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Civil Miscellaneous No.36 of 1986 in Writ Petition No.1128/R of 1975, decided on 21st January, 1986.

‑‑‑S.12(2)‑‑Recall of order passed by High Court in constitutional jurisdiction‑‑Where order passed by High Court could not be proved to be result of fraud or misrepresentation practised upon such Court or was result of want of jurisdiction, same, held, could not be recalled under S.12(2), Civil Procedure Code, 1908‑‑ Fraud/ misrepresentation practiced in another avenue, would not make provision of S.12(2), Civil Procedure Code, 1908 applicable to order passed by High Court‑ Order of Court would be conclusive qua facts obtaining on record.

Iqbal Ahmad for Petitioner.

This petition has been made under section 12(2) of the Code of Civil Procedure for the recall of the order, dated 22‑10‑1975 of this Court passed in Writ Petition No.1128‑R of 1975 and the disposal of the petition on merits on the basis of the facts and the documents now available on the record.

2. The petitioner allegedly submitted an L.H. Form, dated 7‑8‑1959 under Settlement Scheme No.l to the Deputy Settlement Commissioner, Rawalpindi for the transfer of House No.U/861, Gali Sabunian, Purana Qilla, Rawalpindi on the basis of his possession and allotment of the same which form was rejected on the ground that the value of the house was more than Rs.10,000, so that could not be transferred to the petitioner under Settlement Scheme No.l, whereafter the house was transferred to respondent No.1 on 30th March, 1962 on a C .‑H . Form by the then Deputy Settlement Commissioner. The petitioner pursued the matter upto the Settlement Commissioner but without any success. Then he filed a Writ Petition No.1128‑R of 1975 in this Court against Sh. Inayat Ullah and others by maintaining that the transfer of the house in favour of the respondent was illegal because Sh. Inayat Ullah was never in possession of the property in dispute and the possession was a condition precedent to the transfer. The petitioner was entitled to the transfer of the property since the restrictions imposed on the transfer to a local had been subsequently relaxed.

This Court dismissed the writ petition in limine, vide its order, dated 22‑10‑1975 by observing that even if there was any allegation of fraud after the issuance of permanent transfer deed the Settlement Authorities retained no jurisdiction over the property in dispute. The petitioner also could not succeed merely by attacking the entitlement of the respondent (Sh. Inayat Ullah), unless he could make out his own case. However, the petitioner was not vigilant in pursuing his case which aspect could not be ignore simply because as maintained by the learned counsel for the petitioner no time limit had been prescribed under the law for invoking the revisional jurisdiction. The facts warranted that the petitioner was not serious regarding the transfer of the house.

3. The learned counsel for the petitioner has submitted in this application, that it has come to the knowledge of the petitioner that a case under section 467/468/471/109/420, P.P.C. and section 5(2) of the l Prevention of Corruption Act was registered against respondent No.l and the officials of‑ the Settlement Department who had connived with the respondent helping him in obtaining the fraudulent transfer of the property in dispute and the officials of the Settlement Department had been convicted by the 'Special Judge, Anti‑Corruption, Rawalpindi. The transfer order issued by the Settlement Authorities including the P.T.D. in favour of respondent No.l had been cancelled by a competent authority, against which the respondents have filed a Writ Petition No.l6‑R of 1984 in this Court. The order, dated 22‑10‑1975 passed in Writ Petition No.1128‑R/75 is liable to be recalled on the basis of fraud and misrepresentation and the transfer documents of the respondents having been cancelled by the competent authority.

4. The application so made, is not maintainable for the simple reason that it cannot be said that the alluded order was a result of any fraud practised on this Court or a misrepresentation made to this Court or there was any want of jurisdiction. The writ petition had been dismissed in limine filed by the petitioner himself and according to the facts obtaining at that time, if the fraud unearthed was practised in another avenue that would not make section 12(2), C.P.C. applicable to the order passed by this Court, then the remedy lies somewhere else. The learned counsel for the petitioner has expressed his apprehension that even if the petitioner pursues the matter in the changed circumstances before the other avenues the said order passed in the writ petition will stand in his way. The apprehension appears to be an unfounded one. An order is conclusive qua the facts obtaining on the record.

This application is dismissed in limine

A.A Application dismissed.

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