Syed MUHAMMAD GHOUS vs Mst — 2024 CLC 900 KARACHI-HIGH-COURT-SINDH

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Syed MUHAMMAD GHOUS VS Mst. NAJMA S. 12(2)---Fraud and misrepresentation---Non-impleadment of a party---Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908, (C.P.C) alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court---Trial Court, after recording evidence, dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court---Validity---Burden of proof was on the Petitioner (applicant under S.12(2) of the Civil Procedure Code, 1908), who led evidence through eight witnesses---Most of the witnesses of the petitioner were his relatives (his son-in-law, blood brothers, and son), his estate agent, and one (witness) was called from Quetta just because the petitioner asked him to come from Quetta---According to the testimonies of witnesses, almost all of them, during cross-examination, for the majority of the questions put to them claimed lack of knowledge; they conceded they did not prepare the affidavits; only signed affidavits because they were told to do so and admitted that they were illiterate/did not understand English---Finally, no-one from any of the legal heirs of alleged vendors/respondents stepped into the witness box---Further, the petitioner also did not bother to move the Trial court to summon and compel the attendance of said crucial witnesses---Petitioner was to prove that fraud / misrepresentation / concealment of material facts had been played on the Court when Civil Suit was filed in the year 2012, even though the petitioner executed the Sale Agreement with Respondent (Defendant / vendor ) almost three years later---Petitioner/Applicant pointed out no substantial evidence to establish the factum or element of fraud and misrepresentation or concealment of facts by respondent No.1/plaintiff in obtaining the decree---Mere assertion of fraud in the S.12(2), C.P.C., application without proof was not sufficient to set aside the decree---No illegality or material irregularity had been noticed in the impugned orders passed by both the Courts below---Constitution petition was dismissed, in circumstances.

Syed MUHAMMAD GHOUS vs Mst — 2024 CLC 900 KARACHI-HIGH-COURT-SINDH

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