format of application 12 (2) cpc

SECTION 12(2) C.P.C.

By: AZMAT ULLAH WARRAICH Advocate High Court E-mail: [email protected]

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 Pakistan had held decision on this issue as follows: “12(2) C.P.C. Where the material on record failed to indicate that there was any element of fraud or misrepresentation in the matter or there was any want of jurisdiction of the court, provision of S 12 (2) of C.P.C. would not attract”.(1)

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 Pakistan on this point as follows: “Under section 12 (2), C.P.C. was a substitute for a separate/ independent suit   for setting   aside   of a decree”.(8)

“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)

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)

“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)

---------------------

THE ADVOCATE

CONVEYANCING, PLEADING AND DRAFTING

Saturday, March 31, 2012

Application u/s. 12(2) cpc, 3 comments:.

Dear Sir, May I request to have the format copy of Affidavt accompanying Application. Regards Safdar Ali Advocate. SUKKUR

All particular fraud and missrepresentationmust be mentionned in application

All particular of fraud and missrepresentation must be estsblished i application

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.p.   no. d-2114 of 2008.

----------------------------------------------------

Date              Order with signature of Judge

FOR HEARING OF CMA NO.11358/2008.

---------------------------------

Mr. Muhammad Nishat Warsi, advocate for the petitioner.

Mr. Amanullah Agha, advocate for the respondent No.1.

      The facts leading to the filing of this constitutional petition are that a suit for Declaration and Permanent Injunction, being Suit No.314/1994 (Old No.1203/1993) instituted by respondent No.1, against the petitioner on 25.08.1993, was decreed by the Court of Civil Judge, Malir, Karachi vide its judgment dated 08.02.2000, followed by preparation of decree dated 20.03.2000.

2.     During the proceedings of this suit, after service of notice, Written Statement was submitted by the petitioner before the Civil Court on 25.12.1993. However, thereafter, he chosen to remain absent from the further proceedings in the suit till the stage of recording of evidence of the witnesses of respondent No.1 was over and judgment was announced. The judgment and decree passed in the suit attained finality as it was not challenged by the petitioner before any higher forum. However, after the filing of execution proceedings, on 30.08.2003, he moved an application under Section 12(2), CPC before the Court of Civil Judge, Malir, Karachi, which was contested by the other side. The said application was dismissed vide order dated 01.07.2004 for the short reason that such application having been filed in the execution proceedings was not maintainable.

3.     The petitioner aggrieved by such order of the Civil Court, preferred appeal No.3/2004 before the Court of District Judge, Malir, Karachi   also challenging the judgment and decree passed in the suit. This appeal was also contested by respondent No.1 and it was finally dismissed vide order dated 01.09.2008 with the observation that since the petitioner has not challenged the judgment and decree passed by the Civil Court, therefore, that judgment has attained finality and the application under Section 10(2), CPC on that account as well as on account of having been filed in the execution application proceedings, was not maintainable.

4.     Mr. Muhammad Nishat Warsi, learned counsel for the petitioner, making brief reference of the above stated facts, contended that the application under Section 12(2), CPC moved by the petitioner, contained substantial grounds, which were within the scope of Section 12(2), CPC but the Civil Court instead of examining such grounds on merits, opted to find a shortcut by dismissing the application on a mere technical objection about its non-maintainability in execution proceedings. Disputing this position on factual grounds, learned counsel made reference to the contents of the said application to show that the application under Section 12(2), CPC contained in its title both the numbers of suit as well as execution application, therefore, in all fairness the Court should have treated the said application in the suit instead of considering it to be an application filed in the execution proceedings, more so, as the same R&Ps of the suit contained the execution part. He further contended that looking to the grounds urged in the application under Section 12(2), CPC, the Civil Court could have very conveniently treated it to be an application in the suit as the forum was not changed for this purpose. Criticising the judgment of the appellate Court, brief submission of the learned counsel is that mere fact that the judgment and decree passed in the suit was not challenged in the appeal by the petitioner, was no ground for dismissal of his application under Section 12(2), CPC as erroneously held by the appellate Court.

5.       Throwing further light to the facts of the case, learned counsel for the petitioner submitted that indeed the plot in question bearing No.A-293, Phase-I, Gulshan-e-Hadeed, Bin Qasim, Karachi was leased out by the respondent No.1 to the petitioner for residential purpose, as provided in the registered Indenture of Lease, but subsequently its change of use was allowed in the manner that towards its commercialisation charges an amount of more than 240,000/- was recovered by the respondent No.1 from the petitioner, as per details given in the documents attached with the petition. Learned counsel when asked about the maintainability of the petition, without following the remedy of civil revision application available against the two impugned orders, made reference to the judgment of the Hon’ble Supreme Court of Pakistan in the case of FARZAND RAZA NAQVI AND 5 OTHERS VS. MUHAMMAD DIN AND OTHERS (2004 S.C.M.R. 400) and contended that availability of alternate remedy is not an absolute bar for availing the remedy before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, particularly, in a situation when it deprives a party to protect its legitimate rights and result in great hardship on that technical ground.

6.     Mr. Amanullah Agha, learned counsel for the respondent No.1 opposing this petition vehemently contended that the petitioner being negligent in pursuing his remedy in the suit, deserve no indulgence and, therefore, this petition is liable to be dismissed. He further contended that the application under Section 12(2), CPC was filed only in the execution proceedings No.1/2003, therefore, Civil Court was justified in dismissing the said application on that ground alone. Making reference to the order of the appellate Court, learned counsel did not dispute that non-availing of remedy of appeal against the impugned judgment and decree was not a bar for the purpose of filing an application under Section 12(2), CPC. However, making reference to the chequered history of litigation, he urged that in the given facts and circumstances, particularly, keeping in view the fact that the application under Section 12(2), CPC was filed by the petitioner much beyond the prescribed period of limitation under Article 181 of the Limitation Act, no fruitful purpose will be served by putting the parties to another round of litigation.

7.     We have carefully considered the submissions made by learned counsel and also perused the material placed on record, which go to show that indeed the petitioner has shown negligence in contesting the proceedings in the suit for Declaration and Permanent Injunction instituted by respondent No.1 by keeping himself away from such proceedings after filing of Written Statement. However, in our view, this fact alone was not sufficient for the Civil Court for passing ex-parte judgment and decree in favour of the respondent No.1, without examining and taking into consideration the case of the petitioner, as per his Written Statement, where he has also challenged the maintainability of the suit on various legal grounds. Be that as it may, however, due to non-filing of appeal such judgment and decree has now attained finality and this issue cannot be reopened at this stage.

8.     From the perusal of the contents of application under Section 12(2), CPC and its supporting affidavit, it is evident that in the cause title of the said application, the number of civil suit as well as execution application was mentioned by the petitioner, but later on in the title of the application, number of civil suit was scored off. This fact alone was not sufficient for the Civil Court to conclude that the said application under Section 12(2), CPC was filed in execution proceedings, therefore, it was not maintainable for this technical reason.

9.     In our opinion, in his application under Section 12(2), CPC the petitioner has raised substantial questions falling within the scope of Section 12(2), CPC, which permit a party to challenge any decision, judgment or decree on the basis of fraud, misrepresentation of facts or want of jurisdiction. In such circumstances, the order dated 01.07.2004, rejecting the application under Section 12(2), CPC was patently illegal. The appellate Court, which has dismissed the Civil Appeal No.3/2004 by its impugned order dated 01.09.2008, also fell in error by making observations that failure of the petitioner to challenge the judgment and decree has debarred him from filing of application under Section 12(2), CPC, which has its own independent scope. In the case of   FARZAND RAZA NAQVI AND 5 OTHERS (supra), the question of availability of alternate remedy has been dilated upon by the Hon’ble Supreme Court of Pakistan and following observations were made.

      “4.    There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitutional petition if an alternate remedy under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulates the Constitutional jurisdiction of High Court and thus in exceptional circumstances, the High Court may exercise its Constitutional jurisdiction in a matter in which the statutory remedy of appeal or revision as the case may be, was available but could not be availed. The order impugned in the writ petition if is a void order or it was passed without jurisdiction, the non-availing of alternate remedy of appeal, review or revision against such an order would not debar the High Court to proceed in Constitutional jurisdiction and declare such an order as without lawful authority. The rule that High Court should not entertain the Constitutional petitions and adjudicate the matter in its Constitutional jurisdiction, in which remedy of appeal, review or revision is available under the statute, is not an absolute rule and in exceptional cases the strict observance of the rule that extraordinary remedy of writ petition cannot be availed in a matter in which the relief being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 could be granted by   way of appeal, review or revision, may cause injustice in substance, therefore, the application of this rule would depend on the facts and circumstances of each case.”

10.    In the other case AZRA RIFFAT RANA VS. SECRETARY, MINISTRY OF HOUSING AND WORKS, ISLAMABAD AND OTHERS (PLD 2008 SC 476), the Hon’ble Supreme Court of Pakistan held as under:

      “It was held that the appellants having believed the representation made by the State and having further acted thereon could not have been defeated of their hopes which had crystallized into rights. It was further held that it was not open to the State according to the law laid down by the Supreme Court of India to backtrack. Needless to point out that though the doctrine of promissory estoppel does not extend to legislative and sovereign functions yet, executive orders are not excluded from lis operation. Reference in this regard may be made to the cases reported as Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others PLD 1991 SC 546, Federation of Pakistan v. Ch. Muhammad Aslam 1986 S.C.M.R. 916, Union of India and others v. Godfrey Philips India Limited AIR 1986 SC 806, Messrs Lit Ram Shiva Kumar and others AIR 1980 SC 1285, M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621, Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self-Government, Chandigarh and another AIR 1970 Punj. And. Har. 462.”

11.    In our opinion, the above observations are relevant for the just and equitable disposal of the application under Section 12(2), CPC moved by the petitioner before the Civil Court in Civil Suit No.314/1994. Even if the Civil Court had come to the conclusion that the application under Section 12(2), CPC moved by the petitioner, was in fact filed in Execution Application No.1/2003, it could have still treated the said application as an application in the suit, instead of defeating the claim of the petitioner merely for this technical reason. In this context, we are guided by a judgment of the Hon’ble Supreme Court of Pakistan in the case of NOORUL AMIN AND ANOTHER VS. MUHAMMAD HASHIM AND 27 OTHERS (1992 S.C.M.R. 1744).

12.    Mr. Amanullah Agha, learned counsel for the respondent No.1 has not been able to controvert the above legal position about illegality committed by the Civil Court and the appellate Court in their respective orders dated 01.07.2004 and 01.09.2008. However, the question as regards the maintainability of the application under Section 12(2), CPC being time barred, is a question, which now needs to be discussed here.

13.       Section 3 of the Limitation Act enjoins responsibility upon the Court to see that proceedings initiated in the form of suit, appeal or application, are within the period of limitation, prescribed thereof by the 1 st Schedule of the Limitation Act, even if it has not been set up as defence. In the present case, it is an admitted position that the Suit No.314/1994 was decreed against the petitioner on 08.02.2000 and decree was accordingly framed on 20.03.2000. This judgment and decree attained finality, as the petitioner did not challenge it before any higher forum. It was for the first time on 30.08.2003, that the petitioner moved the application under Section 12(2), CPC before the Civil Court without offering any explanation for the inordinate delay in the filing of such application after three years five months and ten days. The period of limitation for filing an application under Section 12(2), CPC is governed by Article 181 of the Limitation Act, which provides maximum timeframe of three years to challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. In the instant case, this period is to be computed from the date of signing of decree for the reason that nowhere either in the application or in the supporting affidavit, the petitioner has alleged that he had no knowledge of passing of such judgment and decree against him by the Civil Court. Thus the presumption will be against the petitioner that he had full knowledge of such judgment and decree, which was announced against him.

14.    In a situation when we have come to the conclusion that application under Section 12(2), CPC, which was dismissed by the Civil Court as well as the appellate Court, was barred by limitation then next question for consideration before us would be whether in such circumstances, while exercising our constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, it will be appropriate to set aside such orders and by passing an order of remand for afresh decision on the application under Section 12(2), CPC, put both the parties to another round of litigation with no fruitful result. Having formed this view that the application under Section 12(2), CPC moved by the petitioner before the Civil Court on 30.08.2003, was hopelessly time bared, despite our observation that the two impugned orders were erroneous and illegal, we are inclined to dismiss this constitutional petition to save the parties from yet another exercise of litigation. Order accordingly.

CHIEF JUSTICE

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SECTION 12(2) of CPC: JUDGMENT OBTAINED ON FRAUD, MISREPRESENTATION OR WANT OF JURISDICTION

A person aggrieved of a judgment or order obtained on the basis of fraud, misrepresenta on and if such order suffers from want of jurisdic on can challenge the same in the same court which has passed the final order. The civil courts are vested with the power to recall the order.

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IN THE HIGH COURT OF SINDH, KARACHI

High court appeal no.08 of 2009.

                                                    Mr. Justice Mushir Alam.

    Mr. Justice Aqeel Ahmed Abbasi.

Date of hearing              :                  19.01.2010

Date of order                  :                   19.01.2010

Appellant                                 :                        M/s.Al-Ahmed (Pvt) Ltd.

                                                                        through Mr. Khawaja Shamsul Islam, Advocate

Respondents                                                   Anjuman Falah-o-Behbood Hazara Mughal Goth & others.

Respondents 1 & 2                     :                     through Mr. S. Nasir Hussain Jafri, Advocate.

Aqeel Ahmed Abbasi , J .   Through instant High Court Appeal the Appellant has impugned the order dated 22.10.2008 passed by the learned Single Judge in J.M.No.09 of 2008 in Suit No.1738/1999 (Execution No.56/2007) whereby the application under Section 12 (2) CPC filed by one Ali Khan son of Jan Ali claiming to be the President of respondent No.1 was allowed and judgment dated 14.03.2006 and decree dated 20.04.2006 passed in Suit No.1738/99. have been set-aside.

2.         Briefly the facts of the instant case as stated in the plaint are that the appellant has filed suit No.1738/99 wherein it has been contested that the appellant had purchased Flat Site i.e. plots bearing No.FL-2 and FL-3, measuring 4840 square yards each, meant for construction of flats situated in Block-4, Scheme No.36, Gulistan-e-Jauhar, Karachi. Where after the same was transferred in the name of appellant after payment of necessary transfer fees and fulfilling all the codal formalities.

3.         After the purchase of said plot the appellant applied to the then KDA (CDGK) for amalgamation of both the plots into one and after receiving the amalgamation fees, the KDA accorded the approval for such amalgamation of the plots and again it amalgamated plots bearing No.FL-2, measuring 9680 Sq. Yds, where-after lease of the said plot was issued in the name of the appellant. Appellant submitted construction plan which was approved by KBCA, thereafter construction of the flat site on one portion of the plot started and rest of the major portion of the plot was left un-constructed with boundary wall for its protection from the encroachers.

4.         It was further stated in the plaint that respondent Nos.1 & 2 had also filed a Suit bearing No.165/1996 against the appellant claiming the land of the appellant to be the part of their katchi abadi on the land of Board of Revenue, Government of Sindh, in Block 4-A, which suit was adjudicated upon before this Court, however, during the proceeding of Suit No.1738/1999 on 09.02.2000 the counsel for the appellant himself requested the Court to tag the file of the aforesaid Suit bearing No.165/1996 with file of Suit No.1738/1999 in order to ascertain whether the respondent No.4 has died and whether the defendants No.5 to 18 are residing at the given address. As per appellant even after tagging of the file of suit No.165/1996 the defendant did not appear in the case and even in their own suits, despite repeated notices and summons, however, Mr. S. Nasir Hussain Jafri, Advocate made appearance on behalf of respondents No.1 & 2 on 20.04.2000. It is stated that on 20.04.2000 this Court on appearance of the parties, application bearing CMA No.10458/99 in Suit No.1738/1999 passed an order for the inspection of the site by the Nazir of this Court with the direction not only to inspect the site but also get the area particularly Block-4 & 4-A, KDA Scheme No.36, Gulistan-e-Jauher demarcated with the assistance of officials of Board of Revenue and City Surveyor Karachi on the basis of survey map of Deh Safooran, Master Plan of KDA and subsequent land of KDA and submit report on the following points:-

(i)                   Whether the area, which is in occupation of the plaintiffs(Respondents) falls within the Scheme notified by KDA as Scheme No.37 or the land owned by the Government Board of Revenue?

(ii)                 Whether the land in possession of the defendant No.7 (appellant) falls in Block-4 or Block 4-A?

5.         The Nazir submitted his detailed report dated 19.06.2000 under the title of tagged Suit No.165/1996 i.e. Anjuman Falah-o-Behbood Mughal Hazara Goth Vs. Sindh Katchi Abadis and others on the above mentioned two points, wherein it has been stated that:-

"In view of all these discussions, the site inspection, statements and maps and documents of various dates submitted before the undersigned, it is respectfully submitted that the area which is in occupation of the plaintiff (defendants in Suit No.1738/99) falls within the Scheme No.36, notified by the KDA, and not the land owned by the Board of Revenue or Government. The land which is in possession of defendant No.7 (plaintiff in Suit No.1738/99 and appellant in the instant appeal) falls in Block-4 and not in Block 4-A according to revised plan of KDA."  

6.         The respondents No.1 & 2 and their advocate failed to file any written statement in Suit No.1738/99 although one Mr. S. Nasir Hussain Jafri, made appearance on behalf of respondents No.1 & 2 upto 09.08.2004 but thereafter completely disappeared from the proceedings. Apparently, in view of facts that their case had been belied and disproved by documentary evidence, it appears that in the aforesaid suit No.165/1996 filed by the respondent was transferred in the District Court East on account of amendment in  Section 6 of  Sindh Civil Court Ordinance, 1962, whereas, this Court vide orders dated 10.03.2003 and 07.04.2003 directed the counsel for the appellant to file the report of Nazir submitted in Suit No. 165/1996, however, since the counsel for the appellant on account of his serious illness could not timely comply with the orders however it was complied with by filing a statement dated 12.08.2004 alongwith copies of Nazir report dated 18.05.2000 and on 19.06.2000 it was specifically pointed out in the statement that one of the Annexure of Nazir report was a letter of Director General, KDA dated 21.02.1993 addressed to Director General, Sindh Katchi Abadis Authority, which clearly shows that the encroachments made by the respondents were fresh and not covered under katchi abadis. It further appears that on account of continuous non-appearance of respondents No.1 & 2, on 26.09.2005 an order was passed wherein respondents No.1 & 2 were declared ex-parte with further direction to the appellant to file their affidavit in ex-parte proof. The appellant filed affidavit-in-ex-parte proof in Suit No.1738/1999. Suit was accordingly decreed vide order dated 14.03.2006 and decree was also drawn on the same date. Thereafter on 22.03.2007 the appellant filed Ex. Application No.56/2007 praying that Nazir of this Court be deputed to supervise the demarcation of boundaries. It appears that the present respondent claiming himself to be the President of Anjuman Falah-o-Behbood Mughal Hazara through the same advocate namely Mr. S. Nasir Hussain Jafri, who disappeared from the proceedings of Suit No.1738/1999, filed an application under Section 12(2) CPC stating that the judgment dated 14.03.2006 has been obtained by misrepresentation and fraud. Such application was vehemently opposed on legal as well as factual plane by the appellant, however, the learned Judge allowed the application under Section 12(2) CPC vide his impugned order which has been assailed by appellant before this Court through instant High Court Appeal.

7.         Learned counsel for appellant inter-alia contended that the impugned order is without jurisdiction and is based on extraneous consideration hence liable to be dismissed. Learned counsel further submitted that none of the ingredient of Section 12(2) CPC are attracted in view of the facts and circumstances of the case as neither any mis-representation nor any fraud has been played in Court. On the contrary the judgment and decree passed in favour of the appellant was based on true facts and correct appreciation of law. Learned counsel further argued that the so called President of Anjuman Falah-o-Behbood Mughal Hazara was neither the party in the proceedings in Suit No.1738/1999 nor has produced any documentary evidence authorizing him to file application on behalf of respondents No.1 & 2. Learned counsel further submitted that the respondent No.3 was fully aware of the proceedings in both the Suits bearing Nos.1738/199 as well as 165/1996. Moreover, the learned counsel namely S. Nasir Hussain Jafri had filed his vakalatnama on behalf of respondents No.1 & 2, however, for the reason best known to him, did not defend the suit. As per learned counsel thereafter several opportunities were given to the respondents, who did not avail the same and also did not file any objection in the above mentioned suit.

8.         It was further contended by the learned counsel for the appellant that the learned single Judge in chamber misconstrued and misconceived the order dated 07.02.2003, which according to learned counsel was already complied with, whereas on the applications bearing CMA No.10458/09 (i.e. stay application) and CMA No.10459/09 (i.e. application for inspection of site) which were filed by the appellant, interim orders were duly passed on both the applications. The inspection was carried out by the Nazir of this Court who submitted his report dated 19.06.2000, whereas on stay application interim stay was already granted and through judgment and decree dated 14.03.2006 now permanent injunction has been granted by the Court. Hence, under the circumstances, as per learned counsel, the alleged pendency of the aforesaid applications could not have any effect on the final disposal of the case. Learned counsel for the appellant further argued that the observation of the learned Single Judge in chamber regarding non-filing of counter affidavit to the application under Section 12(2) CPC by the appellant is also misconceived as Suit No.1738/99 was already attached with the J.M. No.09/2008 in which entire record was available. After having argued the case at length the learned counsel for appellant contended that the impugned order is neither maintainable in fact nor in law, hence the same is liable to be set-aside.

9.         Conversely the learned counsel for the respondent has supported the impugned order and argued that the ground stated in the application under Section 12(2) CPC filed by the respondent found favour by the learned Single Judge who after examining the factual as well as legal aspect of the matter has set-aside the impugned judgment and decree which was obtained by playing fraud by the appellant. Learned counsel further argued that since the respondent was not the party in the suit proceeding, hence could not defend the case properly which resulted in the impugned judgment and decree which was obtained by misrepresentation of facts. Learned counsel further argued that the respondent who filed the application under Section 12(2) CPC namely Ali Khan son of Jan Ali is the President of respondent No.1, hence is an aggrieved party in terms of Section 12(2) CPC. Learned counsel concluded that the instant High Court Appeal is devoid of any merits, hence liable to be dismissed.

10.       From the perusal of the record, the contents of application under Section 12(2) and the impugned order passed thereon by the learned Single Judge in chamber, it appears that the facts relevant for the purposes of disposal of the instant High Court Appeal appears to be undisputed, however, the effect and implication of such facts has been disputed by the parties. It also emerges from the facts stated herein above that the pendency of 02 suits bearing Nos.165/1996 and 1738/1999 alongwith listed applications filed in such suits as well as J.M.No.09/2008 was within the knowledge of both the parties. The counsel for the appellant/defendant after having filed Vakalatnama on behalf of the respondent attended the proceedings but for the reason best known to the appellant/defendant, their counsel chose to remain absent from the proceedings without any legal justification. It further appears that the same counsel who had filed his Vakalatnama on behalf of the respondent moved the application under Section 12(2) CPC on behalf of the respondent through a stranger, claiming himself to be the President of respondent No.1 without producing any evidence regarding his authorization in this regard. From perusal of the application under Section 12(2) it further appears that no new facts or the instance of alleged fraud and misrepresentation by the appellant/plaintiff has been pointed out. Similarly, perusal of the impugned order shows that the learned Single Judge in chamber appears to have re-examined the entire judgment and decree and on the same set of facts appears to have given a different opinion from the one already given in the impugned judgment and decree dated 14.03.2006 and 20.04.2006 respectively. The learned Judge in chamber appears to have taken pains to re-examine the effect and implication of tagging of 02 suits and their detachment during the course of proceeding as well as pendency of applications bearing CMA Nos.10458/99 under Order XXXIX Rule 1 & 2 CPC and 10459/99 under Order 10 Rule 18 CPC filed by the appellant/plaintiff, as well as office note of Assistant Registrar, D-II (O.S) dated 03.05.2005 as manifest from the para 11 of the impugned order. It is pertinent to mention that suit No.165/96 was transferred to the District Court East on account of Section 6 of Sindh Civil Court Ordinance 1962 enhancing the pecuniary jurisdiction of the lower Court to try and dispose of the cases up to the value of Rs.3 million. It is also pertinent to mention that the request for tagging the 02 suits was made on behalf of the appellant/plaintiff for the purpose of proper disposal of the 02 CMAs mentioned hereinabove and it was not at the instance of the respondent/defendant, who inspite of considerable lapse of time and having been represented by a counsel chose not to proceed with the above suits on merits. It appears that when the judgment and decree dated 14.03.2006 and 20.04.2006 was passed, no appeal has been preferred by the aggrieved party within the stipulated period, however, to overcome the issue of limitation the respondent/defendant has chosen to impugn the said judgment and decree after introducing a stranger to the proceeding by filing application under Section 12(2) CPC, without establishing as to how the applicant of application under Section 12(2) was an aggrieved party.

11.       We are of the view that the scope and the application of Section 12(2) CPC is very limited and could only be attracted in cases where the judgment and decree has been obtained by misrepresentation or by playing fraud on the Court by a party. Though an application under Section 12(2) CPC can be filed by a stranger to the proceeding but such applicant has to show that he is an aggrieved party and the impugned order/judgment has been obtained by misrepresentation and fraud. In the instant case, we are of the view that the respondent/applicant has miserably failed to discharge such burden.

12.       In view of hereinabove facts, we could not find ourselves in agreement with the reasoning of the learned Single Judge as stated in the impugned order, accordingly we allowed the instant High Court Appeal vide our short order dated 19.01.2010. These are the reasons of such order.

                                                                                                            JUDGE                                                                                                JUDGE

• Research and Publications
• Case Law with Propositions

Civil Procedure Code

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction. PLD 1992 Pesh. 87 (D.B.)

Final decision with  regards to civil rights ,duty, obligation and status of parties shall be that of civil court. PLD 1995 SC 457

SECTION 9; O-7 R-11; BANKING ORDINANCE 1979 Sec 6(1) & (4)

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.Courts below correctly found that special banking court had exclusive jurisdiction –order unexceptionable . PLD 1992 PESH 87(DB)

SECTION 10 & 151

In the absence of consolidation of suits and consolidation proceedings, evidence in one suit could not be read in the other suit. Muzaffar Hussain  Vs.  Mst. Bivi PLD 2012 Lah. 12

SECTION 12(2)

Forum of –venue-court where in to make application 1983 CLC 1948 Lah 1986 Law Notes (Lah) 431 1986 CLC 1211 Lah

Courts which passed the final decree means judgment against which no remedy is available  and all remedies, appeals, revisions, review has been exhausted and no remedy is left.

Adjudication means the decision on merits after proper appraisal. PLD 1995 SC 564

ALSO SEE 1994 MLD 1441  for different view.

Mere mentioning of words “Fraud”, “misrepresentation” and “want of jurisdiction” in passing judgment and decree were not sufficient – specific instances must be given. Abdul Hameed  vs.  Mehmood 2001 SCMR 1316.

SECTION 12(2) & 151 C.P.C.

Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C. and the same was set aside by Lower Appellate court in exercise of revisional  jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C.P.C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate. Muhammad Ismail     Versus    Rehmat Ali 2009 YLR 1265 Lahore-High-Court-Lahore

Forum: judgments and decrees of trial court were amended by High Court – Application under section 12(2) was filed before trial court – held – that as High Court passed final decrees in view of modification in its review jurisdiction, application u/s 12(2) shall lie in High Court. Muhammad Aslam        Vs.    Molvi Muhammad Ishaq. 2012 SCMR 147

SECTION 20-----O-XLI, R-1 Sect. 115

Revision--- Term “case decided”---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in “any case which has been decided”---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term “case” has been used, thus the meaning cannot be restricted only to a final decision of a case---Term “case decided” is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of ‘case decided’---Powers conferred under section 115 C.P.C. cannot be restricted only to the extent of final decision of the case, rather it includes interlocutory orders also against which no appeal is provided.

Valuation given in plt.200- application for appointment of receiver from to be determined according to value given in the plaint. 1995 CLC 1874

Transfer of appeals appellate court earlier as trial court recorded evidence of some witnesses-had not recorded his own observation-no material order passed- still appeals recalled from him. PLD 1995 Lah 89

Sect. 27, O.V, R.6, O.IX, Rs. 6 & 13.

Setting aside exparte decree – Purpose of service is that the defendant should be heard, but he cannot be allowed to frustrate proceedings by staying away. Once “summons are duly served” exparte decree can follow and execution can be levied against defendant because then he becomes “judgment debtor”. Any irregularity can be disregarded in service, if the court is convinced that the defendant had the knowledge of proceedings. Usman Punjwani    Vs.    Ayaz Ali PLD 21012 Sindh 78.

SECTIONS 35 & 35-A C.P.C.

Ss.35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction. Kawas B . Aga Versus City District Government, Karachi (CDGK) through Nazim-e-Ala 2010 PLD 182 Karachi-High-Court-Sindh

All questions relating to execution discharge or satisfaction of decree arising between the parties to the suit in which the decree was passed would be determined in execution proceedings and not by a separate suit. 1995 MLD 1943 (entire case law discussed)

Ss. 48, 151, O.IX, Rs. 8 & 9.

O.IX Rule-9 is designed for restoration of suit whether in whole or in part dismissed under Rule-8 and it does not speak anything for restoration of application even about an execution petition. But the same principles will apply and applications/petitions can be restored even under inherent powers. U.B.L.     VS.    Plastic Pack Pvt. Ltd. 2012 CLC 229 Sindh.

SECTIONS 96 & 115

S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation. Mst. Parveen Akhtar V/S Muhammad Adnan 2010 C L C 380 Lahore High Court, Lahore

S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S. 115, C.P.C. by aggrieved person is 90 days.

S. 115, proviso I & II---Expression “copies of pleadings, documents and orders”--- Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis of copy provided by the court---Court which passes the order only has to provide the copy of impugned order. Allah Ditta    Versus    Lahore Development Authority and 5 others 2012 C L CL 271

SECTION 115

If the courts below overlooked material facts or reached at an erroneous conclusion, it will be deemed as material irregularity, High Court could reverse such findings. Muhammad Suleman    V.    Rasheeda Bibi 2012 CLC 79 (Lah.)

S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable sui motu by High Court under S.115, C.P.C.---Principles. The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit. Zahir Hussain and 4 others    Versus      Bashir Muhammad and 5 others. 2012 C L C 377

Section 115

Revision “case decided” terms “Suit”, “judgment”, order or decree have not been used in Sect. 115 rather “case”  has been used, thus, meaning cannot be restricted only to a final decision of a case. The term “case decided” is to be seen in broader sense and may include orders passed which determined only a part of the case. Muhammad Musa        Vs.        Hamid Ali. 2012 CLC 254 (Baluchistan)

CONVERSION OF WTITS, APPEALS REVISION

Appeal which was found to be incompetent could be treated as revision and vise versa. 1991 CLC 853

“conversion of revisional petition into a constitutional petition-petitioner’s request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable. 1991 CLC 1768

“constitutional petition can be converted into a revision or vise versa if it does not prejudice the right of any party and advance cause of justice instead of frustrating the same. 1991 CLC NOTE 101 AT P.82

“No limit and bar on high court to convert a revision into a constitutional petition in exercise of its discretion. 1991 SCMR 1135

“Maintainability of appeal as RFA or RSA-held, proceedings originally instituted as  a writ petition  cannot be treated as a first or second appeal-proceedings of one kind can ordinarily be treated as proceedings of another kind provided period of limitation does not intervene subject to further qualification that such proceedings should otherwise be competent under provisions sought to be invoked. 1988 MLD 1445

SECOND APPEAL INTO REVISION

Second appeal brought before high court exhibiting  certain features which demonstrated that it fell within scope of interference under sec.115 CPC-high court should in such cases, exercise its jurisdiction under said provision of law-high court, held, should have allowed conversion of said second appeal into revision and then proceeded to see …… PLD 1987 SC 139

“Recalling order of high court-application for-high court converting constitutional petition as rent appeal-application for recalling order of such conversion not bared or support by legal grounds, held, was not maintainable and dismissed in circumstances. 1986 MLD 95

“Second appeal-revision-objection regarding competence of civil revision not taken up before high court but taken first time in supreme court, held, objection was an afterthought –such objection if taken up in high court and found tenable high court could have treated revision as second appeal subject to the satisfaction of other requirements. 1985 SCMR 27

“Appeal filed under sec.100 not found to be competent prayer on behalf of the appellant for conversion pf appeal into revision upon plea of ignorance of amendment such application belated-held, cannot be accepted. PLD 1984 QUETTA 52

“Second appeal against order of Majlis-e- shoora-conversion of appeal into revision –question of deficiency of court fee or limitation not involved and prayer bonafide –appeal treated as revision PLD 1984 QUEETA 92

Constitution of Pakistan (1973)

Art.199 read wind military courts (validations of orders)ordinance(1 of 1980),s.2(2) martial law order MLA(Zone c) No.20 and Sindh rented premises ordinance(xvii 0f 1979)S.21 Writ petition-appeal-court, with a view to foster  justice, can take appropriate action or adopt prohibited by any provision of law –no prohibition in law against conversion of a writ petition into an appeal –impugned orders of military Court , during pendency of writ petitions , converted by validation ordinance into orders passed under Sindh rented premises Ordinance subject to right of appeal before High court-conversion of pending writ petitions into appeals-held, in furtherance of justice and to provide fair opportunity to parties before single judge of High Court under section 21 of Sindh Rented Premises Ordinance,1979. PLD 1982 KARACHI 130

DUTY OF COURT

Courts are required to do substantial justice-one form of proceedings, in the interest of the justice may be treated as another Revisions, appeals and constitutional petitions have to be treated one or the other, interchangeably, to meet the end of the justice 1989 CLC 1949 (KARACHI) 1980 CLC 930

Exertion defective not giving particular as under O-21 R-11 but good enough for -purposes of Sec.23.

SECTION 100

Concurrent finding of fact to be reversed when important points ignored and evidence misread. PLD 1994 SC 326

No period prescribed for filing – should be filed within 90 days failing which discretion might not be exercised in petitioner’s favour on grant of unreasonable delay. 1995 SCMR 69

Scope of revisional power is vest – corresponds to remedy of certiorari. 1995 SCMR 69

Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material irregularity. 1995 SCMR 105

High Court’s power of “Judicial Review” under Art.199 is assumable to its jurisdiction under Sect.115 CPC except in two aspects (i) abuse or (ii) excess of power which are well recognized grounds of intervention under Art.199 1995 SCMR 105.

SECTION 115:

Civil Laws (Reforms) Act XIV 1994; Civil Laws (Reforms) Act XDXIII 1993.

Revision can be filed either H.C. or Distt. Court – powers of H.C. not withdrawn by Act XIV of 1994. PLD 1995 Lah. 31.

SECTION 144 C.P.C.

Court must remedy injury or wrong done to a party because of order of court---Procedure was provided under S. 144 C.P.C., while power to order restitution was inherent in court and should be exercised whenever justice demanded---Present was not a case of restoration of possession but of restitution of possession because order of revenue authority regarding dispossession was set aside by appellate authority declaring the same to be illegal and without jurisdiction. Parvaiz             Versus        Muhammad Ramzan 2009 CLC 513 Lahore-High-Court-Lahore

SECTION 150 – O-39 R-2 (3).

Breach of injunction – Business of the Court granting the injunction transferred to another court – Latter Court can entertain petition.

Transfer – Includes transfer of business under Civil Courts Act. The word “transfer” in Sec.150 is not inapplicable to a case where the District Judge fixed the jurisdiction of the Court under the Civil Courts Act and transferred the whole of the business within a certain area to it. AIR 1923 Madras 92.

SECTION 151.

Inherent powers – withdrawal of suit on bonafide mistake on account of similarity in the names of defendants in two suits – suit to be restored under inherent powers which can be exercised when the provisions of CPC are not in conflict. PLD 1995 Kar. 282.

SECTION 151 & 115.

Order passed u/s 151 CPC revision competent when court has failed to exercise its inherent jurisdiction or where order impugned was perverse or illegal. 1995 CLC 1939.

Appellate & Revisional Jurisdiction – Distinction Revision is:  

  (i) Where Court has exercised jurisdiction not vested in it.   (ii) Where Court has not exercised jurisdiction vested in it.   (iii) or has acted in exercise of its jurisdiction “illegally”  or with “material irregularity”.

In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in “appeal” only not in “revision”. Appeal & Revision are different species, appeal is continuation of original suit and has wide scope while “Revision” is limited to some illegality, material irregularity or jurisdictional defect. Abdul Razzak  v.  Lal Bux 2012 CLC 4 (Sindh) (DB).

Revision is not a matter of right and cannot be equated with right of appeal which is a substantive right. PLD 1996 Kar. 68

Misdescription of parties not fatal – can be corrected by court at any time. 1986 CLC 2987 PLD 1985 SC 438 PLD 1988 Kar. 362 AIR 1933 B200 PLD 1976 Lah. 269 PLJ 1975 1016 O-1 R-10

Public at large already impleaded in application for grant of succession certificate – any body could assist trial court even without making application. 1995 CLC 1553

Necessary party not impleaded – technicalities cannot be allowed to unsuit a party on technical grounds case remanded for impleading. 1995 SCMR 1748 O-3 R-1 & 2; O-6 R-1; O-6 R-14 &15; O-7 R-10; O-29 R-1; O-33 R-3.

Defective signing or presentation or plaint by person not holding power of attorney – no violation – irregularity curable. PLD 1973 Lah. Note 33 P-41.

O-3, R-2 & SEC.96.

Plea of minority not raised in written statement. It can be raised and decided at appellate stage – it is duty of the court to apply such law even through plea has not been raised. 1995 CLC 175 (Lah).

Omission to comply with requirements of present action can be cured if in good faith. AIR 1931 All. 507. O-6, R-1.

Pleadings of parties would not control or govern applications of correct law to establish or prove facts. 1992 SCMR 417.

Deviation from pleadings – no application for amendment of plaint as to correct the facts – plaintiff could not take advantage of legal principle that admission contrary to record was not binding. No evidence could be lead contrary to pleadings. PLD 1995 Lah. 113.

Where a claim never made in pleadings no amount of evidence could be looked into in poof of such facts. 1995 CLC 1906

O-6, R-2 & 4.

Facts not stated in pleadings evidence lead to prove such facts will be simply ignored. 1995 MLD 1714.

O-6, R-14 & 15; O-4, R-1.

Absence of signature, verification or presentation does not affect jurisdiction of court. AIR 1931 All. 507.

Want of verification – pleadings not void – irregularity – no affect on merits. AIR 1932 Lah. 28. AIR (36) 1949 All. 499.

Can be amended even after limitation. AIR 1961 Bomb. 292.

Omission to sign by one of joint plaintiffs. PLD 1978 Q.45.

If the case is fixed for arguments on application under O-6 R-17 and the suit is dismissed for default, only such application can be dismissed for default and not the main suit. PLD 1969 SC 270 CLC 1986 1441 CLC 1986 2153.

Relief of possession being consequential to suit for declaration, amending plaint to include possession allowed. 1995 SCMR 69.

O.VI R.14 & O.XXIX R.1

Signing & Verification of pleadings of a company – Company Secretary Director or any principal officer can sign & verify pleadings – Board Resolution not necessary – just court has to be satisfied that an authorized person has signed/verified the pleadings.    Provisions of Or.VI Rules 14 & 15 and provisions of O.XXIX Rule 1 are neither contradictory nor exclusive of each other rather complimentary to each other. Punjab Agri Development & Supplies Corp.    Vs.    U.B.L. PLD 2012 Lah. 61.

O. VII R.1(e)

Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause. Ch. Muhammad Siddiq    vs.    Faiz Mai PLD 2012 S.C. 211

O. VII R.11

The word “shall” means that it is mandatory and the court must reject plaint if court finds any of the four clauses applicable to the plaint. Only contents of plaint to be seen but court not bound to accept them – discretion to biased judiciously. Haji Abdul Karim    Vs.    Florida Builders. PLD 2012 S.C. 247

O. VII R.11, SECTIONS 2(2)(9)11.

Rejection of plaint and dismissal of suit – distinction enumerated. Haji Abdul Karim      V.    M/S Florida Builders. PLD 2012 S.C. 247 See also PLD 2008 S.C. 371

O-7, R-11 & S.149 – Art.185(3) of Constitution.

Trial Court on the ratio of Siddiq Khan’s case (PLD 1984 SC 289) determined the exact amount of court fee and deficiency made interference declined. 1995 SCMR 911.

Court lacking jurisdiction over subject matter of suit bound to return plaint instead of sending to Distt. Court for transfer to competent court.

Power of transfer flows out of valid institution of suit – where court to which plaint presented had no jurisdiction, pecuniary or territorial, suit cannot be deemed to be validly instituted. 1989 CLC 1405 (Lah) AIR 1938 Sindh 124 PLD 1973 Lah. 394.

Its scope wide to cover a case in which by legislation situation arises after filing of suit. AIR 1938 Oudh 224 PLD 1973 Note 83 (D.B)

Appellate Civil Court reaching conclusion that revenue court had no jurisdiction, it was bound to return plaint. PLD 1985 Quretta 54. AIR 1934 Lah. 233.

Duty of court to examine plaint at any time without application. PLD 1977 Kar. 747.

On basis of averments in plaint not on basis of defence. PLD 1966 (W.P) lah. 1050.

O-7 R-11; BANKING ORD. 1979 SEC.7 & 13.

It is defect of presentation of plaint in first instance in a wrong court which attracts O-7 R-10. 1984 CLC 1401 Kar.

Rejection of plaint barred by any law – court to examine averments as in the plaint – not inquiry needed – assume averments to be correct. 1984 CLC Kar. 513.

Court can take into consideration material other than contents of plaint. 1992 MLD 225 (Lah).

Rejection of plaint & dismissal of suit – distinction.

Plaint not disclosing cause of action – proper way is to allow amendment – order rejecting plaint was set aside & case remanded. 1995 CLC 1982.

While applying provisions of O.VII, R.11 C.P.C., Court was not entitled to look into the grounds of defence, other documents and written statement. Only the contents of the plaint are to be perused. Ch. Nazir Ahmad  Vs.  Ali Ahmad PLD 2012 Lahore 18 (D.B)

Suit for damages by a welfare society/association claim of damages for mental torture, agony and distress – Plaint was rejected. PLD 2012 Sindh 29

O-9, R-4; SEC.151, 115.

Restoration of revision dismissed for non prosecution petitioner has to explain the absence of all concerned including his own as well as his counsel. PLD 1995 Lah. 31.

Case should not be dismissed for default in early hours of the day. PLD 1966 Lah. 356.

While dismissing for non-appearance exigency of lawyers has to be seen. PLD 1966 SC 461,467.

Taking harsh view while dismissing in default. PLD 1955 F.C. 178.

Decision should be on merits. PLD 1965 SC 651 at P.655.

Dismissal of suit for non appearance of plaintiff – plea of misconception of actual date – plaintiff’s counsel did not appear as witness hence dairy or brief not produced – plaintiff did not stand to gain anything by being negligent – carelessness of a counsel in failing to appear in the absence of his client has often been condoned – immovable property of considerable value involved – case was remanded for decision on merits. 1993 CLC 1313 (Lah)

O. XII R.11.

Incompetent suit should be buried as soon as possible if incompetence is based on any express or implied embargo under any law – Sometimes, suit may not be specifically barred by law in express terms – Trial court should reject suit under “Inherent Powers”, The condition of only reading the averment of the plaint and nothing else is applicable when O.VII Rule-11 is to be applied and not under inherent powers. Ilyas Ahmad        Vs.    Muhammad Munir etc. PLD 2012 Sindh 92.

O. XII R.16.

Judgment on Admission – plaintiff upon application can move for judgment on admission whether relating to who suit or partially, likewise, defendant can also move for dismissal of suit wholly or partially – However, if admission is only by one of the defendants only it will have no bearing on the others’ case. Tanvir Ahmad     Vs.    Malir Development Authority PLD 2012 Sindh 66

O.XIII, R.1.

Plaintiffs after closing of oral evidence seeking permission to produce documents not appended due to inadvertence - documents sought to be produced were not even relied upon under O.XIII R.1. The situation does not fall under inadvertence – no good cause has been shown. Nasrullah Khan     Vs.    Mst. Bashiran Bibi 2012 CLC 234 Lah.

Issue of limitation being mixed question of law and fact, in case of suit for dissolution of partnership and rendition of accounts – suit cannot be dismissed on preliminary issue – case was rightly remanded by High Court. PLD 1995 SC 629.

O.18 R.18 C.P.C.

Report of local inspector on the basis of which judgment and decree was reversed not challenged at any stage – Leave to appeal refused. Islam Din  v. Sarfraz Hussain 2001 SCMR 1225

O-19, SECT.30, O-18 AFFIDAVITS.

Affidavit can only be considered when filed on direction of court.

In affidavit information obtained from others “I am informed” and add “and verily believe it to be true”. PLD 1995 Lah. 98.

O-20 R-14 (i) & O-23 R-3.

Suit for preemption decreed by consent – in application for compromise no time fixed for payment of preemption money – trial court fixed for payment of preemption money – trial court fixed one month’s time – Held court while passing preemption decree under O-20, R-14 was required to specify date for deposit of money. Failure to deposit by preemptor suit was rightly dismissed. 1995 SCMR 1426.

Mode of paying money in satisfaction of decree – decree holder would certify such payment upon legal notice from executing court. PLD 1995 Lah. 107.

O-21, R-2(i)

Adjustment/satisfaction of decree in whole or in part outside court – judgment debtor is required to certify such adjustment to court within 90 days from time of adjustment. PLD 1995 SC AJ&K 83

Defect or non verification of execution petition not fatal, application not void merely irregularity not affecting merits of case. PLD 1984 AJ&K 57.

Date of previous execution petition not mentioned- defect not material AIR 19924 CAI 398

O-21, R-58, 59 & 62

In case of objection petition to attachment, investigation to claims must be conducted by the court, No separate suit for same. PLD 1990 LAH 4 (DB)

O-21, R- 94

No stamp duty on sale certificate issued by court under O-21 R- 94 CPC in favour successful auction purchaser –sale certificate only to be registered with the sub- registrar. 1995 CLC 1922 KAR

O-22, R-3, 4 & 12

Execution petition –failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4.Execution will not abate. PLD A.Z.J.&K. 57

Even if suit not based on negotiable instruments i.e. bill of exchange, hundi, promissory note, Special court obliged to follow summary procedure of O-37 CPC on all suits before it including suits based on mortgages of all kinds on statement of accounts. PLD 1995 SC 362

Suit based on promissory notes for recovery of amount claimed against defendant in summary manner, dispute could not be referred to arbitrator in terms of the agreement. 1995 CLC 1024

O-37, R-3 – Art.185(3) 0f Constitution .

Defendant was allowed loan on furnishing Bank guarantee equal to suit amount – Revision to the extent of bank guarantor remained unsuccessful. Keeping in view defence raised in application for leave and law laid down in Fine Textile Mills VS Haji Umar (PLD 1963 SC 163) appeal was accepted-order of H.C and trials court as to bank guarantor set aside – defendant was prepared to offer any solvent security to satisfaction of court-leave defend granted on furnishing any solvent security to satisfaction of trial court . 1995 SCMR 925

Object & spirit of O -37 – neither unislamic nor inequitable. PLD 1993 LAH 224

Object to secure ends of justice-claim based on negotiable instruments –no need to prove consideration if execution of notice not denied. PLD 1993 LAH 244 H.N (h)

ORDER 37 –RULE 1& 2

Suit shall be decreed where failure of appearance or omission to apply for leave However, where leave is refused plaintiff has to prove his case. PLD 1987 LHO 101

ORDER 37 – RULE 1&2

Leave to defendant refused even when following pleas raised – on confirmation slips defendant’s signature forged –suit barred from last deposit beyond 3 years – mortgage deed relating to different loan from different branch – penal interest wrongly claimed- blank pronote fraud by bank. PLD 1990 LAH 99

Leave refused even on following pleas: signatures obtained on blank documents, statement of A/C incorrect , letters of guarantee not properly stamped, promotes contain exorbitant interest against islam etc. PLD 1989 KAR 371

ORDER 37- RULE 2

Suit in summary jurisdiction for refund of security from defendant leave not sought within 10 days –application dismissed-suit decreed –defendant’s claim that plaintiff had embezzled large sum of money and had filed suit for recovery of same of no avail to defendant because he has still to established that plaintiff  embezzled money refund of security till defendant’s suit is decided. 1995 SCMR 45

O. XXXVII R. 2 & 3 Limitation Act (IX of 1908) Sect. 5

Suit for recovery based on Promisory Note – delay in filing leave application on the ground that trial court was on leave for nine days due to Winter holidays – held – delay of every single day has to be explained sufficiently, otherwise, the object of summary proceedings will be defeated. Furthermore, only Presiding Officer happened to be on leave while office remained open for filing/institution during this period. Petition for leave is time barred as delay not sufficiently explained. Muhammad Naeem    V.    Muhammad Javed Iqbal 2012 CLC 175 (Peshawar).

ORDER 37- RULE 3

Guarantors claimed that they had claimed denial of liabilities by several letters , and notice to bank –it was duty of bank to deny and controvet same – no such step taken by bank-silence of bank would seriously reflect adversely, leave granted. 1994 CLC 1404 KAR

Leave was granted subject to depositing amount in question in court or bank-challenged this order in writ –validity in condition - no current valuation of mortgaged property available on record nor plaintiffs claimed its depreciation –petition converted into appeal and the same was allowed to the extent that defendant would deposit cash of specified amount for defending suit within 20 days. 1994 SCMR 512

Leave- according to bank’s own record value of pledged stock Rs.800,000/- and mortgaged land about 400,000/- at the time pledge/mortgage-value of land must have arisen manifold-claim amount adequately secured- without additional security unconditional leave to be granted. 1989 MLD 1090 LAH

Imposing condition on leave discretionary must be exercised in judicial and reasonable manner. 1983 CLC 2828 LAH

Conditions for leave-depositing half money in cash or furnishing bank guarantee harsh-may furnish security instead. 1992 CLC 1705 LAH (Malik Qayyum)

ORDER 37 – RULE 3

Leave. Court must , prime facie, find from application and affidavit , that there is reasonable –material making incumbent on plaintiff, to prove consideration , or there exists a plausible defence , or some specific question of fact or lae requiring investigation. PLD 1963 SC 168 1975 SCMR 398 1973 SCMR 100

“Case decided- does not mean decision of the entire suit it may relate to the decision of interlocutory matter- old view has been abounded vide AIR 1943 LAH 65. 1992 SCMR 718 at page 725(E)

ORDER 37- RULE-3

Suit decreed against principal debater while unconditional leave granted to guarantor –suit to continue as bank had the legitimate right against the guarantor. 1992 SCMR 718 at page 724 para (9) PLD 1978 KAR 263

ORDER 37 –RULE 3

Leave for guarantor –guarantor not issued any negotiable instrument to warrant summary proceedings-guarantee indemnity bonds not negotiable instruments Summary procedure not applicable. 1992 SCMR 718 HN (B) AT P 724 para 9

Court can grant or refuse leave but same must be sought within 10 days of services-in case of failure or refusal by court, court can summarily decree suit and averment in plaint to be deemed admitted by defendant where defendant failed to seek leave within 10 days court justified to pass decree – defendant estopped from subsequently saying he had not been properly served and no copy of plaint annexed with summons PLD 1993 LAH 224 HN(C)

ORDER 37 –RULE 3&4

Leave granted on certain conditions –conditions not fulfilled leave not operative- defendant not applying for leave court ampowed to decree suit taking averments o plaint as admitted. PLD 1984 KAR 127

EXPARTE SEETING ASIDE

O-37,r-4 &o-ix,r-13.

Exparte decree under o-37 cannot be set aside under o-9 R-1. it has to be within four corners of O-37 R -4. PLD 1984 KAR 127

ORDER 37- RULE 4

There is wide power of court to set aside exparte decree u/o 38 R-4-only embargo is special circumstances-circumstances beside being good cause or sufficient cause have to be of special nature. PLD 1984 KAR 127 PLD 1993 LAH 244

ORDER 37-RULE 4

Order sought to be set aside consent order –no special circumstances made out –application dismissed. PLD 1984 KAR 127 (SUIT FOR DAMEGES)

O-37 (scope)

Suit for damages outside the purview of order 37 CPC. 1992 CLC 1913 KAR at 1915-A

Directors hold fiduciary relationship qua the company. PLD 1992 SC 276

Attachment before judgment, application as well as reply must be supported by affidavit-reply not supported by affidavit –contents application deemed not converted. 1995 MLD 1707 LAH

Plaintiff himself showing monetary compensation adequate relief-not entitled to discretionary relief of specific performance. PLD 1977 KAR 191

No attempt made to show balance of convenience on side of the plaintiff- loss found to be assessable in money-injunction not granted. PLD 1979 KAR 668

O-39, R-1 & 2, R-2(2)

Court while granting temporary injunction can impose conditions-these conditions are not to be either similar to security or the conditions may be imposed u/s 151 or sec. 94 CPC and reference of such provisions should be clearly made. PLD 1995 LAH 117

O-39 R-1 &2 (3);O-41 R-5; Contempt of Court Act Sec 3

Stay order and injunction –distinction injunction is not effected unless it is communicated –stay is operative the moment it is issued. PLD 1949 LAH 100 (F.B) 1974 SCMR 509 PLD 1978 KAR 152

O-39, R-1 & 2

Entitlement to grant interim injunction in the absence of any determination of amount due as distinguished from amount claimed –petitioner entitled to interim injunction. 1995 CLC 1877

O-39 R-2 (3)

Punishment for disobedience under O-39 R-2(3) can only be determined and awarded by the court which had ordered the issuance of the injunction and not by a court to which the suit has been transferred. AIR 1914 Calcutta 815

O-39 R-2 –SEC.150 OF CPC

Breach of injunction –business of the court granting the injunction transferring to another court –later court can entertain petition.

Transfer-includes transfer of business under civil courts Act. The word transfer in Sec 150 is not applicable to a case where the District judge fixed the jurisdiction of court under the civil courts act and transferred the whole of the business within a certain area of it. AIR 1923 Madras 92

Civil courts have no jurisdiction to take action against a person not party to suit. However, high court has such jurisdiction. 1988 CLC 1370 LAH PLD 1964 Daaca 276 PLD 1975 LAH 126

O-39 R-2(3)

No person is bound to obey a direction which is unlawful nor can he be held liable for refusing to obey it PLD 1975 LAH 126

O-39, R-2(3) read with

W.P Land Revenue act sec .81& Constitution Art.204;187, contempt of court act 1976 sec.6.

Contempt against public servants who discharge their official duties and pass order adversely affecting the right of one party was disapproved and condemned by Supreme Court.

Stay/injunction must be clear leaving no room for ambiguity.

Govt. officials should not be summoned in contempt proceedings when they are not the main party in the suit. PLD 1995 SC 572

O-39, R-4-A

No successive stay orders can be issued. 1984 CLC 2048 KAR

Payment of govt. dues - stay orders – stay granted by high court till disposal of petition-order to that extent would be read as contemplating disposal of the petition with six months. 1989 CLC 1160

Addl. Evidence cannot be to fill up lacuna in the case –can be read only when(i) requested by court (ii) for proper adjudication. 1995 CLC 1889

O.XIII, R.1 & 2.

It is mandatory for the parties to file all documents at the first date of hearing. Discretion in Rule 2 is subject to condition of “good cause” Muhammad Musa        Vs.        Hamid Ali 2012 CLC 254 (Baluchistan)