Summary: Under section 13(3) of the Family Court Act, 1964, the special procedure prescribed under Land Revenue Act, 1967 can be followed by the family Court through a specific order and in absence of such order, the ordinary mode for execution prescribed under CPC shall be applicable.----The respondents filed a suit against the petitioner for recovery of maintenance allowance and dowry articles. The petitioner argued that the civil imprisonment exceeding seven months was illegal as it contravened section 13(3) of the Family Courts Act, 1964. They contended that the recovery of the decretal amount should have been pursued as arrears of land revenue under section 13(3), which limits civil imprisonment to 30 days. However, the respondents' counsel argued that since no specific order was issued to follow the procedure under the Land Revenue Act, civil imprisonment could extend up to one year under the Code of Civil Procedure (CPC). The court ruled that under section 13 of the Act, the Family Court has discretion to recover the decretal amount as arrears of land revenue but may also follow the procedures outlined in the CPC. It noted that civil imprisonment for failure to pay the decretal amount could extend up to one year under the CPC. Since no specific order was issued to follow the procedure under the Land Revenue Act, the court held that the petitioner's detention for more than one month was not illegal or against the provisions of section 13(3) of the Act. Therefore, the petition was dismissed.

Summary: The case involved an application filed under section 12(2) of the Civil Procedure Code 1908 (CPC), seeking the setting aside of a consolidated judgment and decree passed by the court. The judgment was made, regarding, involving disputes over property ownership and agreements to sell.mThe facts reveal that Muhammad Sharif, now deceased, was the owner of the property subject to litigation. Muhammad Sarwar and Irfan Latif separately sued Muhammad Sharif for the enforcement of agreements to sell. The suits were consolidated, and while Irfan Latif's claim was decreed, Muhammad Sarwar's claim was dismissed. The applicants, represented by Mr. Kaleem Ilyas, alleged fraud, concealment, and collusion on the part of Muhammad Sharif and Muhammad Sarwar. They claimed to have purchased the property from Muhammad Sharif and argued that Muhammad Sarwar had abandoned his claim. However, the court found the application lacking in substance. The court noted that the applicant, despite being aware of the ongoing litigation, remained inactive for over 12 years. It also emphasized that the principle of lis pendens applied, and the alleged purchaser did not acquire any legal right free from the original transferor's unsuccessful claim. The court dismissed the application, ruling that the alleged sale deed and agreement did not confer any enforceable rights against Muhammad Sarwar or his legal heirs. It concluded that the application lacked merit and competency and thus dismissed it.

Summary: [Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, cannot be procedurally classified as in all jurisdictions it un-redeamedly vitiates the very solemnity of adjudication, a wrong that cannot be countenanced and must be remedied through dynamic application of equitable principles of law] The main argument presented by the petitioner's counsel was that the suit filed by Khurshid Begum was fraudulently devised and structured, using a marriage certificate with interpolated entries to defeat the petitioner's legitimate rights. The respondent's counsel argued that the land in question was given as dower to Khurshid Begum and that no subsequent transactions could invalidate her interest in the land. After hearing the arguments and examining the record, the Supreme Court held that the Family Court had the jurisdiction to reexamine its earlier decision and set aside the decree if it was tainted by fraud or misrepresentation. The Court noted that the Family Court Act of 1964 excluded certain provisions of the Code of Civil Procedure, but this did not prevent the Family Court from protecting its orders and decrees from fraud. The Court concluded that the Family Court could borrow procedures from other available avenues to rectify any manipulation or abuse of its jurisdiction. The Court referred to previous cases where fraud had been held to vitiate proceedings, even in jurisdictions that excluded the wholesale application of the Code. It rejected the suggestion of resorting to plenary jurisdiction and instead ordered the reconsideration of the impugned judgment and decree by the Family Court. The petitioner's claim in the property was to be attended to by the Additional District Judge, Multan, before whom the petitioner's application under section 12(2) of the Code would be deemed pending. Previous judgment was set aside.

Summary: Scope and object of Section 12(2) CPC read with Order V rules 16, 17, 18, 19 , 20 CPC----The case at hand, involving Writ Petition No. 1447 of 2017 and Writ Petition No. 2954 of 2017, deals with disputes over land ownership and legal proceedings surrounding it. In summary, the petitioners in Writ Petition No. 1447 of 2017 filed a suit for declaration, permanent and mandatory injunction against the respondents, claiming to be the legal heirs of Saffu son of Ladhu and asserting ownership of land in a village in Rawalpindi. The respondents were proceeded against ex-parte, resulting in a decree in favor of the petitioners. The respondents later sought annulment of the ex-parte judgment, alleging irregularities in service and fraudulent conduct by the petitioners. The courts below addressed the matter extensively, framing issues and considering evidence. The respondents primarily challenged the validity of the ex-parte judgment based on alleged irregularities in service. The petitioners, on the other hand, contended that the judgment was valid and should not be set aside. Legal precedents such as Lal Din and another vs Muhammad Ibrahim (1993 SCMR 710), Sain vs Government of N.-W.F.P. through Secretary, Auqaf and 2 others (2005 SCMR 1848), Muhammad Younas vs Umar Hayat and another (2014 CLC 914), Muhammad Aslam and others vs Mst. Kundan Mai and others (2004 SCMR 843), Mehr Din through Legal Heirs vs Azizan and another (1994 SCMR 1110), WAPDA vs Ghulam Hussain (2000 CLC 530), Mrs. Nargis Latif vs Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Mubarak Ali vs First Prudential Modaraba (NLR 2010 Civil 405)Haji Akbar and others vs Gul Baran and 7 others (1996 SCMR 1703), Fazal Hussain vs Mst. Husna Bano (1995 MLD 170), Syed Sajjad Hussain Shah vs Messrs Federation of Employees Cooperative Housing Societies Ltd. through General Secretary (2003 CLC 1011), AMJAD KHAN vs MUHAMMAD IRSHAD (DECEASED) through LRs (2020 SCMR 2155), CHIEF EXECUTIVE MEPCO and others vs MUHAMMAD FAZIL and others (2019 SCMR 919)These citations represent a range of cases from Pakistan's legal landscape, providing guidance on matters related to civil procedure, service of summons, fraud, misrepresentation, and jurisdictional issues.The Court noted that Section 12(2) of the Code of Civil Procedure allows for challenging the validity of a judgment, decree, or order on grounds of fraud, misrepresentation, or lack of jurisdiction by making an application to the court that issued the judgment. The Court emphasized the importance of due process and proper service of summons, outlining the requirements for substituted service under Order V of the CPC. Ultimately, the Court found that the respondents' application under Section 12(2) CPC raised substantial issues regarding irregularities in service and procedural flaws. The Court observed that the lower courts had adequately considered the evidence and issued reasoned judgments. As a result, the Court dismissed the petitioners' writ petition and allowed the connected petition filed by the respondents, thereby upholding the judgments of the lower courts.In conclusion, the case underscores the significance of due process, proper service of summons, and the judicial scrutiny of ex-parte judgments. Legal precedents and procedural requirements played a crucial role in the Court's decision-making process.

Summary: Where no executable decree / order has been passed by this Court and no executable decree/order is in existence/holds the field, provisions of Order XLI Rule 5 sub-Rule 2 of the C.P.C could not be invoked to grant stay to the applicants against execution of order passed by this Court in order to avail remedy of appeal before higher forum.---In a legal matter presented under Order XLI Rule 5(2) along with Section 151 of the Civil Procedure Code (C.P.C.), the applicants seek the suspension of two judgments: one dated 29.11.2012 by a lower appellate court and another dated 09.02.2021 by the High Court, to facilitate the filing of an appeal before the Supreme Court of Pakistan. The applicants argue that they are entitled to a stay of the judgment's operation during the period of appeal. The dispute arises from a dispute over the enforcement of an arbitration award concerning a piece of land. The trial court initially dismissed the application, but the appellate court accepted it, making the arbitration award enforceable as a court ruling. Subsequently, a party filed an application under Section 12(2) of the C.P.C., alleging fraud and misrepresentation in obtaining the judgment. The additional district judge set aside the previous judgment and ordered the restoration of the appeal. The applicants contend that their right to appeal to the Supreme Court necessitates the suspension of the High Court's judgment. However, the respondent argues that no executable decree has been issued by the High Court, making the application for a stay of execution baseless. The court examines Order XLI Rule 5 of the C.P.C., which allows a court to stay execution of an appealable decree. However, the court concluded that as no executable decree exists, the conditions for granting a stay are not met. Additionally, it is noted that no execution proceedings are pending. Consequently, the court dismissed the application, stating that it lacks merit and is not maintainable.

Summary: Application under S.12 (2), C.P.C, Court while dealing with an application under S. 12(2), C.P.C is not always obliged to carry out the full exercise like a regular civil suit. Legislature has left it to the discretion of the court to decide it on case to case basis, whether a factual inquiry is required in the circumstance of the case or not. if the court comes to the conclusion that the material available on record can safely be utilized for making a just decision on the application under S. 12(2), C.P.C according to law, the recording of evidence may be avoided.

Summary: The petitioner and respondent No.3 entered into marriage but their relationship turned tumultuous, leading the petitioner to file for dissolution of marriage. Respondent No.3 later attempted to divorce the petitioner, but the divorce deed was initially declared ineffective, leading to legal proceedings. The current case involves an application by respondent No.3, under section 12(2) of the Code of Civil Procedure, seeking to set aside the order. The petitioner contested this application, asserting that the Family Court, not a Civil Judge, should have jurisdiction in the matter. The trial court allowed the application, a decision contested by the petitioner in a revision petition, which was initially allowed but later remanded. The revisional court ultimately dismissed the petition, leading to the current constitutional petition. The petitioner argued that the judgments are flawed and illegal, citing the misapplication of section 17 of the Family Courts Act, 1964, and overlooking amendments to sections 21 and 21-A. However, the court emphasizes that a mere error in citing a section does not oust jurisdiction if the court has the authority to address the matter. The court underscored the Family Court's power to entertain applications related to fraud and misrepresentation, citing legal precedents such as Mst. Safia Bibi v. Mst. Aisha Bibi (1982 SCMR 494), Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555), Rauf B Kadir v. State Bank of Pakistan (PLD 2002 Supreme Court 1111), Olas Khan and others v. Chairman Nab through Chairman and others (PLD 2018 Supreme Court 40), Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321), and Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (PLJ 2010 SC 891), among others. The court concluded that, considering the circumstances and legal precedents, the lower courts judiciously exercised their jurisdiction, and the constitutional petition was dismissed.

Summary: Admittedly, the property owned by the petitioner was not the subject matter of suit No. 124/1, thus, there was no decree against the petitioner s property. Record reveals that in suit No.124/1, no decree for partition was passed on the basis of which the specific portion of the property was to be handed over to the decree holder. Record also transpires that the decree for declaration was to the extent of shares in the joint property and as per the provision of Order XI Rule 35 (2) of CPC, only symbolicpossession would be handed over to the decree holder.The main thrust of arguments of learned counsel for the petitioner was that under the garb of decree in suit No.124/1, the petitioner s owned and possessed property is intended to be taken from him. In such a situation, the remedy has already been provided by the legislature in the code of Civil Procedure 1908, under the provision of Order XXI Rule 99, 100 and 101of C.P.C, whereunder the petitioner could approach to the Executing Court bycontending that no decree has been passed regarding her property but in no case the contention of the petitioner could be treated under section 12 (2) of CPC. The provisions of Order XXI Rule 99, 100 & 101 are reproduced as under: - 99. Resistance or obstruction by bona fide claimant. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other thanthe judgment debtor, the Court shall make an order dismissing the application.100. Dispossession by decree holder or purchaser. (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.101. Bona fide claimant to be restored to possession. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of the property.Likewise, in case of possession from joint property the mode of possession would be under Order XI Rule 35(2), which is reproduced as under: -Rule 35(2) Where a decree is for the joint possession of immoveable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.Secondly, There is no cavil with the proposition that an application under section 12 (2) of CPC should be treated as a suit but it equally settled principle of law that in every application under section 12(2) there is no need to frame issues and record evidence, rather it depends upon the facts of case to case. In the case of Mst. Shabana Irfan versus Muhammad Sham Khan and other 2009 SCMR 40, it was held by the Hon ble Supreme Court that: - Needless to add that petition under section 12(2) of the C.P.C. can be decided summarily by thelearned Court, which has passed the final judgment, decree or order in dispute, when there are admitted facts, documents between the parties. There is no need to prolong the litigation, when the case ex facie appears to have not been filed in a wrong jurisdiction, and when fraud or misrepresentation was not involved therein the case or in the transaction.

Summary: Civil Procedure Code (V of 1908)-------Ss.96, 115 & O.I, R.10---Appeal or revision on behalf of a party having no grievance against dismissal of suit---Maintainability---Applicant was impleaded in the suit under O.I, R.10, C.P.C., but she neither filed written statement nor appeared in the witness box---Suit was dismissed on merits against which no appeal had been filed on behalf of plaintiff---Validity---Defendants were not supposed to have any grievance against the dismissal of suit unless they had raised a counter claim in their written statement against the plaintiff which had also been dismissed or not decided by the Trial Court---No adverse observations had been passed against the applicant in the case---If applicant wanted the suit to be decreed then she should have either filed a separate suit or should have paid court fee to become co-plaintiff provided she had any claim in the suit property to be adjudicated in her favour---Applicant, after having been impleaded as defendant had not filed written statement nor she had appeared in the witness box---Suit had been dismissed on merits against which no appeal had been filed on behalf of plaintiff---Present suit could not be decreed against main contesting defendants on appeal by one of the defendants who had not filed even written statement in the Trial Court---Applicant was not aggrieved person in consequence of impugned judgment---Revision as well as appeal pending before Appellate Court filed by the applicant were not maintainable, which were dismissed with cost, in circumstances. H.M Yahya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Syed Musarat Hussain Zaidi and another v. Syed Salim Jawaid Zaidi and another PLD 1983 Kar. 548; Habibullah v. Zakir Ali and another PLD 2000 Kar. 238 and Mst. Arfa Arif v. Mst. Kulsoom Naqvi PLD 2000 Kar. 31 rel.

Summary: Background:Mohammad Saleem Khan (appellant) filed a Civil First Appeal against the judgment/order dated 23-08-2019 passed by the learned Additional District Judge Gilgit. The trial court dismissed his application under Section 12(2) CPC, which challenges judgments and decrees obtained by fraud or misrepresentation. The case involves a property dispute where respondent No. 6, Tahir Ashraf, filed a suit for declaration and permanent injunction against respondents No. 1 to 5, which was initially dismissed. However, during the appeal, a compromise was reached and made a rule of the court.----Issues:Whether the learned Additional District Judge Gilgit erred in dismissing the application under Section 12(2) CPC as time-barred without giving the appellant an opportunity to prove his case.Whether the compromise decree was obtained through fraud and misrepresentation.---Holding/Reasoning/Outcome:The Civil First Appeal was allowed.The court held that the learned Additional District Judge Gilgit should have admitted the application under Section 12(2) CPC and framed issues, including the issue of limitation, before making a decision.The court reasoned that limitation is a mixed question of law and facts, requiring the production of evidence. It referenced Section 18 of the Limitation Act, which states that if a decree is obtained by fraud or misrepresentation, the limitation period starts from the date the decree became known to the appellant.The case was remanded back to the learned Additional District Judge Gilgit with instructions to frame issues and record evidence to decide the matter on its merits.Citations/Precedents:1986 SCMR 1496: Discusses the principle that limitation is a mixed question of law and facts, which requires evidence.2001 MLD 1265: Supports the principle that if a decree is obtained by fraud, the limitation period begins when the fraud is discovered.