Section 12 of CPC
In simple words, Section 12(2) CPC, speaks of the principle that if a Decree, Order or Judgment is obtained by Fraud, misrepresentation, or where Question of jurisdiction has risen, such Order Decree or Judgment shall be challenged through an application in the same court and no other separate Suit shall lie.
“12. 1[(1)] Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
1[(2) 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.]”
Terms Fraud, Misrepresentation and Want of Jurisdiction are being elaborated as follows:
Fraud is not defined in Civil Procedure code. But in most simple sense means “Deception intended to result in financial or personal Wrongful gain”. Fraud is defined in Contract Act, 1872. That is much elaborative and enough for understanding the term. Definition is as follows:-
“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation – Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A. (b) B is A’s daughter and has just come of age. Here, the relation between the parties would make it A’s duty to tell B if the horse is unsound. (c) B says to A-“If you do not deny it, I shall assume that the horse is sound.” A says nothing. Here, A’s silence is equivalent to speech.
(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B.
Definition of Misrepresentation with examples and explanation.
In ordinary sense Misrepresentation is active concealment of Facts by the person who acquainted with any fact and also includes misleading with intent to deceive, anyhow Misrepresentation as defined by contract act 1872 is as follows. “Misrepresentation” defined
Misrepresentation” means and includes–
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.
Meaning of the Term “want of Jurisdiction”.
Question of “want of jurisdiction” means that Territorial or Pecuniary Jurisdiction of a court is in question and it is purported that Court had or has no such Jurisdiction.
Remedy against such order, Decree or Judgment.
If it is alleged that an order, Degree or Judgment has been obtained by Fraud or misrepresentation or where question is arose on Jurisdiction of the Court, remedy is to approach the same court who has issued such Final Order, decree or Judgment.
Appropriate Forum and Procedure for Remedy.
As fresh suit is barred by plain words or Sec.12 (2), hence An application is to be submitted in the same court who has passed such Final Order, Decree or Judgment.
on such application, wherein serious allegations are leveled for fraud or misrepresentation evidence needs to be recorded. (2008 SCMR 236) Supreme court of Pakistan.
For attraction of Sec.12(2) following are the pre-requisites.
Plea for challenging the Order, decree or judgment shall be that the such order, decree or Judgment was obtained through
- Question has risen as to the jurisdiction of the court.
PURPOSE AND OBJECTIVE Of SEC. 12(2)
Section 12(2). Actually explains the summary procedure for getting remedy against an order, decree or judgment which has been procured by fraud, or misrepresentation.
Bar institution of separate Suits and hence saving courts from exhaustion and being overburdened
Limitation For filing Application.
No limitation is given by Law. Hence limitation is (3yrs ) for the Application would be covered Under Sec. 181 of Limitation.
(2003 SCMR 1050)
HELD: And such limitation shall start from the date on knowledge of such Fraud or misrepresentation.
(2006 SCMR 12)
HELD: 12(c)…. wherein decree was passed in the year 1971 and was challenged in the year 1986. Under Sec. 12(2). Supreme court held that in the absence of any evidence stance of the person challenging would be admitted.
12(2) has Prospective effect
It has no retrospective effect.
For the purpose , it is immaterial whether the suit is instituted prior or after addition of this sub sction 12(2) cpc
- By way of remedies the court can either …
- Set aside the decree
- Grant any other appropriate remedy
- Modify decree order or judgment obtained by fraud misrepresentation or lack of jurisdiction
- Rectify order , etc.
Others remedies available to aggrieved party
- Appeal u/s 96 cpc
- Review u/s114 + o.47 cpc
- Revision petition in high court u/s 115
- Invocation of inherent powers of high court u/s 151
- Constitutional remedy u/Art. 199 of constitution of Pakistan,1973
The cases in which 12(2) is not applicable
- Application made to the rent controller
- If fraud is committed prior to proceeding
- Revision : in appropriate cases revision will be competent u/s 115
- Review: it is still available to aggrieved party