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12(2)

Section 12 (2) CPC


Where a person challenges the validity of a judgment, decree or order on 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.
Entire case was not examined in its correct perspective which resulted in grave
miscarriage of justice : 1994 SCMR 782
S.12 (2) CPC Entire case was not examined in its correct perspective which resulted in grave
miscarriage of justice. [p. 786] A.
Judgment had been obtained on basis of a forged document
Leave to appeal was granted to examine the scope of S.12 (2) CPC, with a view to ascertain
whether it included the grounds that a judgment had been obtained on basis of a forged
document. 1993 SCMR [p. 712] A.
Fraud
Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of
his fraud.
1993 SCMR [p. 714] C.
Fraud vitiates the most solemn proceedings. 1994 SCMR [p. 790] F.
S.12(2)---Where a decree was allegedly obtained on the forged certified copy of entry made in a
Register of Death kept under the Births, Death and Marriage Registration Act 1886, the same
would amount to fraud and application under S12(2) CPC, would be competent on basis thereof.
1993 SCMR [p. 715] D.
In the circumstances and for going reasons this appeal is allowed, the impugned
judgments are set aside. The Application U/S. 12(2) CPC shall stand remanded to the District
Judgment for entrustment to the appropriate Court for decision in accordance with law.
1993 SCMR [p. 715] D.
Serious allegation of fraud, collusion and misrepresentation: 2006 SCMR 1530
S.12(2)---Decree passed without recording evidence of parties---Application for setting aside such
decree on grounds of fraud, collusion and misrepresentation---Dismissal of application summarily
by Trial Court was upheld in revision and by High Court in constitution petition---Validity--Disposal of application in such manner was not justified in view of serious allegation leveled
therein----Trial Court aught to have framed issues and recorded evidence of parties, particularly

when decree had also been passed without recording evidence of parties----Inquiry directed by
Supreme Court accepted appeal set aside impugned judgment of High Court and Courts below
directing that such application would be deemed to be pending before Trial Court for its decision
within specified time after framing issues and recording evidence of parties. 2006 SCMR 15301532 A & B.
Serious allegation of Forgery, fraud, collusion and misrepresentation could not be decided without
recording of evidence: 2008 SCMR 236
Case Remanded:
S.12(2)---Application U/ S.12(2) CPC. Containing serious allegations of forgery and fraud could
not be decided without recording of evidence. 2008 SCMR 236, [p.239] A.
2006 SCMR [p. 1532] A & B.
1993 SCMR [p. 712] A.
Trail Court aught to frame issues and record evidence of parties, particularly when decree had
also been passed without evidence of parties.
Decree passed without recording evidence of parties---Application for setting aside such decree
on grounds of fraud, collusion and misrepresentation-Plea of petitioner was that exemption orders
were invalid, fictitious, forged thus----Dismissal of application summarily by trial Court was upheld
in revision and by High Court in Constitutional Petition---Disposal of application in such manner
was not justified in view of serious allegations leveled thereinTrail Court aught to have framed
issues and recorded evidence of parties, particularly when decree had also been passed without
evidence of parties.
2006 SCMR [p. 1532] A & B.
Status Quo Confirmed : 1987 CLC 484
S.12(2)---Applicant challenging validity of decree under S.12(2) CPC, Status quo order issued
earlier was confirmed in order to avoid third party interest and to avoid complications. [p.485] A.
Status Quo was maintained: 1994 SCMR365
S.12(2)---The ex parte decree of which the execution is sought is under challenge before trial
Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly
exercised its discretion in maintaining status quo, and the appellate court without substantial
judgment of revisional court. 1994 SCMR [p.367] A.
Ex Parte decree had been obtained on basis of defective and false service on applicant in
collusion with bailiff of court 1987 MLD 1253 [p.1255].

S. 12(2) ---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of suit for nonprosecution---Non-issuance of notice of restoration application to defendants and fresh notices
after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house
by plaintiff through its execution---Application under S.12(2) , C.P.C. for setting aside ex parte
decree by legal heirs of a defendant, who died on 14-1-2008 during pendency of suit---Order of
Trial Court allowing application under S.12(2) , C.P.C. and setting aside whole decree upheld by
Appellate Court---Plaintiff's plea that such decree could be set aside partly to the extent of
deceased defendant and not other defendants, who had not participated in proceedings under S.
12(2) , C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of defendants and
against a dead person, whose signatures appearing on Vakalatnama did not tally with his
signatures on suit agreement---Such ex parte decree could not enjoy sanctity attached to a
judicial order---Ex parte decree had been set aside on grounds of fraud committed by plaintiff and
disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most
solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2)
, C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree--Such ex parte decree must be set aside wholly and not partly as there were no degrees of
invalidity---Plaintiff had not pointed out any jurisdictional defect in the impugned orders---High
Court dismissed constitutional petition, in circumstances.
2012 PLD 240 LAHORE.
Ss.9, 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.84---Civil Procedure Code (V of 1908),
S.12(2) , O.VII, Rr.1(c) & 9(1A)(b)--- Suit for recovery of bank loan---Fraud---Proof---Comparison
of signatures---Powers of court---Suit filed by bank was decreed ex parte against some of the
defendants and execution was filed---Such defendants got ex parte decree set aside on the
ground that they did not mortgage their properties resultantly suit filed by bank was dismissed--Validity---Mortgage deed in respect of properties showed name of one defendant as witness,
whereas power of attorney of the same date showed that same defendant executed it on such
date and some other person was shown as a witness---Such anomaly itself showed nothing but
fraud and forgery and vitiated the two documents---Banking Court, on its own, under the
provisions of Art.84 of Qanun-e-Shahadat, 1984, looked into the signatures of the defendant as
available on mortgage deed and power of attorney, both of the same date and compared the
same from the ones available on Vakalatnama, leave to defend application and other documents
and came to the conclusion that signatures appearing on deeds and power of attorney were
forged---Banking Court after looking into the matter had rightly dismissed the suit and judgment
required no interference--- Appeal was dismissed in circumstances.
2012 CLD 471 KARACHI.
S. 12(2) ---Application under S.12(2) , C.P.C.---Duty of Court while entertaining such application--Important aspects to be examined by court highlighted.

2012 CLC 1019 KARACHI.


S. 12(2) ---Limitation Act (IX of 1908), Art. 181---Ex parte decree dated 6-7-2000, setting aside
of---Application under S. 12(2) , C.P.C., filed on 26-5-2004---Validity---Limitation Act, 1908 did not
provide any period of limitation for filing such application---Resort in such case could be made to
Art. 181 of Limitation Act, 1908 providing three years from date of accrual of right to apply---Right
to apply accrued to applicant on 6-7-2000, when ex parte decree was passed against him---Such
application was dismissed for being time barred.
2011 MLD 1956 PESHAWAR.
S.12(2) ---Application under S.12(2) , C.P.C.---Issues, framing of---Scope---Court could refuse to
frame issues and record evidence, if it considered it not proper to carry on proceedings in
accordance with provisions of C.P.C.
2011 MLD 1956 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---Essentials---Applicants challenged the
judgment and decree of Trial Court under S.12(2) , C.P.C. on the grounds of fraud and collusion
and contended that registered power of attorney on their behalf was fake and fictitious and
neither the sale transaction in respect of disputed property was made by them nor possession of
the same was delivered to the decree-holder---Trial Court accepted application of the applicants
and set aside the impugned judgment and decree---Re visional Court returned memo of revision
for want of pecuniary jurisdiction---Respondent asserted that before deciding application under
S.12(2) , C.P.C. the Trial Court had not provided opportunity to adduce evidence and to prove that
the proceedings conducted in the suit was in accordance with law---Validity---Allegation of fraud
and forgery made in the pleadings could not be considered as gospel truth, unless proved in
accordance with letter and spirit prescribed under the law---Fraud and forgery must be proved by
producing unimpeachable, impartial and confidence inspiring evidence, muchless mere
allegations could not partake proof required under the law---Judgment and order passed by Trial
Court was illegal and derogatory to the principle that no body should be condemned unheard--High Court allowed revision petition and remanded the case to Trial Court to decide the same
under the law, after affording opportunity to produce evidence to both parties and further to
decide the application within a period of three months without trial, after receipt of record.
2011 CLC 355 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---No provision of law existed whereby the
pleadings of the parties would be considered as prima facie proof of allegations made therein,
unless the facts mentioned in the pleadings had not been proved and in support, thereof, the
maker of the document appeared before the court and testified that the document had been
scribed at his instance and furnished the particulars of fraud and proof thereof stood to the test of

cross-examination, in absence whereof, pleadings were not sufficient to substantiate the claim of
party to the suit, if the party to suit did not appear to testify about the pleadings not to be
considered as the proof of facts mentioned therein, same had always been excluded.
2011 CLC 355 PESHAWAR
S. 12(2) ---Allegation of fraud and misrepresentation---Requirements---While deciding the
questions of fraud and misrepresentation, the recording of evidence was the requirement of law,
therefore, in the light of evidence any order could be passed, but not to dismiss the complaint
summarily and to short circuit the proceedings in haste in uncalled and indecent manner.
2011 CLC 355 PESHAWAR
S. 12(2) ---Fraud and forgery must be proved by producing unimpeachable, impartial and
confidence inspiring evidence, muchless mere allegations could not partake proof required under
the law.
2011 CLC 355 PESHAWAR
S. 12(2) -Allegation of fraud and forgery made in the pleadings could not be considered as gospel
truth, unless proved in accordance with the letter and spirit prescribed under the law.
2011 CLC 355 PESHAWAR.
Ss. 9, 19 & 22--Civil Procedure Code (V of 1908), S.12(2) , O.VII, R.11 & O.IX, R.13---Suit for
recovery of loan---Execution proceedings---Challenging judgment, decree on ground of fraud and
misrepresentation---Setting aside ex parte decree, application for--- Application for setting aside
ex parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed
by the defendant had been dismissed by the Banking Court---Validity---Since the defendant,
admittedly was not served on his address, given in the memo of plaint, but on another address,
notices were sent, where the defendant was not residing; and the defendant came to know about
the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie
application under S.12(2) , C.P.C. was maintainable---Controversy, whether any fraud and
misrepresentation had been made in the matter, could be resolved after recording the evidence--Impugned order was set aside---Banking Court was directed to frame the issues and after
recording the evidence and hearing the parties, decide the same afresh.
2010 CLD 1762 KARACHI.
S. 12(2) ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree--Fraud and misrepresentation---Allegation of---Proof---Controversy between the parties could only
be resolved after framing issues and recording the evidence.
2010 MLD 631 LAHORE.

S.12(2) ---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud--Remedy---Decree on such grounds could be set aside either on application under S.12(2) ,
C.P.C., or through an appeal, a revision or review, if available under law.
2010 SCMR 1097.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud
could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations
of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking
provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and
plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of
action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial
burden would remain on plaintiff/applicant to prove his case on basis of assertions made in
pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was
not even examined in its support and cross-examined by his opponent---Provision of S.141,
C.P.C. would not attract to such application---Substantial requirement of recording of evidence on
pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11,
C.P.C.---Such application could not be decided on mere reply/written statement by respondent
without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in
S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for
setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but
pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud
could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations
of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking
provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and
plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of
action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial
burden would remain on plaintiff/applicant to prove his case on basis of assertions made in
pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was
not even examined in its support and cross-examined by his opponent---Provision of S.141,

C.P.C. would not attract to such application---Substantial requirement of recording of evidence on


pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11,
C.P.C.---Such application could not be decided on mere reply/written statement by respondent
without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in
S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for
setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but
pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Challenging validity of order on plea of fraud and misrepresentation---Order made by
same Court can be challenged and re-called under S.12(2) , C.P.C. in the same Court provided
question of fraud etc., is alleged-Separate suit is clearly barred to be filed before any other court
of civil jurisdiction.2007 PLD 66 PESHAWAR.