SECTION 12(2) C.P.C.
By:
AZMAT
ULLAH WARRAICH
Advocate
High Court
E-mail: azmatwarraich@ymail.com
It
is a very important section in the Code of Civil procedure, (C.P.C.) which is
usually filed an application by an aggrieved person for setting aside a final
judgment, decree or order, which is passed by a court due to fraud,
misrepresentation or want of jurisdiction. Hence, it is reproduced section 12
(2) C.P.C. as follows:
“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 by a separate suit”.
When did it insert in C.P.C.?
It was inserted
in the C.P.C. through the Ordinance X of 1980.
Grounds of application
Fraud,
misrepresentation or want of jurisdiction are grounds for filing of application
under this section, but if these grounds are missing in an application, then it
is not maintainable. However, the superior courts of
Forum of an application
Application
under section 12 (2) C.P.C. can be filed before a court which passed a final
judgment, decree or order. However, the Superior Courts of Pakistan had held
decision on this issue as follows: “Application under section 12(2), C.P.C. was
to be filed before the court, which was last in series except where an appeal
revision or leave to appeal was dismissed on any ground except merit”. (2)
“Where the decree/order of a forum below has been affirmed by the higher forum on merits, both on points of fact and law, it should be
such decree/order ( of higher
forum) which attained the status of final decree/order within
purview of section 12(2) C.P.C. ….Where
a decree-order has been modified or reserved by the Appellate or Revisional
Court, it shall be such decree-order (of Appellate or Revisional Court), which
will be final in nature for the purpose of section 12(2) C.P.C. and accordingly application
could only be initiated before such forum which had altered the
verdict”.(3)
“judgment
and decree of a court can only be assailed before that court, when aggrieved party seeks
to have it set aside on the
ground that either the party was not
served or that the same was obtained
through misrepresentation, fraud etc”.(4)
“If
Supreme Court merely affirms judgment or order of High Court by refusing leave
the final judgment in terms of section 12(2) C.P.C. will be of the High Court
and not of the Supreme Court, and if however, Supreme Court reverses a
judgment of a High Court and records finding on question of fact or law
contrary to what was held by the High Court, in that event the final
judgment or order would be of the Supreme Court for the purposes of section 12(2) C.P.C.”.(5)
“Court
having finally adjudicated matter could entertain application under section 12
(2) C.P.C.” (6)
New suit is barred
A
new suit is barred against a final judgment, decree or order, which is procured
by fraud, misrepresentation or want of jurisdiction from a court. Hence, it is
the precedents of the Superior Courts of Pakistan on this point as
follows:“Section 12(2), C.P.C. had barred independent suit for challenging a
decree or judgment on basis of fraud and it had provided a speedy remedy for
cancellation of such a decree”.(7)
It is similar to a new suit
Application
under this section is equal to a new suit. Hence, it is the precedents of the
superior courts of
“An
application under section12(2), C.P.C., 1908
may be treated as a suit once
such application is admitted for full hearing and
when not dismissed summarily in accordance
with prevailing facts and
circumstances of the case, then the
impugned decree loses its effectiveness
or status”. (9)
Who can file this application?
Any
aggrieved person can be filed an application under section 12 (2) C.P.C for
setting aside a final judgment, decree or order on basis of fraud,
misrepresentation or want of jurisdiction. However, any person who is not
aggrieved by a final judgment, decree or order of a court, he cannot file an
application under section 12 (2) C.P.C.
as according to precedents of the superior court of Pakistan as follows:
Applicants thus were not a
aggrieved by the impugned orders
and they could not file the present applications (under section 12(2)
C.P.C.)….(10)
It decides after recording of evidence
“Application
under section 12(2) C.P.C. containing serious allegations of forgery and fraud
could not be decided without recording of evidence”.(11) “Framing of issues or
recording of evidence in proceedings under section 12(2), C.P.C. is not the
rule of law….Court is not bound to undergo such exercise in every matter under
section 12(2)”. (12)
Order 7, rule 11, C.P.C. is not applicable
“12(2)
C.P.C., such application could not be treated
as plaint under Order 7, rule 11 C.P.C., thus court could not reject the
same under order 7 rule C.P.C. order of
trial court rejecting such application
would nullity in the eyes of law, whereabouts revision petition, if filed would
be maintainable”. (13)
Revision
Order
passed under section 12 (2) C.P.C. does not culminate in decree, but remains
simply an order passed on a miscellaneous application, no appeal lies against
such order, only remedy of revision under section 115 C.P.C. can be available
of. Such order is not appealable under section 104 C.P.C. or XLIII, rule 1
C.P.C. (14)
Limitation
“Law
having not provided any limitation for filing an application under section
12(2) C.P.C. residuary Article 181 of limitation Act, 1908 would govern it
where under limitation three years from the date of knowledge from order under
attack”.(15)
“No
limitation provided for moving the court under section 12(2) for setting aside a decree obtained
through fraud and deception however, it has been ruled that article 181 limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person
from the date when he got
knowledge about such a decree or
judgment”.(16) “When ground of fraud and misrepresentation were taken in such
an application, then there would be no limitation for its filing”. (17)
“Application
under section 12 (2) C.P.C…. Limitation imposed by law on filing of suit would
apply to such application for being a substitute for a suit”.(18) “Limitation
for filing an application under section 12 (2) C.P.C. was three years and
present application was time barred…. No application for condonation of delay
has been filed to justify the delay of each and every day…. Application under
section 12 (2) C.P.C. was dismissed in circumstances”.(19)
References:
1. PLD 2009Lahore 63; PLD 2010 Karachi
400;
2. PLD 2015 Peshawar 39
3. PLD 2013 SC 478
4. 2011 SCMR 1854
5. 1993 SCMR 1171, 1999 SCMR 1516, PLD
2009 Karachi 123,
6. PLD 2013 Lahore 51
7. PLD 2015 HC (AJ&K) 7
8. 2015 SCMR 615, 2015 CLC 594 (Sindh)
9. PLD 2014 Peshawar 1
10. 2015 CLD 390 (Sindh)
11. 2008 SCMR 236
12. PLJ 2008 Lahore 492
13. PLD 2013Lahore 51
14. 2004 YLR 1066, 1997 MLD 2003, PLD 2002
Peshawar 84,
15. 2007 CLC 1507, 2005 YLR 3030, 1993 SCMR
2096
16. PLD 2015 HC (AJ&K) 7, 2008 CLC 164 (Lahore)
17. PLD 2013 Lahore 51
18. 2011 SCMR 551
19. 2015 YLR 276 (Sindh)
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