18/11/2025
VVVVVI. VERY INFORMATIVE JUDGEMENT.
2025 SCMR 1936
When an application under Section 12(2) of the CPC lies and when an application under Order IX Rule 13 CPC lies, with illustrative instances to clarify their respective scopes.......................
Sub-section (2) of Section 12 CPC...........................
The provision of Sub-section (2) of Section 12 CPC provides a remedy to challenge a judgment, decree, or order obtained by:
i). fraud,
ii). misrepresentation, or
iii). want of jurisdiction.
However, mere used of these terms is not sufficient, rather specific particulars must be provided as required by Rule 4 of Order VI, CPC5. It allows any person6 affected by such a decree or order to apply to the court that passed it, seeking to set it aside. This provision is not limited to parties to the suit but extends to any person aggrieved by the decree or order. It means an application under Section 12(2) CPC is maintainable when the decree or order was obtained by deliberate deception or suppression of material facts from the Court. However, the judgment supports a broader reading that includes fraud between the parties affecting the decree. For instance, if a plaintiff fabricates documents or misleads the court to secure a favorable judgment, the affected party can invoke Section 12(2) CPC;when the decree results from unintentional but material misstatement of facts by a party, leading the court to pass an erroneous order. For example, if a party misrepresents the ownership of property in a suit, the aggrieved party may apply under this section; and when the court lacked inherent jurisdiction to pass the decree or order. For instance, if a court passes a decree in a matter outside its territorial or pecuniary jurisdiction, an application under Section 12(2) can be filed. Additionally, a person not a party to the suit but affected by the decree e.g., a third party whose property is wrongly included in a decree, may apply under this section. The application must be filed in the same court that passed the decree or order. The applicant must prove fraud, misrepresentation, or lack of jurisdiction with cogent evidence. The scope of application under Section 12(2) CPC is broader than Order IX Rule 13, CPC, as it is not limited to ex-parte decrees and can be invoked by non-parties.
Rule 13 of Order IX, CPC........................
This provision of Rule 13 of Order IX, CPC provides a remedy to set aside an ex-parte decree passed against a defendant who was unable to appear when the suit was called for hearing. It applies only to defendants and is limited to ex-parte decrees. An application under Order IX Rule 13 CPC is maintainable when: the defendant(s) was not duly served with the summons, or the service was defective, preventing their appearance; the defendant(s) was prevented from appearing due to sufficient cause, such as illness, accident, or other unavoidable circumstances; the decree was passed exparte, i.e., in the absence of the defendant, without hearing their defense. The application must be filed by the defendant in the court that passed the ex-parte decree. The defendant must demonstrate that they were not served or had sufficient cause for non-appearance. The court may set aside the decree in terms (e.g., costs) and allow the defendant to contest the suit. Unlike Section 12(2) CPC, this provision-Order IX, Rule 13, CPC is limited to ex-parte decrees and does not cover fraud or jurisdiction issues unless they relate to service or non-appearance. Key Distinctions between the applications under section 12(2) and IX(13), CPC are that Section 12(2), CPC addresses fraud, misrepresentation or lack of jurisdiction and applies to any decree or order, while Order IX Rule 13, CPC is restricted to ex-parte decrees; Section 12(2), CPC can be invoked by any aggrieved person, including non-parties, while Order IX Rule 13, CPC is available only to defendants; Section 12(2) CPC focuses on substantive defects (fraud, misrepresentation, jurisdiction), while Order IX Rule 13 CPC addresses procedural issues (non-service, sufficient cause); Section 12(2) CPC seeks to set aside the decree or order entirely, while Order IX Rule 13 CPC seeks to restore the suit for hearing on merits.In light of the above, an application under Section 12(2) CPC lies when a decree or order is tainted by fraud, misrepresentation, or lack of jurisdiction, as seen in cases like fabrication of documents or jurisdictional overreach. Conversely, an application under Order IX Rule 13 CPC lies when an ex-parte decree is passed due to non-service of summons or sufficient cause for the defendant’s non-appearance, such as illness or defective service. The court must assess the facts and evidence to determine the appropriate remedy under each provision.
Ancillary Provisions for Section 12(2) CPC can be summarized as such that Section 47 CPC10 deals with questions arising between parties to a suit (or their representatives) regarding the ex*****on, discharge, or satisfaction of a decree. Meaning thereby, if a decree is challenged under Section 12(2) CPC on the basis of fraud or lack of jurisdiction, issues related to its ex*****on (e.g., whether the decree is enforceable) may be addressed under Section 47 CPC during ex*****on proceedings.
For instance, if a decree obtained by fraud is sought to be executed, the aggrieved party may raise objections under Section 47 CPC, alongside or instead of a separate application under Section 12(2) CPC, depending on the stage of proceedings; Section 151 CPC11empowers courts to pass orders necessary to meet the ends of justice or prevent abuse of the process of the court. It is notable fact that if an application under Section 12(2) CPC does not fully address procedural gaps (e.g. interim relief to stay ex*****on of a fraudulent decree), the court may invoke its inherent powers under Section 151 CPC. For example, if a decree is challenged for fraud under Section 12(2) CPC, the Court may use Section 151 CPC to stay ex*****on proceedings pending the adjudication of the application.
Further, provisions under Order XXI (e.g. Rules 2612, 2913, 9014, 99–101) govern the ex*****on of decrees. If a decree is challenged under Section 12(2) CPC for fraud or lack of jurisdiction, ancillary issues like staying ex*****on (Order XXI Rule 26, CPC) or setting aside a sale in ex*****on due to fraud (Order XXI Rule 90, CPC) may arise;if a property is sold in ex*****on of a decree obtained by misrepresentation, the affected party may seek to set aside the sale under Order XXI Rule 90 CPC, in conjunction with an application under Section 12(2) CPC; Section 9 CPC establishes that civil courts have jurisdiction to try all suits of a civil nature unless barred. When an application under Section 12(2) CPC is filed alleging want of jurisdiction, Section 9 CPC provides the foundational principle for determining whether the court had the authority to pass the decree. For instance, if a decree is challenged under Section 12(2) CPC for being passed by a court lacking territorial jurisdiction, Section 9 CPC guides the inquiry into the court’s competence.
However, ancillary Provisions for Order IX Rule 13 CPC can be summarized as such: Order V (Rules 1–30) CPC governs the issuance and service of summons. Since an application under Order IX Rule 13 CPC often hinges on non-service or defective service of summons, Order V CPC provisions are critical to determining whether the service was proper. For example, if a defendant claims non-service under Order IX Rule 13, CPC because the summons were not served as per Order V Rule 15 CPC (service on an adult member of the family), the court will examine compliance with Order V, CPC; Order IX Rule 6 CPC outlines the procedure when the defendant does not appear, leading to an exparte decree. This provision sets the stage for an application under Order IX Rule 13 CPC, as it defines the circumstances under which an ex-parte decree is passed; if a court proceeds ex-parte under Order IX Rule 6 CPC due to the defendant’s absence, the defendant may apply under Order IX Rule 13 CPC to set aside the decree, citing non-service or sufficient cause; if the suit is at the hearing stage and has not yet resulted in a decree, Order IX Rule 7 CPC allows the defendant to apply to set aside the ex-parte proceedings and join the hearing. This is a precursor to Order IX Rule 13 CPC, applicable when the case is still ongoing. For instance, if defendant(s) learns of the ex-parte proceedings before the decree is passed, he may apply under Order IX Rule 7 instead of waiting to file under Order IX Rule 13, CPC; Order IX Rule 14 CPC mandates that no ex-parte decree shall be set aside under Order IX Rule 13 CPC without giving notice to the opposite party (plaintiff). It ensures procedural fairness in applications under Order IX Rule 13, CPC. When a defendant files an application under Order IX Rule 13 CPC, the court must issue notice to the plaintiff under Order IX Rule 14 CPC before deciding the application. In addition to the above, if an ex-parte decree is set aside under Order IX Rule 13 CPC, Section 144 CPC allows the court to order restitution to restore the parties to their original position (e.g. refund of money paid under the decree or restoration of property).
Moreover, if a defendant’s property was sold in ex*****on of an ex-parte decree that is later on set aside, Section 144 CPC may be invoked to restore the property to the defendant. Similar to its role in Section 12(2) CPC, Section 151 CPC can be used to address procedural gaps in Order IX Rule 13 CPC applications, such as granting interim relief to stay ex*****on of an ex-parte decree pending the application’s adjudication. Furthermore, provisions like Order XXI Rule 26(stay of ex*****on) and Rule 29 CPC (stay of suit when ex*****on is pending), are ancillary to Order IX Rule 13 CPC, as they allow the court to manage ex*****on proceedings while the application to set aside the ex-parte decree is pending. If a defendant files an application under Order IX Rule 13 CPC and the decree is being executed, they may seek a stay under Order XXI Rule 26, CPC.
The ancillary provisions ensure procedural fairness, provide mechanisms for ex*****on or stay, and allow appeals or restitution, complementing the primary remedies under Section 12(2) and Order IX Rule 13, CPC. Provisions like Section 151 and Order XXI, CPC grant courts flexibility to address case-specific issues, ensuring justice is not defeated by procedural technicalities. Both Section 12(2) and Order IX Rule 13, CPC applications require compliance with procedural rules [e.g., notice under Order IX Rule 14 CPC or evidence of fraud under Section 12(2) CPC], and ancillary provisions like Order V or Section 47, CPC guide these requirements.
C.P.L.A.3824/2023
M/s Mobiserve Pakistan (Pvt) Limited v. M/s V-Tech & others
