2017 PLP 55 (CLCN)
Syed ABBAS ALI SHAH through General Attorney — Petitioner Versus Ch. MOHAMMAD ZAHEER — Respondent
| Citation | 2017 PLP 55 (CLCN) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Syed ABBAS ALI SHAH through General Attorney — Petitioner Versus Ch. MOHAMMAD ZAHEER — Respondent |
| Primary Law | (c) Civil Procedure Code (V of 1908), (a) Specific Relief Act (I of 1877), (b) Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2017 PLP 55 (CLCN)?
This judgment primarily cites: (c) Civil Procedure Code (V of 1908), (a) Specific Relief Act (I of 1877), (b) Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2017 PLP 55 (CLCN)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2017 PLP 55 (CLCN) (Syed ABBAS ALI SHAH through General Attorney — Petitioner Versus Ch. MOHAMMAD ZAHEER — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Javaid Hussain Shah for Petitioner.
- Ch. Akbar Ali Shad for Respondent.
Headnotes / Summary
S. 12
Civil Procedure Code (V of 1908), S. 12(2) & O. XXIII, R. 3
Scope
Application under S. 12(2), C.P.C. against consent decree
Scope
Plaintiff filed suit for specific performance claiming that defendant, through his general power of attorney, entered into agreement to sell with him, for sale of suit property
Plaintiff, under said agreement, had paid earnest money to defendant and remaining sale consideration was to be paid at time of execution and registration of sale deed in his favour
Defendant conceded said claim of plaintiff, and Trial Court decreed the suit as prayed for on basis of defendant's conceding statement
Judgment and decree of trial had attained finality as no appeal was filed against the same
Defendant challenged the judgment and decree under S. 12(2), C.P.C. on ground that plaintiff had deceived him by issuing cheques for payment of balance consideration which were dishonoured
FIR lodged on basis of said cheques were quashed and private complaint was also dismissed
Trial Court dismissed application under S. 12(2), C.P.C.
Contentions raised by defendant were that sale consideration had never been paid to him by plaintiff, and that the judgment and decree was procured by carrying out deception and perpetrating fraud upon him and the court
Plaintiff defended impugned judgment and decree pleading that defendant himself got recorded his conceding statement and had not complained of any pressure being exerted upon him for doing so, nor had defendant challenged authority of his general power of attorney for making sale agreement and that defendant could have instituted suit under O. XXXVII, C.P.C. for recovery of amount
Trial Court decreed the suit on basis of conceding statement of defendant
Plaintiff had neither made misrepresentation nor committed any fraud upon court to have the decree passed in his favour
Defendant could have filed suit for recovery against plaintiff, but he could not assail judgment and decree under S. 12(2), C.P.C.
Trial court could pass decree on admission made by defendant
Appeal under S. 96, C.P.C. did not lie against consent decree, and what could not be achieved directly was not to be allowed to be achieved indirectly
If defendant had not filed appeal against judgment and decree of trial court, he could not be allowed to challenge the vires of the same by indirect means through application under S. 12(2), C.P.C.
Application was misconceived and untenable, and the same was rightly dismissed by trial court
Revision petition was dismissed in circumstances. [Paras. 6 & 7 of the judgment]
S. 12(2)
Application under S. 12(2), C.P.C. on ground of fraud
Scope
If no fraud has been perpetrated in course of court proceedings, provisions of S. 12(2), C.P.C. would not be attracted. [Para. 6 of the judgment]
O. XXIII, R.3, Ss. 12(2) & 96
Scope
Under S. 96, C.P.C., appeal did not lie against consent decree
What could be achieved directly was not to be allowed to be achieved indirectly by filing application under S. 12(2), C.P.C. against consent decree. [Para. 7 of the judgment]
Judgment & Decree
S. 12
Civil Procedure Code (V of 1908), S. 12(2) & O. XXIII, R. 3
Scope
Application under S. 12(2), C.P.C. against consent decree
Scope
Plaintiff filed suit for specific performance claiming that defendant, through his general power of attorney, entered into agreement to sell with him, for sale of suit property
Plaintiff, under said agreement, had paid earnest money to defendant and remaining sale consideration was to be paid at time of execution and registration of sale deed in his favour
Defendant conceded said claim of plaintiff, and Trial Court decreed the suit as prayed for on basis of defendant's conceding statement
Judgment and decree of trial had attained finality as no appeal was filed against the same
Defendant challenged the judgment and decree under S. 12(2), C.P.C. on ground that plaintiff had deceived him by issuing cheques for payment of balance consideration which were dishonoured
FIR lodged on basis of said cheques were quashed and private complaint was also dismissed
Trial Court dismissed application under S. 12(2), C.P.C.
Contentions raised by defendant were that sale consideration had never been paid to him by plaintiff, and that the judgment and decree was procured by carrying out deception and perpetrating fraud upon him and the court
Plaintiff defended impugned judgment and decree pleading that defendant himself got recorded his conceding statement and had not complained of any pressure being exerted upon him for doing so, nor had defendant challenged authority of his general power of attorney for making sale agreement and that defendant could have instituted suit under O. XXXVII, C.P.C. for recovery of amount
Trial Court decreed the suit on basis of conceding statement of defendant
Plaintiff had neither made misrepresentation nor committed any fraud upon court to have the decree passed in his favour
Defendant could have filed suit for recovery against plaintiff, but he could not assail judgment and decree under S. 12(2), C.P.C.
Trial court could pass decree on admission made by defendant
Appeal under S. 96, C.P.C. did not lie against consent decree, and what could not be achieved directly was not to be allowed to be achieved indirectly
If defendant had not filed appeal against judgment and decree of trial court, he could not be allowed to challenge the vires of the same by indirect means through application under S. 12(2), C.P.C.
Application was misconceived and untenable, and the same was rightly dismissed by trial court
Revision petition was dismissed in circumstances. [Paras. 6 & 7 of the judgment] (b) Civil Procedure Code (V of 1908)
S. 12(2)
Application under S. 12(2), C.P.C. on ground of fraud
Scope
If no fraud has been perpetrated in course of court proceedings, provisions of S. 12(2), C.P.C. would not be attracted. [Para. 6 of the judgment] (c) Civil Procedure Code (V of 1908)
O. XXIII, R.3, Ss. 12(2) & 96
Scope
Under S. 96, C.P.C., appeal did not lie against consent decree
What could be achieved directly was not to be allowed to be achieved indirectly by filing application under S. 12(2), C.P.C. against consent decree. [Para. 7 of the judgment] Shah Hanif and 20 others v. Col. Yar Muhammad Khan and 7 others 2000 MLD 1740; Miss Shazia Ashraf v. Municipal Committee, Sahiwal through Administrator and another 2006 CLC 1018; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 and G.R. Syed v. Muhammad Afzal 2007 SCMR 433 ref. Javaid Hussain Shah for Petitioner. Ch. Akbar Ali Shad for Respondent.