IN
THE COURT OF IIIrd. CIVIL JUDGE AT KARACHI (WEST)
Civil
Suit No.1174 /10.
Execution No. 02/11.
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 applicant never stood surety/guarantor for any one for anything else and I
also never signed as a guarantor as shown in annexure “A”, Exhibit P/1,.
2. That
the plaintiff annexed, filed, produced Cash Memo/receipt which is forged,
fabricated, manipulated, concocted and false manufactured.
3. That
the so-called Cash Memo/receipt, itself, does not show any so-called guaranty
nor it bears any kind of serial No.
4.
That the applicant never received any legal
notice in this respect.
5. 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.
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. annexure
“A”, Exhibit P/1.
8.
That the Plaintiff filed this suit entirely
on the basis of forged and manipulated memo/receipt which is not permissible
& no decree can be issued & I have no option but to file this
accompanying application.
9.
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.
10. That
the applicant 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].
11. That
unless the accompanying application is not allowed the applicant shall be
prejudiced and bear irreparable loss, which cannot be measured monetarily.
12. That
whatever stated above is true and correct to the best of my knowledge and
belief.
Karachi.
Dated: -
S M ZUBAIR
Advocate
for the Applicant
