Summary: (Against the order dated 18.09.2023 passed in Writ Petition No. 2874 of 2022 by Islamabad High Court, Islamabad and stay application). (a) Civil Procedure Code (V of 1908)--- ----S. 12(2), O.IX, R.13 & O.V, Rr.19 & 20---Non-service of summons upon defendant---Substituted service, procedure and invocation of---Pre-requisites---Trial Court resorting to substituted service without adopting requirements for ordinary service---Legality---Affixation of court summons on conspicuous place of business and recording of statement of process server as to the affixation---Requirement---Setting aside ex parte decree, seeking of---Proper remedy, invocation of---Whether application under section 12(2) C.P.C. was maintainable or recourse lay under Order IX Rule 13, C.P.C.?---Primary issue in the present case revolved around whether the ex parte judgment and decree dated 18.09.2013 passed against the petitioner was validly obtained on the premise that Trial Court had resorted to substituted service through newspaper publication without first ensuring compliance with mandatory legal requirements for ordinary service of summons---The petitioner's subsequent application under section 12(2) C.P.C. to set aside the ex parte decree was dismissed by the Trial Court and later upheld by the High Court---The Supreme Court was thus called upon to decide "whether the ex parte proceedings stood vitiated for lack of proper service, and whether the proper remedy lay under section 12(2) C.P.C. or Order IX Rule 13, C.P.C. for setting aside the decree"?---Held: No order for affixation of court summons on the conspicuous place of the business of the petitioner was passed by the Trial Court rather it was ordered that 'defendant be summoned through registered post AD/TCS for 28.02.2013'; however, on 28.02.2013, the Trial Court without taking into account the preceding order and without recording statement of the process server as to purported affixation of the court summons as required under Rule 19, Order V of C.P.C. as to its satisfaction for reasons to believe that the petitioner/defendant was keeping out of the way for the purpose of avoiding service or for any other reason the summons could not be served in the ordinary way, especially when no order for affixation was passed by it on the preceding date and without adhering to the provided procedure as per mandate of law, resorted to substituted service of the petitioner through publication of court notice in the newspaper---Substituted service could only be effected when ordinary summons could not be served or defendant deliberately avoided to receive summons of the Court and the Court was satisfied that service could not be effected through ordinary modes of service and that satisfaction could be achieved by recording statement of the process server but nothing as such was done by the Trial Court---Process of issuance of proclamation for the service of the petitioner without fulfilling the mandatory requirement was nothing but nullity in the eye of law; therefore, the superstructure built thereon automatically collapsed---In the present case, when it was established from the record that the Trial Court while dealing with the suit did not resort to the mandated procedure of law for procuring the service of the petitioner, the application seeking setting aside ex parte judgment and decree ought to have been accepted---With regards to the question as to the applicability of either section 12(2) of Order IX, Rule 13 of C.P.C., an application under Order IX of Rule 13, C.P.C. was competent when an ex parte decree was passed due to non-service of summons---However, the court must assess the facts and evidence to determine the appropriate remedy under each provision---Impugned order passed by High Court and order delivered by Trial Court, were set aside, consequent whereof the application filed by the petitioner, treating the same as filed under Order IX, Rule 13 of C.P.C. was accepted and the ex parte judgment and decree in question was set aside and case was remanded to the Trial Court for decision afresh, obviously after obtaining written statement of the petitioner, framing issues and recording evidence of the parties---Present petition was converted into appeal while granting leave and same was allowed, in circumstances. (b) Civil Procedure Code (V of 1908)--- ----S. 12(2) & O.V, Rr.10, 17, 20---Non-service of summons to defendant---Ex parte judgment and decree passed against defendant---Trial Court adopting substituted service without adhering to the procedure provided for ordinary service---Defendant seeking setting aside of ex-parte judgment and decree---'Audi alteram partem'---Principle---Applicability---It is a settled principle of law as well as demand and mandate of law that one should not be condemned unheard and every litigant should be provided with fair opportunity to plead and defend his/her case by adhering to the principle of audi alteram partem and technicalities should and ought to be avoided. (c) Civil Procedure Code (V of 1908)--- ----S. 12(2), O.IX, R.13 & O.VI, R.4---Defendant seeking setting aside of ex parte judgment and decree by filing application under section 12(2) C.P.C.---Competency and legality---Legal question before the Court was as to "whether application under section 12(2) C.P.C. or under Order IX, Rule 13 C.P.C. would be competent?---Key distinction between applicability and competency of both applications stated---Section 12(2) of C.P.C. provides a remedy to challenge a judgment, decree, or order obtained by: (i) fraud (ii) misrepresentation, or (iii) want of jurisdiction---However, mere use of these terms is not sufficient, rather specific particulars must be provided as required by Rule 4 of Order VI, C.P.C.---It allows any person affected by such a decree or order to apply to the court that passed it, seeking to set it aside---This provision is not limited to parties to the suit but extends to any person aggrieved by the decree or order---It means an application under section 12(2) C.P.C. is maintainable when the decree or order was obtained by deliberate deception or suppression of material facts from the Court---However, the judgment supports a broader reading that includes fraud between the parties affecting the decree---For instance, if a plaintiff fabricates documents or misleads the court to secure a favorable judgment, the affected party can invoke Section 12(2) of C.P.C.; when the decree results from unintentional but material misstatement of facts by a party, leading the court to pass an erroneous order---For example, if a party misrepresents the ownership of property in a suit, the aggrieved party may apply under this section; and when the court lacked inherent jurisdiction to pass the decree or order---For instance, if a court passes a decree in a matter outside its territorial or pecuniary jurisdiction, an application under Section 12(2) of C.P.C. can be filed---Additionally, a person not a party to the suit but affected by the decree e.g., a third party whose property is wrongly included in a decree, may apply under this section---The application must be filed in the same court that passed the decree or order---The applicant must prove fraud, misrepresentation, or lack of jurisdiction with cogent evidence---The scope of application under Section 12(2) of C.P.C. is broader than Order IX Rule 13, C.P.C., as it is not limited to ex-parte decrees and can be invoked by non-parties---Whereas, Order IX, Rule 13 of C.P.C. provides a remedy to set aside an ex parte decree passed against a defendant who was unable to appear when the suit was called for hearing---It applies only to defendants and is limited to ex-parte decrees---An application under Order IX Rule 13, C.P.C. is maintainable when: the defendant was not duly served with the summons, or the service was defective, preventing their appearance; the defendant(s) was prevented from appearing due to sufficient cause, such as illness, accident, or other unavoidable circumstances; the decree was passed ex- parte, i.e., in the absence of the defendant, without hearing their defense---The application must be filed by the defendant in the court that passed the ex-parte decree---The defendant must demonstrate that they were not served or had sufficient cause for non-appearance---The court may set aside the decree in terms (e.g., costs) and allow the defendant to contest the suit---Unlike Section 12(2) C.P.C., this provision Order IX, Rule 13, C.P.C. is limited to ex-parte decrees and does not cover fraud or jurisdiction issues unless they relate to service or non-appearance---Key distinctions between the applications under section 12(2) and IX(13), C.P.C. are that Section 12(2) C.P.C. addresses fraud, misrepresentation or lack of jurisdiction and applies to any decree or order, while Order IX Rule 13, C.P.C. is restricted to ex-parte decrees; Section 12(2) C.P.C. can be invoked by any aggrieved person, including non-parties, while Order IX Rule 13, C.P.C. is available only to defendants; Section 12(2) C.P.C. focuses on substantive defects (fraud, misrepresentation, jurisdiction), while Order IX Rule 13, C.P.C. addresses procedural issues (non-service, sufficient cause); Section 12(2) C.P.C. seek to set aside the decree or order entirely, while Order IX Rule 13, C.P.C. seeks to restore the suit for hearing on merits---In light of the above, an application under Section 12(2) C.P.C. lies when a decree or order is tainted by fraud, misrepresentation, or lack of jurisdiction, as seen in cases like fabrication of documents or jurisdictional overreach---Conversely, an application under Order IX Rule 13, C.P.C. lies when an ex-parte decree is passed due to non-service of summons or sufficient cause for the defendant's non-appearance, such as illness or defective service---The court must assess the facts and evidence to determine the appropriate remedy under each provision. Pakistan Railways through Chairman Pakistan Railways, Islamabad and another v. Muhammad Amin 2025 PLC (C.S.) 699; Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others 2023 SCMR 2158; Muhammad Aslam and others v. Mst. Kundan Mai and others 2004 SCMR 843 and Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) through L.Rs. and others PLD 2024 SC 262 rel. (d) Civil Procedure Code (V of 1908)--- ----Ss. 9, 12(2), 47 & 151---Ancillary provisions for application under section 12(2) C.P.C.---Applicability and significance---Addressing issues related to execution of decree obtained through fraud, misrepresentation, lack of jurisdiction or defected service---Multiple remedies for aggrieved person stated---Prevention of decrees obtained unfairly from attaining finality---Filing of objections under section 47 C.P.C. or separate application under section 12(2) C.P.C.---Scope---Ancillary provisions for Section 12(2) C.P.C. can be summarized such that Section 47 C.P.C. deals with questions arising between parties to a suit (or their representatives) regarding the execution, discharge, or satisfaction of a decree---Meaning thereby, if a decree is challenged under Section 12(2) C.P.C. on the basis of fraud or lack of jurisdiction, issues related to its execution (e.g., whether the decree is enforceable) may be addressed under Section 47 of C.P.C. during execution proceedings---For instance, if a decree obtained by fraud is sought to be executed, the aggrieved party may raise objections under Section 47 of C.P.C., alongside or instead of a separate application under Section 12(2) C.P.C., depending on the stage of proceedings---Section 151 of C.P.C. empowers courts to pass orders necessary to meet the ends of justice or prevent abuse of the process of the court---It is notable fact that if an application under section 12(2) C.P.C. does not fully address procedural gaps (e.g. interim relief to stay execution of a fraudulent decree), the court may invoke its inherent powers under Section 151 C.P.C.---For example, if a decree is challenged for fraud under Section 12(2) C.P.C., the Court may use Section 151 C.P.C. to stay execution proceedings pending the adjudication of the application---Further, provisions under Order XXI (e.g. Rules 26, 29, 90, 99-101) govern the execution of decrees---If a decree is challenged under Section 12(2) C.P.C. for fraud or lack of jurisdiction, ancillary issues like staying execution (Order XXI Rule 26, C.P.C.) or setting aside a sale in execution due to fraud (Order XXI Rule 90, C.P.C.) may arise; if a property is sold in execution of a decree obtained by misrepresentation, the affected party may seek to set aside the sale under Order XXI Rule 90, C.P.C., in conjunction with an application under Section 12(2) C.P.C.; Section 9 C.P.C. establishes that civil courts have jurisdiction to try all suits of a civil nature unless barred---When an application under Section 12(2) C.P.C. is filed alleging want of jurisdiction, Section 9 C.P.C. provides the foundational principle for determining whether the court had the authority to pass the decree---For instance, if a decree is challenged under Section 12(2) C.P.C. for being passed by a court lacking territorial jurisdiction, Section 9 C.P.C. guides the inquiry into the court's competence---However, ancillary provisions for Order IX Rule 13, C.P.C. can be summarized as: Order V (Rules 1-30) C.P.C. governs the issuance and service of summons---Since an application under Order IX Rule 13, C.P.C. often hinges on non-service or defective service of summons, Order V C.P.C. provisions are critical to determining whether the service was proper---For example, if a defendant claims non-service under Order IX Rule 13, C.P.C. because the summons were not served as per Order V Rule 15, C.P.C. (service on an adult member of the family), the court will examine compliance with Order V of C.P.C.; Order IX Rule 6, C.P.C. outlines the procedure when the defendant does not appear, leading to an ex-parte decree---This provision sets the stage for an application under Order IX Rule 13, C.P.C., as it defines the circumstances under which an ex-parte decree is passed; if a court proceeds ex-parte under Order IX Rule 6, C.P.C. due to the defendant's absence, the defendant may apply under Order IX Rule 13, C.P.C. to set aside the decree, citing non-service or sufficient cause; if the suit is at the hearing stage and has not yet resulted in a decree, Order IX Rule 7, C.P.C. allows the defendant to apply to set aside the ex-parte proceedings and join the hearing---This is a precursor to Order IX Rule 13, C.P.C., applicable when the case is still ongoing---For instance, if defendant learns of the ex-parte proceedings before the decree is passed, he may apply under Order IX Rule 7 instead of waiting to file under Order IX Rule 13, C.P.C.; Order IX Rule 14, C.P.C. mandates that no ex-parte decree shall be set aside under Order IX Rule 13, C.P.C. without giving notice to the opposite party (plaintiff)---This ensures procedural fairness in applications under Order IX Rule 13, C.P.C.---When a defendant files an application under Order IX Rule 13, C.P.C., the court must issue notice to the plaintiff under Order IX Rule 14, C.P.C. before deciding the application---In addition to the above, if an ex-parte decree is set aside under Order IX Rule 13, C.P.C., Section 144 C.P.C. allows the court to order restitution to restore the parties to their original position (e.g. refund of money paid under the decree or restoration of property)---Moreover, if defendant's property was sold in execution of an ex-parte decree that is later on set aside, Section 144 C.P.C. may be invoked to restore the property to the defendant---Similar to its role in Section 12(2) C.P.C., Section 151 C.P.C. can be used to address procedural gaps in Order IX Rule 13, C.P.C. applications, such as granting interim relief to stay execution of an ex-parte decree pending the application's adjudication---Furthermore, provisions like Order XXI Rule 26 (stay of execution) and Rule 29, C.P.C. (stay of suit when execution is pending), are ancillary to Order IX Rule 13, C.P.C., as they allow the court to manage execution proceedings while the application to set aside the ex-parte decree is pending---If a defendant files an application under Order IX Rule 13, C.P.C. and the decree is being executed, they may seek a stay under Order XXI Rule 26, C.P.C.---The ancillary provisions ensure procedural fairness, provide mechanisms for execution or stay, and allow appeals or restitution, complementing the primary remedies under Section 12(2) and Order IX Rule 13, C.P.C.---Provisions like Section 151 and Order XXI, C.P.C. grant courts flexibility to address case-specific issues, ensuring justice is not defeated by procedural technicalities---Both Section 12(2) and Order IX Rule 13, C.P.C. applications require compliance with procedural rules [e.g., notice under Order IX Rule 14, C.P.C. or evidence of fraud under Section 12(2) C.P.C.], and ancillary provisions like Order V or Section 47, C.P.C. guide these requirements. Imran Muhammad Sarwar, Advocate Supreme Court for Petitioner (via video-link from Lahore). Hasan Rashid Qamar, Advocate Supreme Court for Respondent No. 2. Date of hearing: 29th July, 2025.

Summary: (a) Civil Procedure Code (V of 1908) ---- O. V, Rr. 17, 19 & O. IX, Rr. 6, 13 ---- Ex parte decree ---- Substituted service without satisfaction of prerequisites ---- Nullity in law In a suit for recovery, the petitioner was proceeded against ex parte and decree passed on 18.09.2013. The petitioner’s application under S. 12(2), C.P.C., was dismissed, followed by constitutional petition also being dismissed by the High Court. Supreme Court held that no order for substituted service was passed on the relevant date and substituted service via publication was effected without satisfying the mandatory prerequisites of O.V, R.20, C.P.C. No statement of process server was recorded to support the claim of avoidance of service or impossibility of service through ordinary means. Held, substituted service without judicial satisfaction of prior service failure is invalid; entire proceedings stand vitiated. Cited Case: • Sana Jamali v. Mujeeb Qamar 2023 SCMR 316 (b) Civil Procedure Code (V of 1908) ---- O. IX, R.13 ---- Right to fair hearing ---- Audi alteram partem ---- Ex parte decree liable to be set aside where service is defective Supreme Court held that when ex parte decree is passed without due and legal service of summons, it violates the fundamental principle of natural justice—audi alteram partem. Service through publication, not preceded by effective service attempts and judicial satisfaction, renders the proceedings void. Defendant cannot be condemned unheard. Held, technicalities should be avoided where they obstruct justice. Petitioner's absence from proceedings was not deliberate; denial of fair opportunity necessitates restoration of case on merits. Cited Case: • Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq 1985 SCMR 1228 • Muhammad Sharif v. MCB Bank Ltd. 2021 SCMR 1158 • Faqir Muhammad v. Khursheed Bibi 2024 SCMR 107 (c) Civil Procedure Code (V of 1908) ---- S. 12(2) vs. O. IX, R. 13 ---- Comparative scope and applicability ---- Principles restated with illustrative examples Court elaborated the distinctions: Section 12(2), C.P.C. applies when a decree is challenged on grounds of fraud, misrepresentation, or want of jurisdiction. It is available to any aggrieved person, including non-parties. Order IX, Rule 13, C.P.C. applies only to ex parte decrees, is available only to defendants, and hinges on non-service or sufficient cause for non-appearance. If summons were not properly served, O. IX, R. 13 is applicable; if judgment was procured by deceit or concealment of facts, S. 12(2) is invoked. Court emphasized that mere labeling under S. 12(2) is insufficient without pleadings disclosing specific fraud particulars per O. VI, R.4, C.P.C. (d) Civil Procedure Code (V of 1908) ---- Ss. 47, 151, 144 & O. XXI, Rr. 26, 90 ---- Ancillary provisions to S. 12(2) and O. IX, R. 13 C.P.C. ---- Execution and restitution frameworks explained Court clarified that: S. 47 governs questions during execution including objections arising from invalid or fraudulent decrees. S. 151 provides inherent power to prevent abuse and ensure justice, especially when S. 12(2) or O. IX, R.13 do not provide complete procedural relief. S. 144 allows restitution when an ex parte decree is later set aside. O. XXI R. 26 permits stay of execution during pendency of challenge to decree. These provisions collectively ensure that procedural rules do not defeat substantive justice. (e) Constitution of Pakistan ---- Art. 10A ---- Fair trial and due process ---- Defendant deprived of opportunity to contest ---- Ex parte decree set aside to prevent miscarriage of justice Held, fair trial under Article 10A of the Constitution guarantees the right to contest claims. Petitioner was denied this right due to flawed substituted service and non-adherence to due process. Decree passed without giving a party a chance to be heard contravenes constitutional protection. Trial court’s non-compliance with mandatory provisions rendered the decree unsustainable. Disposition: Leave to appeal granted; petition converted into appeal and allowed. Orders of the High Court dated 18.09.2023 and trial court dated 14.07.2022 set aside. Ex parte judgment and decree dated 18.09.2013 also set aside. Matter remanded to trial court for de novo hearing after obtaining written statement, framing issues, and recording evidence.

Summary: (a) Civil Procedure Code (V of 1908)--- ----O.XXXVII, Rr. 1, 2(2) & 3(2)---Suit for recovery---Conditional leave to defend, grant of---Failure to satisfy the condition---Effect---Order granting conditional leave to defend, recalling of---Scope---The respondent filed a suit for recovery under O. XXXVII, Rr. 1 and 2 of the C.P.C. against the petitioner---The petitioner/defendant filed an application for leave to defend the suit, which was accepted subject to furnishing surety bonds---Respondent/plaintiff moved an application alleging that the surety bond submitted by the petitioner/defendant was fake and forged---The Trial Court, after conducting an inquiry, found the surety bond to be fake---Consequently, the court recalled its earlier order granting conditional leave and dismissed the petitioner's/defendant's application to defend the suit---Subsequently, petitioner filed the present civil revision arguing that the impugned order was illegal and that he should have been allowed to furnish fresh surety---Primary legal question in the present civil revision was as to "whether a court could retract an order granting leave to defend in a summary suit under O. XXXVII of the C.P.C., when the condition precedent attached to that leave had not been genuinely fulfilled?"---Held: When leave to appear and defend the suit was granted subject to a specific condition, the very efficacy of that leave depended on fulfillment of that condition---If the condition was not met in its true letter and spirit, the order granting conditional leave became inoperative---In the present case, the trial court, after conducting an inquiry that included summoning and recording of the statement of the relevant patwari, arrived at the finding that the petitioner/defendant submitted forged surety bonds, which clearly constituted non-compliance of the conditional order granting leave to defend---The submission of a fake surety bond was not merely a technicality rather it constituted an act of fraud committed with court---Therefore, no illegality or material irregularity in the findings of the court below was pointed out warranting interference by the High Court in exercise of its revisional jurisdiction under S. 115 of the C.P.C.---Civil revision being devoid of any merit was dismissed in limine. (b) Civil Procedure Code (V of 1908)--- ----O.XXXVII, Rr. 1, 2 & 3(2)---Suit for recovery---Conditional leave to defend, grant of---Scope---Failing to satisfy the condition---Effect---Conditional grant of leave is contingent upon the satisfactory fulfillment of the stipulated terms and failure to meet those terms effectively nullifies the leave granted---Plain reading of R. 3(2) of O. XXXVII of C.P.C. clearly establishes the court's authority to grant conditional leave---The power of the Trial Court to grant leave to defend subject to conditions is, thus, a matter of judicial discretion---Implicit in such authority to pass conditional order is the understanding that the fulfillment of the condition is crucial for the leave to remain effective. Haji Ali Khan and Company, Abbottable and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottable PLD 1995 SC 362; Abdullah v. Shaukat 2001 SCMR 60 and Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659 rel. Jam Muhammad Shoaib Mahra for Petitioner.

Summary: (a) Civil Procedure Code (V of 1908) --- ----S.12(2)---Limitation Act (IX of 1908), First Sched., Art.181---Challenging the validity of judgment or order on the basis of fraud and misrepresentation by filing an application under S.12(2) CPC--- Maintainability---Essential requirements and necessary ingredients---Consent/compromise decree challenged after a decade---No instance of fraud, misrepresentation or want of jurisdiction pleaded in the application under S.12(2) C.P.C---Effect---Brief facts of the case were that the a suit for declaration was filed by the petitioners/plaintiffs on 29.06.2001 challenging a mutation which was allegedly attested on 19.11.1991, on the basis of fraud---During the pendency of that suit, a compromise deed dated 25.02.2001 was executed, resulting in the suit's withdrawal--- Subsequently, multiple applications under S.12(2) C.P.C. were filed by different respondents, challenging the withdrawal based on fraud and misrepresentation which were dismissed by the civil court, including the one dismissed on 22.01.2014---However, the respondents'/defendants' revision petition was allowed by the District Court, remanding the case for fresh adjudication after recording pro and contra evidence---The petitioners/plaintiffs contended that the judgment dated of the revisional court was illegal and void ab initio and sought restoration of the 22.01.2014 decision whereby respondents' application under S.12(2) was dismissed---Held: Application under S.12(2) C.P.C. did not contain specific details about the fraud that might have been committed in the proceedings in civil suit which including filing of application for withdrawal, recording of statement of attorney and exhibiting documents of compromise therein---In absence of such details in respect of alleged fraud in the proceedings of the court, the application under S.12(2) C.P.C. was not at all maintainable---There was no explanation as to why the applicants remained silent for more than a decade for challenging the order of withdrawal of suit dated 02.03.2001 on 14.01.2013---The application under S.12(2) C.P.C. was also barred by law of limitation specifically Art.181 of Schedule-I of Limitation Act, 1908---Impugned order of revisional court was set aside and application of respondent Nos.1 to 8 filed under S.12(2) C.P.C. stood dismissed---Constitutional petition was allowed, in circumstances. (b) Civil Procedure Code (V of 1908) --- ----S.12(2)---Application under S.12(2) of C.P.C---Essential requirements and necessary ingredients---Not mentioning the specific details of fraud or misrepresentation---Effect---While moving an application under S.12(2) C.P.C. the basis of fraud or misrepresentation has to be specifically described along with necessary details in the very application under S.12(2) C.P.C.---Vague assertion on crucial facts would not be of any legal avail as a mere bold assertion of fraud or concealment would not legally suffice---Moreover, when a person raises a ground of fraud or concealment to allege his claim or defend his stance the same has to be specifically pleaded with clear particulars, otherwise mere allegation not supported by any material would not invariably warrant inquiry of investigation in each case. Messrs Dadabhoy Cement Industries Ltd and 6 others v. National Development Finance Corporation Karachi PlD 2002 SC 500; Bashir Ahmad through Legal Representative and others v. Muhammad Hussain and others PLD 2019 SC 504 and Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) through LRs and others PLD 2024 SC 262 rel. Misbahullah for Petitioners. Muhammad Ismail Khalil for Respondents. Date of hearing: 22nd April, 2025.

Summary: (a) Civil Procedure Code, 1908 (CPC) ----S. 12(2)—Ex parte decree—Application for setting aside—Grounds—Fraud—Misrepresentation—Want of jurisdiction—Burden of proof—Scope— Petitioner sought to set aside ex parte judgment and decree dated 15.12.2016 by invoking S.12(2), CPC, alleging that the decree was obtained through fraud and misrepresentation—Trial Court dismissed the application, holding that Petitioner failed to prove any of the statutory grounds under S.12(2), CPC—Held, to invoke S.12(2), CPC, Petitioner must substantiate existence of fraud, misrepresentation, or lack of jurisdiction—Personal service was effected, signatures matched those in CNIC and affidavit—Learned Civil Judge was empowered under Article 84 of Qanun-e-Shahadat Order, 1984 to compare signatures without forensic report—Petitioner failed to file application for setting aside ex parte proceedings within limitation and instead resorted to S.12(2), CPC without sufficient evidence—No illegality or material irregularity found in impugned order. Cited Provisions: S.12(2), CPC; Art. 84, Qanun-e-Shahadat Order, 1984; Art. 164, Limitation Act, 1908 (b) Limitation Act, 1908 ----Art. 164—Ex parte decree—Application to set aside—Limitation—30 days—Scope— Application for setting aside ex parte decree must be filed within 30 days under Article 164—Petitioner failed to avail remedy within limitation—Instead, belatedly invoked S.12(2), CPC without establishing fraud or misrepresentation—Held, Petitioner cannot bypass statutory limitation by framing ordinary procedural lapse as fraud. (c) Evidence Law—Signature verification—Article 84, Qanun-e-Shahadat Order, 1984—Judicial comparison of handwriting—Scope— Trial Court’s comparison of signatures on service summons and application under S.12(2) held valid—Court competent under Article 84 of QSO, 1984 to form opinion on handwriting—Forensic referral not mandatory where signature comparison is straightforward. Disposition: Civil Revision dismissed—Impugned Order dated 12.09.2023 upheld—Petitioner failed to prove grounds under S.12(2), CPC—No fraud, misrepresentation or jurisdictional defect established—No costs. "Revision against dismissal of application u/s 12(2) CPC filled by petitioner for setting aside Ex-Parte Judgment and Decree dated 15.12.2016."

Summary: (a) Cooperative Societies Act, 1925 ----S. 54---- Jurisdiction of Registrar—Scope and limits—Dispute regarding title to immovable property—Maintainability before Registrar under Section 54 of the Co-operative Societies Act, 1925—Phrase “touching the business of the society”—Interpretation—Principle— Held, the expression “touching the business of the society” under S.54 of the Act is a jurisdictional prerequisite that determines the Registrar’s authority to entertain a dispute—The term "business" must be narrowly construed to refer only to commercial or operational activities of the society, and not matters extraneous to its authorized functions—Registrar is not empowered to adjudicate on questions of ownership or title to immovable property once such matters are the subject of civil litigation—Arbitration award rendered by Registrar, purporting to decide a title dispute without impleading affected parties and while civil court decree was in existence, held to be void and of no legal effect—Civil courts alone possess jurisdiction over matters of title, ownership, and possession of immovable property—Citing Defence Housing Authority Lahore v. Builders & Developers (Pvt.) Ltd. 2015 SCMR 1799 and Syed Ghulam Moin-ul-Haq Gillani v. Province of Punjab 2021 CLC 1286, the Supreme Court reaffirmed that cooperative disputes falling outside the internal affairs and core business of the society do not fall under S.54—Invocation of arbitration mechanism by petitioner was declared to be mala fide, conducted behind the back of lawful title holders, and contrary to natural justice. Cited Cases: • Defence Housing Authority Lahore v. Builders and Developers (Pvt.) Ltd. 2015 SCMR 1799 • Syed Ghulam Moin-ul-Haq Gillani v. Province of Punjab 2021 CLC 1286 • Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain & Ors. [1969] (1) SCR 887 (India) • The National Co-Operative Consumers' Federation Ltd. v. Delhi Administration AIR 1971 Delhi 141 (b) Constitution of Pakistan ----Art. 10A---- Due process of law—Natural justice—Non-impleadment of necessary parties in arbitration proceedings—Effect— Held, arbitration proceedings initiated under the Cooperative Societies Act, 1925 by the petitioner were violative of due process as neither the respondent nor his predecessor-in-interest (lawful transferees under registered instruments) were impleaded—The ex parte award adversely affected their vested property rights without affording opportunity of hearing—Violation of Art. 10A of the Constitution—Such omission was indicative of mala fides—Arbitration award and subsequent execution proceedings, including lease deed executed by Nazir, were rightly set aside by the High Court. Cited Cases: • Syed Ghulam Moin-ul-Haq Gillani v. Province of Punjab 2021 CLC 1286 • Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain [1969] (1) SCR 887 (c) Civil Procedure Code, 1908 ----S. 12(2)---- Fraudulent concealment—Effect of failing to disclose prior litigation in arbitration proceedings—Non-speaking award—Legal consequences— Held, petitioner failed to disclose existence of earlier civil litigation which culminated in a final decree against him—Award was non-speaking, made without reference to validly registered instruments or decrees passed in favor of respondent’s predecessor—Registrar exceeded jurisdiction in issuing such award—It is settled that a civil court decree cannot be nullified by parallel proceedings under a special statute—Petitioner’s conduct in securing such award without disclosing material facts or impleading lawful owners amounted to abuse of legal process—Subsequent lease deed dated 20.04.2019 executed on basis of arbitration award was declared to be of no legal effect. Cited Cases: • Syed Ghulam Moin-ul-Haq Gillani v. Province of Punjab 2021 CLC 1286 • Defence Housing Authority Lahore v. Builders & Developers (Pvt.) Ltd. 2015 SCMR 1799 Disposition: Petition dismissed—Leave to appeal refused—Impugned judgment of the High Court affirmed as well-reasoned and legally sound.

Summary: (a) Civil Procedure Code (V of 1908), S. 12(2)—Specific Relief Act (I of 1877), S. 12—Constitution of Pakistan, Art. 199—Consent Decree—Fraud—Misrepresentation—Want of JurisdictionConsent decree obtained in suit for specific performance—Application under S. 12(2), C.P.C. filed by third party alleging fraud and misrepresentation—Attorney (respondent No.2) had no legal authority to execute agreement to sell or record statement on behalf of petitioner or respondent No.4-Society—Power of attorney relied upon by respondent No.2 had become ineffective upon death of one of the joint executants—Decree passed based on unauthorized statement and compromise—Held, authority to enter into agreement to sell must stem from valid power of attorney; agency terminated upon death of joint principal as per S. 201 of Contract Act, 1872—Lower courts failed to appreciate misrepresentation and dismissed application under S. 12(2), C.P.C. without properly addressing jurisdictional defect—Such decree liable to be annulled.----Cited Cases:Imamn Din v. Bashir Ahmad (PLD 2005 SC 418)Sitara v. Sohrab (PLD 2014 Lahore 179)(b) Contract Act (IX of 1872), S. 201—Termination of agency—Effect of death of principal on power of attorneyWhere power of attorney is jointly executed and one of the principals dies, agency stands terminated unless contrary intention is evident—Subsequent actions of attorney, including execution of agreement or giving statement in court, are without legal effect—Held, joint agency cannot survive death of any principal unless instrument expressly provides otherwise—Execution of agreement and consent statement after death of co-executant held to be void.(c) Constitutional Jurisdiction—Art. 199—Concurrent findings of fact—Scope of interference:Though courts ordinarily refrain from interfering with concurrent findings, constitutional jurisdiction can be invoked where such findings are perverse, based on misreading of record or tainted with illegality—Held, courts cannot perpetuate illegality under guise of respecting concurrent findings—Findings based on patent illegality or fraud are liable to be set aside.(d) Civil Procedure Code (V of 1908), S. 12(2), S. 141—Remedy for judgment obtained by fraud or misrepresentation:S. 12(2), C.P.C. introduced to provide remedy for annulment of judgments/decrees obtained through fraud, misrepresentation or lack of jurisdiction—Application under S. 12(2) to be decided in accordance with suit procedure per S. 141, C.P.C.—Court empowered to review and annul its own decree tainted with illegality—Held, decree in question was obtained by unauthorized person through misrepresentation and was thus void.----Disposition:Writ petition allowed—Impugned judgments of Civil Judge and Additional District Judge set aside—Application under S. 12(2), C.P.C. accepted—Consent decree declared illegal and without lawful authority.

Summary: (a) Civil Procedure Code (V of 1908)----S. 12(2)---Fraud and misrepresentation---Scope and standard of proof---Application under S. 12(2), CPC challenging judgment on the ground of alleged fraud due to non-disclosure of legal heirs---Maintainability---Respondent/petitioner sought declaration of ownership based on a gift mutation in his favor by deceased donor Muhammad Aameen---Applicants (daughters of deceased) claimed they were deprived of inheritance due to non-disclosure of their existence during the litigation---Held, that for an application under S. 12(2), CPC to succeed, applicants must establish that (i) there was deliberate suppression of material facts; and (ii) such suppression led to an erroneous judgment prejudicing their rights---In the present case, deceased donor actively contested the suit and subsequently acknowledged the validity of the gift mutation before the Appellate Court---Legal heirs cannot challenge the gift transaction executed during the donor’s lifetime on grounds of inheritance, as the property ceased to be part of his estate at the time of his demise---Mere non-mentioning of some legal heirs does not constitute fraud unless it demonstrably alters the fundamental basis of judicial decision---Doctrine of Allegans Contraria Non Est Audiendus applied; the donor’s later affidavit contradicting prior judicial statements was of no legal effect.Cited Cases:• Mst. Rabia Gula v. Muhammad Janan 2022 SCMR 1009(b) Gift under Islamic Law----Transfer of ownership through gift---Effect on inheritance claims---Gift of property by a living person is a valid transaction and precludes inheritance claims upon donor’s demise---Applicants contended that deceased donor intended to distribute property among all legal heirs but failed to contest the gift mutation during his lifetime---Held, that under Islamic law, a valid gift transfers ownership immediately, and once completed, donor cannot reclaim the property or modify its legal consequences---Applicants, as legal heirs, could not claim inheritance in property already gifted away---Applicants’ claim was, therefore, misconceived as the gifted property did not form part of the donor’s estate at the time of his death.(c) Estoppel and Locus Standi----Judicial estoppel---Locus standi of legal heirs to challenge a concluded gift transaction---Donor actively participated in litigation, acknowledged execution of gift, and did not challenge adverse judicial findings during his lifetime---Held, that where a donor himself contests and later concedes the validity of a gift, his legal heirs cannot subsequently challenge the transaction under the pretext of inheritance or fraud---Applicants could only step into the donor’s shoes, and as he did not challenge the decree, they lacked locus standi to do so.Cited Cases:• Mst. Rabia Gula v. Muhammad Janan 2022 SCMR 1009(d) Civil Procedure---Judicial Integrity----Presumption of regularity in judicial proceedings---Scope of challenge---Affidavit contradicting prior judicial testimony---Evidentiary value---Held, that judicial proceedings are presumed to be conducted fairly and with due process---Mere allegation of fraud or collusion without cogent, unimpeachable evidence cannot vitiate court findings---Affidavit sworn by deceased donor after several years did not override prior judicial admissions acknowledging the gift---No grounds existed to invoke S. 12(2), CPC to set aside the decree.---- Disposition: Application under S. 12(2), CPC dismissed as not maintainable; claim of fraud not substantiated by evidence; inheritance claim not applicable to property validly gifted before donor’s demise.

Summary: (a) Civil Procedure Code (V of 1908) ----S. 12(2)---Ex-parte decree---Application for setting aside---Sufficient cause---Concurrent findings of District Judge and High Court---Scope of interference by Supreme Court. Appellants filed application for setting aside ex-parte proceedings and decree, contending that their absence was due to the holy month of Ramzan and unavoidable circumstances of counsel’s clerk. Both District Judge and High Court dismissed the application holding that no sufficient cause was shown for non-appearance. Held, that concurrent findings based on evidence ordinarily are not disturbed unless material irregularity or misreading is apparent; however, since decree was found legally non-executable against appellants who had no contractual privity with plaintiff, interference became necessary to prevent miscarriage of justice. (b) Contract Act, 1872 (as applicable to AJK) ----Privity of contract---Agreement executed between Pakistan Red Crescent District Branch Bagh and plaintiff---No contractual relationship with appellants---Liability---Scope. Record revealed that the agreement dated 26.08.2019 was executed solely between PRCS District Branch Bagh and respondent, under which monthly rent of Rs. 80,000/- was payable. Appellants, being officials of Pakistan Red Crescent Islamabad, had neither executed nor authorized the contract and had no administrative or financial control over PRCS Azad Jammu & Kashmir, which is a distinct statutory entity established by Act of 2001. Held, appellants had no privity of contract with respondent and therefore no liability could attach to them under the impugned decree. (c) Constitution of Azad Jammu & Kashmir, 1974 (Interim) ----Art. 42-A---Powers of Supreme Court---Scope of correction of decree partly executable and partly unenforceable. Supreme Court, exercising powers under Art.42-A of the Interim Constitution and O.XLIII, R.5 of Supreme Court Rules, 1978, set aside the decree to the extent of appellants for being legally non-executable against them, while maintaining the decree against PRCS District Branch Bagh which was party to the agreement and had not challenged the ex-parte decree. Held, that decree dated 10.05.2022 was rightly passed against PRCS District Branch Bagh but erroneously extended to appellants having no contractual nexus—appeal accepted and decree modified to the extent that “plaintiff is entitled to receive Rs. 896,000/- from defendant No.1 only.” Disposition: Appeal accepted; decree modified accordingly.

Summary: (a) Constitution of Pakistan (1973) ----Arts. 185(3), 199 & Civil Procedure Code (V of 1908), S. 12(2)—Fraud—Misrepresentation—Scope of review—Ex parte proceedings—Service of notice—Presumption of correctness attached to judicial proceedings. Petitioners challenged the concurrent findings of the Rent Controller, District Court, and Sindh High Court, all of which dismissed their application under Section 12(2) of the C.P.C., holding that no fraud or misrepresentation had been committed by the respondent in securing an ex parte judgment for eviction. The Rent Controller had issued notices through multiple modes, including bailiff, registered post, T.C.S., pasting on the property, and publication. Despite valid service, the petitioners failed to appear, and ex parte proceedings were rightly conducted. Allegations of fraud and misrepresentation regarding the attorney's role and past litigation history were dismissed as irrelevant. The Supreme Court upheld the presumption of correctness attached to judicial proceedings and emphasized that mere allegations of fraud, without substantive evidence, are insufficient grounds to invalidate valid judicial orders. Cited Cases: Allah Dita v. Bashir Ahmed (1997 SCMR 181) Muhammad Yaqoob v. Deputy Settlement Commissioner (Land) (1981 SCMR 519) Faizur Rehman v. Rahman Ud Din alias Mirza (1997 SCMR 1301) (b) Civil Procedure Code (V of 1908) ----Section 12(2)—Scope of fraud and misrepresentation—Burden of proof. For an application under Section 12(2) of the C.P.C. to succeed, the petitioner must establish fraud or misrepresentation through substantive evidence. The burden lies heavily on the party alleging fraud. Failure to respond to properly served notices cannot subsequently be justified through allegations of fraud unless supported by concrete evidence. (c) Rent Restriction Ordinance—Ex parte proceedings—Validity of service. When a Rent Controller exhausts all legally recognized modes of service, including bailiff, registered post, pasting on the premises, and publication, and declares service valid, ex parte proceedings cannot be challenged on the ground of non-service. Petitioners' failure to appear after valid service constitutes willful default. (d) Administration of Justice—Presumption of correctness—Role of appellate courts. Presumption of correctness is attached to judicial orders unless successfully rebutted with evidence of fraud, misrepresentation, or jurisdictional error. Appellate courts are not bound to interfere in findings of fact consistently upheld by subordinate courts unless clear perversity is shown. Disposition: Civil Petition for Leave to Appeal dismissed in limine.