What is Section 12 2 of the CPC Judgement | What is the limitation for 12 2 application? |
 |
| Order 12 rule 2 cpc |
What is Order 12 Rule 2 cpc
Title: Understanding Section 12(2) of the Code of Civil Procedure (C.P.C.)
Section 12(2) of the Code of Civil Procedure (C.P.C.) holds significant importance in the legal landscape, providing a remedy for aggrieved parties to challenge the validity of a final judgment, decree, or order passed by a court. Enacted through Ordinance X of 1980, this section delineates the grounds, procedures, and implications associated with applications filed under its purview.
### Grounds for Application:
The grounds for filing an application under Section 12(2) are fraud, misrepresentation, or want of jurisdiction. These grounds serve as pillars upon which an aggrieved party can seek redressal. However, it's crucial to note that if these grounds are absent, the application may not be maintainable.
### Forum of Application:
An application under Section 12(2) must be filed before the court which passed the final judgment, decree, or order. The forum for such applications is determined based on the hierarchy of courts and the nature of the appellate process.
### Nature of Application:
It's essential to understand that an application under Section 12(2) is akin to a new suit. It serves as a substitute for an independent suit for setting aside a decree, providing a more expedited process for seeking relief.
### Who Can File:
Any aggrieved person can file an application under Section 12(2) of the C.P.C. However, it's imperative that the applicant is genuinely aggrieved by the final judgment, decree, or order in question.
### Procedure and Limitations:
The procedure for filing an application under Section 12(2) involves meticulous adherence to legal requirements. The application must contain serious allegations supported by evidence, and the court may decide to record evidence before making a determination. While there is no specific limitation provided for such applications, the general principles of limitation as per the Limitation Act, 1908 apply.
### Implications and Remedies:
Once an application under Section 12(2) is admitted for full hearing and not dismissed summarily, the impugned decree loses its effectiveness or status. However, it's essential to note that an order passed under Section 12(2) does not culminate in a decree but remains an order passed on a miscellaneous application. As such, no appeal lies against such an order, and the only remedy available is through revision under Section 115 of the C.P.C.
### Conclusion:
Section 12(2) of the Code of Civil Procedure serves as a crucial mechanism for ensuring justice and rectifying miscarriages of justice resulting from fraud, misrepresentation, or want of jurisdiction. By providing a streamlined process for challenging final judgments, decrees, or orders, it upholds the principles of fairness and equity in the legal system. Understanding the nuances of this section is essential for both legal practitioners and litigants seeking recourse in the face of perceived injustice.
SECTION 12(2) C.P.C.
It is a very important section in the Code of Civil procedure, (C.P.C.) which is usually filed an application by an aggrieved person for setting aside a final judgment, decree or order, which is passed by a court due to fraud, misrepresentation or want of jurisdiction. Hence, it is reproduced section 12 (2) C.P.C. as follows:
“Where a person challenges the validity of a judgment, decree or order on the plea of 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”.
When did it insert in C.P.C.?
It was inserted in the C.P.C. through the Ordinance X of 1980.
Grounds of application
Fraud, misrepresentation or want of jurisdiction are grounds for filing of application under this section, but if these grounds are missing in an application, then it is not maintainable. However, the superior courts of Pakistan had held decision on this issue as follows: “12(2) C.P.C. Where the material on record failed to indicate that there was any element of fraud or misrepresentation in the matter or there was any want of jurisdiction of the court, provision of S 12 (2) of C.P.C. would not attract”.(1)
Forum of an application
Application under section 12 (2) C.P.C. can be filed before a court which passed a final judgment, decree or order. However, the Superior Courts of Pakistan had held decision on this issue as follows: “Application under section 12(2), C.P.C. was to be filed before the court, which was last in series except where an appeal revision or leave to appeal was dismissed on any ground except merit”. (2)
“Where the decree/order of a forum below has been affirmed by the higher forum on merits, both on points of fact and law, it should be such decree/order ( of higher forum) which attained the status of final decree/order within purview of section 12(2) C.P.C. ….Where a decree-order has been modified or reserved by the Appellate or Revisional Court, it shall be such decree-order (of Appellate or Revisional Court), which will be final in nature for the purpose of section 12(2) C.P.C. and accordingly application could only be initiated before such forum which had altered the verdict”.(3)
“judgment and decree of a court can only be assailed before that court, when aggrieved party seeks to have it set aside on the ground that either the party was not served or that the same was obtained through misrepresentation, fraud etc”.(4)
“If Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of section 12(2) C.P.C. will be of the High Court and not of the Supreme Court, and if however, Supreme Court reverses a judgment of a High Court and records finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of section 12(2) C.P.C.”.(5)
“Court having finally adjudicated matter could entertain application under section 12 (2) C.P.C.” (6)
New suit is barred
A new suit is barred against a final judgment, decree or order, which is procured by fraud, misrepresentation or want of jurisdiction from a court. Hence, it is the precedents of the Superior Courts of Pakistan on this point as follows:“Section 12(2), C.P.C. had barred independent suit for challenging a decree or judgment on basis of fraud and it had provided a speedy remedy for cancellation of such a decree”.(7)
It is similar to a new suit
Application under this section is equal to a new suit. Hence, it is the precedents of the superior courts of Pakistan on this point as follows: “Under section 12 (2), C.P.C. was a substitute for a separate/ independent suit for setting aside of a decree”.(8)
“An application under section12(2), C.P.C., 1908 may be treated as a suit once such application is admitted for full hearing and when not dismissed summarily in accordance with prevailing facts and circumstances of the case, then the impugned decree loses its effectiveness or status”. (9)
Who can file this application?
Any aggrieved person can be filed an application under section 12 (2) C.P.C for setting aside a final judgment, decree or order on basis of fraud, misrepresentation or want of jurisdiction. However, any person who is not aggrieved by a final judgment, decree or order of a court, he cannot file an application under section 12 (2) C.P.C. as according to precedents of the superior court of Pakistan as follows: Applicants thus were not a aggrieved by the impugned orders and they could not file the present applications (under section 12(2) C.P.C.)….(10)
It decides after recording of evidence
“Application under section 12(2) C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence”.(11) “Framing of issues or recording of evidence in proceedings under section 12(2), C.P.C. is not the rule of law….Court is not bound to undergo such exercise in every matter under section 12(2)”. (12)
Order 7, rule 11, C.P.C. is not applicable
“12(2) C.P.C., such application could not be treated as plaint under Order 7, rule 11 C.P.C., thus court could not reject the same under order 7 rule C.P.C. order of trial court rejecting such application would nullity in the eyes of law, whereabouts revision petition, if filed would be maintainable”. (13)
Revision
Order passed under section 12 (2) C.P.C. does not culminate in decree, but remains simply an order passed on a miscellaneous application, no appeal lies against such order, only remedy of revision under section 115 C.P.C. can be available of. Such order is not appealable under section 104 C.P.C. or XLIII, rule 1 C.P.C. (14)
Limitation
“Law having not provided any limitation for filing an application under section 12(2) C.P.C. residuary Article 181 of limitation Act, 1908 would govern it where under limitation three years from the date of knowledge from order under attack”.(15)
“No limitation provided for moving the court under section 12(2) for setting aside a decree obtained through fraud and deception however, it has been ruled that article 181 limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment”.(16) “When ground of fraud and misrepresentation were taken in such an application, then there would be no limitation for its filing”. (17)
“Application under section 12 (2) C.P.C…. Limitation imposed by law on filing of suit would apply to such application for being a substitute for a suit”.(18) “Limitation for filing an application under section 12 (2) C.P.C. was three years and present application was time barred…. No application for condonation of delay has been filed to justify the delay of each and every day…. Application under section 12 (2) C.P.C. was dismissed in circumstances”.(19)
Case laws on Order 12 rule 2
References:
1. PLD 2009Lahore 63; PLD 2010 Karachi 400;
2. PLD 2015 Peshawar 39
3. PLD 2013 SC 478
4. 2011 SCMR 1854
5. 1993 SCMR 1171, 1999 SCMR 1516, PLD 2009 Karachi 123,
6. PLD 2013 Lahore 51
7. PLD 2015 HC (AJ&K) 7
8. 2015 SCMR 615, 2015 CLC 594 (Sindh)
9. PLD 2014 Peshawar 1
10. 2015 CLD 390 (Sindh)
11. 2008 SCMR 236
12. PLJ 2008 Lahore 492
13. PLD 2013Lahore 51
14. 2004 YLR 1066, 1997 MLD 2003, PLD 2002 Peshawar 84,
15. 2007 CLC 1507, 2005 YLR 3030, 1993 SCMR 2096
16. PLD 2015 HC (AJ&K) 7, 2008 CLC 164 (Lahore)
17. PLD 2013 Lahore 51
18. 2011 SCMR 551
19. 2015 YLR 276 (Sindh)
---------------------
Comments
Post a Comment