4/30/23, 1:32 AM 1992 S C M R 2184

1992 S C M R 2184

[Supreme Court of Pakistan]

Present: Muhammad Afzal Zullah, CJ.and Wali Muhammad Khan, J

ALLAH WASAYA and 5 others‑‑‑Appellants

versus

IRSHAD AHMAD and 4 others‑‑‑Respondents

Civil Appeal No.114 of 1992, decided on 3rd June, 1992.

(On appeal from the judgment/order dated 25‑5‑1991 of the Lahore High Court, Multan Bench, Multan
passed in W.P. No.126/91).

(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S.12(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to examine

whether it was not on facts admittedly a case falling under S.12(2), Civil Procedure Code 1908, as held by
High Court on account of questions of fact involved therein.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O. XXII, R.3‑‑‑Plaintiffs' failure to bring legal representatives of deceased defendant on

record‑‑‑Effect‑‑‑Plaintiffs, although were required to apply to bring on record legal representatives of
deceased defendant, yet their failure to do so was no longer fatal to the suit for when proceedings were
continued against a dead person, decree could be .passed against him, notwithstanding his death during
pendency of suit ‑‑‑Non‑impleading of legal representatives of' deceased defendant thus, could not legally
hamper progress of suit‑‑‑Heirs of deceased defendant, however, had equal responsibility to have brought
factum of death of deceased to the notice of Court with request for bringing in his legal representatives on
record.

(c) Fraud‑‑

------Civil Procedure Code (V of 1908), S.12(2)‑‑‑Fraud‑‑‑Meaning, scope and import of‑‑‑Proof‑‑‑Fraud

means and includes, inter alia, the suggestion as a fact of that which is not true, by one who does not
believe it, to be true, and the active concealment of a fact by one having knowledge or belief of the fact...
Plaintiffs (decree‑holders) had neither misstated any fact nor concealed any thing from the Court to obtain
impugned decree‑‑‑No evidence was available to show that decree in question had been obtained by
practising fraud on Court although burden heavily lay on defendants to establish that fraud had in fact been
practised on Court in obtaining impugned decree.‑‑‑[Words and phrases].

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑‑S. 12(2)‑‑‑Validity of decree‑‑‑Decree in question having been passed‑ by Court after contest, on basis
of admissions and confessions made by respective parties same would not amount to decree on basis of
compromise‑‑‑Such decree could not be assailed under provision of S.12(2) Civil Procedure Code, 1908.

Muhammad Aqil Mirza, Advocate Supreme Court and MA. Qureshi, Advocate‑on‑Record (absent) for
Appellants.

Rana M. Sarwar, Advocate Supreme Court and S. Abul Asim Jaferi; Advocate‑on‑Record (absent) for
Respondents Nos.1 and 4.

Date of hearing: 3rd June, 1992.

JUDGMENT

WALI MUHAMMAD KHAN, J.‑‑‑Allah Wasaya and others, appellants herein, through leave of the
Court have called in question the judgment dated 25‑5‑1991 passed by a learned Single Judge of the
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Lahore High Court, Multan Bench, whereby their Writ Petition No.126/91 challenging the judgment of the
Additional District Judge, Multan dated 24‑4‑1991, was dismissed in limine. The leave granting order is as
follows:‑‑

"Leave to appeal is granted to examine whether it was not on facts admittedly a case falling under section
12(2), C.P.C. as held by High Court on account of following facts:‑

(i) The date of death of Hassan Bux 29‑12‑1982.

(ii) His signatures on power of attorney 8‑12‑1985.

(iii) Representation of heirs of Hassan Bux as their submissions to compromise.

Security 5,000. Status quo maintained."

The facts of the case briefly stated, are that Khuda Bakhsh, respondent No.4 herein; Hassan Bakhsh,
predecessor‑in‑interest of appellants 1 to 5; and Mukhtar Ahmad, appellant No.6; purchased land
measuring 54 Kanals 3 Marlas vide Mutation No.347 attested on 30‑8‑1980 for a sum of Rs.54,000 from
one Hafeez Ahmad which gave rise to a pre‑emption suit filed by Irshad Ahmad, Mst. Faiz Ilahi and Sultan
Ahmad, respondents 1 to 3 herein. Mukhtar Ahmad was shown as minor and Khuda Bakhsh was appointed
as guardian ad litem for him. The suit was contested by the defendants and they in their written statement
denied the superior right of pre?emption of the plaintiffs/pre‑emptors and claimed to have purchased the
suit land for a sum of Rs.82,000. During the course of proceedings an offer was made by the
plaintiffs/pre‑emptors that if Khuda Bakhsh defendant No.1 states the exact amount spent by him on the
purchase of the suit land through oath on the Holy Qur'an, they are ready to accept the same as sale
consideration. Khuda Bakhsh defendant No.1 accepted the offer and by taking oath on the Holy Qur'an
stated that the defendants had‑spent Rs.81,700 on the acquisition of the suit land through purchase. He also
accepted the superior right of pre‑emption of the plaintiffs/pry emptors on account of their being collaterals
of the vendors. On the bais of this oath the suit of the plaintiffs/pre‑emptors was decreed vide judgment
and decree dated 18‑5‑1986 in lieu of Rs.81,700.

Allah Wasaya and others, appellants herein, filed an application under section 12(2) of the Civil Procedure
Code on 30‑9‑198" challenging the judgment and decree dated 18‑5‑1986 on the ground of fraud and
collusion on the plea that specific permission of the Court on behalf of the minor was not secured
according to law and that Hassan Bakhsh defendant having already died prior to the offer of oath and his
heirs having not been brought on the record the decree obtained on the strength of oath was as a result of
collusion between the plaintiffs/pre‑emptors and Khuda Bakhsh defendant/respondent. This application
was resisted, necessary evidence led pro and contra on the allegation made by the parties recorded and the
learned Civil Judge vide his judgment and decree dated 13‑1‑1990 accepted the application under section
12(2), C.P.C. and set aside the decree passed by him on 18‑5‑1986 and ordered the de novo trial of the suit
after bringing in the legal representatives of Hassan Bakhsh' deceased/ defendants on the record. This was
challenged by the plaintiffs/decree‑holders in the appellate Court through a revision petition which was
accepted vide judgment dated 24‑4‑1991 and by setting aside the order dated 13‑6‑1990, and the original
decree for possession through pre-emption dated 18‑5‑1986 was restored. Allah Wasaya and others
appellants herein, having no other legal remedy invoked the Constitutional jurisdiction of the High Court
for setting aside the revisional order of the Additional District Judge but with no success vide the
impugned order dated 25‑5‑1991. Hence the instant appeal through leave of the Court."

We have heard Mr. Muhammad Aqil Mirza, Advocate, for the appellants, Rana Muhammad Sarwar,
Advocate, for the respondents; and have perused the record of the case.

As discussed above, Mukhtar Ahmad appellant No.6 was shown as minor in the heading of the plaint with
Khuda Bakhsh defendant No.1 as guardian ad litem for him and nobody on behalf of the minor came
forward to challenge the appointment of Khuda Bakhsh as guardian of Mukhtar Ahmad on any ground
whatsoever or that he had any conflicting interest with that of the minor. Hassan Bakhsh defendant No.2
was undisputedly alive at the time of the' institution of the suit and according to the version of the
appellants he had appointed a counsel to defend him in suit: On his death during the pendency of the suit,
his heirs appellants 1 to 5 herein; were aware of the proceedings in the pre‑emption suit filed by Irshad
Ahmad and others, respondents 1 to 3 herein, and they ought to have participated in the further
proceedings of the suit if they were not satisfied with the conduct of the suit by Khuda Bakhsh
defendant/respondent. Under Order XXII, Rule 3 the plaintiffs, no doubt, have to apply to bring on record
the legal representatives of the deceased/defendant but their failure to do so is no longer fatal to the suit as
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under the amended provision even if the proceedings are continued against a dead person a decree can be
passed against him notwithstanding his death during the pendency of the suit. Consequently the
non‑impleadment of his legal representatives could not legally hamper the progress of the suit. At the same
time it was equally the responsibility of the heirs of the deceased/defendant Hassan Bakhsh to have
brought the factum of his death to the notice of the Court and requested for bringing in his L.Rs. on' the
record. Their inaction in this respect can lead to the only conclusion that they had left the conduct of the
case in the hands of Khuda Bakhsh co‑vendee with them and were satisfied rather acquiesced in his
performance.

The plaintiffs/pre‑emptors had based their claim on the ground of being collaterals of the vendor,
Khewatdar in the estate and Khewatdar in the suit land. Defendant No.1 was admittedly a Khewatdar
according to para.5 of the plaint but he had sunk with the co‑vendees/defendants 2 and 3 who were
strangers. In the written statement in para. 3 of the preliminary objections defendant No.1 alone claimed
the superior right of pre‑emption on, account of being tenant of the suit land but it was not specifically
pleaded in the written statement as to whether the other defendants/co‑vendees had any right of pre?
emption or not. The suit was filed on 30‑7‑1981 and the offer of oath was made on 18‑5‑1986. Obviously
much of the evidence must have been recorded in the meantime. It appears that the defendants/vendees
were not seriously contesting the superior right of pre‑emption of the plaintiffs/pre‑emptors but wanted the
refund of expenses like District Council fee and other allied charges incurred on the finalisation of the sale
transaction. To resolve this controversy the plaintiffs/pre‑emptors wanted Khuda Bakhsh defendant No.1 to
take oath which he accepted. He also specifically stated while taking the oath that the plaintiffs have the
superior right of pre‑emption being the collaterals of the vendor which was followed by the decree of the
Court.

The appellants have challenged the decree passed by the competent Court of law on the ground of fraud
and collusion under section 12(2) of the Civil Procedure Code and the burden heavily lay upon them to
establish that the fraud had been practised by the decree‑holders on the Court in the obtaining of the
impugned decree. Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true,
by one who does not believe it to be true; and the active concealment of a fact by one having knowledge or
belief of the fact. In the instant case the plaintiffs/decree‑holders neither misstated any fact nor concealed
anything from the Court to obtain the impugned decree. There is not an iota of evidence to show that there
was any collusion between Khuda Bakhsh defendant/co‑vendee and the pre‑emptors/decree‑holders, rather
they were at variance till the last moment so far as the sale consideration was concerned. As stated . earlier,
Mukhtar Ahmad appellant No.6 was duly shown as minor in the heading of the plaint and Khuda Bakhsh
was appointed his guardian‑ad‑litem which was never objected to even by Mukhtar Ahmad himself when
he attained majority as, according to his own admission his mother had the knowledge of the suit. As
regards the non? bringing of the heirs of Hassan Bakhsh deceased on record after his death during the
pendency of the suit, their non‑impleadment was not legally fatal for the progress of the suit and failure on
the part of the plaintiffs/pre‑emptors to apply for bringing on the record the heirs of the deceased Hassan
Bakhsh cannot amount to fraud. The impugned decree does not amount to a decree on the basis of
compromise but it is a decree passed after contest by the Court in view of the admissions and confessions
made by the respective parties and it could not be legally assailed through an application under section
12(2), C.P.C.

In view of what has been stated above the judgment of the learned Additional District Judge, Multan dated
24‑4‑1991 was perfectly legal and was rightly maintained by the High Court through the impugned order.
Finding no merit in the instant appeal, the same is hereby dismissed with no order as to costs.

AA./A‑958/S??????????????????????????????????????????????????????????????????????????????????????
Appeal dismissed.
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