| Citation(s) |
|---|
| 2015 SLG 2311 2015 SLD 2311 2015 CLC 877 |
Sindh High Court
Judicial Miscellaneous No. 31 along with Suit No. 17 of2012, decided on 13th March, 2014. DATE of hearing: 26thFebruary, 2014
AZIZ-UR-REHMAN, J
Muhammad Jamshed Malik along with Abdul Qayoom Abbasi for Applicant. S. Ali Bin Adam Jafri for
Respondent No. 1. Khalid Mehmood Shah along with Ghulam Murtaza Malik of Liaquat Merchant Associates for
Respondent
Judicial Miscellaneous No. 31 along with Suit No. 17 of2012, decided on 13th March, 2014. DATE of hearing: 26thFebruary, 2014
AZIZ-UR-REHMAN, J
Muhammad Jamshed Malik along with Abdul Qayoom Abbasi for Applicant. S. Ali Bin Adam Jafri for
Respondent No. 1. Khalid Mehmood Shah along with Ghulam Murtaza Malik of Liaquat Merchant Associates for
Respondent
ASIF MOWJEE--ApplicantvsZAHEER ABBAS and others
Law:
Section:
(a) Civil Procedure Code (V of 1908)--- ----S. 12(2) & O.XXIII, R.3---Qanun-e-Shahadat, (10 of 1984), Art.113---Setting aside of decree---Plea of fraud, or misrepresentation---Consent/compromise decree--- Scope--- Applicant sought to set aside consent/comprise decree in a suit---Contention of applicant was inter alia that "written statement", "applications" and "vakalatnama" of applicant's counsel were obtained by the plaintiffs by putting him and his family under extreme duress and eminent threat or fear---Held, that provisions of S.12(2), C.P.C. could only be pressed into service where any "fraud" or "misrepresentation" was played upon the court during "proceedings", and not otherwise ---Application under S.12(2), C.P.C., in the present case, was framed and filed in a way that no fraud or misrepresentation had even been alleged ---Grounds alleged by the applicant were alien to S.12(2), C.P.C. and were not requisite grounds for assailing decree under S.12(2), C.P.C.---"Fraud" or "misrepresentation" was not only to be alleged, but also were to be proved---All averments /assertions made in the plaint had been admitted by the applicant in his "written statement", and such admissions were binding upon the applicant in view of Art.113 of the Qanun-e-Shahadat, 1984---Respondents had filed counter affidavits to the application under S.12(2), C.P.C. which had gone unchallenged/uncontroverted---All documents including the "vakalatnama" was signed by the applicant, and as such the consent decree passed was not the result of any fraud or misrepresentation particularly when the counsel as per the "vakalatnama" was authorized to compromise the suit---Impugned consent order and decree were not open to interference---Application under S.12(2), C.P.C. was dismissed, in circumstances. Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi 2002 SCMR 1761; Wazir Hussain v. Abdul Rehman through legal heirs and another 2002 YLR 1600; Land Acquisition Collector Tarbella Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another 1996 MLD 1587; Government of Sindh through the Chief Secretary and others v. Khalil…