' The private parties to this case are contesting the evaluation of their respective portions of house No, D-3333 inside Lohari Gate, Lahore. The house was divided and transferred to the two parties on 17th December 1959, when appendices were also issued in their favour. The Appendix X issued to the petitioner showed the valuation of his portion to be Rs, 1920. According to para. 2 of the grounds of appeal filed by respondent No, 1 (Annex. 'D') the value determined for his portion was Rs, 3,840. It appears that the appendix issued in favour of the petitioner was subsequently amended and the transfer price of his portion enhanced to Rs, 2,400 in pursuance to the order dated 15th February 1962, of the Deputy Settlement Commissioner. The petitioner paid the entire transfer price and was granted the Permanent Transfer Deed on 27th June 1963.
' In pursuance to the same order, the appendix issued in favour of respondent No, 1 was also amended and he was required to pay some additional amount on the basis that the revised monthly rent of his portion was Rs, 9, as against Rs, 8 previously determined. On coming to know of this additional demand the respondent filed an appeal in 1972, before the Additional Settlement Commissioner. It came up before the Settlement Commissioner, due to change of law, who vide the impugned order dated 8th March 1974, thought it lust and fair' to let the petitioner pay at the rate of Rs, 6 and the respondent at the rate of Rs,
8. It is against this order that the petitioner has filed the present writ petition.
3. The contention of the learned counsel for the petitioner is that as a P. T. D. Had already been issued to him after the re-application of mind, the Settlement Commissioner had no jurisdiction to interfere and enhance the transfer price. He referred to a number of judgments of the Supreme Court and this Court to say that as the settlement authorities become functus officio after the issuance of the P. T. D. They could not interfere with the property rights of a permanent transferee.
The learned counsel for respondent No, 1 submitted that the order dated 15th February 1962, having been passed in the absence of the respondent, it was void. Secondly, it was argued that the order had been obtained fraudulently and was thus inoperative.
4. A perusal of Annex. 'A', the appendix and the order of the Deputy Settlement Commissioner Annex. 'B' in favour of the petitioner does bear out the contention that the Deputy Settlement Commissioner, even a second time, applied his mind to revise the transfer price from Rs, 1,920 to Rs, 2,400. It is also correct that the order of the Deputy Settlement Commissioner (Annex. 'B') had been passed in the secrecy of office and behind the back of respondent No,
1. The same order, however, so far as the Settlement Department is concerned, had neither been passed behind its back nor was it without application of mind or proper scrutiny. The P. T. D. Of the petitioner viz-a-viz the Settlement Department, therefore, did not suffer from any defect calling for interference at the hands of the Settlement Commissioner, as will be discussed hereunder.
5. The law about the rights of a permanent transferee is now well settled. A settlement authority can interfere after the issuance of a P. T. D. Only if the same had been obtained either fraudulently or if it was void ab intik. An order is void ab initio if it is passed by an authority not 4 competent to do so, or is against the rules of natural justice, or had been passed in violation of mandatory provisions of law and the defect is apparent on the face of record. The last category would include such orders, as would show on their faces, that the authority competent to do so did not apply its mind.
6. 'Fraud' is a well-understood term. In section 17 of the Contract Act, it is defined as under :- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :-
(1) the suggestion as a fact, of that which is not true by one who does not believe it to be true ;
(2) the active concealment of a fact by one having knowledge or belief of the fact ;
(3) a promise made without any intention of performing it ;
(4) any other act fitted to deceive ;
(5) any such act or omission as the law specifically declares to be fraudulent."
' A perusal of this definition makes it clear that the main ingredient of 'fraud' is the intention to deceive or to induce a person by misrepresentation or active concealment to enter into a contract on a false belief as also held in Ghaus Bakhsh Bazinjo v. Chief Election Commissioner (1). Under the Criminal Law, the deception lies in inducing a person to believe that a thing is true which is false and which the person practising deceipt knows or believes to be false. To defraud is to deprive by deceipt; it is by the deceipt to induce a man to act to his injury. Moreover, tersely it may be called to deceive is by falsehood to induce a state of mind; to defraud is to deceive a course of action. A fraud may also consist of suppression of what is true as a representation of what is false. The misrepresentation of a material part will also amount to fraud if the person injured can show that he was induced by the same.
In the light of above, it is evident that there must be an intention to deceive or to induce a person by misrepresentation or active concealment of an existing face, to do or omit to do anything which he would not have c done but for that inducement. It is, therefore, necessary to prove that the act or omission was because of the inducement on account of the misrepresentation or concealment of fact and of not independent motives. See Baburam Rai's case (2). It was also held in M. Shafi Asghar v. The State (3) that there would be no cheating if the inducement had been subjected to scrutiny before the act or omission toot place. Thus if a land claim had been verified after comparison with the special Jamabandi, it could not
(1) PLD 1969 Kar. 662 (2) (1905) 32 Cal. 775
(3) PLD 1959 Lab. 238 be said that either the verification of the claim or the allotment of land had been obtained fraudulently because the misrepresentation in the claim form did not result in inducement.
Similarly, if possession of a person under Settlement Scheme I or construction under Settlement Scheme VIII had been verified by a competent authority by spot inspection or other evidence, there could be no allegation of fraud. The evaluation of price on the basis of the record available with the Settlement Department or produced from authentic sources, would not be based on fraud even though there was some misrepresentation by a party. The conclusion, therefore, is that where an authority proceeds to pass an order, not because of misrepresentation or concealment of fact by a party but on the basis of his own inquiry or judgment, there will be no fraud.
7. An order obtained by fraud is not void but only voidable as held in! Chief Settlement Commissioner v. Raja Fazil Khan (1) in the following's terms :- "The first question which arises in this connection is whether an order obtained by practising fraud on the Court, tribunal or authority concerned is a void order or only voidable. We are in respectful agreement with the view expressed by Waheeduddin Ahmed, J., in the case of All lqtidar Shah Dara PLD 1964 Lah. 274 that an order obtained by fraud is not void, but only voidable. It remains operative as long as it is not set aside, rescinded, or recalled, by a competent authority in proper proceedings.
"While it is true, as has been so often stated, that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it . As authority for this view, reference be made to Dabardra Nath D sat v. Administrator General of Bengal 35 I A 109; He wan v. Shelley 2 Ch.D 13 Fazluddin v. Khetra Ghoria AIR 1926 Cal. 167 ; Ambikamoni Dasi v. Khettra Ghosla 30 C W N 59 ; Mst. Siraj Fatima v. Mahmood All AIR 1932 All. 293 Blshunath Towari v. Mst. Mirchi AIR 1955 Pat. 66 ; Ahmed Khan v. Custodian of Evacuee Property PLD 1963 Kar. 450 and Pakistan v. R. S. Roopchand PLD 1967 SC 479."
8. Fraud involves firstly a finding in regard to facts, as held by the Supreme Court in Abdul Wahfd v.
Zamurat (2). The burden of proof in such a case is on the party who alleges fraud, as observed in Ahsan All v. District Judge (3). The Courts have to be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, as directed in Bhano v. A. M. Said (4). The Court or authority competent to reopen a case should, therefore, satisfy itself from the material before it that the necessary situation as discussed above prima facie prevails. Before it decides to proceed with a complaint.
(1) PLD 1975 SC 331 (2) PLD 1967 SC 153
(3) PLD 1969 SC 167 (4) 1969SCh4R 299
9. A void order is one which was passed by an authority the lacking jurisdiction as held in Muhammad Ayub Khuhro v. Pakistan (1) or was made in complete disregard of the mandatory provisions of law. Reference be made to Atta Muhammad Qureshi v. Settlement Commissioner, Lahore (2) and Chanda Begum v. Settlement Commissioner (3). Absence of jurisdictional facts also renders the order void as observed in Jamal Shah v. Election Commission (4) and Darvesh M. Arby v. Federation or Pakistan 15). An order passed in violation of the rules of natural justice shall be void only if the aggrieved party was not heard even after the impugned order had been passed or if the prejudice caused by the original non-hearing could not be cured by the subsequent hearing.
Reference be again made to Abul Ala Maudoodi v, Government of West Pakistan (6), Muhammad "'shag v. Dr. Saiduddie Swaleh (7) and Atta Muhammad Qureshi. The Supreme Court in the Chief Settlement Commissioner v. Raja Muhammad Fazil Khan defined a void order as follows "An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to 'a usurpation of power unwarranted by law', and accordingly it would be a nullity.
' If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction, it is not an order void ab inftio, but an order which may be set aside on sufficient cause being shown in this behalf."
A mere irregular, incorrect, erroneous or an Illegal order, therefore, does fall within the definition of a 'void order' and is sancrosanct after it became L final.
10. It is well settled that law favours finality being attached to orders and abhors multiplicity of litigation. The finality of an order is judged either under the relevant law, the law of limitation or the conduct of a party, such as waiver or acquiescence on his part. These principles equally apply to void orders and those involving fraud, not for the reason that such orders became valid on lapse of time or for a particular conduct but because a remedy will be barred or Court will not help an indolent person or a person who had compromised with the situation. Reference be made to Mahmud Alam v. Syed Mehdi Hussain (8), Ghulam Mohyuddin's case (9). The Punjab Province v.
Federation of Pakistan (10) and Punjab Province v. Nfsar Ahmad (11).
11. Applying the above established view of law to the facts of the case in hand, I hold that the order dated 15th February 1963, apportioning rent the second time, so far as the petitioner is concerned, was made after due and independent application of mind. It was neither induced by N any misrepresentation nor fraud. There is even no allegation on record
(1) PLD 1960 SC 237 (2) PLD 1971 SC 61
(3) PLD 1977 SC 503 (4) PLD 1966 SC 1
(5) PLD 1977 Lah. 846 (6)PLD 1964 SC 673
(7) PLD 1959 Kar. 669 (8) PLD 1970 Lab. 6
(9) PLD 1964 SC 829 (10) PLD 1956 FC 72
(11) PLD 1960 Lab. 801 of fraud or deceipt. That order was not void either as it had been passed by a Deputy Settlement Commissioner, who did have the jurisdiction. It however, was not valid so far as the respondent is concerned as it had been without hearing him and even without a notice to him.
' For the reasons given above, the impugned order dated 8th March 1974, apportioning Rs, 6 as monthly rent instead of Rs, 5 already determined in favour of the petitioner is declared to be without lawful authority and of no legal effect. This order, however, shall not affect the apportionment in respect of the respondent's portion. There will be no order as to costs.