Through the instant application under section 12(2) of C.P.C., the petitioner Muhammad Suleman has, by pleading the elements of fraud and misrepresentation, prayed for the setting aside of the judgment and decree of this Court passed in Civil Revision No. 18 of 1988 on 3-6-1989.
2. The synoptical sketch of facts relevant for the disposal of this petition is that land measuring 4 Kanals, 1 Marla bearing Khasra No.245 situated in village Qazian, District Haripur was purchased by petitioner Muhammad Suleman from Mst. Hussan Jan through Mutation No. 1157 attested on 20-9- 1982. Prior to the attestation of mutation respondent Fazalur Rehman's obtained 2 Marlas of land in Khasra No.244 from Mst. Sultan Bibi by way of exchange through a registered deed dated 9-9-1982 and acquired the status of a contiguous owner to the land purchased by the petitioner. After the attestation of Mutation No. 1157 on 20-9-1982 in favour of petitioner, the respondent filed a suit for the enforcement of his pre-emptive rights on the ground of contiguity qua the land alienated through the above mutation. The suit was contested by the petitioner and was decreed in favour of the respondent by the learned trial Court. Appeal filed by the petitioner also could not earn any success compelling the petitioner to file a revision petition before this Court. The revision of the petitioner bearing No. 18/88 was also dismissed by this Court on 3-6-1989 upholding the concurrent judgments and decrees of the two Courts below. In this way the judgment and decree of this Court attained finality.
3. On 11-10-2000 the instant petition was filed ventilating the grievance that the respondent after earning success in his suit of pre-emption re-exchanged the land measuring 2 Marlas on the basis of which he had attained the qualification of a contiguous owner. The re-exchange took place on 27-2-1992 through Mutations Nos. 1736 and 1737.
4. Mr. Abdur Rauf Khan Jadoon, Advocate, the learned counsel appearing on behalf of the petitioner has argued that the respondent played fraud with the petitioner because for qualifying himself to pre-ampt the land purchased by the petitioner he had obtained 2 Marlas of land in exchange in the contiguous Khasra number but after the achievement of his object, i.e., obtaining a decree by enforcing his pre-emptive rights against the petitioner the 2 Marlas land was restored back to the original owner, i.e., Mst. Sultan Bibi. The learned counsel contended that the re-transfer of land spells out mala fide on the part of the respondent which amounts to fraud and misrepresentation.
5. On the other hand, Mr. Muhammad Younas Khan Tanoli, Advocate while controverting the arguments of the learned counsel for the petitioner has argued that there is no element of fraud or misrepresentation in the transaction of exchange between the respondent and Sultan Bibi. He contended that prior to the purchase of land by the petitioner through Mutation No. 1157 the respondent had already become a contiguous owner to the pre-empted land on which ground he remained successful right from the trial Court up to this Court. He further submitted that the re- exchange is also made in a lawful manner and no illegal device has been adopted which can be in any manner defined as fraud or misrepresentation. The learned counsel urged that the respondent being a lawful owner of the property had every right to give it to any body he liked.
6. I have heard and considered the rival contentions. Of the learned counsel for the parties and have examined the record. The word "fraud" as per Black's Law Dictionary 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 a 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. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture. 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".
7. The word "misrepresentation" is defined in the same dictionary as any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation.
That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists.
8. In the light of the above factual plan and the definitions given above the act of exchange or re- exchange of land by the respondent with Mst. Sultan Bibi does not present any element of falsehood, mis--representation or something which esoterically and exoterically are opposed to each other. The earlier exchange was according to law and so was the subsequent exchange within the legal parameter. At the most it can be said that the respondent had invented a scheme to combat the opposite --party in the legal field. According to my view the act of exchange and re- exchange by the respondent was purely in accordance with law. It is also significant to observe that the petitioner had not impleaded any element of fraud or mispresentation in his written statement in the trial Court or in the subsequent proceedings. In the case captioned as "Nathu Khan v. Muhammad Rafique and another" reported as 1987 CLC at page 1501 it was observed that:- - "Muhammad Rafique after decree in his favour had become full owner of the property and was, therefore, entitled to dispose is of manner he likes. He could alienate or exchange the said property with any one including Ilam Din vender in the pre-emption suit. Muhammad Rafique allegedly exchanged his land with Ilam Din on 14-9-1982, i.e. After many months of the decree n his favour.
Nathu Khan petitioner in his petition has not alleged any fraud or misrepresentation by Muhammad Rafique during proceedings of the pre-emption suit. The provisions of section 12(2), C.P.C., as held in "Rehmatullah v. Ali Muhammad" 1983 SCM R 1064 would not apple in the present case as the alleged] fraud or misrepresentation was nor committed in connection with the proceedings of the suit. As a matter of fact the exchange of land between Muhammad Rafique and Ilam Din cannot be considered as fraud or misrepresentation within the meaning of section 12(2), C.P.C."
10. The instant application under section 12 (2) is also barred by limitation as stated earlier the re- exchange of 2 Marlas of land was made on 27-2-1992 and the instant application was filed on 13- 10-2000. An application bearing No. 141/2000 for the condonation of delay was filed on 13-10-2000. I have gone through the contents of the said application but it does not contain any reason for the occurrence of delay. It is simply stated that the delay has not occurred due to any fault or deliberate act of the petitioner. In the circumstances when no specific reason has been given for the obvious delay of several years the application for condonation of delay cannot be considered.
This application stands dismissed.
11. On the facts and circumstances stated above I do not see any merits in this application which is consequently dismissed with no orders as to costs.
Q.M.H./M.A.K./626/P