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Citation Name : 2011 &nbspCLC &nbsp1927 PESHAWAR-HIGH-COURT-NWFP Side

Appellant : Mst. ASMAT ARA Side Opponent : Mst. RUKHSANA SHAHEEN


S. 12 (2) - - - Specific Relief Act (I of 1877), S.42- - - Suit for declaration- - - Allegation of fraud
and misrepresentation- - - SCOPE of S.12 (2) , C.P.C.- - - Plaintiffs had based their claim of
ownership on the basis of a private partition deed and also had challenged the decree in favour of
the defendant under S.12 (2) , C.P.C.- - - Validity- - - Anybody feeling aggrieved of a judgment
and decree on the ground of fraud, misrepresentation or want of jurisdiction, had to file an
application under S.12 (2) , C.P.C. before the court which had passed the final judgment and
decree or order; S.12 (2) , C.P.C. then would bar filing of a separate suit in that regard- - - In
presence of S.12 (2) , C.P.C., decree could not be challenged through a civil suit- - - Concurrent
findings of two courts below, whereby suit filed by the plaintiff was decreed were based on
unlawful and irregular exercise of jurisdiction, which had resulted into illegality- - - Judgments
and decrees of two courts, were set aside, in circumstances.

Citation Name : 2011 &nbspMLD &nbsp1956 PESHAWAR-HIGH-COURT-NWFP Side
Appellant : Syed AMEER HUSSAIN SHAH Side Opponent : Syed DILBAR HUSSAIN
SHAH
S. 12 (2) - - - Judgment/decree challenged on ground of fraud- - - SCOPE - - - When fraud was
committed by either of parties in proceedings of suit, then court under S. 12 (2) , C.P.C., had
jurisdiction to decide such matter- - - Fraud not committed in court proceedings for obtaining a
judgment could not be termed as fraud within purview of S. 12 (2) , C.P.C.
Citation Name : 2010 &nbspCLC &nbsp1578 KARACHI-HIGH-COURT-SINDH Side
Appellant : Mrs. AZRA SHABBIR Side Opponent : Mrs. REHANA KHATOON
S.12 (2) - - - Setting aside of decree- - - Remedy under section 12 (2) , C.P.C.- - - SCOPE - - -
Remedy provided under section 12 (2) , C.P.C. cannot be equated or treated at par to a remedy of
review or revision.
Citation Name : 2009 &nbspPLD &nbsp63 LAHORE-HIGH-COURT-LAHORE Side
Appellant : Mst. MUMTAZ BEGUM Side Opponent : ADDITIONAL CUSTODIAN OF
ENEMY PROPERTY FOR PAKISTAN
S. 12 (2) - - - Invocation of S.12 (2) , C.P.C.- - - SCOPE - - - Held, for invoking S.12 (2) ,
C.P.C. qua a judgment, decree or order, it was to be shown that the same was result of fraud,
misrepresentation or want of jurisdiction- - - 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, the provisions of S.11(2) , C.P.C. would not be attracted.

Citation Name : 2009 &nbspPLD &nbsp123 KARACHI-HIGH-COURT-SINDH Side
Appellant : MUHAMMAD JAMEEL KHAN Side Opponent : MUHAMMAD ALI ZAKI
KHAN
S.12 (2) - - - Word "final" as appearing in S.12 (2) C.P.C.- - - SCOPE - - - Application for
setting aside judgment and decree- - - Maintainability- - - Judgment in question was passed by
High Court in exercise of original civil jurisdiction, which judgment was maintained by Division
Bench of High Court in exercise of appellate jurisdiction and also by Supreme Court- - -
Applicants had assailed the judgment before single Judge of High Court, as Trial Court- - -
Validity- - - Word "final" as appearing in S.12 (2) C.P.C. had been defined as last in the series of
judgment, decree or order which was no longer alterable by court passing that judgment, decree
or order and had attained finality- - - In case of appeal, decree of Trial Court, except in
exceptional cases, merged in the decree passed by appellate court and was capable of execution-
- - Merger took place irrespective of fact whether decree of Trial Court was affirmed or reversed-
- - Judgment passed by Division Bench of High Court in exercise of appellate jurisdiction was
challenged but Supreme Court merely re- affirmed the judgment of appellate court by refusing its
leave to appeal- - - Final judgment and decree was passed by Division Bench of High Court in
exercise of appellate jurisdiction- - - Application under S.12 (2) C.P.C. filed in the Court of
single Judge of High Court as Trial Court was not maintainable- - - Application was dismissed in
circumstances.

Citation Name : 2008 &nbspPLD &nbsp591 SUPREME-COURT Side Appellant
: Subedar SARDAR KHAN Side Opponent : MUHAMMAD IDREES
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.

Citation Name : 2008 &nbspCLC &nbsp1385 Northern Areas Chief Court Side Appellant
: CHIEF ENGINEER, N.A. P.W.D. GILGIT Side Opponent : Late SHAHEEN KHAN,
CONTRACTOR through Legal Representatives
S. 12 (2) - - - Challenging judgment and decree on plea of fraud, collusion and
misrepresentation- - - SCOPE - - - Section 12 (2) , C.P.C. provides a remedy to a person affected
by a decree obtained by fraud, misrepresentation or a decree was challengeable for want of
jurisdiction and the plaintiff was precluded by rules from instituting a further suit in respect of
any particular cause of action- - - Provisions of S.12 (2) , C.P.C. inspired one's judicial mind
with the interpretation that the remedy under said section was confined to three points that the
plaintiff must, to prove that the judgment, order or the decree had been obtained by fraud,
misrepresentation or validity of the same was challengeable for want of jurisdiction- - -
Petitioner was obliged to prove that the fraud or misrepresentation had been committed by the
opposite party in connection with the proceedings- - - Petitioner under S.12 (2) , C.P.C. must
plead and prove that fraud or misrepresentation committed against him was out of his knowledge
or sight and was concealed from him by the party himself or in collusion with any person or
persons, so as to prevent the affected person to place his case before the court during course of
proceedings in defence, otherwise a person could not be allowed to reopen the past and closed
transaction in that regard.

Citation Name : 1993 &nbspMLD &nbsp1344 KARACHI-HIGH-COURT-SINDH Side
Appellant : INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN Side Opponent :
NATIONAL ENGINEERING WORKS
Code of Civil Procedure 1908 - - - - Ss.12 (2) & 151- - - Application for setting aside judgment
and decree on plea of fraud and misrepresentation- - - Applicant who was LEGAL
REPRESENTATIVE of deceased defendant, had prayed that judgment and decree passed in
favour of plaintiff should be set aside as same were obtained by fraud and misrepresentation- - -
Main grievance of applicant was that he being LEGAL REPRESENTATIVE of deceased
having not been impleaded in suit could not be bound by decree passed against defendant- - -
Nothing was on record and no allegation was in affidavit of applicant to show that plaintiff was
aware of existence of applicant and as such failed to implead him at relevant time- - Plaintiff, in
circumstances, could not be said to have deliberately failed or avoided to implead applicant as a
defendant in suit and was not guilty of any fraud or misrepresentation- - - In absence of prima
facie proof of alleged fraud or misrepresentation in obtaining decree in suit, provisions of S.12
(2) , C.P.C., were not attracted- - - Contention of applicant that even if provisions of S.12 (2) ,
C.P.C. were not attracted, relief could be given under S.151, C.P.C., was repelled, because in
presence of specific provision, applicant could not seek relief under general provisions of S.151,
C.P.C.

Citation Name : 2010 &nbspSCMR &nbsp822 SUPREME-COURT Side Appellant
: BASHIR AHMAD Side Opponent : MUHAMMAD HUSSAIN
S. 52 & O.XXII, R.1- - - LEGAL HEIR s, non- impleading of- - - Effect- - - Abatement does
not take place, if LEGAL REPRESENTATIVE s of some party are not brought on record- - -
Such LEGAL REPRESENTATIVE s automatically become party and bound by any decision
of court.

Citation Name : 2008 &nbspPLD &nbsp10 HIGH-COURT-AZAD-KASHMIR Side
Appellant : MUHAMMAD YOUNUS KHAN Side Opponent : Kh. MUHAMMAD ISHAQ
O. XXII, Rr. 3, 4 & O.I, R.10- - - Impleading of a party- - - Appeal had been filed against dead
person and his LEGAL REPRESENTATIVE s were already on the record and the appellants
had not impleaded them in line of respondents, though they did implead them in an appeal before
High Court in an earlier round of litigation- - - Such LEGAL REPRESENTATIVE s could not
be impleaded in the garb of application for substitution, that too after the prescribed period of
limitation- - - Where an appeal or a suit was filed against a sole dead person, then neither Order
XXII, Rr. 3 & 4 of C.P.C. was applicable nor O.I, R.10,C.P.C. was attracted because such
institution was a nullity in the eye of law and could not be revived impleading the LEGAL
HEIR s of the deceased.

Citation Name : 2007 &nbspSCMR &nbsp1193 SUPREME-COURT Side Appellant
: Mst. LALAN BIBI and others Side Opponent : MUHAMMAD KHAN
- - - - O. VIII, R.13- - - List of LEGAL REPRESENTATIVE s- - - Scope- - - Non- filing of
such list- - - Effect- - - Defendant is under LEGAL obligation to file list of LEGAL
REPRESENTATIVE s along with his written statement and to nominate a person to intimate
court, of fact of death of defendant and to furnish court with necessary particulars and addresses
of his LEGAL REPRESENTATIVE s and also to make application for tHEIR substitution in
view of O.VIII, R.13 C.P.C.- - - Non- compliance of O.VIII, R.13, C.P.C. authorizes court to
proceed with suit, notwithstanding death of such defendant- - - Even if LEGAL
REPRESENTATIVE s of dead party are not impleaded in petition, the same would not be fatal
to the proceedings.
Citation Name : 2001 &nbspYLR &nbsp404 SUPREME-COURT-AZAD-KASHMIR Side
Appellant : MUNSHI KHAN Side Opponent : MUHAMMAD SULEMAN
Civil Procedure Code - - Order XXII OF C.P.C. DeAT h, Marriage and Insolvency OF Parties -
- - - S. 42- - - Civil Procedure Code (V OF 1908), O.XXII, Rr.1 & 2- - - Suit for declarAT ion- -
DeAT h OF one OF the defendants- - - AbAT ement OF suit- - - Two allottees/vendors OF plot
in dispute, initially transferred the same in favour OF plaintiff through agreement OF sale- - -
Plot was again transferred in favour OF two different transferees one after the other and both
vendors made stAT ements in favour OF last transferee before the ESTAT E OF ficer and duly
executed pro forma OF transfer OF plot in favour OF last transferee- - - One OF the vendors
who subsequently died had already affirmed the transfer OF plot in favour OF last transferee
who was in possession OF plot- - Original transferee filed suit against vendors/ defendants
alleging thAT plot having been transferred to him in the ,first instance, subsequent two transfers
should be declared as null and void against his rights- - - One OF the vendors/defendants who
had already affirmed the transfer OF plot in favour OF last transferee having died during the
pendency OF suit an applicAT ion was filed by last transferee to the effect thAT as the LEGAL
REPRESENTAT IVE s OF the deceased defendant had NO t been brought on record after his
deAT h within the prescribed period OF limitAT ion, the suit could be declared to have been
abAT ed- - Deceased defendant having relinquished all his LEGAL rights vested in the plot in
favour OF applicant/last transferee, after deAT h OF defendant, last transferee would be deemed
to represent the interest OF the deceased in respect OF plot since the plot could NO t be
inherited by LEGAL heirs OF the deceased defendant in succession due to the transfer in favour
OF last transferee, question OF bringing on record LEGAL REPRESENTAT IVE s OF the
deceased defendant would NO t arise and suit would NO t abAT e for NO n- filing OF
applicAT ion in TIME for bringing on record the LEGAL REPRESENTAT IVE s OF the
deceased defendant.

Citation Name : 1986 &nbspCLC &nbsp1592 KARACHI-HIGH-COURT-SINDH Side
Appellant : INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN Side Opponent :
ROQAIYA BEGUM
Code of Civil Procedure 1908 S. 2(11)- - LEGAL REPRESENTATIVE s- - Im pleading of- -
If person against whom claim could be made dies before institution of suit; suit, held, could be
filed for satisfaction of such claim, against those who were in possession of ESTATE or
property of deceased or represent same- Where however, defendant dies during pendency of suit,
his LEGAL REPRESENTATIVE s could be joined as defendants- - Decree could be passed or
executed against LEGAL REPRESENTATIVE to extent of deceased's property in his
possession- - LEGAL REPRESENTATIVE could be charged with liability only if property of
deceased had come in his hand and he had NO t unduly disposed of or applied such property.

Citation Name : 1972 &nbspPLD &nbsp90 SUPREME-COURT-AZAD-KASHMIR Side
Appellant : MUHAMMAD YUSUF Side Opponent : GUL MUHAMMAD AND OTHERS
Code of Civil Procedure 1908 S. 96- - - Appeal- - - Persons competent to file. As a general rule
NO one can appeal from a decree, unless he was a party to the action or was treated as such on is
a LEGAL REPRESENTATIVE of a party or unless his right in the ESTATE or title or interest
is apparent on the face of the record.

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