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Civil Revision No. 1919 of 1984, decided on 24th April, 1985.
‑‑‑Ss. 12(2), 114 & 115‑‑Review‑‑Revision‑‑Revision against order of Additional District Judge dismissing petitioner's review application‑ Fraud‑‑Plea of fraud, a question of fact, not raised at earlier stage but taken for first time through medium of review application‑‑Question of fact needing proof for and against, held, could not form basis for review‑‑For exercising power of review there should be an error upon record and not a ground extraneous to matter already decided upon‑ Review of relevant order rightly refused by Additional District Judge.‑ [Review].
‑‑‑ Plea of fraud a question fact‑and should be taken at the earliest opportunity.
Yusuf Ali Khan, Bar‑at‑Law for Petitioner.
This civil revision converted from an execution second appeal impugns an order, dated 20‑9‑1984 of the learned Additional District Judge, Lahore, whereby the petitioner's review application was dismissed.
2. The dispute relates to a plot which was initially allotted to the petitioner Mst. Majeedan Begum but was later cancelled and instead allotted to one Lal Din from whom the respondent Zulfiqar Ali purchased it. The petitioner brought a civil suit for specific performance of the contract by which it had been allotted to her. The suit was dismissed for want of jurisdiction. She took the matter to the Assistant Registrar, Co‑operative Societies who upheld her claim. An appeal filed before the Registrar and then a revision before the Provincial Government were dismissed. Thus, the order of allotment operated as a decree in her favour under section 59(1)(a), Co‑operative Societies Act and she sought its execution. The respondent Zulfiqar Ali preferred an objection petition which was accepted by the Executing Court vide its order, dated 18‑5‑1983 holding that the decree was inexecutable. An appeal from that order was dismissed by the learned Additional District Judge on 6‑3‑1984. Then the petitioner filed an application under section 12(2), C . P. C . before the learned Additional District Judge but the same being incompetent was later converted into a review application and, of course, dismissed by the impugned order.
3. The review was sought of the order, dated 6‑3‑1984 of the learned Additional District Judge dismissing the petitioner's appeal on the ground that the respondent had obtained the sale‑deed from the opposite allottee, Lai Din, quite fraudulently as no allotment had, in fact, been made in favour of the latter. The learned Additional District Judge took the view that no fraud had been committed before him and, therefore, neither an application under section 12(2) , C .P . C . , nor one for review would lie.
4. Supporting the impugned order, Mr. A.R. Mufti, Advocate for the respondent urged that no review was available on facts which needed proof and that since the petitioner was relying upon fraud, it could not have been raised in the garb of review proceedings. Further, he submitted that fraud, if any, had been committed upon the Housing Society and not the Court and hence the latter did not have jurisdiction to decide upon it. Lastly, he maintained that no such plea was taken up before the Executing Court dealing with the objection petition and that for all purposes it was entirely a new ground introduced for the first time after the petitioner's appeal and was thus, entirely unrelated to the proceedings so far taken.
5. There is ample force in the objection raised for the respondent. Manifestly the alleged fraud was a question of fact which should have been raised at the earliest. It was not taken in reply to the objection petition filed by the petitioner before the Executing Court nor before the learned Additional District Judge in appeal and was introduced for B the first time through the medium of the present review application. It is a cardinal principle of law that where a question of fact needed proof for and against, it could not form basis for review. For exercising A that power, there should be an error upon the record and not a ground extraneous to the matter already decided upon. This was besides; the fact that the alleged fraud if at all had been committed upon the Housing Society which was led to believe Lai Din to be more entitled to get the plot than the petitioner‑lady.
6. There was no justification for the review of the relevant order of the learned Additional District Judge and the same had been rightly refused. Equally there is no merit in the revision petition. It is dismissed in limine.
S . Q Petition dismissed.
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