The brief facts out of which the present writ petition arises are that the petitioner filed a suit for declaration against the respondents before the Civil Judge 1st Class, Gujrat which was decreed by the trial Court on the basis of the compromise arrived at between the parties vide judgment and decree dated 24-4-1971. The respondents filed an application under section 12(2), C.P.C. Before the trial Court on 9-2-1987 on the ground that the petitioner secured the decree in her favour by playing fraud and misrepresentation with the trial Court. The petitioner filed written statement. Out of the pleadings of the parties, following issues were framed:-- ISSUES:
(1) Whether the application is barred by time?
(2) Whether the application is maintainable in its present form?
(3) Whether the decree dated 24-4-1971 is based on fraud and misrepresentation, if so, its effect?
(4) Whether the said decree is liable to be set aside on the basis of ground in para. 3 of the application?
(5) Relief.
The learned Senior Civil Judge, Gujrat, accepted the application vide order dated 23-9-2000. The petitioner being aggrieved filed revision petition before the learned Additional District Judge Gujrat, who dismissed the same vide order dated 18-11-2000. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the question of limitation has not been decided in accordance with law and even on the factual side both the Courts below have misconstrued the evidence on the record. He further submits that the decree was passed by the trial Court originally in favour of the petitioner on 24-4-1971 whereas the respondents filed application under section 12(2), C.P.C. Before the learned Senior Civil Judge, Gujrat on 9-2-1987. It is the duty and obligation of the Senior Civil Judge Gujrat to decide the question of limitation in view of section 3 of the Limitation Act. He further submits that Article 181 of the Limitation Act is attracted in the present case according to which the period for filing the application under section 12(2), C.P.C. Is three years as the respondent was party before the trial Court in the suit filed by the petitioner and also filed written statement. The evidence was also recorded. The judgment of both the Courts below are not in accordance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- Muhammad Akbar Sheikh v. Rashid Ahmad Butt and others PLD 1997 Karachi 584.
Muhammad Nawaz v. Sultan 1988 CLC 1152.
Mst. Noor-un-Nisa v. Muhammad Sarwar and others PLD 1984 Peshawar 25.
Fateh Muhammad v. Khushhal Muhammad 1981 CLC 1130.
Javed Akhtar and another v. Sher Muhammad and others 1998 SCMR 292.
He further submits that suit was decreed in favour of the petitioner by the trial Court vide judgment and decree dated 24-4-1971 and section 12(2), C.P.C. Was added in the Civil Procedure Code in 1980, therefore, section 12(2), C.P.C. Has no retrospective effect. In support of his contentions he relied upon the following judgments:-- Fateh Muhammad v. Khushhal Muhammad 1981 CLC 1130 Mst. Noor-un-Nisa v. Muhammad Sarwar and others PLD 1984 Peshawar 25.
The learned counsel of the respondents submits that both the Courts below have given concurrent findings against the petitioner, therefore, Constitutional petition is not maintainable. He further submits that petitioner secured the judgment by playing fraud with the Court, therefore, the question of limitation does not arise therefore, both the Courts below were justified to decide tile case in favour of the respondents. In support of his contentions, he relied upon the following judgments:-- Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore v. Gaulam Nabi and 3 others PLD 2001 SC 415.
Delawar Jan v. Gul Rehman's and 5 others PLD 2001 SC 149.
Ali Muhammad v. Chief Settlement Commissioner and others 2001 SCMR 1822.
Muhammad Shafi v. Mushtaque Ahmed and others 1996 SCMR 856.
He further submits that petitioner has challenged the vires of the revisional order passed by the revisional Court in civil side, therefore Constitutional petition is not maintainable. In support of his contentions, he relied upon the following judgments:-- Muhammad Khan v. Mst. Ghulam Fatima 1991 SCMR 970; Mst. Sattan v. Waryam and others NLR 1998 CU 59; Badaruddin v. Mehr Ahmad Raza. A.S.J. Jhang and 6 others PLD 1993 SC 399; Muhammad Aslam v. Ghulam Hussain PLD 1998 Lahore 488; Javaid Iqbal v. Muhammad Din and another 1990 SCMR 1309; He further submits that this Court has power under Article 199 to foster justice and cannot exercise Constitutional jurisdiction qua injustice as the petitioner secured judgment and decree in her favour by playing fraud and misrepresentation, which was proved after recording evidence against the petitioner by the Courts below. He further submits that the petitioner did not file an application for execution of the said decree before the Executing Court, therefore, Constitutional petition is not maintainable. In support of his contention, he relied upon the following judgment:-- National Bank of Pakistan v. Mian Aziz-ud-Din 1996 SCMR 759.
He further submits that respondent is a co---sharer in the land in question, therefore, question of limitation does not arise. He further submits that this Court has no jurisdiction to substitute its own findings in place of the findings of the Courts below. In support of his contentions he relied upon the following judgments:-- Secretary to the Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415.
Delawar Jan v. Gul Rehman's and 5 others PLD 2001 SC 149.
He further submits that petitioner has not taken ground qua retrospective effect of section 12(2), C.P.C. Therefore, petitioner is bound by her pleadings, therefore, learned counsel of the petitioner cannot agitate fresh ground in Constitutional petition.
3. The learned counsel of the petitioner in rebuttal submits that both the Courts below decided the case without adverting to the section 3 of the Limitation Act read with Article 181 of the Limitation Act.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is admitted fact that petitioner filed a suit against the respondent on 29-10-1968. The suit was decreed vide judgment and decree dated 24-4-1971. Section 12(2), C.P.C. Was added in Civil Procedure Code vide Ordinance No.10 of 1980 under the name and style Code of Civil Procedure (Amendment) Ordinance, 1980. The respondents filed application before the trial Court under section 12(2), C.P.C. On A 9-2-1987. According to the contentions of the learned counsel of the petitioner, application under section 12(2), C.P.C. Is not maintainable as the Ordinance has not retrospective effect. The contention of the learned counsel of the petitioner has no force in view of the law laid down by this Court in Noor Muhammad's case PLD 1994 Lahore 170. The judgment of this Court in Noor Muhammad's case is rendered in view of the law laid down by the Honourable Supreme Court in AdnanAfzal v. Capt. Sher Afzal PLD 1969 SC 187. The relevant observation is as under:-- "As already observed, prior to enactment of section 12(2), C.P.C., 1908, a decree on the ground of fraud and lack of jurisdiction could be challenged by filing a separate suit which was a cumbersome and time consuming procedure. In order to provide a more efficacious and speedy remedy, the Legislature enacted section 12(2) of C.P.C. Which provided for an application for setting aside decree before the same Court instead of filing a separate suit which was barred. This provision was salutary and beneficiary in character and was intended to shorten the litigation by providing a remedy, which was more expedient than that of filing a suit. It does not take away or affect any of the vested rights of the parties but it has the effect of substituting one remedy for another. In Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197, it was observed that intention of the Legislature in amending section 12 by adding subsection (2) was to provide a substitute for the suits against the judgments, decrees and orders obtained by fraud. This brings into bold relief the true nature of the remedy provided by section 12(2). It is, therefore, difficult to agree with the learned counsel for the respondents that section 12(2) does not apply to decrees passed before its enactment. This view finds support from the judgment of Peshawar High Court in Abdur Rauf and others v. Abdur Rahim Khan PLD 1982 Peshawar 172."
I am also fortified by the law laid down in Jameela Khatoon's case 1997 CLC 1691. It is pertinent to mention here that petitioner did not raise the aforesaid pleas which was argued before me, before the Courts below. It is settled principle of law that a party cannot be permitted to raise new ground of attack or defence by departing from its previous pleas. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Murad Begum's case PLD 1974 SC 322. It is also admitted fact that decree was secured by the petitioner against .The respondent on 24-4-1971. The petitioner did not secure possession of the land in question in terms of the judgment and decree dated 24-4-1971. The petitioner did not claim her right on the basis of the said decree at the time of consolidation of the land in village. It is also admitted fact that both the Courts below have given concurrent findings of facts against the petitioner that the fraud was discovered or known to the respondent five months before filing the application before the trial Court under section 12(2), C.P.C. Therefore, both the Courts below were justified to decide Issue No. 1 in favour of the respondent. In arriving to this conclusion, I am fortified by the law laid down by this Court in Wazir Ali's case 1994 CLC 1135. The aforesaid proposition of law is also supported by the judgment of the Honourable Supreme Court in Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197. The learned counsel of the petitioner failed to point out any infirmity qua the findings of the Courts below with regard to Issue No.2. It is also admitted fact that respondent was an illiterate woman and had already engaged a counsel but on the relevant date, she was not identified by her counsel. The statement of respondents does not contain the signature of her counsel Ch. Qudrat Ullah, Advocate. The contents of the application especially para.2 denied the factum of compromise to the extent that she agreed to decree the suit against her. Both the Courts below have given concurrent findings of fact after proper appreciation of evidence against the petitioner on issues Nos.3 and a. Therefore, the judgments of the Courts below are in accordance with law laid down by the Honourable Supreme Court in Ghulam Ali and 2' others v. Mst. Ghulam Sarwar Naqvi' PLD 1990 SC 1. It is settled principle of law' that Constitutional petition is not maintainable against the concurrent findings of facts. In arriving to this conclusion, I am fortified by the law laid down in Khuda', Bukhsh v. Muhammad Sharif and another 1974 SCMR
279. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Courts below as per principle laid down by the Division Bench of this Court in M. Musaddaq's case PLD 1973 Lahore 600. I am also fortified by the law laid down by the Honourable Supreme Court in Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore PLD 1964 SC 260. It is also settled principle of law that fraud vitiates even the most solemn proceedings and that the Courts of general jurisdiction are competent to suo motu set aside the decrees obtained from it by fraud as held in The Chief Settlement Commissioner v.
Muhammad Fazal PLD 1975 SC 331. It is also settled principle of law that Constitutional jurisdiction is discretionary in character. Substantial justice has been done therefore, I am not inclined to exercise my discretion in favour of the petitioner in view of the law laid down by the Honourable Supreme Court in the following judgments:-- Nawab Syed Raunaq Ali's case PLD 1973 SC 236.
Rana Muhammad Arshad's case 1998 SCMR 1462.
It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. In this view of the matter, the judgments cited by the learned counsel of the parties are decided by Courts keeping in view all the circumstances of the cited judgments which are not relevant to resolve the present controversy in view of the aforesaid circumstances.