Summary: (a) Civil Procedure Code (V of 1908) – O. VII, Rr. 2, 11, O. IX, R. 13, Ss. 12(2) & 151 – Ex Parte Judgment – Fraud and Deception – Maintainability of Suit under S. 12(2), C.P.C: Ex parte judgment and decree obtained by respondents against the Neelum Valley Development Board—Appellants challenged the decree through a regular suit, alleging fraud and deception—Trial Court rejected the plaint under O. VII, R. 11, C.P.C., holding that a separate suit for setting aside an ex parte decree on grounds of fraud is not maintainable under S. 12(2), C.P.C.—Appellants sought conversion of the suit into an application under S. 12(2), C.P.C., or alternatively under S. 151, C.P.C.—Trial Court dismissed the application—Held, procedural rules are meant to ensure justice, and Courts have inherent jurisdiction to convert one type of proceeding into another where no legal bar exists—A litigant should not suffer due to procedural technicalities, particularly where allegations of fraud are involved—Reliance placed on Noor-ul-Amin v. Muhammad Hashim (1992 SCMR 1744), Mst. Ghulam Fatima v. Husna (2002 YLR 1651), and Faqir Muhammad Khan v. Ghulam Elahi (PLD 1983 Pesh. 87). (b) Administration of Justice – Fraud Vitiates Proceedings – Conversion of Suit into Application under S. 12(2), C.P.C: Legal principle established that fraud vitiates even the most solemn proceedings—Court emphasized that procedural technicalities should not be used to deny justice—Where a suit is improperly framed, but allegations of fraud are substantiated, the Court has the discretion to convert the proceedings into a legally maintainable form—Superior Courts have upheld this principle, allowing the conversion of suits into applications under S. 12(2), C.P.C., where the substantive relief sought remains the same—Held, the District Judge erred in dismissing the suit without considering the allegations of fraud—Appellants' request to treat the suit as an application under S. 12(2), C.P.C. should have been allowed—Reliance placed on PLD 2000 Kar. 31 and Kh. Taufique Qadir v. Qazi Khalil-ur-Rehman (2001 YLR 3263). ----Disposition: Appeal accepted—Suit converted into an application under S. 12(2), C.P.C.—Case remanded to District Judge, Neelum, for adjudication on merits in accordance with the law.

Summary: Civil Revision under Section 115 CPC--- Appointment of General Power of Attorney--- Said Attorney entered into agreement to sell with his own real brother qua land of the principal--- Thereafter both brothers entered into an arbitration agreement--- Appointed Arbitrator who renders the award--- principal/ executant of the general power of attorney died. Application under Section 14 & 17 of the Arbitration Act for making award as rule of the court was filed --- Attorney made conceding statement and award made rule of the court--- Application under Section 12(2) CPC for setting aside the judgment and decree filed and same was contested, issues were framed and both parties lead evidence. Held that after the death of the principals, the general power of attorney by operation of law became redundant and thereafter any transaction made by the said attorney on the basis of said defunct instrument (General Power of Attorney) that would be considered as void, illegal and fraudulent in nature. Consequently all the proceedings including the arbitration agreement and arbitration, award and making award as rule of the court were initiated against the dead persons, which are declared as nullity in the eyes of law. Petition dismissed with heavy cost. ------- 1. Arbitration Proceedings – Fraudulent Basis – Legal Nullity (Sections 14 & 17, Arbitration Act, 1940; Section 12(2), CPC) Arbitration proceedings initiated on behalf of deceased persons, based on a defunct General Power of Attorney, are fraudulent and void ab initio. Fraudulent actions vitiate even the most solemn proceedings, and any structure built on such proceedings is legally untenable. (Hafiz Brothers (Pvt.) Ltd. v. PICIC, 2001 SCMR 1; Muhammad Yar v. Muhammad Amin, 2013 SCMR 464). -------2. Fraudulent Transactions – Principle of Fraud Vitiating Proceedings Transactions executed after the death of principals through a defunct General Power of Attorney constitute fraud and misrepresentation. Such transactions, including arbitration agreements and awards, are null and void. (Nawab Syed Raunaq Ali v. Chief Settlement Commissioner, PLD 1973 SC 236; Sindh Irrigation and Drainage Authority v. Government of Sindh, 2022 SCMR 595). -------3. Dead Persons as Parties – Legal Proceedings (Section 12(2), CPC) Any legal proceedings instituted against deceased persons are a nullity and incurable in law. Orders passed against deceased individuals have no legal effect. (Farzand Ali v. Khuda Bakhsh, PLD 2015 SC 187; Hafiz Brothers (Pvt.) Ltd. v. PICIC, 2001 SCMR 1). ------- 4. Limitation – Knowledge of Fraud – Timely Filing of Application (Section 12(2), CPC) Applications under Section 12(2) CPC filed upon discovering fraud are not barred by limitation if the applicant establishes prompt action upon gaining knowledge of the fraudulent acts. ------- 5. Concurrent Findings of Fact – Revisional Jurisdiction The concurrent findings of the lower courts regarding fraud and misrepresentation were upheld. Revisional courts do not interfere with such findings unless material irregularities or jurisdictional defects are established. (Mst. Zaitoon Begum v. Nazar Hussain, 2014 SCMR 1469). ------- 6. Frivolous Litigation – Imposition of Costs Frivolous and vexatious litigation without justifiable grounds warrants imposition of substantial costs. In this case, the petitioners were burdened with a cost of Rs. 10,00,000/- to discourage misuse of judicial forums. (Capital Development Authority v. Ahmed Murtaza, 2023 SCMR 61; Province of Punjab v. Zulfiqar Ali, 2024 SCMR 22). ------- Disposition: Civil Revision Dismissed: The revision petition was dismissed as devoid of merit. Costs Imposed: Special costs of Rs. 10,00,000/- were imposed on the petitioners to be recovered as arrears of land revenue and deposited with Akhuwat Foundation. Order accordingly.

Summary: -----Quote: Whether an application under Section 12(2) of the Code of Civil Procedure (V of 1908) is maintainable before a Family Court established under the Family Courts, Act, 1964 in view of exclusion of provisions of the Code ibid in the light of Section 17 of the Act ibid. 2. Though it is not a principle of universal application that in each and every case, the court is bound to frame the issues before deciding the fate of an application under Section 12(2) of the "C.P.C." but where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality said application should have not been dismissed summarily. -----Background: A writ petition was filed under Article 199 of the Constitution to challenge a judgment by an Additional District Judge, who had dismissed the petitioners' application under Section 12(2) of the Code of Civil Procedure (CPC). The application sought to challenge a decree passed by a Family Court in a suit concerning recovery of dower, maintenance, and dowry articles. The petitioners alleged that their property was improperly included in the decree without their knowledge and claimed the decree was obtained through fraud and misrepresentation. -----Issues: 1-Maintainability: Whether a writ petition under Article 199 can challenge a decision of an appellate court functioning under the Family Courts Act, 1964. -----2- Applicability of Section 12(2) CPC: Whether an application under Section 12(2) CPC is maintainable in Family Court matters despite the exclusion of CPC provisions under Section 17 of the Family Courts Act, 1964. -----3- Whether the application under Section 12(2) CPC was dismissed without a proper inquiry into the allegations of fraud and misrepresentation. -----Holding/Reasoning/Outcome: --Maintainability: The writ petition was found maintainable as the judgment being challenged was issued by an appellate court acting under the Family Courts Act, 1964. Such decisions, despite being related to family matters, are subject to constitutional scrutiny. --Applicability of Section 12(2) CPC: While Section 17 of the Family Courts Act excludes most CPC provisions, it does not bar the invocation of Section 12(2) CPC in cases involving fraud, misrepresentation, or lack of jurisdiction. The Family Court, as a quasi-judicial forum, has inherent powers to ensure justice, and the principles of CPC can be applied where necessary. Allegations of fraud and misrepresentation, if proven, vitiate even the most solemn judgments or decrees. --Procedural Fairness: The dismissal of the application under Section 12(2) CPC was improper. Allegations of fraud and misrepresentation warranted the framing of issues and a full inquiry, which the appellate court failed to conduct. The court erred in both dismissing the application summarily and addressing its merits simultaneously, creating an inconsistent judgment. The writ petition was allowed. The judgment dismissing the application under Section 12(2) CPC was set aside, and the case was remanded to the appellate court. The court was directed to reconsider the application after framing appropriate issues and conducting a proper inquiry. -----Citations/Precedents: Muhammad Arshad Anjum vs. Mst. Khurshid Begum and Others (2021 SCMR 1145) Fozia Mazhar vs. Additional District Judge, Jhang and Others (PLD 2024 Supreme Court 771) Muhammad Akram Malik vs. Dr. Ghulam Rabbani and Others (PLD 2006 Supreme Court 773) Haji Muhammad Nawaz vs. Samina Kanwal and Others (2017 SCMR 321) The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and Others (PLD 1975 SC 331)

Summary: ''Competent forum to challenge the validity of judgment, decree or order under Section 12(2), C.P.C. is the Court which passed the final order.'' ----- The petitioner, Ghulam Fareed, challenged the dismissal of his application under Section 12(2) of the Civil Procedure Code (CPC) by the Additional District Judge, seeking to set aside a decree granted to the respondent, Muhammad Bilal, for possession of disputed land. Fareed argued that the decree was obtained through fraud and misrepresentation. Bilal claimed ownership through a registered sale deed, while Fareed contended he acquired ownership through a prior mutation. The trial court initially dismissed Bilal’s claim, but the Additional District Judge reversed this, a decision upheld by the High Court and left unchallenged by the Supreme Court. ------ Issues: 1) Was the petitioner’s application under Section 12(2) CPC maintainable before the Additional District Judge? ---2) Was the application time-barred? ------- Holding/Reasoning/Outcome: The Lahore High Court dismissed the petitioner’s civil revision, holding that the application under Section 12(2) CPC was not maintainable before the Additional District Judge because the final order in the case had been passed by the High Court. Under Section 12(2) CPC, an application challenging the validity of a judgment must be filed in the court that issued the final decision. Since the High Court issued the final decision on the matter, the application should have been filed there. The court also noted that if applications could be filed at lower levels after higher courts had affirmed findings on the merits, it would allow endless litigation cycles, which is contrary to procedural principles. The court declined to address the question of the time bar, as it had already found the application was not maintainable in the Additional District Judge’s court. ----- Citations/Precedents: Province of Punjab through Collector, Sialkot vs. Muhammad Irshad Bajwa (1999 SCMR 1555) Khawaja Muhammad Yousaf vs. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516) Rasool Bakhsh and another vs. Muhammad Ramzan (2007 SCMR 85)

Summary: Quote:'' Competent forum to challenge the validity of judgment, decree or order under Section 12(2), C.P.C. is the Court which passed the final order.'' ------ Petitioner Ghulam Fareed filed a civil revision challenging the dismissal of his application under Section 12(2) of the Code of Civil Procedure (C.P.C.) by the Additional District Judge on the grounds of fraud and misrepresentation in a decree favoring Muhammad Bilal, the respondent. Muhammad Bilal had initially filed a suit for possession of disputed land, claiming ownership through a registered sale deed, while Fareed contested, asserting his own title via mutation. The Trial Court dismissed Bilal’s suit, declaring the sale deed fraudulent, but on appeal, the Additional District Judge reversed the decision in favor of Bilal. Subsequent civil revisions to the High Court and a petition to the Supreme Court were dismissed, with the latter withdrawn to explore other remedies. ------ Issues: ------ 1) Jurisdiction of Application under Section 12(2) C.P.C.: Whether the petitioner’s application under Section 12(2) C.P.C. was maintainable before the Additional District Judge. ------ 2) Final Order Determination: Whether the High Court’s order in the earlier Civil Revision constituted the final order, thus rendering the application before the Additional District Judge invalid. ------ 3) Applicability of Time Limitation: Whether the application under Section 12(2) C.P.C. was barred by time. ------ Holding/Reasoning/Outcome The Lahore High Court dismissed the civil revision, upholding the Additional District Judge’s dismissal of the Section 12(2) application as both time-barred and improperly filed in the lower court. Key findings include: ------ Jurisdiction: The High Court ruled that the application under Section 12(2) C.P.C. should have been filed in the court which issued the final decision, which in this case was the High Court itself. The decree had merged into the High Court's final order in the 2015 Civil Revision, rendering any application to the Additional District Judge invalid. ------ Final Order Status: The High Court clarified that a final order for Section 12(2) C.P.C. purposes is the last order in the legal process. Since the Supreme Court did not entertain the petitioner’s appeal but permitted withdrawal for other remedies, the High Court’s decision remained the final order. Thus, the Additional District Judge was not the appropriate forum. ------ Time Limitation: Although the Additional District Judge considered the application time-barred, the High Court found this aspect unnecessary to decide given the lack of jurisdiction of the lower court to entertain the application in the first place. The High Court concluded that no error or jurisdictional defect was present in the Additional District Judge’s order and dismissed the civil revision. ------ Citations/Precedents: Province of Punjab through Collector, Sialkot vs. Muhammad Irshad Bajwa (1999 SCMR 1555) Khawaja Muhammad Yousaf vs. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516) Rasool Bakhsh and another vs. Muhammad Ramzan (2007 SCMR 85)

Summary: ''1. Whether an application under Section 12(2) of the Code of Civil Procedure (V of 1908) is maintainable before a Family Court established under the Family Courts, Act, 1964 in view of exclusion of provisions of the Code ibid in the light of Section 17 of the Act ibid. 2. Though it is not a principle of universal application that in each and every case, the court is bound to frame the issues before deciding the fate of an application under Section 12(2) of the "C.P.C." but where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality said application should have not been dismissed summarily.'' --- Summary Pending

Summary: Arbitration Act (X of 1940)--- ----S. 17---Civil Procedure Code (V of 1908), S. 12(2)---Arbitration proceedings---Arbitration Award made Rule of the Court on basis of conceding statement of one of the defendants---Plea of fraud and misrepresentation---Proof---Dispute arose between sons over gift of property made by their father in favour of one of the sons---By way of the Arbitration Award, plaintiff-son was held to be the owner of the property in dispute on the basis of a gift in his favour by the father---Said Award was made the Rule of the Court on the basis of the conceding statement of the father ---Defendant-son filed an application under S. 12(2), C.P.C. alleging fraud and misrepresentation---Held, that the question as to whether judgment and decree was obtained fraudulently by the plaintiff-son would depend primarily upon the fact whether the father actually appeared in court and conceded the case of plaintiff-son of making the Award, the Rule of the Court--- Judgment and decree sought to be set aside through the application under S. 12(2), C.P.C. was passed on 9-1- 1979 against the father who died on 11-10-1990---On the basis of the said judgment and decree, a mutation had also been effected---During his lifetime, the father never challenged the said judgment and decree---As per the record, the Award was filed in court where the father entered appearance and stated that he had no objection if the Award was made, the Rule of the Court---Statement of father was recorded and thumb impression was obtained---Defendant-son was unable to bring any evidence on record to disprove the thumb impression of the father---No evidence was brought on record to suggest that the father did not appear and concede the case of plaintiff-son---Defendant-son in his own statement did not specifically spell out that fraud had been allegedly committed or that the father did not appear in court, and his entire evidence was based on hearsay---Stamp vendor from whom the stamp paper for the Arbitration Agreement was purchased, also entered the witness box along with his register---Counsel who represented the father also appeared as a witness and supported the case of the plaintiff-son---Defendant-son conceded in his cross-examination that plaintiff-son was in possession and cultivated the part of the land in dispute---Record also showed that the defendant-son had been involved in a murder case, giving support to the claim of plaintiff that the father and defendant-son were estranged---Application filed by defendant-son under S. 12(2), C.P.C. had been rightly dismissed---Appeal was dismissed accordingly. ----- Background: This appeal arises from an order of the Lahore High Court dated May 25, 2004, which dismissed the writ petition filed by the appellant. The appellant sought to set aside a judgment and decree dated January 9, 1979, which had made an arbitration award the rule of the court. The arbitration involved a property dispute between the appellant’s father, Muhammad Nawaz, and Respondent No. 3, who was declared the owner of the disputed property based on a gift from Muhammad Nawaz. The appellant challenged the judgment and decree under Section 12(2) of the Civil Procedure Code (C.P.C.), alleging fraud and misrepresentation, but his application was dismissed by the trial court and upheld by the appellate and revisional courts. --- Issues: 1) Whether the judgment and decree making the arbitration award the rule of the court were obtained through fraud or misrepresentation. ---2) Whether the arbitration agreement and award were validly executed. ---3) Whether Muhammad Nawaz, the appellant's father, appeared in court and consented to the award. ---4) Whether the lower courts erred in dismissing the application under Section 12(2), C.P.C. ---- Holding/Reasoning/Outcome: The Supreme Court dismissed the appeal, affirming the findings of the lower courts. The court held that the appellant failed to prove that the judgment and decree were obtained by fraud or misrepresentation. The evidence presented, including the recorded statement and thumb impression of Muhammad Nawaz, supported the conclusion that he had consented to the award. The appellant's claims were based on hearsay, and no cogent evidence was provided to disprove Muhammad Nawaz's appearance in court or the validity of the arbitration agreement. The concurrent findings of fact were upheld, and the court found no grounds for interference, as no misreading or non-reading of evidence was established. ---- Citations/Precedents: Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others (PLD 2007 SC 287) Habib and 8 others v. Haji Muhammad and 3 others (PLD 1970 Karachi 495) Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417) Muhammad Iqbal and others v. Khair Din through L.Rs and others (2014 SCMR 33) Mst. Fateh Bevi and others v. Additional District Judge, Khushab and others (2008 SCMR 1262)

Summary: Civil Procedure Code, 1908 (V of 1908)-- ----Ss. 12(2) & 115--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001)-- Suit for recovery--Decreed--Title deed was deposited in decree holder bank--Mortgage of property--Sale of mortgaged property--Absence of original sale-deed--Bona fide purchaser-- Application for setting aside decree passed by Banking Court--Challenge to--Title deeds in favour of Mst. Anjum Begum as well as Respondent No. 4 were deposited with respondents/ decree holder bank which continued to be in possession of same--It is quite clear that original sale-deeds of property; in question of both were tendered with respondents/decree holder bank at time of execution of mortgage--Absence of original saledeed in favour of Mst. Anjum Begum ought to have put appellant notice requiring her to make necessary inquiries in regard thereto--In absence of any such effort, it cannot be said that Appellant No. 1 is a bona fide purchaser without notice--Banking Court, therefore, rightly dismissed application filed by appellant under Section 12(2) of Code of Civil Procedure, 1908--Appellant has not been able to point out any legal infirmity in order passed by banking Court--Appeal dismissed

Summary: Background: In 2006, an individual booked and paid for a flat on the fourth floor of an apartment building in Karachi. In 2009, a sale agreement for the same flat was made between the original seller, his legal heir, the builder, and another buyer. The initial buyer lodged an FIR when possession was refused. A compromise was reached in 2010, granting the initial buyer an alternate flat on the sixth floor. A dispute arose again, leading to a civil suit filed in 2012 by the initial buyer for specific performance and other claims. In 2015, another individual entered into a sale agreement for the same sixth-floor flat. The trial court ruled in favor of the initial buyer in 2017, granting specific performance and damages. In 2020, the second buyer filed an application under Section 12(2) CPC, alleging fraud and misrepresentation. The trial court dismissed the application in 2022, and a subsequent civil revision was dismissed in 2023. -----Issues: 1- Whether the trial court's dismissal of the Section 12(2) CPC application alleging fraud and misrepresentation was justified. 2- Whether the initial buyer's suit for specific performance should have included the second buyer as a necessary party. 3- Whether the second buyer was a bona fide purchaser without notice. -----Holding/Reasoning/Outcome: The trial court's dismissal of the Section 12(2) CPC application was upheld. The evidence presented by the second buyer did not substantiate claims of fraud, misrepresentation, or concealment by the initial buyer. The second buyer was not a necessary party to the initial suit because the purchase agreement was executed three years after the initial suit was filed. The second buyer failed to establish bona fide purchaser status as they did not take necessary steps to verify the property title and failed to pursue other available legal remedies. -----Citations/Precedents: Suo Motu Case No.8 of 2018, PLD 2019 Supreme Court 201 Sayed Anwar Hasanat v. Returning Officer PP-27, Jhelum (IV), 2013 CLC 1821 Muhammad Iqbal v. Nasrullah, 2023 SCMR 273 Muhammad Yousaf v. Munawar Hussain and Others, 2000 SCMR 204

Summary: Background: The appellants, jointly referred to as "the Momnanis," had availed a running finance facility from Habib Bank Ltd. (HBL). HBL demanded repayment, but the Momnanis failed to fulfill their obligations. Subsequently, HBL filed a banking suit for recovery. The appellants did not file a Leave to Defend Application but later filed an application under Section 12(2) of the CPC, claiming fraud by HBL’s Branch Manager. The Banking Court ruled against the appellants, leading to this appeal. -----Issues: 1- Whether the Banking Court erred in dismissing the appellants' application under Section 12(2) CPC on grounds of fraud and misrepresentation. 2- Whether the Banking Court’s judgment and decree should be set aside based on the alleged fraudulent actions of HBL’s Branch Manager. 3- Whether the appellants failed to utilize proper legal channels in defending the original banking suit. -----Holding/Reasoning/Outcome: The court found no merit in the appellants' claim that HBL committed fraud or misrepresentation. The alleged fraudulent actions by the Branch Manager were already discussed in the original judgment, and no new substantial evidence was presented. The court noted that the appellants did not challenge the Banking Court's judgment and decree by way of an appeal, but only through an application under Section 12(2) CPC. This was insufficient to overturn the prior decision, particularly since the allegations of fraud were not substantiated with convincing evidence. The appellants' failure to file a leave to defend application and adequately respond to the banking suit indicated a lack of diligence. The court emphasized that frequent travel or personal disputes with the Branch Manager did not justify neglecting to safeguard their legal interests. The appeal was dismissed, and the original judgment and decree of the Banking Court were upheld. -----Citations/Precedents: Mohammad Iftikhar v. Messrs. First Dawood Investment Bank Ltd. through Authorized Officer/Attorney and Two Others, 2023 CLD 1124 (DB-Karachi) Other cases referenced in the original judgment discussed the requirements for fraud under Section 12(2) CPC and the principles governing financial disputes and banking suits.