Law: Civil Procedure Code (V of 1908)

Section: 12(2),11

Law: Constitution of Pakistan, 1973

Section: 199

Civil Procedure Code, 1908 (V of 1908)-- ----S. 12(2) & O. VII R. 11--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Rejection of plaint--Decree on basis of fraud & misrepresentation--Petitioner filed an application under S. 12(2), alleging that decree had been obtained by fraud & misrepresentation--Respondent filed application U/O VII Rule 11, which was allowed, consequently, petitioner's application was dismissed--Upheld in Appeal--Challenge to--Validity--An order for dismissal of application under S. 12(2), CPC is not appealable but petitioner wrongly challenged order of trial Court in appeal that has been dismissed--Delay occurring due to availing of wrong remedy is not condonable--Trial Court was bound to frame issues and decide application under S. 12(2), CPC after recording of evidence and that dismissal of said application under O. VII R. 11 is void as O. VII. R. 11 is not applicable to proceedings under S. 12(2), CPC--If contents of application under S. 12(2), CPC don't inspire confidence and material grounds of fraud & misrepresentation are not clearly spelt out from its contents, same can be out rightly dismissed without recording of evidence--Application u/S. 12(2), CPC are not essentially proceedings of a suit but they are same as in suit with only exception that after its acceptance original suit/plaint is revived--Conditions applicable to plaint are totally different from that as for application under S. 12(2), CPC--If applicability of O. VII R. 11, CPC is ruled out even then if contents of application under S. 12(2), CPC does not contain specific accounts of fraud and misrepresentation and inspire confidence, it can be dismissed summarily, to avoid abuse of process of law and by unnecessarily dragging an innocent decree holder in litigation--It is sufficient to hold that, firstly, no fraud and misrepresentation has been committed to justify interference in constitutional petition--Secondly, contents of application don't contain specific allegations of fraud to implicate his father, previous attorney, in any fraud--Certificate appended with civil revision was neither signed by any one of parties or his attorney…

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