Law: Code Of Civil Procedure, 1908.

Section: 12(2), 5, 14

Law: Limitation Act, 1908

Section:

REMARKS

A declaratory suit was decreed by the learned trial Court and appeal filed there against was dismissed by the learned appellate Court. During execution proceedings, the petitioners filed application under Section 12(2) CPC to the effect that they being necessary party, were not impleaded in the suit, therefore, the decree was based on misrepresentation and fraud. Learned Civil Court tried and accepted the application under Section 12(2) CPC, however, the learned Revisional Court held that the application under Section 12(2) CPC was not maintainable before the Civil Court, rather same was required to have been filed before the appellate Court, as such ordered return of application to the learned Civil Court. The petitioners then filed fresh application under Section 12(2) CPC before the learned appellate Court. The learned appellate Court dismissed the application on the ground of limitation.
Held;
In the case in hand, the petitioners had been pursuing their application under Section 12(2) CPC before the wrong forum, therefore, they are required to fulfil the conditions provided in sub-Section (2) of Section 14 of the Act, i.e. that such proceedings were prosecuted in good faith. If the petitioners succeed to meet out such requirement of sub-Section (2) of Section 14, they would be entitled to get benefit and in case of their failure, such benefit could not be extended to them.
No doubt, the petitioner preferred fresh application, instead of filing the returned memo of petition, however, the returned memo of petition was annexed with the subsequent fresh petition and the fresh petition was in continuation of the former application.
No lapses were found on behalf of the petitioners, while pursuing their application before the wrong forum, i.e. the Court of learned Civil Judge-VI, Mansehra. The application under Section 12(2) CPC was entertained and decided by the learned Civil Judge-VI, Mansehra. Upon decision of revision petition by the revisional Court, the learned Civil Judge-VI, ordered return of petition under Section 12(2) CPC on 22.12.016 and the petitioners filed application under Section 12(2) CPC before the learned Additional District Judge-II, Mansehra on 23.12.2016, which was well within time. The time consumed in pursuing the application before the learned Civil Judge-VI, Mansehra, was required to have been excluded, because the petitioners were able to establish that the proceedings were being pursued before the learned Civil Judge-VI, Mansehra in good faith and secondly, they could not be made to suffer due to act of the Court, because in view of the findings rendered above, it was also the duty of the Court to have returned the petition to the petitioners for its presentation before the Court, having jurisdiction in the matter, while the learned Civil Judge-VI, Mansehra, instead of returning the petition, entertained and decided the same.
Revision Petition allowed.

Summary:Two-Word Description:
Fraud Remedy
The petitioners filed an application under Section 12(2) CPC claiming they were not impleaded as necessary parties in an earlier suit and that the decree was obtained by fraud. Their application was initially filed in the wrong forum (Civil Judge) and later returned by the Revisional Court to be filed in the correct forum (Appellate Court). The lower court dismissed the application as time-barred. The High Court held that the petitioners acted in good faith, pursued the matter diligently, and the time spent before the wrong forum should be excluded. The High Court allowed the Civil Revision, restored the Section 12(2) CPC application, and remanded it for decision on merits.