The Application 12(2) of CPC is not maintainable to challenge decree order judgment , Retrospective

Описание: 2009 C L C 785

[High Court (AJ&K)]


(a) Specific Relief Act (I of 1877)---



----Ss. 42 & 39---Civil Procedure Code (V of 1908), Ss.12(2) & O.XXIII & R.3---Suit for declaration and cancellation of sale-deed---Challenging judgment and decree on allegation of fraud and misrepresentation---Declaratory suit was filed seeking cancellation of sale-deed regarding property in dispute---During pendency of suit, parties entered into compromise, they recorded their statements, however before decree could be passed on the basis of compromise deed, defendant submitted application in the Trial Court alleging that fraud had been committed on him---Defendant sought relief that compromise deed be annulled and no decree be passed on the basis of the same---Trial Court framed issue on the basis of said application and plaintiffs feeling aggrieved by the order of the Trial Court, filed in appeal before the Appellate Court, which was dismissed---Finally Supreme Court accepted appeal of the plaintiffs observing that after recording a compromise, Trial Court was bound to pass a decree in view of compromise as envisaged under O.XXIII, R.3, C.P.C.---While controversy was pending in the Supreme Court, defendant filed declaratory suit with prayer for possession of suit land---Trial Court rejected plaint in view of S.12(2), C.P.C.---Validity---Case of the plaintiffs was that the amendment in S.12, C.P.C. was effective retrospectively and the Trial Court had committed no illegality while rejecting plaint of the defendant---Amendment in S.12, C.P.C. providing a remedy to challenge a decree or order passed on the basis of fraud and misrepresentation, had no retrospective effect; and it would apply from the date of its coming into force---Suits filed before the date of amendment or date of adaption in Azad Kashmir were not hit by that amendment---When the suit was pending before the Trial Court prior to amendment, it could even be treated as application under S.12(2), C.P.C. in order to meet the ends of justice and it was unjustified under the law to throw the plaint/case of defendant out of the court on the basis of a technicality---Procedure while entertaining an application under S.12(2), C.P.C. was the same as provided for trial of suit---Rejection of suit merely on the basis that the word "plaint" had been mentioned in plea of application, was in no way justified under law nor it was in the interest of justice to reject the plaint---Applicant's suit was competent to be decided on its merits---Impugned judgment and decree was set aside and case was remanded to be decided on merits.

1981 CLC 1130; Adnan Afzal's case PLD 1969 SC 187; 1981 CLC 1248 and 1992 SCMR 1744 ref.

2003 S C M R 1050



[Supreme Court of Pakistan]




----S. 12(2)---Limitation Act (IX of 1908),



parties may take retrospective effect but if retrospectively of a stature affects the substantive rights and causes injustice in such rights, the Courts by taking exception to the general rule of interpretation of statutes that the procedural law regulating the remedy and jurisdiction of the Courts and the authorities operates retrospectively, may not accept its retrospectively. The remedy of civil suit for setting aside the decree obtained through fraud or misrepresentation or if passed without jurisdiction was substituted with the provision of subsection (2) of section 12, C.P.C. but it would not be given retrospective effect except in the cases which were pending adjudication on its enactment or in which the decrees already passed were under challenge in the civil suits on the ground of fraud or in which the decrees were passed within three years prior to the date of its enactment. The period of limitation for an application under section 12(2), C.P.C. was not specifically provided under law, therefore, the same was governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be filed within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be. The appellants in the present case by Moving the applications under section 12(2), C.P.C. sought setting aside of the decree passed in 1970 with the assertion that they were not aware of the pendency of suit and appeal involving the dispute of the property between the respondents (decree holders) and the judgment-debtors and passing of the decree by the High Court before December, 1978 but in absence of any reasonable explanation of delay, the provisions of section 12(2), C.P.C. would only be invocable in the cases in which the decrees were passed within three years beyond the date of commencement of the period of limitation.





----S. 12(2)---Scope and application of S. 12(2), C.P.C.---Scope of S.12(2), C.P.C. can neither be extended beyond the grounds of fraud, misrepesentation and the defect of jurisdiction enumerated therein.