---Ss.12(2) & 12(3)---Application challenging judgment and decree obtained by practicing fraud/misrepresentation/collusion--

 2022 C L C 167
[Lahore (Rawalpindi Bench)]
Sheikh HAROON-UR-REHMAN
Versus
MUHAMMAD RAFIQUE and others

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

----Ss.12(2) & 12(3)---Qanun-e-Shahadat (10 of 1984), Art.114---Respondent's suit for specific performance was decreed---Estopped, principle of---Applicability---Petitioner's application under S. 12(2) of C.P.C. was dismissed concurrently---Contention that Trial Civil was required to frame issues and decide the said application on merits after recording of evidence---Validity---Petitioner's application under S.12(2) of C.P.C, had been decided on the basis of uncontroverted facts that petitioner had contested the execution petition filed by respondents/decree-holders and got his statement recorded showing his compromise with the respondents and his intention to pay decretal amount; and that application was barred by limitation---Trial/Civil Court was well within its authority to apply any procedure which was fair in the circumstances of the case--­-No issue was required to be framed and no evidence was required to be recorded in such case which had been decided on the basis of statement of the petitioner/applicant recorded by the executing court---Petitioner had earlier filed objections qua execution while alleging more or less the grounds taken by him in his application under S.12(2) of C.P.C., which grounds were later on withdrawn while recording his statement---Petitioner's application was hit by the doctrine of estoppel---Constitutional petition was dismissed accordingly.

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

----Ss.12(2) & 12(3)---Application challenging judgment and decree obtained by practicing fraud/misrepresentation/collusion---Disposal---Procedure---Framing of issues in every case to examine merits of such application would frustrate the object of S.12(2) of Civil Procedure Code, which was to avoid protracted/time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts.

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

---Ss.12(2), 12(3) & 141---Application under S.12(2), C.P.C., disposal of---Procedure---Prior to insertion of subsection (3) in S.12 of Civil Procedure Code, 1908, through Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018), no procedure was prescribed for the disposal of an application under S.12(2) of the Code---In cases where the determination of allegations of fraud and misrepresentation involved investigation into the question of fact, inquiry was ordinarily held to adjudicate upon the matter by framing an issue and recording evidence while invoking the provision of S.141 of the Code---Perusal of S.12(3) of the Code clearly indicated that: firstly, an application under S.12(2) of the Code had been required by law to be disposed of expeditiously; secondly, for expeditious disposal of such an application, a discretion had been conferred upon the court to adopt such procedure as the circumstance of the case warranted; thirdly, the procedure to be adopted by the court must be fair in the circumstances of the case; fourthly, if proof etc. of any fact was required, it should be proved/disproved by affidavit unless directed otherwise by the court; and fifthly, reasons must be recorded in the order where the court directed any fact to be proved/disproved otherwise than by way of affidavit---Such was manifest that the requirements of a regular trial vis-à-vis framing of issues and recording of evidence had been generally dispensed with by the legislature in adjudication of applications under S.12(2) of the Code and the court has been burdened with the responsibility to record reasons for resorting to such procedure in exceptional cases.

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

---S.12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2) of Civil Procedure Code, 1908, could be filed within three years from the date when the right to apply accrued and such date would be the date of passing of the judgment and decree.