--If an application made under S. 12(2), CPC is dismissed due to non-appearance, then obviously procedure prescribed for restoration of the suit under Order, IX, CPC will be applicable for restoration of the application-

 PLJ 2013 Lahore 362

Civil Procedure Code, 1908 (V of 1908)--

----Ss. 12(2) & 141--Petition for setting aside judgment and decree passed in civil revision on basis of fraudulent compromise--Dismissal of petition--Restoration of--Absence of petitioner was neither intentional nor due to his negligence--Judgment and decree obtained by practicing fraud and misrepresentation can be challenged and no separate suit lies--Procedure can be made applicable in all proceedings in any Court of civil jurisdiction--Validity--If an application made under S. 12(2), CPC is dismissed due to non-appearance, then obviously procedure prescribed for restoration of the suit under Order, IX, CPC will be applicable for restoration of the application--No knowledge of fixation of petition before High Court and application was made within time which was duly supported by an affidavit--Law favours adjudication of disputes among litigants on merits and technicalities should not be made hurdle in way of justice--Application was allowed.        [P. 363] A & B

Syed Muhammad Ali Gilani, Advocate for Applicant.

Ch. Habib Ullah Nehang, Advocate for Respondents.

Date of hearing: 4.12.2012.

 PLJ 2013 Lahore 362
[Multan Bench Multan]
Present: Syed Iftikhar Hussain Shah, J.
NOORANG--Petitioner
versus
UMAR DARAZ, etc.--Respondents
C.R. No. 474-D of 1994, C.M. No. 656-C of 1995 and C.M. No. 1156-C of 2012, decided on 4.12.2012.

Order

C.M. NO. 1156-C OF 2012

The petitioner has made this petition for the restoration of C.M. No. 656-C/1995 moved under Section 12(2), CPC in Civil Revision No. 474/1994, which was dismissed in default due to the non-appearance of the petitioner on 14.5.2012.

2.  Learned counsel for the petitioner has contended that the learned counsel representing the petitioner before this Court had passed away and the petitioner had no knowledge about the fixation of the petitioner before this Court; that the absence of the petitioner was neither intentional nor due to his negligence, therefore, the same is liable to be restored.

3.  On the other hand, learned counsel for the respondents has contended that there is no provision for the restoration of application made under Section 12(2), CPC and the application for the restoration lies only when a suit is dismissed. Furthermore, different Advocates had been representing the petitioner on different dates and late Mirza Manzoor Ahmad, Advocate was not the only learned counsel representing the petitioner throughout the proceedings, therefore no cogent reason exists to restore the petitioner.

4.  Arguments heard. Record perused.

5.  The petitioner made a petition under Section 12(2), CPC for setting aside judgment and decree dated 24.5.1995 passed in Civil Revision No. 474-D/1994 on the basis of fraudulent compromise. On 14.5.2012 no body appeared on behalf of the petitioner despite repeated calls, therefore, the petition was dismissed. The petitioner has made application for the restoration of the said petition. Under Section 12(2), CPC, a judgment, a decree or order obtained by practicing fraud and misrepresentation can be challenged and no separate suit lies. The procedure for deciding he said petition is the same which is applied for the adjudication of civil suits and appeals. Even otherwise under Section 141, CPC the procedure prescribed in the Code of Civil Procedure in respect of suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. If an application made under Section 12(2), CPC is dismissed due to non-appearance of the petitioner, then obviously the procedure prescribed for the restoration of the suit under Order IX, CPC will be applicable for the restoration of the application.

6.  The petitioner has alleged that his original counsel had passed away and he had no knowledge of the fixation of the petitioner before this Court and the application has been made within time which is duly supported by an affidavit. The law favours the adjudication of disputes among the litigants on merits and the technicalities should not be made hurdle in the way of justice.

Therefore, in the interest of justice, the application in hand is allowed and C.M. No. 656-C of 1995 is restored to its original number Office to fix the same on 19.12.2012.

(R.A.)  Application allowed