Mohammad Hafizo Khan Vs Kabir Ullah & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P No. 14-C/2022 Mohammad Hafizo Khan v/s Kabir Ullah & others Present: Qazi Ishaq, AHC, for petitioner/applicant of 12 (2) petition.

Mr. Shams-ul-Islam, AHC, for respondents/ defendants.

Date of hearing: 22.9.2025

JUDGMENT

SALAH-UD-DIN, J.- Through instant writ petition, petitioner/applicant has challenged order and judgment of the Court of learned Senior Civil Judge/A’ala Illaqa Qazi, Chitral Lower, dated 29.6.2022, vide which, his application filed U/S 12

(2)C.P.C was dismissed and that of learned District Judge, Chitral Lower, dated 21.11.2022, whereby his revision petition preferred against the aforesaid order/judgment of learned trial Court, was also dismissed.

2.Arguments of learned counsel for

parties were heard in considerable detail and the available record perused with their able assistance.

3.Controversy-in-hand originate in its present form when present petitioner then applicant namely Muhammad Hafizo Khan has moved an Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

application U/S 12 (2) C.P.C before the Court of learned Senior Civil Judge, Chitral, inter alia, on the ground that earlier suit titled “Kabir Ullah & others v/s Mirza Muhammad & others” was instituted by present respondents then plaintiffs in respect of legacy of late Dost Muhammad, in the year 2012. At first instance, preliminary decree was granted in favour of present respondents/plaintiffs by dint of judgment and decree dated 22.02.2014, which was later on culminated into a final decree on 05.3.2018. It was alleged by present petitioner/ applicant in his 12 (2) petition that he was not even made a party to the aforesaid suit proceedings by respondents/plaintiffs with mala-fide intention, wherein they have fraudulently included ancestral passage of the petitioner as part & parcel of legacy of late Dost Muhammad. It was also alleged that the subject path was in use of petitioner since the time immemorial, however, two days prior to institution of instant 12 (2) petition, respondents have started interference in the peaceful usage of the said path, therefore, he was compelled to approach the competent Court of law for redressal of his grievance.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

4.On appearance, present respondents then defendants have filed their written reply and out of the divergent pleadings of the parties, learned trial Court has framed as many as five issues. After recording of pro & contra evidence, followed by hearing arguments of learned counsel for the parties, 12 (2) application of the petitioner/applicant was dismissed by learned trial Court vide its order dated 29.6.2022. Feeling aggrieved from aforesaid order, petitioner has filed a civil revision bearing No. 02/CR of 2022 before the Court of learned District Judge, Chitral Lower, which was also dismissed vide the second impugned order/judgment dated 21.11.2022, hence, instant writ petition.

5.A bare look of record would reveal that in support of his 12 (2) petition, petitioner/ applicant appeared in the witness-box as PW-1. In his testimony before the Court, petitioner has put- forward almost same facts as was part & parcel of his application, however, he failed to specify the exact length and width of the disputed path. In his cross-examination, he has made an admission in terms that there were alternate paths leading towards his house, apart from the disputed path. He Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

also admitted as correct that he could approach his landed property via tractor, through the lands of other inhabitants of the locality. PW-1 further deposed in his cross-examination that a piece of land was allocated for the access of houses of Qadar Khan and Kabir Ullah, wherein divergent boundary in the form of “brown” of about 2/3 feet had been in existence, self-stated, that in the middle his disputed path is situated. Same was the case with statement of another witness of the petitioner namely Umer Hayat, who was examined in Court as PW-2. In his cross-examination, he has shown a complete ignorance about the length and width of the disputed path/way. Testimony of Mir Wali Khan, PW-3 was also bereft in a sense, wherein there was no mention of length and width of the disputed path. From testimonies of the petitioner as well as that of his PWs, one could get an impression that the petitioner had not allocated any specific piece of land for the subject path, rather as per available record, it was a seasonal way or divergent boundary in-between two lands, which cannot be claimed as a sole ownership and in ordinary parlance such kind of path has been in use of people of the locality.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

6.It is also part of record that in the earlier suit proceedings a local commission was appointed and who had thoroughly worked-out measurement and boundaries of all the properties, however, in the said commission report, there was no mention of the disputed path, as claimed by present petitioner/ applicant. Needless to highlight, it was specifically claimed by respondent namely Kabir Ullah, DW-1, the then original plaintiff, that the suit land had fallen into their share in the light of commission report and final decree. After publication of his share, it was present petitioner who was interested in purchase of his share, however, he could not arrange the sale money, therefore, in order to restrain the respondent/ plaintiff from purchase of his share, the instant 12

(2)petition was filed, therefore, it prima facie seems that present petitioner has unturned many stones during the intervening period qua purchase of share of the decree-holder, however, on his failure to manage the sale money, he embarked upon his journey of filing of 12 (2) petition before the Court of learned Senior Civil Judge, Chitral, just to deprive the decree-holders from the enjoyment of usufructs of their decree.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

7.For maintaining a 12 (2) petition, petitioner has to establish elements of fraud or misrepresentation or he has to establish that the decree so obtained was not passed by a Court of competent jurisdiction or the same suffers from material illegality. For ready reference, section 12

(2)C.P.C is reproduced below:-

“12. Bar to further suit.—(1).....................

(2)Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not be a separate suit.”

Aforesaid provision is clear in its contents that petitioner has to prima facie establish that the decree-holder has committed fraud upon a Court or to a party or that he has made misrepresentation, or a Court which has passed the decree was not having jurisdiction. In absence of aforesaid grounds, a petition under section 12 (2) CPC could not be maintained. All the aforesaid ingredients are apparently missing in the present case and as such learned trial Court has rightly dismissed application of petitioner filed U/S 12 (2) C.P.C and the revision filed thereafter was too rightly dismissed by learned revisional Court. In the case of Mst. Nasira Khatoon & Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

another, it was expounded by Hon’ble apex Court that concealment of material facts by a person having knowledge or belief of such facts may constitute fraud. Active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion, rather it must be proved through strong, independent, clear and convincing evidence and burden would be heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of opposite-party. There can be no exception to the rule of law that without bringing essential facts on record and evidence in proof of the fraud, the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge sanctity attached with official acts and judicial proceedings. Fraud undoubtedly vitiates solemn proceedings and time would not sanctify an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of allegation of fraud [1].

Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others reported as 2003

SCMR 1050,

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

8.In view of the above, learned counsel for petitioner could not establish the factum of fraud and misrepresentation, which is sine-qua-non for maintaining or allowing a 12 (2) C.P.C petition, for setting aside a judgment and decree passed in favour of a decree-holder.

9.For what has been discussed above, impugned orders and judgments of learned two Courts below respectively dated 29.6.2022 and 21.11.2022 are exactly in accordance with spirit of section 12 (2) C.P.C and impugned orders and judgments are not the result of any fraud, misrepresentation or concealment of any facts and thus no illegality or irregularity has been committed which may warrant interference of this Court, therefore, the same are maintained and upheld and consequently, instant writ petition being bereft of any merits stands dismissed, however, petitioner would be at liberty to approach other fora for redressal of his grievance.

Announced Dt: 22.9.2025 Sd/-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din