Law: Civil Procedure Code (V of 1908)

Section: 12(2),13,11

Law: Azad Jammu and Kashmir Interim Constitution Act, 1974

Section: 44

Civil Procedure Code (V of 1908)--- ----S. 12(2), O. IX, R. 13 & O. VII, R. 11---Fraud and misrepresentation---Application under S.12, C.P.C. for setting aside of ex parte decree---Maintainability---Grounds for setting aside an ex parte decree under O.IX, R.13 & S.12(2), C.P.C.---Distinction---Respondents moved application under O.VII, R.11, C.P.C. which was dismissed by the Trial Court but Appellate Court accepted the same on the ground that application under S.12(2), C.P.C. was not competent for setting aside of ex parte decree---Validity---When it had been alleged in the application that by practicing fraud upon the Court or through misrepresentation a decree was obtained, Court was competent to set the same at naught irrespective of the fact whether decree was passed ex parte or otherwise---Grounds for setting aside of an ex parte decree under O.IX, R.13, C.P.C. were different from those mentioned in S.12(2), C.P.C.---Under O.IX, R.13, C.P.C. applicant/defendant had to show a sufficient cause for his absence from the Court and if Court came to the conclusion that absence of defendant was not wilful or deliberate or he was not duly served with summons, the Court could set aside the ex parte decree---If decree was passed without jurisdiction or some fraud had been practiced upon the Court or through misrepresentation decree was obtained then Court should set it aside under S.12(2), C.P.C.---If fraud was committed between the parties even then decree passed upon such fraud could be set at naught---Facts alleged in the present petition were questions of facts which could be resolved after recording evidence---Order passed by the Appellate Court was set aside---High Court held that application under S.12(2), C.P.C. was to be deemed to be pending and directed the Trial Court to decide the application on merits---Writ petition was allowed in circumstances. 2008 CLC 75; 1998 CLC 1229; 2008 SCMR 236; 1996 SCMR 1528; 2006 SCMR 531; 2005 SCMR 296 and 2007 CLC 1865 ref. 2004 SCMR 843 and 1993 MLD 1617 rel. THIS JUDGMENT DELIVERED BY: MOHAMMAD SHERAZ KAYANI, JUSTICE:---.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim…

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