Tuesday, May 8, 2012

Written Arguements on Application U/S. 12(2) CPC


IN THE  COURT  OF  IIIrd. CIVIL  JUDGE AT KARACHI (WEST)
Civil Suit No. 812/10.
Execution No. 01/11.
                                                                                 

Abdul AZiZ Khan        …………………………               APPLICANT

VERSUS

Muhammad Wakeel Khan ………………             RESPONDENT


WRITTEN ARGUMENTS IN SUPPORT OF APPLICATION U/S.12(2) CPC

On behalf of the applicant, above named, I do hereby argue/urge/state as under:

1.    That the so-called Cash Memo/receipt neither bears any kind of serial No, and nor it shows that the applicant has purchased 12 sugar bags on loan/credit basis viz. annexureP-1”.

2.    That the plaintiff is poor and job less person and he is not a whole seller and retailer of any shop but he sells candies and toffees.

3.    That the plaintiff annexed, filed, produced Cash Memo/receipt which is forged, fabricated, manipulated, concocted and false manufactured.

4.    That the so-called Cash Memo/receipt, itself, does not show any so-called guaranty nor it bears any kind of serial No.

5.    That the Plaintiff never received any legal notice in this respect.

6.    That the Plaintiff filed this suit on the basis of forged, fabricated, manipulated, concocted and false manufactured memo/receipt, entirely with enmity and ulterior motive which is only is not permissible & no decree can be issued on the basis of forged, fabricated, manipulated, concocted and false manufactured Memo/receipt, and I have no option but to file this accompanying application.

7.    That judgment & decree has been obtained on basis of forged, fabricated, manipulated, concocted and false manufactured Memo/receipt and the plaintiff has misguided this Hon’ble Court deliberately, willfully with mala fide intention viz. annexureA”, Exhibit P/1.

8.    That the Plaintiff filed this suit entirely on the basis of forged, fabricated, manipulated, concocted and false manufactured Memo/receipt, which is not permissible & no decree can be issued & I have no option but to file this accompanying application.
Section 12 (2) CPC
Where a person challenges the validity of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate Suit.

And it was settled and held:
Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice :1994 SCMR 782
S.12 (2) CPC Entire case was not examined in its correct perspective which resulted in grave miscarriage of justice. [p. 786] A.

Judgment had been obtained on basis of a forged document
Leave to appeal was granted to examine the scope of S.12 (2) CPC, with a view to ascertain whether it included the grounds that a judgment had been obtained on basis of a forged document. 1993 SCMR [p. 712] A.

Fraud
Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud.
1993 SCMR [p. 714] C.

Fraud vitiates the most solemn proceedings. 1994 SCMR [p. 790] F.

S.12(2)---Where a decree was  allegedly obtained on the forged certified copy of entry made in a Register of Death kept under the Births, Death and Marriage Registration Act 1886, the same would amount to fraud and application under S12(2) CPC, would be competent on basis thereof. 1993 SCMR [p. 715] D.
            In the circumstances and for going reasons this appeal is allowed, the impugned judgments are set aside. The Application U/S. 12(2) CPC shall stand remanded to the District Judgment for entrustment to the appropriate Court for decision in accordance with law.
1993 SCMR [p. 715] D.

Serious allegation of fraud, collusion and misrepresentation: 2006 SCMR 1530
S.12(2)---Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation---Dismissal of application summarily by Trial Court was upheld in revision and by High Court in constitution petition---Validity---Disposal of application in such manner was not justified in view of serious allegation leveled therein----Trial Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without recording evidence of parties----Inquiry directed by Supreme Court accepted appeal set aside impugned judgment of High Court and Courts below directing that such application would be deemed to be pending before Trial Court for its decision within specified time after framing issues and recording evidence of parties. 2006 SCMR 1530-1532 A & B.

Serious allegation of Forgery, fraud, collusion and misrepresentation could not be decided without recording of evidence: 2008 SCMR 236
Case Remanded.
S.12(2)---Application U/ S.12(2) CPC. Containing serious allegations of forgery and fraud could not be decided without recording of evidence. 2008 SCMR 236, [p.239] A.
2006 SCMR [p. 1532] A & B.
1993 SCMR [p. 712] A.

Trail Court aught to frame issues and record evidence of parties, particularly when decree had also been passed without evidence of parties.
Decree passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation-Plea of petitioner was that exemption orders were invalid, fictitious, forged thus----Dismissal of application summarily by trial Court was upheld in revision and by High Court in Constitutional Petition---Disposal of application in such manner was not justified in view of serious allegations leveled therein—Trail Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without evidence of parties. 2006 SCMR [p. 1532] A & B.

Status Quo Confirmed : 1987 CLC 484
S.12(2)---Applicant challenging validity of decree under S.12(2) CPC, Status quo order issued earlier was confirmed in order to avoid third party interest and to avoid complications. [p.485] A.

Status Quo was maintained: 1994 SCMR365
S.12(2)---The ex parte decree of which the execution is sought is under challenge before trial Court on grounds of fraud and collusion and matter being sub judice, the trial court had properly exercised its discretion in maintaining status quo, and the appellate court without substantial judgment of revisional court. 1994 SCMR [p.367] A.

9.    That I say that it has come to applicant’s knowledge on 17.03.2012 warrant of arrest was issued in instant matter by this Hon’ble Court so without any delay I approached to this Hon’ble Court.
Relied upon:
Ex Parte decree had been obtained on basis of defective and false service on applicant in collusion with bailiff of court 1987 MLD 1253 [p.1255].

10. That unless the accompanying application is not allowed the applicant shall be prejudiced and bear irreparable loss, which cannot be measured monetarily.
Karachi.
Dated: -
S M ZUBAIR
Advocate for the Applicant

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