Application Under Section 12 (2)CPC for challenging decree obtained through fraud, misrepresentation

Описание: An Application Under Section 12 (2)

Section 12 (2) of the Civil Procedure Code provides a mechanism for challenging the decree obtained through fraud and misrepresentation. If you feel that someone has obtained a decree by practicing fraud or misrepresentation with the Court which affects your rights to the property, you can apply to the Court for setting it aside through an application.

The Court after getting reply from your opponent will decide the application. The Court directs you and your opponent to produce evidence, if factual controversy is involved. It may also decide the application without recording of evidence. If the application is accepted the Court will restore the main case and the trial will proceed as provided under the Code of Civil Procedure, 1908 for trial of the suits.

2. Temporary Injunction Application

If you have filed a case for grant of permanent injunction you can also move a petition for temporary injunction commonly known as stay application. If you have an apprehension that the defendant in your case intends to make any kind of interference in your property, you may make a request for grant of ad interim injunction to the Court. The Court while

considering the urgency of your claim will grant an ad interim injunction for a period of 14 days in your favour. You may also file an application for its further extension till the time your opponent appears in the case and submits his reply. For final disposal of the application the Court will consider the following essential questions before grant of temporary injunction:

• Whether Prima Facie case exists in your favour?

⚫ Whether you will suffer irreparable loss if your request is turned down

Whether the balance of inconvenience tilts in your favour?

The Court will prohibit your opponent from making interference in your property till case is decided. The Court must pass a clear order in that context and the temporary injunction will

remain in force for a period of six months or till decision, whichever is earlier,

3. Application for Amendment of Pleadings

The law provides a mechanism for amendment of pleadings. If you intend to amend your pleadings you can submit an application to the Court at any stage of the case but you have to satisfy the Court that the amendment is necessary for resolution of the real controversy and by amendment nature of suit cannot be changed. You can also make a request for amendment of your pleadings at the appellate stage.

4. Application for Appointment of Commission

The commission is appointed either for the purpose of recording of evidence or for spot inspection in cases of partition, demarcation, possession or encroachment and other related matters such as ascertainment of market value.

If any of your witness is unable to attend the Court for recording of evidence you may move a petition for recording his/her statement through commission. The commission proceedings will be conducted in the presence of both the parties.

Similarly if you are of the view that someone has encroached upon your property or it needs to be demarcated, you may request the Court for appointment of the commission. The Local Commissioner will visit the spot in the presence of the parties and will make a report in accordance with the directions given by the Court. The Court may itself also carry out the spot check instead of appointment of commission.25

21 Section 75 A of the Khyber Pakhtunkhwa Civil Procedure Amendment Act, 2020 #civilcases #civilprocedure #civiltrial #courtcase #class
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