Mst. Jamila Begum (Deceased) through L.Rs. vs Mst. Sheedan Bibi and another
This matter arises from civil proceedings initiated by the petitioners through an application under Section 12(2) of the Code of Civil Procedure 1908, challenging a previous consent decree on the grounds of fraud and misrepresentation. The core legal question concerns whether a decree can be set aside under Section 12(2), CPC without producing supporting evidence, and whether a belated application barred by time can succeed without a valid explanation or condonation of delay. The Supreme Court of Pakistan held that the petitioners' application was rightly dismissed as it was hopelessly barred by time without any application for condonation of delay, and because the petitioners expressly chose not to lead any evidence at the trial stage to substantiate their allegations of fraud. The key principles laid down are that an applicant under Section 12(2), CPC must substantiate allegations of fraud through proper evidence rather than declining to produce it, and that time-barred applications without grounds for condonation under the Limitation Act 1908 are incompetent.
- Can an application under Section 12(2) of the Code of Civil Procedure 1908 succeed when the applicant explicitly declines to produce any evidence at trial?
- Whether an application under Section 12(2) of the Code of Civil Procedure 1908 filed beyond the period of limitation without an application for condonation of delay is maintainable?
- What is the effect of repeated withdrawals of petitions and civil miscellaneous applications before the High Court and the Supreme Court on subsequent legal remedies?
- Section 12(2), Code of Civil Procedure 1908
- Order 10 Rule 4, Code of Civil Procedure 1908
- Section 14, Limitation Act 1908
- Section 5, Limitation Act 1908
ORDER
' MIAN SAQIB NISAR, J. --- Respondent Mst. Sheedan Bibi filed a suit against the petitioners through Muhammad Sarwar, her husband as their attorney and on a conceding statement by the latter, the suit was decreed. The petitioners moved an application under Section 12(2), CPC challenging the decree on the ground of having been obtained through fraud and misrepresentation, however, a statement was made by the learned counsel for the petitioners before re the Court that no evidence is required and, therefore, they would not be producing any evidence. Likewise the other side also did not produce any evidence because the petitioners failed to do so, however, the Trial Court still allowed the application and set aside the decree. This order was challenged by the respondents. in revision which was accepted and the order of the Trial Court was set aside. Against the revisional judgment the petitioners approached the learned High Court in its Constitutional jurisdiction and the learned Court through an order directed the writ petitioners to appear in person in terms of Order 10, Rule 4, CPC but they defaulted and subsequently the writ petition was dismissed. This order was challenged by the petitioners through Civil Petition No. 1395-L/2007 but the same was withdrawn on 3.4.2008. In the meantime, the petitioners moved C.M.No. 59/2007 before the learned High Court. Subsequently C.M.No. 59/2007 was also withdrawn by the petitioners. This order of withdrawal was . subsequently challenged by the petitioners before this Court in Civil Petition No. 1416-L/2009 which again was withdrawn by the learned counsel for the petitioners unconditionally, however, mentioning that the remedy of Section 12(2), CPC shall be invoked before the learned High Court. Thus the said application under Section 12(2), CPC was filed which was dismissed by the Court on two scores, firstly, that it was barred by time and secondly that the same is incompetent.
2. Learned counsel for the petitioners has argued that the petitioners have been defrauded in the matter and have been deprived of valuable property because the L.Rs. of Niaz Muhammad who were the owners of the property had never given any power of attorney to Muhammad Sarwar, the husband of Mst. Sheedan Bibi and it is the husband and wife who have played fraud in having the property transferred to them by virtue of the decree in the suit for specific performance. It is also argued that the petitioners have never been given any opportunity of proving that the decree against them is founded upon fraud and misrepresentation, rather they have throughout been knocked out on technical grounds.
3. Having heard the learned counsel for the petitioners, the conduct which has been mentioned in the narration of the facts, we find that it is the petitioners those who have been time and again choosing their own remedy and withdrawing the same. They approached this Court twice and subsequently withdrew. The same happened twice before the learned High Court. They defaulted to comply with Order 10, Rule 4, CPC. Moreover we have noticed that at the trial stage, when the application under Section 12(2), CPC was pending, the petitioners' learned counsel categorically made a statement not to lead any evidence. This knocks the bottom out of the case of the petitioners because without there being proof pursuant to the application under Section 12(2), CPC, how could the petitioners succeed in the said application. Therefore, in the facts and circumstances, particularly that the application under Section 12(2), CPC filed by the petitioners was hopelessly barred by time, no application for condonation of delay was ever made; even the case under Section 14 or 5 of the Limitation Act, 1908 was never made out. Resultantly, this petition has no merit which is hereby dismissed.