ZULFIQAR ALI SAJID vs Khawaja KALEEM YOUSAF
This petition for leave to appeal arises out of a judgment dismissing the petitioner's application under Section 12(2) of the Code of Civil Procedure 1908, which challenged an ex parte recovery decree on the alleged grounds of fraud and misrepresentation through the concealment of the petitioner's correct address. The core legal question concerns whether the respondent obtained the decree fraudulently by providing an incorrect address and whether the application under Section 12(2) was improperly dismissed without evidence or framing issues. The Supreme Court held that the record demonstrated the respondent had indeed used the correct business address of the petitioner, meaning no fraud or misrepresentation was established—which are sine qua non for invoking Section 12(2)—and further noted the petitioner's unjustified absence and failure to comply with court orders. Consequently, the petition was dismissed and leave to appeal refused. The court laid down the principle that the invocation of Section 12(2) requires proof of active fraud or misrepresentation, and an allegation of an incorrect address fails when the record proves the address used was correct.
- Whether an application under Section 12(2) of the Code of Civil Procedure 1908 can succeed without establishing fraud or misrepresentation?
- Does the use of a correct business address in a recovery suit constitute fraud or misrepresentation for setting aside an ex parte decree?
- Is it mandatory to record evidence and frame issues on a Section 12(2) application when allegations of a wrong address are belied by the record?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' This petition for leave to appeal is directed against the judgment, dated 16-3-2005 whereby application under section 12(2), C.P.C. Preferred on behalf of petitioner along with C.M.A. No,7971 of 2004 have been dismissed.
2. Pursuant to ex parte proceedings suit for recovery instituted on behalf of respondent has been decreed which was assailed by way of filing an application under section 12(2), C.P.C. On the main ground that respondent had obtained the decree by giving incorrect address of the petitioner amounting to misrepresentation and fraud. The application has been rejected vide order impugned, hence, this petition.
3. Malik Muhammad Imtiaz Mahl, learned Advocate Supreme Court appeared on behalf of petitioner and contended that legal and factual aspects of the controversy have not been dilated upon in its true perspective which resulted in serious mismarriage of justice and the learned single Judge of the High Court of Sindh at Karachi has dismissed the application preferred on behalf of petitioner under section 12(2), C.P.C. Without any lawful justification and by ignoring fraudulent conduct and misrepresentation of the respondent who obtained decree by concealing the correct address of the petitioner. It is next contended that the learned single Judge in chambers has not adverted to the facts of the case with diligent application of mind and dismissed the application preferred under section 12(2), C.P.C. In an arbitrary manner without framing any issue or recording evidence. It is also contended that no order for depositing the decretal amount within fifteen days could have been passed, by the learned single Judge in chambers.
4. We have carefully examined the contentions as agitated on behalf of the petitioner, scanned the entire record with his eminent assistance and perused the judgment impugned carefully. An in- depth scrutiny of the record would reveal that the petitioner and his counsel remained absent on 15-2-2005 and 17-2-2005 and no plausible justification could be furnished for such absence.
Besides that the order, dated 17-2-2005 could not be complied with for the reasons best known to the petitioner, however, the learned Advocate Supreme Court on behalf of petitioner could not justify non-compliance of the order, dated 17-2-2005. The prime contention of the learned Advocate Supreme Court on behalf of petitioner that the correct address of the petitioner was concealed, appears to have been made in oblivion of the relevant record which is demonstrative of the fact that correct business address of the petitioner was mentioned by the respondent and it is the same address on which the decree passed in favor of respondent was got transferred from Karachi to Sargodha. It is not the case of petitioner that incorrect business address was mentioned by the respondent. No fraud has been committed or misrepresentation made by the respondent which are sine qua non for invocation of the provisions as contemplated in section 12(2), C.P.C. In fact a futile exercise appears to have been made by the petitioner to flout the judgment/decree passed against him.
5. In view of what has been stated above, we do not find any merit in this petition, which is dismissed and leave refused.