12(2) Section 12 (2) CPC Where Wher e a per person son challeng challenges es the validit validity y of a jud judgm gment ent,, dec decree ree or ord order er on ple plea a of fr fraud aud,, 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. Enti En tire re ca case se was no nott ex exam amin ined ed in it its s co corr rrect ect pe pers rspe pect ctiv ive e wh whic ich h re resu sult lted ed in gr grav ave e miscarriage of justice : 199 : 199 SC!" #$% S.1% &%' C(C )ntire case was not e*amined in its correct perspective which resulted in grave miscarriage of justice. +p. #$- . Judgment had been obtained on basis of a forged document /eave to appeal was granted to e*amine the scope of S.1% &%' C(C, with a view to ascertain whethe whe therr it included included the gro ground unds s tha thatt a jud judgme gment nt had been obt obtain ained ed on bas basis is of a for forged ged document. 1990 SC!" +p. #1%- . Fraud raud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud. 1990 SC!" +p. #1- C. Fraud vitiates the most solemn proceedings . 199 SC!" +p. #92- . S.1%&%'333Where a decree was allegedly obtained on the forged certified copy of entry made in a "egister of 4eath kept under the 5irths, 4eath and !arriage "egistration ct 1$$, the same would amount to fraud and application under S1%&%' C(C, would be competent on ba sis thereof. 1990 SC!" +p. #16- 4. 7n the cir circum cumst stanc ances es and for goi going ng rea reason sons s this this app appeal eal is all allowe owed, d, the imp impugn ugned ed judgments are set aside. 8he pplicati pplication on :S. 1%&%' C(C shall stand remanded to the 4istrict ;udgment for entrustment to the appropriate Court for decision in accordance with law. 1990 SC!" +p. #16- 4. Serious allegation of fraud, collusion and misrepresentation < %22 SC!" 1602 S.1%&%'3334ecree S.1%&%'3334ecre e passed without recording evidence of parties333ppli parties333pplication cation for setting aside such decree on grounds of fraud, collusion and misrepresentation3334ismissal of application summarily summarily by 8r 8rial ial Cour Courtt was uphel upheld d in revi revision sion and by =igh Court in const constitut itution ion petit petition33 ion333> 3>ali alidity dity333 333 4isposal of application in such manner was not justified in view of serious allegation leveled therein33338rial Court aught to have framed issues and recorded evidence of parties, particularly
when decree had also been passed without recording evidence of parties33337n?uiry directed by Supreme Court accepted appeal set aside impugned judgment of =igh Court and Courts below directing that such application would be deemed to be pending before 8rial Court for its decision within specified time after framing issues and recording evidence of parties. %22 SC!" 16023 160% @ 5. Serious allegation of orgery, fraud, collusion and misrepresentation could not be decided without recording of evidence< %22$ SC!" %0 Case Remanded: S.1%&%'333pplication : S.1%&%' C(C. Containing serious allegations of forgery and fraud could not be decided without recording of evidence. %22$ SC!" %0, +p.%09- . %22 SC!" +p. 160%- @ 5. 1990 SC!" +p. #1%- . 8rail Court aught to frame issues and record evidence of parties, particularly when decree had also been passed without evidence of parties. 4ecree passed without recording evidence of parties333pplication for setting aside such decree on grounds of fraud, collusion and misrepresentation3(lea of petitioner was that e*emption orders were invalid, fictitious, forged thus33334ismissal of application summarily by trial Court was upheld in revision and by =igh Court in Constitutional (etition3334isposal of application in such manner was not justified in view of serious allegations leveled thereinA8rail Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without evidence of parties. %22 SC!" +p. 160%- @ 5. Status uo Confirmed < 19$# C/C $ S.1%&%'333pplicant challenging validity of decree under S.1%&%' C(C, Status ?uo order issued earlier was confirmed in order to avoid third party interest and to avoid complications. +p.$6- . Status uo was maintained< 199 SC!"06 S.1%&%'3338he e* parte decree of which the e*ecution is sought is under challenge before trial Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly e*ercised its discretion in maintaining status ?uo, and the appellate court without substantial judgment of revisional court. 199 SC!" +p.0#- . )* (arte decree had been obtained on basis of defective and false service on applicant in collusion with bailiff of court 19$# !/4 1 %60 +p.1%66-.
S. 1%&%' 333Constitution of (akistan, rt. 199333Constitutional petition3334ismissal of suit for non3 prosecution333Bon3issuance of notice of restoration application to defendants and fresh notices after suit restored333(assing of e* parte decree on 33%229 and getting possession of suit house by plaintiff through its e*ecution333pplication under S.1%&%' , C.(.C. for setting aside e* parte decree by legal heirs of a defendant, who died on 1313%22$ during pendency of suit333rder of 8rial Court allowing application under S.1%&%' , C.(.C. and setting aside whole decree upheld by ppellate Court333(laintiffDs plea that such decree could be set aside partly to the e*tent of deceased defendant and not other defendants, who had not participated in proceedings under S. 1%&%' , C.(.C.333>alidity333(laintiff had obtained e* parte decree at the back of defendants and against a dead person, whose signatures appearing on >akalatnama did not tally with his signatures on suit agreement333Such e* parte decree could not enjoy sanctity attached to a judicial order333)* parte decree had been set aside on grounds of fraud committed by plaintiff and disclosure of sufficient cause by defendants for their non3appearance333raud would vitiate most solemn proceedings3338ainted actions would be void ab initio wholly and not partly333Section 1%&%' , C.(.C. e?uated fraud with illegality invalidating a defective order fully and not by some degree333 Such e* parte decree must be set aside wholly and not partly as there were no degrees of invalidity333(laintiff had not pointed out any jurisdictional defect in the impugned orders333=igh Court dismissed constitutional petition, in circumstances. %21% (/4 %2 /="). Ss.9, 1% @ %%333Eanun3e3Shahadat &12 of 19$', rt.$333Civil (rocedure Code &> of 192$', S.1%&%' , .>77, "r.1&c' @ 9&1'&b'333 Suit for recovery of bank loan333raud333(roof333Comparison of signatures333(owers of court333Suit filed by bank was decreed e* parte against some of the defendants and e*ecution was filed333Such defendants got e* parte decree set aside on the ground that they did not mortgage their properties resultantly suit filed by bank was dismissed333 >alidity333!ortgage deed in respect of properties showed name of one defendant as witness, whereas power of attorney of the same date showed that same defendant e*ecuted it on such date and some other person was shown as a witness333Such anomaly itself showed nothing but fraud and forgery and vitiated the two documents3335anking Court, on its own, under the provisions of rt.$ of Eanun3e3Shahadat, 19$, looked into the signatures of the defendant as available on mortgage deed and power of attorney, both of the same date and compared the same from the ones available on >akalatnama, leave to defend application and other documents and came to the conclusion that signatures appearing on deeds and power of attorney were forged3335anking Court after looking into the matter had rightly dismissed the suit and judgment re?uired no interference333 ppeal was dismissed in circumstances. %21% C/4 #1 F"C=7. S. 1%&%' 333pplication under S.1%&%' , C.(.C.3334uty of Court while entertaining such application333 7mportant aspects to be e*amined by court highlighted.
%21% C/C 1219 F"C=7. S. 1%&%' 333/imitation ct &7G of 192$', rt. 1$1333)* parte decree dated 3#3%222, setting aside of333pplication under S. 1%&%' , C.(.C., filed on %363%22333>alidity333/imitation ct, 192$ did not provide any period of limitation for filing such application333"esort in such case could be made to rt. 1$1 of /imitation ct, 192$ providing three years from date of accrual of right to apply333"ight to apply accrued to applicant on 3#3%222, when e* parte decree was passed against him333Such application was dismissed for being time barred. %211 !/4 196 ()S=W". S.1%&%' 333pplication under S.1%&%' , C.(.C.3337ssues, framing of333Scope333Court could refuse to frame issues and record evidence, if it considered it not proper to carry on proceedings in accordance with provisions of C.(.C. %211 !/4 196 ()S=W". S. 1%&%' 333llegation of fraud and forgery333(roof333)ssentials333pplicants challenged the judgment and decree of 8rial Court u nder S.1%&%' , C.(.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 decree3holder3338rial Court accepted application of the applicants and set aside the impugned judgment and decree333"e visional Court returned memo of revision for want of pecuniary jurisdiction333"espondent asserted that before deciding application under S.1%&%' , C.(.C. the 8rial Court had not provided opportunity to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law333>alidity333llegation 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 law333raud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof re?uired under the law333;udgment and order passed by 8rial Court was illegal and derogatory to the principle that no body should be condemned unheard333 =igh Court allowed revision petition and remanded the case to 8rial 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 o f three months without trial, after receipt of record. %211 C/C 066 ()S=W". S. 1%&%' 333llegation of fraud and forgery333(roof333Bo provision of law e*isted 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
cross3e*amination, 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 e*cluded. %211 C/C 066 ()S=W" S. 1%&%' 333llegation of fraud and misrepresentation333"e?uirements333While deciding the ?uestions of fraud and misrepresentation, the recording of evidence was the re?uirement 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. %211 C/C 066 ()S=W" S. 1%&%' 333raud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof re?uired under the law. %211 C/C 066 ()S=W" S. 1%&%' 3llegation 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. %211 C/C 066 ()S=W". Ss. 9, 19 @ %%33Civil (rocedure Code &> of 192$', S.1%&%' , .>77, ".11 @ .7G, ".10333Suit for recovery of loan333)*ecution proceedings333Challenging judgment, decree on ground of fraud and misrepresentation333Setting aside e* parte decree, application for333 pplication for setting aside e* parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the 5anking Court333>alidity333Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residingH and the defendant came to know about the proceedings when plaintiff 5ank filed application under .>77, ".11, C.(.C., prima facie application under S.1%&%' , C.(.C. was maintainable333Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence333 7mpugned order was set aside3335anking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh. %212 C/4 1#% F"C=7. S. 1%&%' 333Constitution of (akistan &19#0', rt.199333Constitutional petition333)* parte decree333 raud and misrepresentation333llegation of333(roof333Controversy between the parties could only be resolved after framing issues and recording the evidence. %212 !/4 01 /=").
S.1%&%' 3334ecree, setting aside of333Irounds for want of jurisdiction, misrepresentation or fraud333 "emedy3334ecree on such grounds could be set aside either on application under S.1%&%' , C.(.C., or through an appeal, a revision or review, if available under law. %212 SC!" 129#. S. 1%&%' 333pplication under S.1%&%' , C.(.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. %22$ SC!" %0. Ss. 1%&%' , 11 @ .>77, ".11&a'333pplication under S.1%&%' , C.(.C. containing serious allegations of forgery and fraud333"ejection of such application on basis of reply:written statement by invoking provision of .>77, ".11&a', C.(.C.333>alidity333rder >77, ".11, C.(.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action333rder >77, ".11, C.(.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 (leadings of parties could not be taken as evidence, particularly when its maker was not even e*amined in its support and cross3e*amined by his opponent333(rovision of S.11, C.(.C. would not attract to such application333Substantial re?uirement of recording of evidence on pure and serious ?uestion of fact could not be by3passed by unjustifiably invoking of .>77, ".11, C.(.C.333Such application could not be decided on mere reply:written statement by respondent without recording of evidence333(rinciples. %22$ SC!" %0. S. 1%&%' 333Scope of S.1%.&%', C.(.C.3334ecree could be set aside only on the ground stated in S.1%&%' , C.(.C.333Where 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.1%&%' , C.(.C. but pertained to the merits of the case, application under S.1%&%' , C.(.C. was liable to be dismissed. %22$ (/4 691. S. 1%&%' 333pplication under S.1%&%' , C.(.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. %22$ SC!" %0. Ss. 1%&%' , 11 @ .>77, ".11&a'333pplication under S.1%&%' , C.(.C. containing serious allegations of forgery and fraud333"ejection of such application on basis of reply:written statement by invoking provision of .>77, ".11&a', C.(.C.333>alidity333rder >77, ".11, C.(.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action333rder >77, ".11, C.(.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 (leadings of parties could not be taken as evidence, particularly when its maker was not even e*amined in its support and cross3e*amined by his opponent333(rovision of S.11,
C.(.C. would not attract to such application333Substantial re?uirement of recording of evidence on pure and serious ?uestion of fact could not be by3passed by unjustifiably invoking of .>77, ".11, C.(.C.333Such application could not be decided on mere reply:written statement by respondent without recording of evidence333(rinciples. %22$ SC!" %0. S. 1%&%' 333Scope of S.1%.&%', C.(.C.3334ecree could be set aside only on the ground stated in S.1%&%' , C.(.C.333Where 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.1%&%' , C.(.C. but pertained to the merits of the case, application under S.1%&%' , C.(.C. was liable to be dismissed. %22$ (/4 691. S. 1%&%' 333Challenging validity of order on plea of fraud and misrepresentation333rder made by same Court can be challenged and re3called under S.1%&%' , C.(.C. in the same Court provided ?uestion of fraud etc., is alleged3Separate suit is clearly barred to be filed before any other court of civil jurisdiction.%22# (/4 ()S=W".
