(1) The Court is not obligated to frame issues in every case while deciding application under section 12(2), C.P.C.
(3) Full particulars of fraud, misrepresentation or want of jurisdiction should be mentioned in the application and not vague allegations.
It is a well-settled exposition of law that for determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application moved under section 12(2), C.P.C., the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for framing of issues and recording of evidence, without which the allegations leveled in the application filed under Section 12 (2) C.P.C. cannot be decided. The main ground alleged in the application by the petitioner is that the summon on their predecessorin-interest was not served due to wrong address. Neither the copy of plaint is attached to the paper-book to show the title of the suit or address, nor the agreement on which the suit for specific performance was filed. There is an eye-catching distinction between Order 9 Rule 13 and the niceties of Section 12 (2) C.P.C. In case of an ex-parte decree, the defendant may apply under Order 9 Rule 13 C.P.C. for setting aside the ex-parte decree and if the Court is satisfied that summons were not duly served or the defendant was prevented from any sufficient cause from appearing when the suit was called, the Court can make an order for setting aside the decree and appoint a day for proceedings with the suit. However, it is further provided in the same Rule that no ex-parte decree shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for the reason that the defendant had knowledge of the date of hearing in sufficient time to appear on that date to answer the claim. In tandem, a person can challenge the validity of a judgment, decree, or order on plea of fraud and misrepresentation or want of jurisdiction under Sub-section (2) of Section 12 C.P.C. by making an application with full particulars of the fraud and misrepresentation to the Court which passed the final judgment, decree, or order and not by a separate suit. The term “person” provided in this Section cannot be interpreted narrowly to restrict its scope and application only to the judgment-debtor or his successors but it includes any person adversely affected by the judgment and decree or order of the Court without any distinction on whether he was party to the original proceedings or not.
Application under section 12(2), CPC.
C.P.L.A.2341-L/2016
Hafiz Malik Kamran Akbar, etc v. Muhammad Shaif (deceased) through LRs, etc
Mr. Justice Muhammad Ali Mazhar
02-01-2024
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