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)