Ghulam Mehmood son of Khan Baz resident of Sandua (Gadoon), District Swabi has brought this petition under section 12(2), C.P.C. Against the judgment, dated 22-2-1997 of this Court passed in Civil Revision No.276 of 1990 titled Ghulam Mehmood v. Hukam Khan.
2. There was a long-standing litigation between Ghulam Mehmood petitioner and respondent Hukam Khan son of Khan Baz in which the petitioner claimed that Hukam Khan was his uterine brother while Hukam Khan claimed to be the full brother. The petitioner seems to have failed throughout but this petition under section 12(2), C.P.C. Is filed on the ground only that now he has come to know about the Passport and National Identity Card of Hukam Khan respondent wherein his parentage is written as Khan Bahadur and not Khan Baz.
3. It is obvious that, on discovery of fresh evidence and that too after a' long litigation, the provisions of section 12(2), C.P.C. Are not attracted. The section applies only where someone happens to obtain a decree on the basis of fraud or misrepresentation and from a forum that lacks jurisdiction. The, petition is not maintainable at the very outset.
4. The learned counsel alleged further that the claim of Hukam Khan respondent No. l that he was a son of Khan Baz was a misrepresentation and that hence the application in hand was maintainable. This is all the more le interesting. Nothing is misrepresentation where the very fact represented forms, the basis of assertion or denial and hence, being a. Fact in issue, requires final determination by the Court through the recording of evidence. Such fact in issue neither concealed nor sprung by surprise does not fall within the scope of misrepresentation. If such arguments are allowed, every defeated party in a civil suit will come up with the objection that original claim of the opposite-party was a misrepresentation. This would bring no end to the litigation. An openly asserted claim which the opposite-party had all the opportunity to rebut, as a question of fact, cannot be claimed as misrepresentation.
5. Consequently, the application in hand alongwith. C.M. No.291 of 1999 is hereby dismissed in limine.