and decrees arising from Objection Petition No,113/4 of 1977 are set aside with a direction to the respondents to