14/07/2023
A complete discussion over 12(2) with reported Case Laws
Section 12 (2) CPC
Where a person challenges the validity of a judgment, decree or order on 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.
Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice : 1994 SCMR 782
S.12 (2) CPC Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice. [p. 786] A.
Judgment had been obtained on basis of a forged document
Leave to appeal was granted to examine the scope of S.12 (2) CPC, with a view to ascertain whether it included the grounds that a judgment had been obtained on basis of a forged document. 1993 SCMR [p. 712] A.
Fraud
Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud.
1993 SCMR [p. 714] C.
Fraud vitiates the most solemn proceedings. 1994 SCMR [p. 790] F.
S.12(2)---Where a decree was allegedly obtained on the forged certified copy of entry made in a Register of Death kept under the Births, Death and Marriage Registration Act 1886, the same would amount to fraud and application under S12(2) CPC, would be competent on basis thereof.
1993 SCMR [p. 715] D.
In the circumstances and for going reasons this appeal is allowed, the impugned judgments are set aside. The Application U/S. 12(2) CPC shall stand remanded to the District Judgment for entrustment to the appropriate Court for decision in accordance with law.
1993 SCMR [p. 715] D.
Serious allegation of fraud, collusion and misrepresentation: 2006 SCMR 1530
S.12(2)---Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation---Dismissal of application summarily by Trial Court was upheld in revision and by High Court in constitution petition---Validity---Disposal of application in such manner was not justified in view of serious allegation leveled therein----Trial Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without recording evidence of parties----Inquiry directed by Supreme Court accepted appeal set aside impugned judgment of High Court and Courts below directing that such application would be deemed to be pending before Trial Court for its decision within specified time after framing issues and recording evidence of parties. 2006 SCMR 1530-1532 A & B.
Serious allegation of Forgery, fraud, collusion and misrepresentation could not be decided without recording of evidence: 2008 SCMR 236
Case Remanded:
S.12(2)---Application U/ S.12(2) CPC. Containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236, [p.239] A.
2006 SCMR [p. 1532] A & B.
1993 SCMR [p. 712] A.
Trail Court aught to frame issues and record evidence of parties, particularly when decree had also been passed without evidence of parties.
Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation-Plea of petitioner was that exemption orders were invalid, fictitious, forged thus----Dismissal of application summarily by trial Court was upheld in revision and by High Court in Constitutional Petition---Disposal of application in such manner was not justified in view of serious allegations leveled therein—Trail Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without evidence of parties.
2006 SCMR [p. 1532] A & B.
Status Quo Confirmed : 1987 CLC 484
S.12(2)---Applicant challenging validity of decree under S.12(2) CPC, Status quo order issued earlier was confirmed in order to avoid third party interest and to avoid complications. [p.485] A.
Status Quo was maintained: 1994 SCMR365
S.12(2)---The ex parte decree of which the ex*****on is sought is under challenge before trial Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly exercised its discretion in maintaining status quo, and the appellate court without substantial judgment of revisional court. 1994 SCMR [p.367] A.
Ex Parte decree had been obtained on basis of defective and false service on applicant in collusion with bailiff of court 1987 MLD 1253 [p.1255].
S. 12(2) ---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of suit for non-prosecution---Non-issuance of notice of restoration application to defendants and fresh notices after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house by plaintiff through its ex*****on---Application under S.12(2) , C.P.C. for setting aside ex parte decree by legal heirs of a defendant, who died on 14-1-2008 during pendency of suit---Order of Trial Court allowing application under S.12(2) , C.P.C. and setting aside whole decree upheld by Appellate Court---Plaintiff's plea that such decree could be set aside partly to the extent of deceased defendant and not other defendants, who had not participated in proceedings under S. 12(2) , C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of defendants and against a dead person, whose signatures appearing on Vakalatnama did not tally with his signatures on suit agreement---Such ex parte decree could not enjoy sanctity attached to a judicial order---Ex parte decree had been set aside on grounds of fraud committed by plaintiff and disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2) , C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree---Such ex parte decree must be set aside wholly and not partly as there were no degrees of invalidity---Plaintiff had not pointed out any jurisdictional defect in the impugned orders---High Court dismissed constitutional petition, in circumstances.
2012 PLD 240 LAHORE.
Ss.9, 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.84---Civil Procedure Code (V of 1908), S.12(2) , O.VII, Rr.1(c) & 9(1A)(b)--- Suit for recovery of bank loan---Fraud---Proof---Comparison of signatures---Powers of court---Suit filed by bank was decreed ex parte against some of the defendants and ex*****on was filed---Such defendants got ex parte decree set aside on the ground that they did not mortgage their properties resultantly suit filed by bank was dismissed---Validity---Mortgage deed in respect of properties showed name of one defendant as witness, whereas power of attorney of the same date showed that same defendant executed it on such date and some other person was shown as a witness---Such anomaly itself showed nothing but fraud and forgery and vitiated the two documents---Banking Court, on its own, under the provisions of Art.84 of Qanun-e-Shahadat, 1984, looked into the signatures of the defendant as available on mortgage deed and power of attorney, both of the same date and compared the same from the ones available on Vakalatnama, leave to defend application and other documents and came to the conclusion that signatures appearing on deeds and power of attorney were forged---Banking Court after looking into the matter had rightly dismissed the suit and judgment required no interference--- Appeal was dismissed in circumstances.
2012 CLD 471 KARACHI.
S. 12(2) ---Application under S.12(2) , C.P.C.---Duty of Court while entertaining such application---Important aspects to be examined by court highlighted.
2012 CLC 1019 KARACHI.
S. 12(2) ---Limitation Act (IX of 1908), Art. 181---Ex parte decree dated 6-7-2000, setting aside of---Application under S. 12(2) , C.P.C., filed on 26-5-2004---Validity---Limitation Act, 1908 did not provide any period of limitation for filing such application---Resort in such case could be made to Art. 181 of Limitation Act, 1908 providing three years from date of accrual of right to apply---Right to apply accrued to applicant on 6-7-2000, when ex parte decree was passed against him---Such application was dismissed for being time barred.
2011 MLD 1956 PESHAWAR.
S.12(2) ---Application under S.12(2) , C.P.C.---Issues, framing of---Scope---Court could refuse to frame issues and record evidence, if it considered it not proper to carry on proceedings in accordance with provisions of C.P.C.
2011 MLD 1956 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---Essentials---Applicants challenged the judgment and decree of Trial Court under S.12(2) , C.P.C. on the grounds of fraud and collusion and contended that registered power of attorney on their behalf was fake and fictitious and neither the sale transaction in respect of disputed property was made by them nor possession of the same was delivered to the decree-holder---Trial Court accepted application of the applicants and set aside the impugned judgment and decree---Re visional Court returned memo of revision for want of pecuniary jurisdiction---Respondent asserted that before deciding application under S.12(2) , C.P.C. the Trial Court had not provided opportunity to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law---Validity---Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with letter and spirit prescribed under the law---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law---Judgment and order passed by Trial Court was illegal and derogatory to the principle that no body should be condemned unheard---High Court allowed revision petition and remanded the case to Trial Court to decide the same under the law, after affording opportunity to produce evidence to both parties and further to decide the application within a period of three months without trial, after receipt of record.
2011 CLC 355 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---No provision of law existed whereby the pleadings of the parties would be considered as prima facie proof of allegations made therein, unless the facts mentioned in the pleadings had not been proved and in support, thereof, the maker of the document appeared before the court and testified that the document had been scribed at his instance and furnished the particulars of fraud and proof thereof stood to the test of cross-examination, in absence whereof, pleadings were not sufficient to substantiate the claim of party to the suit, if the party to suit did not appear to testify about the pleadings not to be considered as the proof of facts mentioned therein, same had always been excluded.
2011 CLC 355 PESHAWAR
S. 12(2) ---Allegation of fraud and misrepresentation---Requirements---While deciding the questions of fraud and misrepresentation, the recording of evidence was the requirement of law, therefore, in the light of evidence any order could be passed, but not to dismiss the complaint summarily and to short circuit the proceedings in haste in uncalled and indecent manner.
2011 CLC 355 PESHAWAR
S. 12(2) ---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law.
2011 CLC 355 PESHAWAR
S. 12(2) -Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with the letter and spirit prescribed under the law.
2011 CLC 355 PESHAWAR.
Ss. 9, 19 & 22--Civil Procedure Code (V of 1908), S.12(2) , O.VII, R.11 & O.IX, R.13---Suit for recovery of loan---Execution proceedings---Challenging judgment, decree on ground of fraud and misrepresentation---Setting aside ex parte decree, application for--- Application for setting aside ex parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the Banking Court---Validity---Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residing; and the defendant came to know about the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie application under S.12(2) , C.P.C. was maintainable---Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence---Impugned order was set aside---Banking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh.
2010 CLD 1762 KARACHI.
S. 12(2) ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree---Fraud and misrepresentation---Allegation of---Proof---Controversy between the parties could only be resolved after framing issues and recording the evidence.
2010 MLD 631 LAHORE.
S.12(2) ---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud---Remedy---Decree on such grounds could be set aside either on application under S.12(2) , C.P.C., or through an appeal, a revision or review, if available under law.
2010 SCMR 1097.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Challenging validity of order on plea of fraud and misrepresentation---Order made by same Court can be challenged and re-called under S.12(2) , C.P.C. in the same Court provided question of fraud etc., is alleged-Separate suit is clearly barred to be filed before any other court of civil jurisdiction. 2007 PLD 66 PESHAWAR.
[7/27, 8:16 AM] mirzazahidmahmoodadv: In a sexual assault case, the victim is the crime scene.
The prime responsibility for collection of evidence from him/her rests on the Medical Officer. SWGDAM, a group of scientists representing federal, state and local forensic DNA laboratories in the United States and Canada, observes that history of the incident is extremely important and emphasizes that the Medical Officer should take it down
carefully and be guided by it in collection of evidentiary items. SWGDAM states:
“Victims of sexual assault may undergo a sexual assault forensic exam conducted by a healthcare professional. During these exams, items of possible evidentiary value are collected and submitted, upon consent of the victim, for the initiation of a criminal complaint and/or investigation. Prior to collection of evidentiary items, healthcare professionals must consider several factors to assist in guiding their collection and treatment efforts. These factors may include the assault activity, time elapsed since the assault, post assault activities, the age and gender of the assault victim, and mental capacity, to name a few. Evidence collection should be guided by the background history, focusing specifically on the suspect’s actions during the assault. It is not uncommon however, that as a result of the trauma, victims may not be able to organize the memory of the assault or the actions taken by the suspect. In the absence of a victim able to recollect a complete background history, a full range of samples should be collected assisted by the physical assessment.”
It further says:
“Additional considerations prior to sample collection must include the activities of the victim following the assault. Activities that may impact evidence collection include bathing, brushing of teeth, mouthwash, vomiting, douching, urination and defecation. Careful consideration of the assault activities and post assault activities prior to sample collection is vital. …Internal swabs such as from the va**na, mouth or re**um may still be viable for collection even after showering or bathing by the victim, dependent upon the length and thoroughness of the cleansing and time since the assault. Internal and external swabs should still be collected even if the victim has bathed, as the bathing may not have been vigorous enough to remove the fluids or DNA from the victim. Also, potential biological evidence deposited onto a substrate such as clothing, towels or paper towels do not have the same time restrictions as biological evidence deposited on, or within, the victim’s body.”
2020 PCrLJ 914
[7/27, 8:16 AM] mirzazahidmahmoodadv: During the past few decades physical evidence has become increasingly important in criminal investigations and trials. Physical evidence, such as DNA, fingerprints, and trace evidence may “independently and objectively” link a suspect/victim to a crime, disprove an alibi or develop important investigative leads. Physical evidence may also prove invaluable for exonerating the innocent. Scientists and lawyers agree that DNA identification is capable of producing reliable results. Initially, evidence that was suitable for DNA analysis was limited to biological substances that contain nucleated cells. This limitation has been overcome in the last few years with the implementation of mitochondrial DNA sequencing in the forensic arena. Common biological specimen from which DNA can now be successfully isolated and typed are: bones, blood and bloodstains, semen and seminal stains, tissues, organs, teeth, hairs, finger-nails, saliva, ur
ine and other biological fluids.
2020 PCrLJ 914A complete discussion over 12(2) with reported Case Laws
Section 12 (2) CPC
Where a person challenges the validity of a judgment, decree or order on 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.
Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice : 1994 SCMR 782
S.12 (2) CPC Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice. [p. 786] A.
Judgment had been obtained on basis of a forged document
Leave to appeal was granted to examine the scope of S.12 (2) CPC, with a view to ascertain whether it included the grounds that a judgment had been obtained on basis of a forged document. 1993 SCMR [p. 712] A.
Fraud
Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud.
1993 SCMR [p. 714] C.
Fraud vitiates the most solemn proceedings. 1994 SCMR [p. 790] F.
S.12(2)---Where a decree was allegedly obtained on the forged certified copy of entry made in a Register of Death kept under the Births, Death and Marriage Registration Act 1886, the same would amount to fraud and application under S12(2) CPC, would be competent on basis thereof.
1993 SCMR [p. 715] D.
In the circumstances and for going reasons this appeal is allowed, the impugned judgments are set aside. The Application U/S. 12(2) CPC shall stand remanded to the District Judgment for entrustment to the appropriate Court for decision in accordance with law.
1993 SCMR [p. 715] D.
Serious allegation of fraud, collusion and misrepresentation: 2006 SCMR 1530
S.12(2)---Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation---Dismissal of application summarily by Trial Court was upheld in revision and by High Court in constitution petition---Validity---Disposal of application in such manner was not justified in view of serious allegation leveled therein----Trial Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without recording evidence of parties----Inquiry directed by Supreme Court accepted appeal set aside impugned judgment of High Court and Courts below directing that such application would be deemed to be pending before Trial Court for its decision within specified time after framing issues and recording evidence of parties. 2006 SCMR 1530-1532 A & B.
Serious allegation of Forgery, fraud, collusion and misrepresentation could not be decided without recording of evidence: 2008 SCMR 236
Case Remanded:
S.12(2)---Application U/ S.12(2) CPC. Containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236, [p.239] A.
2006 SCMR [p. 1532] A & B.
1993 SCMR [p. 712] A.
Trail Court aught to frame issues and record evidence of parties, particularly when decree had also been passed without evidence of parties.
Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation-Plea of petitioner was that exemption orders were invalid, fictitious, forged thus----Dismissal of application summarily by trial Court was upheld in revision and by High Court in Constitutional Petition---Disposal of application in such manner was not justified in view of serious allegations leveled therein—Trail Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without evidence of parties.
2006 SCMR [p. 1532] A & B.
Status Quo Confirmed : 1987 CLC 484
S.12(2)---Applicant challenging validity of decree under S.12(2) CPC, Status quo order issued earlier was confirmed in order to avoid third party interest and to avoid complications. [p.485] A.
Status Quo was maintained: 1994 SCMR365
S.12(2)---The ex parte decree of which the ex*****on is sought is under challenge before trial Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly exercised its discretion in maintaining status quo, and the appellate court without substantial judgment of revisional court. 1994 SCMR [p.367] A.
Ex Parte decree had been obtained on basis of defective and false service on applicant in collusion with bailiff of court 1987 MLD 1253 [p.1255].
S. 12(2) ---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of suit for non-prosecution---Non-issuance of notice of restoration application to defendants and fresh notices after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house by plaintiff through its ex*****on---Application under S.12(2) , C.P.C. for setting aside ex parte decree by legal heirs of a defendant, who died on 14-1-2008 during pendency of suit---Order of Trial Court allowing application under S.12(2) , C.P.C. and setting aside whole decree upheld by Appellate Court---Plaintiff's plea that such decree could be set aside partly to the extent of deceased defendant and not other defendants, who had not participated in proceedings under S. 12(2) , C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of defendants and against a dead person, whose signatures appearing on Vakalatnama did not tally with his signatures on suit agreement---Such ex parte decree could not enjoy sanctity attached to a judicial order---Ex parte decree had been set aside on grounds of fraud committed by plaintiff and disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2) , C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree---Such ex parte decree must be set aside wholly and not partly as there were no degrees of invalidity---Plaintiff had not pointed out any jurisdictional defect in the impugned orders---High Court dismissed constitutional petition, in circumstances.
2012 PLD 240 LAHORE.
Ss.9, 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.84---Civil Procedure Code (V of 1908), S.12(2) , O.VII, Rr.1(c) & 9(1A)(b)--- Suit for recovery of bank loan---Fraud---Proof---Comparison of signatures---Powers of court---Suit filed by bank was decreed ex parte against some of the defendants and ex*****on was filed---Such defendants got ex parte decree set aside on the ground that they did not mortgage their properties resultantly suit filed by bank was dismissed---Validity---Mortgage deed in respect of properties showed name of one defendant as witness, whereas power of attorney of the same date showed that same defendant executed it on such date and some other person was shown as a witness---Such anomaly itself showed nothing but fraud and forgery and vitiated the two documents---Banking Court, on its own, under the provisions of Art.84 of Qanun-e-Shahadat, 1984, looked into the signatures of the defendant as available on mortgage deed and power of attorney, both of the same date and compared the same from the ones available on Vakalatnama, leave to defend application and other documents and came to the conclusion that signatures appearing on deeds and power of attorney were forged---Banking Court after looking into the matter had rightly dismissed the suit and judgment required no interference--- Appeal was dismissed in circumstances.
2012 CLD 471 KARACHI.
S. 12(2) ---Application under S.12(2) , C.P.C.---Duty of Court while entertaining such application---Important aspects to be examined by court highlighted.
2012 CLC 1019 KARACHI.
S. 12(2) ---Limitation Act (IX of 1908), Art. 181---Ex parte decree dated 6-7-2000, setting aside of---Application under S. 12(2) , C.P.C., filed on 26-5-2004---Validity---Limitation Act, 1908 did not provide any period of limitation for filing such application---Resort in such case could be made to Art. 181 of Limitation Act, 1908 providing three years from date of accrual of right to apply---Right to apply accrued to applicant on 6-7-2000, when ex parte decree was passed against him---Such application was dismissed for being time barred.
2011 MLD 1956 PESHAWAR.
S.12(2) ---Application under S.12(2) , C.P.C.---Issues, framing of---Scope---Court could refuse to frame issues and record evidence, if it considered it not proper to carry on proceedings in accordance with provisions of C.P.C.
2011 MLD 1956 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---Essentials---Applicants challenged the judgment and decree of Trial Court under S.12(2) , C.P.C. on the grounds of fraud and collusion and contended that registered power of attorney on their behalf was fake and fictitious and neither the sale transaction in respect of disputed property was made by them nor possession of the same was delivered to the decree-holder---Trial Court accepted application of the applicants and set aside the impugned judgment and decree---Re visional Court returned memo of revision for want of pecuniary jurisdiction---Respondent asserted that before deciding application under S.12(2) , C.P.C. the Trial Court had not provided opportunity to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law---Validity---Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with letter and spirit prescribed under the law---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law---Judgment and order passed by Trial Court was illegal and derogatory to the principle that no body should be condemned unheard---High Court allowed revision petition and remanded the case to Trial Court to decide the same under the law, after affording opportunity to produce evidence to both parties and further to decide the application within a period of three months without trial, after receipt of record.
2011 CLC 355 PESHAWAR.
S. 12(2) ---Allegation of fraud and forgery---Proof---No provision of law existed whereby the pleadings of the parties would be considered as prima facie proof of allegations made therein, unless the facts mentioned in the pleadings had not been proved and in support, thereof, the maker of the document appeared before the court and testified that the document had been scribed at his instance and furnished the particulars of fraud and proof thereof stood to the test of cross-examination, in absence whereof, pleadings were not sufficient to substantiate the claim of party to the suit, if the party to suit did not appear to testify about the pleadings not to be considered as the proof of facts mentioned therein, same had always been excluded.
2011 CLC 355 PESHAWAR
S. 12(2) ---Allegation of fraud and misrepresentation---Requirements---While deciding the questions of fraud and misrepresentation, the recording of evidence was the requirement of law, therefore, in the light of evidence any order could be passed, but not to dismiss the complaint summarily and to short circuit the proceedings in haste in uncalled and indecent manner.
2011 CLC 355 PESHAWAR
S. 12(2) ---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law.
2011 CLC 355 PESHAWAR
S. 12(2) -Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with the letter and spirit prescribed under the law.
2011 CLC 355 PESHAWAR.
Ss. 9, 19 & 22--Civil Procedure Code (V of 1908), S.12(2) , O.VII, R.11 & O.IX, R.13---Suit for recovery of loan---Execution proceedings---Challenging judgment, decree on ground of fraud and misrepresentation---Setting aside ex parte decree, application for--- Application for setting aside ex parte decree and challenging judgment, decree on ground of fraud and misrepresentation filed by the defendant had been dismissed by the Banking Court---Validity---Since the defendant, admittedly was not served on his address, given in the memo of plaint, but on another address, notices were sent, where the defendant was not residing; and the defendant came to know about the proceedings when plaintiff Bank filed application under O.VII, R.11, C.P.C., prima facie application under S.12(2) , C.P.C. was maintainable---Controversy, whether any fraud and misrepresentation had been made in the matter, could be resolved after recording the evidence---Impugned order was set aside---Banking Court was directed to frame the issues and after recording the evidence and hearing the parties, decide the same afresh.
2010 CLD 1762 KARACHI.
S. 12(2) ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree---Fraud and misrepresentation---Allegation of---Proof---Controversy between the parties could only be resolved after framing issues and recording the evidence.
2010 MLD 631 LAHORE.
S.12(2) ---Decree, setting aside of---Grounds for want of jurisdiction, misrepresentation or fraud---Remedy---Decree on such grounds could be set aside either on application under S.12(2) , C.P.C., or through an appeal, a revision or review, if available under law.
2010 SCMR 1097.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236.
Ss. 12(2) , 141 & O.VII, R.11(a)---Application under S.12(2) , C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.
2008 SCMR 236.
S. 12(2) ---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2) , C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2) , C.P.C. but pertained to the merits of the case, application under S.12(2) , C.P.C. was liable to be dismissed.
2008 PLD 591.
S. 12(2) ---Challenging validity of order on plea of fraud and misrepresentation---Order made by same Court can be challenged and re-called under S.12(2) , C.P.C. in the same Court provided question of fraud etc., is alleged-Separate suit is clearly barred to be filed before any other court of civil jurisdiction. 2007 PLD 66 PESHAWAR.
[7/27, 8:16 AM] mirzazahidmahmoodadv: In a sexual assault case, the victim is the crime scene.
The prime responsibility for collection of evidence from him/her rests on the Medical Officer. SWGDAM, a group of scientists representing federal, state and local forensic DNA laboratories in the United States and Canada, observes that history of the incident is extremely important and emphasizes that the Medical Officer should take it down
carefully and be guided by it in collection of evidentiary items. SWGDAM states:
“Victims of sexual assault may undergo a sexual assault forensic exam conducted by a healthcare professional. During these exams, items of possible evidentiary value are collected and submitted, upon consent of the victim, for the initiation of a criminal complaint and/or investigation. Prior to collection of evidentiary items, healthcare professionals must consider several factors to assist in guiding their collection and treatment efforts. These factors may include the assault activity, time elapsed since the assault, post assault activities, the age and gender of the assault victim, and mental capacity, to name a few. Evidence collection should be guided by the background history, focusing specifically on the suspect’s actions during the assault. It is not uncommon however, that as a result of the trauma, victims may not be able to organize the memory of the assault or the actions taken by the suspect. In the absence of a victim able to recollect a complete background history, a full range of samples should be collected assisted by the physical assessment.”
It further says:
“Additional considerations prior to sample collection must include the activities of the victim following the assault. Activities that may impact evidence collection include bathing, brushing of teeth, mouthwash, vomiting, douching, urination and defecation. Careful consideration of the assault activities and post assault activities prior to sample collection is vital. …Internal swabs such as from the va**na, mouth or re**um may still be viable for collection even after showering or bathing by the victim, dependent upon the length and thoroughness of the cleansing and time since the assault. Internal and external swabs should still be collected even if the victim has bathed, as the bathing may not have been vigorous enough to remove the fluids or DNA from the victim. Also, potential biological evidence deposited onto a substrate such as clothing, towels or paper towels do not have the same time restrictions as biological evidence deposited on, or within, the victim’s body.”
2020 PCrLJ 914
[7/27, 8:16 AM] mirzazahidmahmoodadv: During the past few decades physical evidence has become increasingly important in criminal investigations and trials. Physical evidence, such as DNA, fingerprints, and trace evidence may “independently and objectively” link a suspect/victim to a crime, disprove an alibi or develop important investigative leads. Physical evidence may also prove invaluable for exonerating the innocent. Scientists and lawyers agree that DNA identification is capable of producing reliable results. Initially, evidence that was suitable for DNA analysis was limited to biological substances that contain nucleated cells. This limitation has been overcome in the last few years with the implementation of mitochondrial DNA sequencing in the forensic arena. Common biological specimen from which DNA can now be successfully isolated and typed are: bones, blood and bloodstains, semen and seminal stains, tissues, organs, teeth, hairs, finger-nails, saliva, ur
ine and other biological fluids.
2020 PCrLJ 914
