Summary: Only grounds mentioned in section 12(2) CPC could be considered for deciding application under the said section and merits of the case other than said ground would be irrelevant. Mere non impleading of petitioner, claiming to be the owner of the property, as a party to suit for possession under Section 9 of the Specific Relief Act, 1877 would not be sufficient to allow the said application, especially when grounds mentioned in Section 12(2) CPC for not impleading the petitioner as a party, are not made out because suit under the said section of the Act has to be filed against the persons who have dispossessed the plaintiffs/respondents.

Summary: Transaction whereby property is sold or transferred by judgment debtor to his close relatives in order to avoid payment of maintenance allowance against decree passed in favour of his wife and children, is a sham transaction and the said transaction and any superstructure built on the same cannot be sustained. No prejudice has been caused to the petitioner by not impleading him as party as he would not have any better title than the person from whom title was transferred in is favour and any defence taken by the petitioner would not cure the defect in the title of his predecessor in interest. The grounds raised by the petitioner are not sufficient for setting aside the impugned orders through application under Section 12(2) of C.P.C. because for that purpose the applicant in addition to above mentioned grounds including ground of not being impleaded as a party was also required to establish that he was not impleaded fraudulently, by misrepresentation or Court lacked jurisdiction in the matter as provided under Section 12(2) C.P.C., which has not been done. Through application under Section 12(2) C.P.C. decree could be set aside only on the grounds stated in the said Section and where no case of fraud or misrepresentation or lack of jurisdiction was made out, the application under the said Section was not maintainable and merited to be dismissed.

Summary: (a) Maintainability of Review Petition under Section 12(2), CPC—Requirements for Pleading Fraud and Misrepresentation A review under Section 12(2), CPC requires a prima facie demonstration of fraud, misrepresentation, or lack of notice. The petitioner alleged he was not served but failed to challenge the validity of his own signatures on the service notice. The Court observed that service had been established through documentary proof (courier receipt and signed notice), and the petitioner’s failure to dispute the authenticity of the signatures defeated his plea. → Held: Allegation of fraud and misrepresentation was baseless. Burden of disproving service was not discharged. (b) Applicability of CPC in Rent Controller Proceedings—Use of Equitable Principles The Court reaffirmed that while the CPC does not strictly apply to rent proceedings under the Islamabad Rent Restriction Ordinance, 2001, Rent Controllers are permitted to adopt equitable principles of the CPC where necessary for justice. → Held: Procedural objections regarding application of CPC were without merit; service through affixation and ex parte proceedings were valid. Cited Cases: Muhammad Tariq Khan v. Kh. Muhammad Jawad Asami (2007 SCMR 818) Saeed Pervaiz v. Syed Maqsood Hassan (2008 SCMR 568) Khadim Mohyuddin v. Rehmat Ali (PLD 1965 SC 459) Ayub Khan v. Fazal Haq (PLD 1976 SC 422) (c) Effect of Expiry of Lease Agreement—Tenancy Without Renewal The lease agreement had expired and its renewal was contingent upon mutual understanding, which was absent. The Court held that the use of the word “shall” in the renewal clause could not override the requirement of mutual consent. The tenant’s continued occupation after expiry, without landlord’s express consent, rendered him liable for eviction under Section 17(2)(ii)(b) of the Ordinance. → Held: Occupation after expiry of lease without mutual agreement constitutes infringement of tenancy terms and justifies eviction. Cited Case: Waqar Zafar Bakhtawari v. Haji Mazhar Hussain Shah (PLD 2018 SC 81) (d) Cross-reference on 12(2) CPC Proceedings—No Mandatory Framing of Issues The Court held that framing of issues and conducting a full trial under Section 12(2), CPC is not mandatory. If pleadings themselves are sufficient to decide the application, the court may summarily dispose it of. → Held: Dismissal of Section 12(2) application without trial or framing of issues was proper in the facts of this case. Cited Case: Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708) Disposition: Petition dismissed. No interference warranted with the Rent Controller’s dismissal of the Section 12(2), CPC application.

Summary: (a) Financial Institutions (Recovery of Finances) Ordinance, 2001 ----S. 19; Civil Procedure Code, 1908 (V of 1908)----O. XXI, Rr. 85 & 88; Constitution of Pakistan, Art. 185(3)----Execution of decree; Sale of mortgaged property; Proprietary rights of co-owners; Confirmation of auction. Decree passed by the Banking Court under S. 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, empowered the decree-holder to sell mortgaged property without requiring fresh orders. The Banking Court's confirmation of auction was valid, as the auction purchaser’s bid was the highest and no timely objection was raised. The appellants' claim of deprivation of proprietary rights was rejected since they failed to raise valid objections during execution proceedings and could not improve their case at the appellate stage. Banking Court was not bound to adhere strictly to O. XXI of C.P.C., as S. 19(7) of the Ordinance contained a non obstante clause. Reliance was placed on Nice 'N' Easy Fashion Ltd. v. Allied Bank (2014 SCMR 1662). (b) Civil Procedure Code, 1908 ----S. 12(2); O. XXI, Rr. 66 & 92----Challenge to auction; Fraud; Procedural objections. Challenge under S. 12(2) of the C.P.C. requires proving fraud, misrepresentation, or lack of jurisdiction. Appellant No. 1’s objections, claiming lack of knowledge of the auction and proprietary rights as a co-owner, were dismissed for failing to meet the criteria of S. 12(2). Judicial orders confirming the auction carried a presumption of validity under Mujahid Karim v. National Bank of Pakistan (2016 SCMR 66). Sale confirmed by the Banking Court could not be invalidated to the detriment of the auction purchaser, as held in Hudaybia Textile Mills v. Allied Bank (PLD 1987 SC 512). (c) Administration of Justice ----Proprietary rights; Procedural finality----Importance of timely objections in execution proceedings. The Court held that objections to auction proceedings must be raised at the appropriate stage. Appellants’ failure to contest the decree and auction within the prescribed time led to procedural finality. Auction purchasers acquire vested rights upon confirmation of the sale, which cannot be overturned unless substantive grounds such as fraud are proven. ----Cited Cases: Muhammad Yaqoob v. Mst. Sardaran (PLD 2020 SC 338) Nice 'N' Easy Fashion Ltd. v. Allied Bank (2014 SCMR 1662) Hudaybia Textile Mills v. Allied Bank (PLD 1987 SC 512) Mujahid Karim v. National Bank of Pakistan (2016 SCMR 66)

Summary: Section 12(2) CPC provides a bar where plaintiff is precluded by rule from instituting a further suit in respect of any particular cause of action and shall not be entitled to institute a suit in respect of such cause of action in any court to which this code applies. --- Issue: The plaintiff sought injunctive orders against the defendants and restraining orders against the Court of Senior Civil Judge-VI, East Karachi, from proceeding with an ex parte judgment and decree in Suit No.302/2017 and Execution No.13/2018. The plaintiff challenged the judgment/decree obtained ex parte by the defendants from a court of competent jurisdiction but allegedly collusively.Holding: The High Court dismissed the suit, finding it not maintainable due to the bar provided under Section 12(2) of the Civil Procedure Code (CPC), which precludes filing a separate suit to challenge a judgment, decree, or order on the grounds of fraud, misrepresentation, or want of jurisdiction.Reasoning: The Court reasoned that the plaintiff's remedy for challenging the validity of a judgment or decree based on allegations of fraud and misrepresentation lies in making an application to the court that passed the final judgment, decree, or order, as per Section 12(2) CPC, rather than filing a separate suit. The Court noted that the plaintiff had previously sought to challenge the decree through an application under Section 12(2) CPC and a subsequent civil revision, both of which were dismissed. The Court found the plaintiff's approach in filing the current suit, after exhausting remedies under Section 12(2) CPC, to be tainted with mala fide intentions. The Court emphasized that rights determined under a decree cannot be disturbed through a separate suit and that the plaintiff cannot obtain a parallel decree concerning the property in question where parties' rights have been determined via judgment and decree.Legal Precedent Cited: The Court referenced a legal precedent to support its reasoning: Pakistan Employees' Cooperative Housing Society v. Messrs Awami Constructions Co. Ltd, and another, 2003 CLC 607, which discusses the remedy for challenging a decree obtained on fraud, misrepresentation, and without jurisdiction through an application under Section 12(2) CPC rather than a separate suit.Order: The High Court dismissed the suit and all pending applications, affirming the procedural bar under Section 12(2) CPC against filing a separate suit to challenge a judgment, decree, or order on the grounds of fraud, misrepresentation, or want of jurisdiction.

Summary: Application under Section 12(2) CPC seeking to set aside Judgment and Decree on plea of fraud by lawyers allegedly not appointed by the Petitioners who got recorded consenting statements of the Petitioners was rightly concurrently dismissed as presumption attached to judicial proceedings could not be dislodged on the basis of evidence on record.

Summary: Mere assertion that lawyer had not been authorized to withdraw appeal is not sufficient to recall the withdrawal order through application under Section 12(2) of CPC as for that purpose the Applicant in addition to above was also required to establish the grounds provided under Section 12(2) CPC, that said order was a result of fraud, misrepresentation or Court lacked the jurisdiction to pass the same.

Summary: The respondents filed a suit for specific performance of an agreement to sell the house, and a decree was passed in their favor. However, the petitioner alleged fraud and misrepresentation and filed a civil suit and an application under Section 12(2) of the Code of Civil Procedure. The trial court dismissed the civil suit, and the application under Section 12(2) was withdrawn. The petitioner then challenged the decree in the appellate court, but her application was dismissed. The Supreme Court noted that the petitioner is an elderly and illiterate lady who claimed fraud and misrepresentation by her husband and son. The court observed that the burden of proof lies on the respondents to establish the genuineness of the alleged transaction. It found that the power of attorney and the agreement to sell were not properly exhibited and proved in accordance with the law. The court also noted that the alleged payment of the sale consideration had not been proven. Based on these findings, the court concluded that there were sufficient grounds for setting aside the decrees in favor of the respondents. Additionally, the court highlighted that the initial decree was conditional, subject to the payment of the balance amount of the sale consideration. The court emphasized that the respondents failed to fulfill this condition. Therefore, the Supreme Court granted leave to appeal and set aside the decrees of the lower courts. The case will be reconsidered based on the evidence and arguments presented.

Summary: (a) Civil Procedure Code (V of 1908)-------S. 12(2)---"Final order"---Application under S.12(2), C.P.C.---Appeal of respondentagainst eviction order of Trial Court in favour of respondent (alleged owner of shop) wasdismissed by High Court---Separate suit of the present applicant for declaration andpermanent injunction against respondents was decreed in favour of applicant/ plaintiff---Held, that applicant was recorded owner of shop as per revenue abstract---Respondentintentionally concealed from High Court the fact that applicant filed the suit for declarationand permanent injunctions---Even after disposal of the said suit, respondents (contesting inappeal before High Court) did not bother to inform the fate of the suit to High Court---Fraudwould vitiate most solemn proceeding---Respondents by concealing the facts fromCourt/Rent Controller committed fraud---Concealment of facts should be discouraged---HighCourt accepted application under S.12(2) and remanded the matter to Rent Controller withdirection to implead the applicant and decide the application according to law---Cost ofRs.200,000/- imposed on the respondents. (b) Civil Procedure Code (V of 1908)-------S. 12(2)---Phrase 'court which passed the final judgment, decree or order'---Scope---Applicant's prior application under S.12(2) for setting aside the order of trial Court wasdismissed by trial Court as withdrawn for filing it before proper forum i.e. High Court---Held, that contention of respondents that application under S.12(2) of Civil Procedure Code,1908 could not be filed before Trial Court because High Court affirmed judgment of TrialCourt, had no force---With respect to the four situations relevant to the determination of thefinal court within the purview of S.12(2) of C.P.C. as mandated by Supreme Court inSahabzadi Maharunisa v. Mst. Ghulam Sughran (PLD 2016 SC 358), High Court recordedelaborate observations:High Court observations were as follows:--(i) In the cases where the remedy of appeal/revision is provided against a judgment etc.or a remedy of writ is availed, the appellate/ revisional/constitutional forum records reasonson the consideration of the issues of law and /or fact the judgment etc. of the subordinatecourt/forum will merge into the decision of the appellate court etc. irrespective of the factthat such judgement reverses, varies or affirms the decision of the subordinate court/forumand its decision will be operative and capable of enforcement on the principle of merger, theapplication under section 12(2) of the C.P.C. will be maintainable before theappellate/revisional/constitutional forum (High Court, District Court, Tribunal or SpecialCourt as the case may be);(ii) In the situation where an appeal/revision/writ is not disposed of on merits but on someother grounds; there are certain exceptions to the rule of merger which shall not apply wherean appeal etc. has been dismissed:-(i) for non-prosecution; (ii) for lack of jurisdiction; (iii)for lack of competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi)withdrawal of the matter by the party; (vii) for lack of locus standi; (viii) decided on thebasis of a compromise, if the very basis of the compromise by the party to the lis or even astranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) isrendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writis dismissed on the ground of availability of alternate remedy; (xii) where the writ isdismissed on the point of laches. Such exceptions shall also be attracted to the decision(s) ofthe Supreme Court, where applicable. However, where the case falls within the notedexceptions the forum for an application under section 12(2) of the C.P.C. is the one againstwhose decision the matter has come and been disposed of in the above manner by the higherforum;(iii) In the cases of reversal or modification of the judgment of the High Court(s),Tribunal(s) or Special Courts before High Court, or those affirmed in appeal (where thematter does not fall within the exceptions) the judgment of the Supreme Court shall bedeemed to be final for moving an appropriate application on the plea of lack of jurisdiction,misrepresentation and fraud;(iv) In the cases where leave is declined by High Court, the judgment etc. of the lowerfora will remain intact and final and will not merge into the leave refusing order, for thepurposes of an application under section 12(2) of the C.P.C. which can only be filed beforethe last forum i.e. the High Court(s) if the matter has been decided in theappellate/revisional/writ jurisdiction by the said court, or if the matter has come to this Courtdirectly for leave from a Tribunal/Special Court (see Article 212 of the Constitution).However where the petition for leave to appeal has been dismissed with detailed reasons anda thorough decision of the questions of law and fact has been made, the judgment of the HighCourt(s)/Tribunal will though not merge into the order of the Supreme Court yet in order toavoid a ludicrous situation that once a question of law and fact has been elaborately andexplicitly dealt with by High Court in the leave refusing order and the court below may notbe in a position to adjudicate upon those points without commenting on the order/reasons ofthe Supreme Court and to reopen the matter, an application in the nature of section 12(2) of the C.P.C. can be filed before High Court, leaving it to the absolute discretion of this Courtto either decide such application itself or send the matter to the lower fora for the decision.

Summary: (a) Civil Procedure Code (V of 1908): ----S. 12(2), Order I, R. 10 & Order VII, R. 11--- Setting aside ex parte judgment---Fraud and misrepresentation---Applications under Section 12(2), C.P.C., seeking to set aside an ex parte judgment on grounds of fraud and misrepresentation, must be supported by substantial evidence establishing such claims---Dismissal of applications by trial court upheld where no credible evidence was produced. Applications under Order I, R. 10, C.P.C., for impleadment require the applicant to demonstrate locus standi and legal entitlement, failing which such applications may be dismissed. (b) Constitution of Pakistan (1973): ----Art. 172--- Ownerless property---Devolution to the State---Where private respondents' whereabouts are unknown, and ownership of property cannot be established, the property may devolve upon the State as "ownerless property" under Article 172 of the Constitution. However, this does not affect the rights of recorded owners as per the revenue record unless proven otherwise. (c) Property Law: ----Ownership rights and contradictory claims--- A party cannot take a stance contradictory to their pleadings, as doing so constitutes estoppel under Article 114 of the Qanun-e-Shahadat Order, 1984---Petitioner’s failure to produce evidence supporting the purchase of disputed property (as claimed in pleadings) rendered their claim to the additional 4,291 sq. ft. meritless. (d) Qanun-e-Shahadat Order, 1984: ----Arts. 114 & 132--- Estoppel and examination of witnesses---Contradictory statements made during trial are inadmissible and cannot override pleadings---Petitioner’s subsequent claims regarding property ownership contradicted earlier pleadings and were held inadmissible. (e) Disposition: ----Petition partly allowed--- Judgments and decrees of the trial and appellate courts were set aside to the extent of property legally owned by the petitioners (4,034 sq. ft.)---Petitioner No.1 declared exclusive owner of 4,034 sq. ft., including her husband's share in Khasra No.48, measuring 1,706 sq. ft.---Petitioners’ claim over the disputed 4,291 sq. ft. property was rejected---Revenue authorities directed to update records accordingly---Petitioner No.1 granted right of first refusal if the disputed property is auctioned.