10/1/21, 5:24 PM 2000 Y L R 212

2000 Y L R 212

[Lahore]

Before Ghulam Mahmood Qureshi, J

Messrs ORIENT OCCIDENT PRIVATE

LTD. through Wazir Ahmad, Director

of the Company and Chairman of Al‑Din

Rice Mills Private Limited,

Lahore‑‑‑Petitioner

versus

Messrs UPAZA COMMERCIAL

ENTERPRISES, GRAIN MARKET,

HAFIZABAD through Lt.‑Col. (Rtd.) Umar Khalid as Sole Proprietor/ Plaintiff

Decree‑Holder and 4 others‑‑‑Respondents

Civil Revision No. 1621 of 1998, decided on 13th October, 1999.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Setting aside of ex parte decree‑‑‑Application on the basis of fraud and

misrepresentation was filed to get such decree set aside‑‑‑Validity‑‑‑Where the
petitioner had all along been taking part in the proceedings conducted by the Trial
Court, no fraud and misrepresentation could be alleged to have been committed by the
respondents.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2) & O. IX, R.13‑‑‑Setting aside of ex parte decree‑‑‑Application under

S.12(2), C. P. C. was filed instead of application under O. IX, R.13, C. P.
C.‑‑‑Effect‑‑‑Such an application filed by defendant did not disclose any fraud
allegedly committed by the plaintiff‑‑‑Trial Court was perfectly justified in dismissing
the application and finding recorded by Trial Court about maintainability of application
filed by the defendant under S.12 (2), C. P. C. was eminently just and correct and the
same suffered from no illegality or infirmity.

Javed Akhtar v. III Additional District Judge (South Karachi) and others 1996 CLC
1300 and Riaz Qasim v. A.M.A. (Pvt.) Limited and others 1999 CLC 445 rel.

PLD 1963 (W.P.) Kar. 551 and 1993 SCMR 662 distinguished.

Rana Abdur Rahim Khan for Petitioner.

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Ch. Saeed Sabir for Respondents

Date of hearing: 24th September 1999.

JUDGMENT

The brief facts relevant for the disposal of the present Civil Revision are that the
petitioner‑company had been dealing with respondent No. 1 in rice and had purchased
rice worth Rs. 38,39,412.62 out of which Rs. 6,00,000 had been paid in cash to
respondent No.1 and Rs.32,39,412 was the balance payable by the petitioner. The
petitioner had reimbursed certain other amounts in favour of respondent No. 1 and the
balance amount was not paid. Respondent No.1/plaintiff filed a suit for recovery of Rs.
32,39,412. During pendency of the suit a compromise was affected between the parties
on 15‑9‑1996 according to which the petitioner/defendant agreed to pay the total
amount of Rs. 24,09,412 to respondent No.1 and a sum of Rs. 15,09,412 was paid by
the petitioner to the respondent. The remaining amount of Rs. 9,00,000 was to be paid
on 30‑9‑1996. On the adjourned date i.e., 30‑9‑1996 the said amount was not paid and
the suit was again adjourned. It was stated before the Court by the petitioner that some
of his cheques are with the plaintiff, therefore, he will repay the remaining amount
when the cheque books are returned to him. Instead of making payment, the
petitioner/defendant moved a miscellaneous application on 14‑12‑1996. As no body
appeared on number of dates, therefore, the case was proceeded against ex parte on
5‑4‑1997 and after recording ex parte evidence the learned Civil Judge, Hafizabad
decreed the suit of respondent No.1 vide its judgment and decree, dated 16‑4‑1997.
This judgment and decree was challenged by the petitioner through an application
under section 12(2) read with section 151, C.P.C., which was contested by respondent
No.1 and the learned Senior Civil Judge, Hafizabad vide judgment, dated 21‑9‑1998
dismissed the same. Hence this Civil Revision.

2. I have heard learned counsel for the parties at some length and have also perused the
record with their assistance. Therefore, this case is being disposed of as a notice case.

3. The learned Senior Civil Judge while dismissing the application of the petitioner
filed under section 12(2), C.P.C., made the following observation:

"As discussed above the petitioner has moved this application under section
12(2), C.P.C. The fraud/misrepresentation were not taken while passing the ex
parte decree. It is simple ex parte decree passed against the defendants. The
petitioner should have moved the application for setting aside ex parte decree.
The present application is not maintainable in its present form. The application
does not lie in the present form. The application is hereby dismissed. "

3. Admittedly the petitioner had appeared before the trial Court and had been
continuously taking part in the proceedings conducted by the learned trial Court and
suddenly he absented himself without assigning any reason. Even in his absence, his
learned counsel had been appearing before the Court who also after entering
appearance on certain dates disappeared from the Court and there was no option left to
the Court except to take ex parte proceedings against the petitioner which were
accordingly done vide order, dated 5‑4‑1997 and the case was adjourned to 12‑4‑1997
when ex parte evidence of respondent No. 1 was recorded and the case was adjourned
to 15‑4‑1997 for arguments. Ultimately the suit was decreed on 16‑4‑1997.

4. During arguments learned counsel for the petitioner submitted that the petitioner had
to go out of the country and, therefore, he was unable to appear before the Court and
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the compromise arrived at between the parties was not carried out in its letter and
spirit. Therefore, the learned trial Court was not justified in passing the decree in
favour of respondent No. 1. I do not consider that respondent No. 1 had obtained the
above said decree by playing any fraud upon the Court or by making misrepresentation
as the petitioner had gone out of country and the suit was not represented properly in
his absence. Instead of filing application for setting aside ex parte decree, the petitioner
filed an application under section 12(2), C.P.C., which was rightly dismissed by the
learned trial Court being not maintainable. In Javed Akhtar v. III Additional District
Judge (South Karachi) and others (1996 CLC 1300), it was held that for the purpose of
getting ex parte order set aside on the ground of service of summons proper provision
of law is Order IX, Rule 13, C.P.C. It was further held "that both these provisions of
laws be read independently particularly for this reason that limitation period of these
two provisions is different. It is presumed that service of summons upon the
petitioner's father was defective and the order of dismissal of application under Order
IX, Rule 13, C.P.C., was not proper, the petitioner's father could challenge the said
order of dismissal in the higher forum. As the said order was not challenged, hence it
attained finality. Thus, the point of service cannot be agitated by filing an application
under section 12(2), C.P.C., under the garb of fraud when there is specific provision of
law to agitate that point". In the present case the order, dated 5‑4‑1997 was never
challenged before any higher forum nor any application for setting side the same was
filed before the learned trial Court so the same attained finality in the eye of law. Even
in the application filed by the petitioner under section 12(2), C.P.C., in para.(j) he
admits his liability and willingness to pay Rs.9,00,000 according to compromise
whereas in para.(g), the petitioner also referred ex parte order, dated 5‑4‑1997 but
without making any prayer for setting aside the same the petitioner requested for
recalling the order and setting aside the judgment and decree, dated 16‑4‑1997. Under
Order IX, Rule 13, C.P.C., the petitioner could have applied for setting aside ex pane
decree passed against him by showing sufficient cause for his non‑appearance but the
petitioner challenged the decree under section 12(2), C.P.C., without disclosing the
fraud allegedly committed by the respondent. In Riaz Qasim v. A.M.A. (Pvt.) Limited
etc. (1999 CLC 445), it was held "that the facts stated do not reveal that any fraud or
mis?representation was practised or committed by the respondent/plaintiff in procuring
the judgment and decree from the Court, therefore, the application under section 12(2),
C.P.C., would not be competent".

6. The authorities referred by learned counsel for the petitioner PLD 1963 (W.P.)
Karachi 551 and 1993 SCMR 662 are distinguishable from the facts of the present
case. It is already held that no fraud and mis?representation was committed by the
respondents as the petitioner has all along been taking part in the proceedings
conducted by the learned trial Court.

7. The petitioner without getting the ex parte decree set aside, as provided under Order
IX, Rule 13, C.P.C., filed application under section 12(2), C.P.C., and that too without
disclosing the fraud allegedly committed by respondent No. 1. The learned trial Court
was perfectly justified in dismissing the same. The finding recorded by the learned trial
Court about maintainability of the application filed by the petitioner under section
12(2), C.P.C., is eminently just and correct and suffers from no illegality or infirmity.
This Civil Revision has no merit and the same is dismissed. No order as to E cost.

Q.M.H./M.A.K./O‑4/L

Revision dismissed.
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