Bar to further suit

For maintaining petition under S. 12(2), C.P.C., and for setting aside an order / judgment / decree, aggrieved person has to establish elements of fraud, misrepresentation, or illegality committed in order / judgment / decree in question.

Though, it is not sine qua non for the Court to frame issues and record evidence in each and every application filed under S. 12(2), C.P.C., however, this is not the rule of thumb, and the circumstances depend upon the factual aspect

Where the case requires recording of evidence, the decision thereof must be based upon the evidence by providing an opportunity to the parties to prove their respective contentions.

When the question of limitation is one which can be resolved purely on the basis of law, without adverting to the facts, the same can be resolved even without framing the issues.

Allegations of fraud and misrepresentation normally involve investigation into questions of fact but not in every case it is obligatory for the Court to frame issues and record evidence.

Framing of issues and recording the evidence is obligatory when the Court considers that any such issue is raised in the application which is required to be resolved by leading evidence, however, when the Court dealing with the application is satisfied that the application can be decided even without framing the issues and the same does not involve any complicated question of fact, the framing of issue or recording evidence is not inevitable

It is primarily the satisfaction of the Court of first instance dealing with the application under S. 12(2), C.P.C., which is important and no yardstick for the same is fixed and the same varies from case to case.

Fraud and misrepresentation, which are grounds for the application of S. 12(2) of the Code, should have been practiced during the proceedings in the Court and not outside the Court.

Section 12(1), C.P.C. provides that when a person is precluded by rules in respect of any particular cause of action then on such cause of action he is not entitled to institute a further or separate suit in any court

Subsection (2) of S. 12, C.P.C. provides the remedy of filing application against the judgment and decree or order, if obtained by fraud, misrepresentation or want of jurisdiction

Combined reading of the two subsections makes it profusely clear that application under S. 12(2) of the Code can only be made if the misrepresentation is made or fraud is committed with respect to the subject matter of the suit on which the order, judgment or decree is passed, as the aggrieved litigant is precluded under S.12(1) of the Code to pursue an independent remedy.

Not mandatory to frame issues and record evidence for the disposal of an application under S. 12(2), C.P.C., as the Court has to regulate its proceedings keeping in view nature of the allegations made in the application and adopt such mode as is in consonance with justice in the facts and circumstances of the case

Framing of issues in every case to examine merits of such application would frustrate the object of S. 12(2), C.P.C., which is to avoid protracted and time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts.

Petitioners assailed order passed by Executing Court whereby, in an application under S. 12(2), C.P.C., their evidence was discarded for non-appearance

Revisional Court dismissed the revision petition

Validity

Respondent had obtained judgment and decree by concealment and fraud

Petitioners had only got knowledge about the proceedings on receipt of notice of the execution application

Petitioners had maliciously filed an application under S. 12(2) read with S. 151, C.P.C., against the judgment and decree

Courts were to act in the aid of justice and no person was to be deprived of his legal rights on mere technicalities, rather the technicalities of law were to be avoided and discouraged in order to do complete justice

If a party had a case on merits then it would be within safe administration of justice to exercise discretion towards dispensation of justice and not to allow the opposite party to continue enjoying illegal gains in the name of technicalities

Constitutional petition was allowed and the Executing Court was directed to record evidence of the parties.

Concealment of facts by a person having knowledge or belief of facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud lies on the party which alleges fraud except in a case in which the fraud is floating on the face of record.

Respondents filed a suit for declaration and permanent injunction within the scope of O.I, R.8, C.P.C., on behalf of three tribes

Suit was decreed

Petitioner filed application under S.12(2), C.P.C., alleging fraud as well as misrepresentation and lack of knowledge regarding the decree

Application was concurrently dismissed

Validity

Since provision of S. 12(2), C.P.C., was invoked by the petitioner so the entire burden to prove fraud and misrepresentation was upon his shoulder

Necessary particulars constituting fraud and misrepresentation had not been mentioned in detail within the scope of O.VI, R.4, C.P.C.

Proper publication was made in the suit prior to proceeding with the case

Petitioner had tried to justify delay of 17 years in filing the application by pleading lack of knowledge but it was admitted that the petitioner's uncle was party to the judgment and decree

Petitioner had neither filed any revenue record nor had he relied upon any document which could justify his locus standi to file application under S. 12(2), C.P.C.

Constitutional petition was dismissed.

Appellate Court allowed the appeal and the application under S. 12(2), C.P.C. was remanded to the Trial Court to record evidence before disposal of the application

Validity

Respondent had alleged serious allegations against the petitioners on the ground that the judgment and decree was obtained by playing fraud on the Court as despite the fact that he was in possession of the suit property since long but still he was not made a party in the case filed before the Trial Court

In view of the claims made by respondent, the Trial Court ought to have given an opportunity to the respondent to lead evidence

No doubt, decision on application under S. 12(2), C.P.C. without recording evidence was not against the law, however it depended on the facts and circumstances of each case

Specific allegations of fraud and misrepresentation were alleged against the petitioners which warranted evidence

No material illegality was found in the impugned judgment

Constitutional petition was dismissed.

Application under S. 12(2), C.P.C., no doubt, is required to be treated like that of a suit, issues are to be framed and evidence is to be recorded but in cases where it is established that the application is legally not maintainable, the same can be dismissed in a summary manner without framing of issues and recording of evidence.

Framing of issues and recording of evidence in every application under S. 12(2), C.P.C. is neither legal requirement nor sine qua non for the Court

Such matter depends upon the circumstances of the case, in which the application under S. 12(2), C.P.C., is filed, as to whether the application can or cannot be decided without recording of evidence and framing of issues or to fix it for pro and contra evidence.

Law has provided a remedy for an aggrieved person to challenge the order, judgment and decree of the Court which is the result of fraud and misrepresentation of facts by filing an application under S. 12(2), C.P.C. before the Court, which passed the final order, judgment or decree

Fresh suit is barred with an object to prevent delay being caused in expeditious disposal of execution petition by making frivolous and mala fide objections thereto.

Limitation in filing of application under S.12(2), C.P.C., is not specified in any Article of Limitation Act, 1908, therefore, any application filed on the ground of misrepresentation of facts, fraud and want of jurisdiction shall be treated under Art. 181 of Limitation Act, 1908.

Claim of petitioner of being owner of 50 Marla in the property measuring 68 Marla would not be decided by the Rent Controller rather, the Rent Controller could not enter into the sphere of title

Simple matter, before the Rent Controller, was that the tenant had defaulted in payment of rent, against whom, a decree for ejectment was passed and executed

Application under S. 12(2), C.P.C. was filed after more than 8 years from the date of decree and after more than 7 years from the date of knowledge, therefore, the same was time barred

Petitioner had submitted an application under S. 5 of Limitation Act, 1908, but grounds taken therein were that the order passed in rent application was nullity in the eyes of law, as such, no limitation ran against filing of application under S. 12(2), C.P.C.

Whereas in any such application one who sought condonation of delay was required to explain the delay of each and every day but no such exercise was done by the petitioner

No illegality or jurisdictional defect in the impugned orders was pointed out

Constitutional petition was dismissed.

Court is vested with the powers to decide the application even without framing of issues, if it is of the opinion that framing of issues is not necessary.

Petitioner's father after issuance of the decree had remained alive for long time but he had never challenged the same in his life time

However, after 38 years the petitioner had filed the application under S. 12(2), C.P.C., which was hopelessly time barred

Constitutional petition was dismissed.

Where the fraud is apparent on the face of record and proceedings of suit, decree obtained as a result thereof is liable to be annulled.

Where the fraud is apparent on the face of record and proceedings of suit, decree obtained as a result thereof is liable to be annulled.

Plaintiffs instituted a suit before the Trial Court against defendant for declaration and recovery of possession of suit land

During the proceedings before Trial Court, parties to the suit entered into compromise and compromise decree was passed

Applicants/intervenors filed an application under S. 12(2), C.P.C. for setting aside of the compromise decree

On filing of the application, the plaintiffs filed an objection petition before the Executing Court seeking sine die adjournment of execution petition till disposal of the application

Trial Court adjourned the execution petition whereas appellate court set aside the order passed by Executing Court

Validity

Plaintiff in response to the application under S.12(2), C.P.C., had admitted that the decree was obtained on the basis of mala fide and non-inclusion of applicant in application under S. 12(2), C.P.C., despite the fact that they were entitled to inherit shari share

Order passed by Executing Court was a result of correct appreciation of law and material available on file

Revision petition was allowed and order passed by appellate court was set aside.

Whenever a controversial question of fact, especially practice of fraud is raised, the proper course for the court will be to frame issues on such question and decide the lis on its merits in the light of evidence to be made available before it.

Petitioner filed application under S.12(2), C.P.C., challenging the compromise decree on the ground that he was persuaded by his newly engaged counsel that the respondent/plaintiff intended to withdraw the suit on account of fear of its failure, therefore, he embossed his thumb mark on the margin of order sheet and Reader of the Court being collusive obtained the same on blank paper

Validity

Withdrawing party always put its thumb impression or signatures when the statement was made even with regard to any sort of development in the suit

Record of case did not reflect recording of statement of petitioner by the Reader

Sanctity was attached with Court proceedings and mere filing of affidavit by any party or even by counsel was not sufficient unless procedural defect was not floating on the surface

Petitioner's application was rightly dismissed

Constitutional petition was dismissed.

Respondent filed suit for declaration with permanent injunction against the petitioner wherein he prayed for an order declaring him owner in possession of the suit property

Suit was decreed ex-parte

Respondent, thereafter, sold the property to purchasers

Petitioner moved application for setting aside the ex-parte decree, which was allowed on the conceding statement of respondent

Suit was heard and the same was withdrawn by respondent

Purchasers after attaining knowledge of the withdrawal of suit filed application under S.12(2), C.P.C.

Trial Court while concluding that the respondent could not have made any conceding statement as he had no proprietary rights in the suit property allowed the application under S.12(2), C.P.C. and the suit was deemed to be pending where the respondent was directed to implead relevant parties for the matter to be decided on its merits

Appellate Court concluded that there was a collusive effort by respondent and the petitioner, hence the application was rightly allowed

Validity

High court observed that both the courts below had duly considered the record and the evidence from which the element of the fraud was evident

No case for interference was made out

Constitutional petition was dismissed.

Decree obtained on the basis of consent/ compromise was not challengable until and unless the same was proved to be obtained by way of fraud and misrepresentation

No occasion either of playing fraud or that of mis-representation was pointed out

Case was duly represented by the attorney of the appellant

No fraud could have been played when all the parties had entered into a compromise by filing a proper application and then duly appearing before the Single Judge in support of their compromise application

Appellant had not even remotely suggested that the attorney appearing for him had misrepresented him so as to prefer the application under S.12(2), C.P.C.

Neither was it proved that the contents of the application for compromise were unlawful or void nor was it proved that the said application in any way lacked legal sanctity

High Court appeal, being bereft of merit and misconceived, was dismissed in limine.

Section 12(2), C.P.C. is a special provision that can be invoked only in special and peculiar circumstances as enumerated therein

Order, judgment or decree passed by a court can be challenged under said provision only (a) if the same were obtained by means of misrepresentation or fraud, or (b) if the court did not have the jurisdiction to pass the same.

Eviction order passed by Rent Controller against the petitioner had attained finality long ago as her appeal was dismissed by the Appellate Court on the ground of limitation, which order was not challenged by her any further

Petitioner had prayed in her application under S.12(2), C.P.C., that the main case against her, wherein the eviction order was passed, as well as the execution application be dismissed

Such prayer was beyond the scope of S.12(2), C.P.C.

Concurrent findings of courts below did not require any interference by the High Court

Constitutional petition was dismissed.

Grounds for setting aside ex-parte decree under O.IX, R.13, C.P.C. are different from those mentioned in S.12(2), C.P.C.

Applicant, in the former case, has to show sufficient cause for his absence from the court and if the court comes to the conclusion that the absence of the defendant was neither wilful nor deliberate or he was not duly served, the court can set aside ex-parte decree; however, in the latter case, if a decree was passed without jurisdiction or some fraud had been practised on the court or through misrepresentation decree was obtained, the court was to set it aside under S.12(2), C.P.C.

Decree can be set aside only when it is found by the Court that the same was a result of any fraud and misrepresentation of the plaintiff or it was passed without jurisdiction

If a party challenges any order or a decree of the Court on the ground of any fraud or misrepresentation then it has to give particulars of the alleged fraud or misrepresentation as the case may be

Mere using the general words of fraud or misrepresentation is not sufficient.

Petitioner challenged judgment and decree passed by Trial Court by way of filing an application under S.12(2), C.P.C., contending therein that the defendant (his father) had died during pendency of the suit and that it was necessary for the Trial Court to have impleaded the defendant's legal heirs because they were in possession of the suit land

Validity

Defendant was summoned and he had also engaged a counsel on his behalf; it was responsibility of the defendant or any other nominated person of the defendant to intimate the Court about death of the defendant and apply for impleading his legal heirs as party in place of the deceased

When the legal heirs of defendant had failed to file such application, there was no legal bar for the Court to announce the judgment and the decree

Any decree passed in such circumstances, inspite of death of the defendant, shall be deemed to be a valid decree against his legal representatives and it shall be deemed that the deceased was alive at the time of judgment

Plaintiff could not be blamed for the fault of defendant party

No element of fraud or misrepresentation was found in the case

Writ petition was dismissed, in circumstances.

Court, while exercising jurisdiction under S.12(2) of Civil Procedure Code, 1908 had to restrict itself only to the extent of deciding the matter of fraud, misrepresentation and want of jurisdiction that too in absence of applicant and his counsel.

Decree for declaration, passed by the Court of competent jurisdiction, in favour of defendant was in existence declaring him the owner of suit property, which was challenged through an application under S.12(2) of C.P.C. but same was dismissed for non-prosecution and no further steps were taken for setting aside the decree except filing of suit challenging the judgment and decree

Plaintiffs were precluded from challenging the judgment and decree passed by the court of competent jurisdiction by filing suit.

Provision of Ss. 11 and 12, C.P.C. would prohibit the institution and trial of suits in cases covered by O. II, R. 2, O. IX, Rule 9, O. XXII, R. 9 and O. XXIII, R. 1, C.P.C. as courts possessed powers to set aside their own judgments, decrees or final orders fraudulently or collusively obtained.

Such an application could only be made on the ground of fraud or mis-representation or if an order or decree was passed by a court lacking jurisdiction.

Provision of S.12(2) was made the part of Civil Procedure Code, 1908 by withdrawing the right of a suit of the aggrieved party challenging the decree on the ground of fraud.

Party should seek his remedy of challenging the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which had passed the final judgment, decree or order in earlier suit and not by filing a separate suit.

Court having finally adjudicated matter could entertain such an application.