SECTION 12(2) C.P.C.

By:
AZMAT ULLAH WARRAICH
Advocate High Court
E-mail: azmatwarraich@ymail.com
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)
Revision
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)
Limitation
“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)
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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 1530-1532 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 therein—Trail 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 non-
prosecution---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.