Law: Civil Procedure Code (V of 1908)

Section: 12(2),O.IX,R.13

Law: Constitution of Pakistan, 1973

Section: 10A

Law: Specific Relief Act, 1877

Section: 12

(a) Civil Procedure Code (V of 1908)--- ----S. 12(2)---Applicability of S.12(2), C.P.C.---Scope---Judgment, decree or order, setting aside of---Procedure---For determination of application under S.12(2), C.P.C., no procedure has been provided---Courts are not under any absolute obligation to frame issues, record evidence of parties or follow prescribed procedure necessary for decision of a case---Court while dealing with application under S. 12(2), C.P.C., in its own discretion may adopt any mode or procedure for decision of application. (b) Civil Procedure Code (V of 1908)--- ----S.12 (2) & O.IX, R.13---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Ex parte and decree, setting aside of---Ex parte and decree was passed against defendant including damages claimed by plaintiff---Defendant sought setting aside of ex parte and decree on the plea of fraud and misrepresentation---Validity---At the time of publication of notice in newspaper, suit No. 'Nil' of 2005 was never dismissed for 'non-prosecution' whereas suit No. 'Nil' of 2005, was pending for hearing of 'office objection' regarding limitation---In fact suit No. 'Nil' of 2005, was dismissed for 'non-prosecution' much later, on 9-10-2006---Notice regarding dismissal of suit was published at the page of newspaper reserved for another city 'H' and not for concerned city 'K'---Suit was decreed as prayed without recording of any evidence for damages claimed by plaintiff but Court was not supposed to pass straight away 'ex parte decree' muchless for damages/recurring damages merely on the basis of assertions made in plaint---Court was obliged to decide case strictly on 'merits' and in accordance with 'law'---Ex parte decree was passed on 9-8-2008, without recording of any evidence---Affidavit in ex parte proof was available on record but plaintiff in his own wisdom avoided to come forward and record his evidence---Pleadings by themselves were not evidence---Defendant in circumstances, was never served properly through any notice and / or summons which was a mandatory condition for proper exercise of jurisdiction---Ex parte and decree passed against defendant was bad for…