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.
Illustrations
(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
- Fraud.
- Misrepresentation.
- 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
Remedies
- 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
Hi..
I need a question,one of party is filled a criminal petition which stats that i am land graver and deliberately entered in to a flat.but actually the flat is mine from initial level it builts through my self and i live in this home from more than 10 years now another party is claiming it he purhcase this flat from owner and then he live in this flat.he go to on vacation on city when he came back so i entered in this flat and i m not leaving this home.but actually he never live in this home i live in this home from initial level.Could you please advice us what is my position at this level and wht can be the remedy for this case/please advice us accoridngly.
Engr Waqas Badar
0302-8550402
it must be a petition filed under illegal dispossession act 2005. you can defend it by filing reply in the concerned court and produce your ownership titled documents. As per statutory law this type of cases should be disposed off within 6 months. you do not need to be worried as long as you have the possession of the said property/house.
Fantastic
@Shah Muhammad
Thanks for your appreciation
What 12 (2) application stand for ??
@Arsalan
It is explained in the Article
according to limitation act, time period wl b started from the date of knowledge i.e when petitioner came to know the fraud, it is not understandable, because in the history of Pakistan’s courts after 25 years of passing of decree, a bank defaulter, through his mother and a person retired from police department, through his wife filed WP under S-12 (2 ) for inheritance co-share property of about Rs 300000000. they make a rubbish base that they come to know now.court accepted them . . . . ., This act would be amended.
AOA,Sir we obtained degree of our place from a Trust.We r a registered body under societies act and a Trust cannot be registered on the same premises according to section 5 of the Trust act which states that owner should be there in order to make a Trust.Now our this place is given to us by auqaf directorate and allotment of the premises is in our name since 1960.As this Trust is registered in 2008 and now they r split in 2 groups and the group which is valid by HighCourt they had given the statement in our case in our favour as they r the respondents also in the case.As we got this degree in our favour the second group of that Trust filed an application in the same court u/s 12/2 and got stay against us through their own names as plaintiff’s also they all r retired in that Trust in the the year 2014 all r invalid persons in the case.Again we got status quo from the court of Add.Session Jdg against their stay against us.Now kindly inform us the relevancy of the case and some judgements against section 12/2 CPC of the supreme court of Pakistan.
(In service matters), if the department takes long time to response or not responses, ignore or close file to response informing in a letter issued in 2015….. aggrieved person than submit writ petition before the high court, challenging therein mala fide disciplinary actions against termination of service, will department or court take plea of time bar? thanks for reply,
Very informative
being a husband i have given my constructed house to my wife as haqmohar through a family court decree, my brother has submitted suit under section 12 2 cpc before same family court challenging that he is share holder in the house.
my request is that whether the family court can accept the suit u s 12 2 cpc? whereas it is well known law that cpc and Qanun e shahadat are not applicable befoer family court , on the other side the family court has accepted their suit u s 12 2 cpc read with s151.
if a family court can’t hear such case and has no jurisdiction than any authority can be given to show to the high court where an appeal has been submitted against the family court order and the distt court order have declared it as maintainable.
kindly help and give a useful authority in support.
Family court can adopt any procedure for the ends of justice, the decree obtained by ur wife was due to fraud and misrepresentation because you were not the exclusive owner of the property. Dont waste your time in filing appeals.
can you please guide by quoting a case law?
Very comprehensive
Sir . A subsequent purchaser can challenge the Decree of jadi Owner.after passing 6 year.
@Shahzad
Yes he can file suit
When a suit is decree on the basis of a compromise which is also integral part of decree and one party did not compy with the terms of compromose in such like sitution section 12(2) can be invoked thanks guid me.
@Hasmat
Yes it can be invoked. A person can claim that compromise was made as a result of fraud
Dear sir,
We dual citizens of permitted States have been deprived of our Pakistani citizenship by Supreme Court of Pakistan ( constitution petition 05/2012 Syed Mahmood Akhtar naqvi Vs federation of Islamic Republic of Pakistan).
This single judgement has classified permitted dual citizens as non citizens, and deprived of not only fundamental Rights but also human Rights of international covenant for political and civil rights, in democratic Pakistan.
Is this not a deceptive fraudulent judgement by the highest court of Pakistan?
Please advise.
It is the best article on s. 12(2) cpc.
Salam, if in this suit any legal action , mean f I r and cancelation of attorney power which has been used false. that could not done . suit was drawn due to these reasons and 18 years has passed then remedy can be taken?
I had institute a suit of 12/2 cpc in 2002 it was with drawn due to no legal action taken by me on them, ext had not canceled attorney power of which I given to other person which I given to him and he and defendant both they made a contract that rights are paid but they done out of court and then they submit application to the court then suit was dismissed as withdrawn. when I known this I institute an application that was accepted in the court but I did not canceled power of attorney nor any legal action took by me high Court dissmiss this due to these two reasons and now time has passed 18 years I want to know that can I take review from the court and how???
Appreciates your attempting this que…
Informative…
Assalamo Alakem
I would like to get this all the information.
Thanks
Sir our application 12(2)cpc is accepted and the decree along with order is cancelled by AD&SJ know the case is before Civil Judge and main petition is not available from record room my question is how long can case is hear by CJ Thanks
Thumbs upp for explaining 12(2) in very simple and in eazy way.
aoa sir. i have a case in which a scenario is a person have married twice during his lifetime he had one child from his first wife and some children from second wife. he divorced his first wife in his life and started to live with second wife. Now that person is died and his second wife file an application in guardian court for the appointment of guardian of property of minor without disclosing the child from first marriage (also the legal heir) and the court appointed her as guardian, Now the question is do the first child from first marriage have to file 12(2) in guardian court? and he also wanted to take stay against properties as the parties wanted to sale the property to someone else. please guide at the earliest?
Will someone explain dual citizenship to the judges of Supreme Court of Pakistan as during fundamental rights petition 05/2012 the petitioner decived the bench by fraudulently applying incorrect section of Pakistan citizenship Act 1951.
The Court further undermined the jurisdiction of the Speakers and ECP, and when outside its jurisdiction under article 184(3) in delivering judgement on article 63(1)(c), which is not a fundamental right question.
Pakistani nationals with permitted dual citizens are duAl citizens and not duEl citizens. To classify such permitted dual citizens as dual nationals is ignorance of law as a person cannot belong to two nation States!
Dear experts,
I need guidance for civil case. A civil case was exparte decreed in district Court in 2005 and appeals were dismissed in 2012 means that exparte decree got finality in district level courts and can only be challenged for civil revision in higher court. But appellant, applied for possession of same property in district Court showing additional proofs which are enough supportive to challenge, prove misleadings with concealing of fact and these grounds can break exparte decree finalized at district court level. Now keeping in view this scenario my question is that, is it possible that district Court will consider the new supportive proofs and will set aside exparte finalized decree and decree the suit with current new grounds and grant the possession decree? Or this Court will dismiss the suit or will refer to high court? Thanks in advance, looking for expert opinions from experts.
i need your help to file application 12-2, the decree is passed against me, the suit was file by my bhabi, wife of my eldest brother, all the property documents was with my eldest brother after the death of our parents 1990-1993. The property actually was in the name of our mother, The name of plaintiff (Bhabi) was not mention on her NIC, but with the urfiat which is not mention on her NIC, the lease deed also obtain with the name not on her NIC, and DECREE has obtain against me with name which is not on her NIC.. The suit property address is also wrong in suit, as well as on the Lease Deed, on which ground she obtain that decree,( with help on her son working in city court as attorney) documents can not verified by the cause of burn of record in KMC. and sale agreement is also not exibitted due to the fake address on sale agreement..The name of a fake person on fake allotment order has verified by the KMC with remark that name is present on a old register. but i can prove that fake name, what legal remedy i can use.
AOA offsprings of my father’s sisters won case of property from my fathers property they got 11 acers as their mother’s right from civil court as well as in district courts two years before and now my sister apply sec 12(2) against their decree and claimed that she is also partner of this property but nothing is transferred on his name by my father in his life but she claim in 12(2) that she is also daughter of my father but not informed by my czns to her and demanded to re trial this court in trial court to accept her evidences also…. IS it possible?
whether there is any connection between 12 (2) and appeal? If someone didn’t challange the decree and later on during exectuion someone bring 12(2) whether or not this 12(2) is maintable or not?