2015 M L D 1169


2015 M L D 1169

[Lahore]

Before Shahid Waheed, J

GHULAM FATIMA---Petitioner

versus

DUR MUHAMMAD and others---Respondents

C.M No.451-C of 2012 in C.R. No.372-D of 1996, decided on 11th September, 2014.

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

----Ss. 12(2) & 115 & O. XXII---Application under S.12(2), C.P.C.---Judgment/order, setting aside of---Misrepresentation---Death of one of the revision petitioners during pendency of revision---Non-impleading of legal heirs of deceased revision petitioner---Effect---Revisional jurisdiction of High Court---Applicability of Order XXII, C.P.C.---Scope---Contention of applicants was that one of the revision petitioners had died during the pendency of revision and to his extent power of attorney had lost its validity and without impleading the applicants/legal heirs as party misrepresentation had been committed---Validity---Applicants had neither averred in the application nor pleaded during arguments that facts pleaded by the counsel were contrary to the record---No untrue statement of fact or incorrect or false representation on behalf of other revision petitioners was made---Present case was not a case of misrepresentation of facts---Deceased revision petitioner and other defendants filed revision in his life time---Interest of all revision petitioners/defendants was common and other revision petitioners had contested the revision petition---No prejudice was caused to other revision petitioners and present applicants---Applicants had not alleged that their (revision petitioners) brothers had colluded with the plaintiffs/respondents of revision petition and there was no occasion to misrepresent the facts/case before the High Court at the time of final arguments of revision---Other revision petitioners who were sons of deceased were bound to bring on record the left over legal heirs of deceased revision petitioner who were the applicants---Applicants were bound to come forward and become a party in the revision petition---Impugned judgment/order could not be said to have been passed without impleading the legal heirs of deceased revision petitioner---Provisions of Order XXII, C.P.C. were not applicable to the revisional jurisdiction of High Court and if any of the revision petitioner died, same would not abate the revision petition---Impugned order could be passed in the present case without impleading the legal heirs of deceased revision petitioner---Revisional proceedings were always considered as proceedings between a higher court and a lower court---Revision petition was dismissed after examining the record of the case---No misreading or non-reading of evidence had been alleged by the applicants---Death of one of the revision petitioner and invalidity of his power of attorney was not fatal for the disposal of revision petition---Application for setting aside judgment/order was dismissed in circumstances.

            Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore PLD 1949 Lah. 541; Perdil and others v. Barkat and others PLD 1953 Pesh. 14; Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 and Bashir Ahmad through L.Rs. v. Muhammad Hussain and others 2010 SCMR 822 rel.

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

----S. 115 & O. XXII---Revisional jurisdiction of High Court---Applicability of Order XXII, C.P.C.---Scope---Provisions of Order XXII, C.P.C. were not applicable to the revisional jurisdiction of High Court and if any of the revision petitioner died, same would not abate the revision petition.

(c) Words and phrases---

----"Misrepresentation"---Meaning.

            Black's Law Dictionary rel.

            Waseem Mumtaz for Petitioner.

            Mian Muhammad Jamal for Respondents Nos. 1, 3 and 4.

            Ch. Abdul Sami for Respondents Nos. 6, 7 to 9.

ORDER

 SHAHID WAHEED, J.---This is an application under section 12(2), C.P.C. by the daughters of one of the revision petitioner, that is, Peeran Ditta, for setting aside the judgment/order and decree dated 8-3-2011 passed by this Court in C.R. No.372-D/1996.

2.         Briefly the facts of the case are that the respondents Nos.5 to 9 being aggrieved by the judgment and decree of the learned Civil Judge dated 5-10-1995 and that of the learned District Judge, Lodhran dated 11-3-1996 filed Civil Revision No.372-D/1996 before this Court. Malik Javaid Akhtar Wains, Advocate being the counsel for respondents Nos.5 to 9/revision petitioners appeared before this Court and advanced his arguments. After hearing arguments of learned counsel for the parties, the revision petition was dismissed by this Court vide order and decree dated 8-3-2011.

3.         It is the case of the applicants that one of the revision petitioners, that is, Peeran Ditta (revision petitioner No.1) had died on 20-10-2010; and thus, to his extent power of attorney, executed in favour of Malik Javaid Akhtar Wains, Advocate had lost its validity; and, the case presented, without impleading the applicants/legal heirs as party, at least on his behalf falls within the ambit of "misrepresentation" within the contemplation of section 12(2), C.P.C.

4.         The learned counsel for the respondents Nos.1, 3 and 4 has vehemently opposed this application and submits that the same being not maintainable is liable to be dismissed.

5.         It is true that a person may challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction under section 12(2), C.P.C. But the question is as to whether the case of the applicants fills within the ambit of "misrepresentation". The word "misrepresentation" has not been defined in the Code of Civil Procedure, 1908. Thus dictionary may be referred to for determining the meaning of the word "misrepresentation". In Bank's Law Dictionary, 6th edition, the word "misrepresentation" has been defined as follows:--

            "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. Colloquially it is understood to mean a statement made to deceive or mislead".

Now in the light of above meaning of the word "misrepresentation", the case on hands is examined. It has neither been averred in the application nor pleaded before this Court during the course of arguments that the facts pleaded by Malik Javaid Akhtar Wains, Advocate were contrary to the record. It means that no untrue statement of fact or incorrect or false representation on behalf of the revision petitioners was made before his Court. Thus, it is not a case of misrepresentation of facts.

6.         As regards the authority of said counsel to plead the case on behalf of deceased Peeran Ditta before this Court on 8-3-2011, it is suffice to say that Peeran Ditta along with his four sons i.e. Ghulam Rasool, Ghulam Sarwar, Ghulam Mustafa and Ghulam Haider being unsuccessful defendants filed civil revision in his life time. The interest of all the defendants/revision petitioners was common. During the pendency of revision petition Peeran Ditta died. It is not the case of the applicants who are daughters of Peeran Ditta that their brothers had colluded with the plaintiffs/respondents of the revision petition meaning thereby that there was no occasion to misrepresent the facts/case before this Court at the time of final arguments of civil revision. Notwithstanding the above, firstly, it was the obligation of the other revision petitioners, who were sons of Peeran Ditta, to bring on record the left over legal heirs of Peeran Ditta, that is, the applicants on record; secondly, it was the duty of the applicants to come forward and become a party in the revision petition; thirdly, other petitioners of civil revision were legal heirs of Peeran Ditta, deceased, therefore, this cannot be said that the order/judgment and decree were passed without impleading the legal heirs of Peeran Ditta. As stated above, it was a common interest of Peeran Ditta and other revision petitioners; and, other revision petitioners had contested the revision petition so no prejudice was caused to other revision petitioners and the applicants by the impugned order/judgment and decree. Lastly, the provisions of Order XXII, C.P.C., which are not applicable to revisional jurisdiction of this Court, have already been amended by the Law Reforms Ordinance, 1972, and if any of the petitioners, dies it does not abate the revision petition, hence the order, in the given circumstances, could be passed in the instant case without impleading the legal heirs of the deceased/Perran Ditta, as held in the case of Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore (PLD 1949 Lahore 541), Perdil and others v. Barkat and others (PLD 1953 Peshawar 14), Muhammad Sadiq v. Muhammad Sakhi (PLD 1989 SC 755) and Bashir Ahmad through L.Rs. v. Muhammad Hussain and others (2010 SCMR 822). Even otherwise, the revisional proceedings are always considered as proceedings between a higher Court and a lower Court. This Court after examining the record of the case dismissed the revision petition. The applicants have not alleged that the judgment and decree passed in C.R No.372-D/1996 suffer from misreading or non-reading of evidence. Thus, in the given circumstances, death of Peeran Ditta and invalidity of his power of attorney executed in favour of above said counsel was not fatal and, therefore, it is not a case of misrepresentation within the contemplation of section 12(2), C.P.C.

7.         Upshot of the above discussion is that this application lacks merit; and thus, the same is dismissed. No order as to cost.

C.Ms. Nos.1091-C and 1165 of 2012.

8.         C.M. No.1091-C/2012 is an application under Section 151, C.P.C. for staying the proceedings of the learned Executing Court during the pendency of C.M.No.451-C-29012 (application under section 12(2), C.P.C.). In this application, this Court vide order dated 23-5-2012 stayed the executing proceedings. Subsequently, respondent No.1, Dur Muhammad, filed application i.e. C.M. No.1165-C/2012 for recalling of above said of order. Notice of C.M. No.1165-C/2012 was issued to the other side vide order dated 30-5-2012. These two applications are pending before this Court and are required to be disposed of. In this context, it is suffice to say that since the main application i.e. C.M. No.451-C/12 has been dismissed, therefore, the said two applications have become redundant and are disposed of accordingly.

AG/P-20/L                                                                               Applications dismissed.


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