2022 PLP 543 (MLD)

ABDUL HAMEED BALOCH, J.

Through this petition the petitioner has prayed as under: "Hence it is respectfully prayed that the impugned order dated 21-06-2021 passed by the learned Court of Additional District Judge III, Quetta may kindly be set aside accepting the application of the petitioner under section 12(2), C.P.C., in consequence of which the impugned order and decree dated 07.10.2020 passed by the learned court of Additional District Judge III, Quetta in Civil Suit No.02/2018 may kindly be set-aside dismissing the suit of the respondent/plaintiff. Any other relief which this Honorable Court deems fit and proper may kindly be issued to the Petitioner"

2. Relevant facts for disposal of the instant petition arc that the respondent/plaintiff filed a "Suit for Recovery of Rs.28,00,000/-" in the Court of Additional District Judge-III, Quetta (trial Court). The defendant/petitioner filed application for leave to appeal. The trial court vide order dated 07th October, 2020 rejected the application of leave to defend and decreed the suit of plaintiff. 3. .The petitioner filed an application under Section 12(2), C.P.C. for setting aside the order and decree dated 07.10.2020 before the trial court, which was dismissed vide order dated 21.06.202 (impugned order).

4. Learned counsel for petitioner contended that neither any notice was served upon the petitioner nor the petitioner attended the trial court, rather another person had appeared at the place of petitioner and the plaintiff obtained the decree by means of fraud and misrepresentation. The learned counsel further contended that the trial court has summarily dismissed the application without framing issues and evidence.

5. Heard. Perused the record. The record reveals that the plaintiff/respondent filed suit under Order XXXVII, Rule 2, C.P.C., for recovery of an amount of Rs.28,00,000/-. The defendant/petitioner appeared before the trial court on 12.06.2019. On 19.06.2019 counsel for defendant filed power coupled with an application for leave to defend. On 09.07.2019 counsel for defendant had appeared but on subsequent seven dates learned counsel for both the parties did not appear. On 14.09.2019 the trial court dismissed the suit due to non-prosecution.

6. The record further reveals that on 04.09.2020 the trial court restored the suit in presence of counsel for the parties. On 16.09.2020 the counsel for parties argued and thereafter the case was fixed for 23-9-2020 for announcement of judgment. The trial Court has not announced the judgment on 23-9-2020 and in present of learned counsel for the parties the case was fixed on 07.10.2020 for order. The trial court vide order dated 07.10.2020 rejected the application for leave to defend and decreed the suit. The petitioner filed an application under Section 12(2), C.P.C. before trial court which was dismissed. It would be appropriate to reproduced Section 12(2), C.P.C. which reads as under: (2) Where a person challenges the validity of a judgment, decree or order on the plea or fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

7. Under the above-mentioned section, fraud and misrepresentation are pre-condition for filing application under Section 12(2), C.P.C. The party must furnish necessary detail of fraud. Where a party alleged fraud, the particular detail of fraud and misrepresentation should be mentioned. Section 12(2), C.P.C. provide a remedy to a person affected by a decree obtained by fraud and misrepresentation. The party must prove the fraud or misrepresentation committed against him was out of knowledge or with collusion with any person or persons, as to prevent the affected person to place his case before the court during proceedings in defence.

8. The record reflects that on notice the defendant/petitioner appeared before the trial court and filed application for leave to defend and argued the matter by the counsel and thereafter the trial Court decided the case. In such background of proceedings, the question which needs to be examined whether an application under section 12(2), C.P.C., is maintainable under the law. In other words, can a party invoke the provision under section 12(2), C.P.C., which was contested and proceeded. The unsuccessful party which was appeared and contested the suit then cannot resort to the provision of Section 12(2), C.P.C., to impugn the decision. If this is allowed then this would mean to give opportunity to a party who contest the proceedings, another opportunity to attack/impugn the decision before the same court. The provision of section 12(2), C.P.C., cannot be used as an alternative for the ordinary remedy of appeal or revision, reliance is placed on the case of Tanveer Siddique v. Muhammad Rashid 2010 YLR 1851, whereby it has been held as under:

10. When a decision is given in any legal proceedings against a party which was duly served then the remedy for unsuccessful party is to challenge the same under the provisions of Parts VII and VIII of the Civil Procedure Code, in case the decision emanates from a suit. In case a decision pertains to a matter which emanates from a Special Statute, then the provisions of appeal provided in that Statute could be availed by an unsuccessful party. Once a contesting party gives up its remedy provided either under Parts VII and VIII of the Civil Procedure Code or under a Special Statute, as the case may be, then the decision attains finality. The unsuccessful party which was duly served with summons or notice then cannot resort to the provisions of section 12(2) Civil Procedure Code to impugn a decision. If this is allowed then this would mean to give to a party, which has contested a legal proceedings or failed to contest the same even after due service, another opportunity to attack a decision before the same. Court which has already decided against him. This remedy under section 12(2) of Civil Procedure Code is not meant for a party that could have availed the ordinary remedy provided under Parts VII and VII of the Civil Procedure Code or under a Special Statute, whatever the case may be, but failed to avail such remedy or availed consciously gave it up. The provisions of section 12(2) of Civil Procedure Code cannot be used as a substitute or alternative for the ordinary remedy of appeal. Once a contesting or defaulting party gives up or fails to avail remedy of appeal, then the matter attains finality and remains no more open to challenge. This finality is accorded by law irrespective of the fact that an aggrieved party is otherwise able to demonstrate that it has a valid case on merits. The whole idea behind this principle of finality is that at reaching a certain stage every litigation must come to an end no matter any party may be unduly benefited on account of the bar of finality to a legal proceedings. Law envisages a stage when litigation must come to an end without any further challenge. This principle of finality is well enshrined in the doctrine of Res Judicata as well as in the statutes prescribing limitation for initiating any legal proceedings. This principle cannot be trampled by allowing a contesting or defaulting party to have recourse to provisions of section 12(2) of the Civil Procedure Code to be used as an alternative or substitute for the remedy that was though available but consciously given up. For a contesting or defaulting party, the remedy lies only before the appellate forum provided in law and not under section 12(2) of the Civil Procedure Code. The intent and object behind enacting the principle of finality as provided in the doctrine of Res Judicata or the law of limitation would be defeated if the doors of further litigation on the contesting or defaulting party are not shut after a controversy has been decided and the remedy to challenge the same before appellate forum is no more avail-able by efflux of time. This principle of finality, which is accorded by law to a controversy or a decision of Court of law, remains irrespective of the fact that a contesting party is otherwise able to demonstrate that it has a valid case on merits.

12. Thus the remedy of section 12(2) of the Civil Procedure Code is available to a person who is either not a party to any proceedings or if is a party but was not duly served with summons or notice and decision has been given against him as if summons or notice was duly served upon him. The provisions of section 12(2) of the Civil Procedure Code can be invoked only in a situation where a judgment, decree or an order has been obtained against a person who had no knowledge of the proceedings in which a judgment, decree or order has been passed. On the other hand where a person was himself contesting a legal proceedings, or was served but abstained from contesting the matter then for such a person the only remedy left with him is to invoke remedies of Appeal, Revision, Review or Petition for Leave to Appeal as provided in law and not by filing application under section 12(2) of the Civil Procedure Code. The right to invoke provisions of section 12(2) of the Civil Procedure Code cannot be extended to a person who is himself a contesting party but on account of his own default was ordered to be proceeded ex parte. Likewise, where a person who may have a right to invoke the provision of section 12(2) of the Civil Procedure Code, if he avails regular remedy before the appellate forum then too he is estopped from challenging the validity of any decision under the provision of section 12(2) of Civil Procedure Code. Section 12(2) of the Civil Procedure Code cannot be allowed to be used as an opportunity to attack the validity of decision on the plea of fraud, misrepresentation or want of jurisdiction, once the opportunity to challenge the same in Appeal, Revision, Review or Petition to Leave to Appeal was available but has either been allowed to lapse by efflux of time or if availed was given up subsequently.

15. From the above discussion, it becomes quite evident that except for the exception narrated above, the provisions of section 12(2), C.P.C. are not available to an aggrieved person who has contested the legal proceedings or in spite of service had opted not to contest the proceedings. Any decision that goes against him in any legal proceedings can only be challenged by him by taking the matter to higher appellate forum provided in law but he cannot invoke provisions of section 12(2) of Civil Procedure Code. In view of above, the petition being devoid of merit is dismissed in limine. ZH/187/Bal. Petition dismissed.