IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APPEAL NO.49 OF 2015 
(Against the judgment dated 4.9.2014 of 
the 
Peshawar 
High 
Court, 
Peshawar 
passed in RFA No.217/2014) 
 
 
Haji Farman Ullah 
 
…Appellant(s) 
VERSUS 
Latif-ur-Rehman 
 
…Respondent(s) 
 
For the appellant(s): 
Ghulam Mohy-ud-Din Malik, Sr. ASC 
 
 
For the respondent(s): 
Mr. Khalid Mahmood, ASC 
 
 
Date of hearing: 
06.05.2015 
… 
ORDER 
 
 
MIAN SAQIB NISAR, J.- This appeal with leave of the 
Court dated 20.1.2015 entails the facts, in that, the appellant 
brought a suit for specific performance against the respondent and 
procured a decree dated 30.6.2012 (which was ex-parte). The respondent 
moved an application not under Order 9 Rule 13 CPC, rather the 
provisions of Section 12(2) CPC claiming that the decree has been 
procured through fraud and misrepresentation. This application was 
contested by the appellant and on the basis of the pleadings 
(application and reply), the learned trial court was pleased to frame the 
following issues:- 
“1. 
Whether the Petitioner has got a cause of 
action? 
2. 
Whether the impugned decree was obtained 
through fraud, deceit and misrepresentation? 
C.A.49 of 2015 
-: 2 :-
3. 
Whether all the necessary parties have been 
impleaded, its effect? 
4. 
Whether the petitioner is entitled to the relief as 
prayed for? 
5. 
Relief.” 
 
The parties on account of the above issues led evidence. The learned 
Civil Judge seized of the matter vide order dated 19.5.2014 accepted 
the application (under Section 12(2) CPC) and set aside the decree under 
challenge, however, held that the suit cannot be revived. In this 
context the court adjudged “It is further held that in addition to the 
acceptance of this application there is no need of reviving of the suit No.118/1 by the 
titled Farmanullah....Vs....Latifur Rehman instituted on 07.06.2012 decided on 
30.06.2012. In this respect reliance is placed on PLD 1995 LHR 76 Citation-D, 
relevant portion is hereby reproduced as under:- (d) Specific Relief Act (1 of 1877). 
Setting aside decree on ground of fraud----Specific concurrent findings recorded by 
Courts below that decree in previous suit against present plaintiff was result of fraud 
as he was not served and that he received no consideration for the land in question--
--controversy between parties thus, stood effectively resolved by concurrent findings 
of court below----Revival and re-hearing of previous suits would be futile, therefore, 
previous suits in which fraudulent decree had been passed against present plaintiff 
stood dismissed”. This order of the Civil Judge was challenged by the 
appellant in RFA (note:- as the suit was also dismissed and the decree was drawn as well) 
which has been dismissed through the impugned judgment. Leave in 
this case primarily was granted to consider if after the acceptance of 
the application under Section 12(2) CPC filed by the respondent, the 
suit of the appellant should have been revived or it was rightly 
dismissed by the fora below.  
2. 
 
Learned counsel for the appellant by relying upon the 
judgment of this Court reported as Falak Khurshid Vs. Fakhar 
C.A.49 of 2015 
-: 3 :-
Khurshid and others (2006 SCMR 595) has submitted that the only 
jurisdiction vested with the trial court, as also the learned High Court 
was to set aside the ex-parte decree and revive the suit of the 
appellant enabling the respondent to contest the same on merits and 
get a decision accordingly (on merits). 
3. 
 
Learned counsel for the respondent has argued to the 
contrary and has relied upon the judgments reported as Sheikh 
Muhammad Sadiq Vs. Illahi Bakhsh and 2 others (2006 SCMR 
12), Nirsan Singh Vs. Kishuni Singh (AIR 1931 Patna 204), 
Chandi Charan Pandit and others Vs. Sarat Chandra Sarma and 
others (AIR 1955 Assam 231) and Allah Ditta and another Vs. 
Bashir Ahmed alias Faqiria (PLD 1995 Lah 76) to submit that in 
certain circumstances where sufficient material/evidence has come 
on record, the court while deciding an application under Section 
12(2) CPC could also dismiss the main suit. 
4. 
 
Heard. Prior to the Ordinance X of 1980, if a person was 
aggrieved of any judgment and decree etc. which according to him 
affected his rights and was the result of fraud and misrepresentation 
etc., he, in order to challenge the same, had to initiate a separate suit 
for the annulment thereof. However, by virtue of the above 
Ordinance, amendment was brought by way of Section 12(2) whereby 
the following was added to the Code of Civil Procedure (CPC):- 
“Where a person challenges the validity of a judgment, 
decree or order on the plea of fraud, mis-
representation 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.” 
 
Thus after the insertion of this new provision, the validity of a 
judgment and decree etc. obtained or alleged to have been obtained 
C.A.49 of 2015 
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on the basis of fraud and mis-representation or from a court having 
no jurisdiction could only be challenged by moving an application to 
the same court which passed the final decree etc. and not by a 
separate suit. Obviously if such application is straightaway conceded 
to by the plaintiff/decree holder, the judgment, decree/order assailed 
shall be set aside and the suit of the plaintiff shall automatically 
stand revived; however if the application is resisted/contested by the 
decree holder, the court may frame the issues (note: if need be, because on all 
such applications it is not imperative to do so; or to hold the trial, as the application under section 
12(2) CPC can be dismissed on the basis of pleadings of the parties simpliciter as the facts of the case 
may warrant) on the basis of the pleadings before it, which issues 
ordinarily and particularly in this case are restricted to and are 
primarily meant for the purposes of adjudication and determination 
of the application under Section 12(2) CPC. The issues so framed do 
not even cover the main controversy between the parties, which 
controversy may ultimately arise between them once the decree is set 
aside, the suit is revived and the defendant of the case (the appellant 
under Section 12(2) CPC) files his written statement and joins issue on the 
merits of the case. It may be pertinent to mention here that the 
purpose of framing issues in a civil litigation is that the parties must 
know the crucial and critical factual and legal aspects of the case 
which they are required in law to prove or disprove through evidence 
in order to succeed in the matter on facts and also the points of law.  
5. 
 
If after the contest of the application under Section 12(2) 
CPC, the court comes to the conclusion that the decree did suffer 
from vice as is stipulated by the section, it shall accept the same and 
as a general and ordinary rule and matter of course, the suit of the 
plaintiff shall stand revived and thereby give a chance to the 
defendant (the applicant under Section 12(2)) to file his written statement, for 
C.A.49 of 2015 
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the purposes of setting up his defence in the main suit. Thereafter, 
the case shall be tried and decided on its own merits per the law 
prescribed for a suit (after the revival thereof). It is in very exceptional, 
special and extra-ordinary circumstances where e.g. the plaint does 
not disclose a cause of action or is barred under the law, that while 
accepting the application (under the provisions of Section 12(2) CPC), the court 
may also reject the plaint or even dismiss the suit for want of 
jurisdiction, where the jurisdiction of the court is clearly and 
undoubtedly barred under the law and there is no valid reason to 
revive and try the suit which the court otherwise has no jurisdiction 
to entertain and adjudicate upon. In this context, it may be pertinent 
to mention that in appropriate cases of want of jurisdiction, the court 
while accepting the application under Section 12(2) CPC may order 
for the return of the plaint under Order 7 Rule 10 CPC so that the 
matter is tried by a court of competent jurisdiction. But where there 
is a controversy of facts or of law between the parties in the main lis, 
while accepting the application (under Section 12(2) CPC), the suit cannot 
and should not be dismissed. It can even not be dismissed in those 
cases where for the determination and resolution of the said 
application, either one of the parties or both have brought some 
evidence on record which has or may have nexus to the merits of the 
suit as well, if and when it goes to the trial. For example, if in a suit 
for specific performance, a decree has been procured by the plaintiff, 
which vide an application (under Section 12(2) CPC) is challenged by 
defendant or any other person and it is the case of the applicant that 
he did not execute an agreement to sell, or when the applicant is a 
third party (not party to the suit) has taken his own defence and asserted 
right to the suit property which fact(s) is/are rebutted by the decree 
holder/plaintiff in reply thereto, however, the court does not frame 
C.A.49 of 2015 
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any issue about the valid execution of the agreement to sell or other 
factual aspect of the matter on the main suit, rather the issues 
framed are restricted to the pleadings of the proceedings on the said 
application .e.g. where the decree has been obtained through fraud 
etc., if the plaintiff in order to disprove the element of fraud etc. and 
to establish his honesty and bona fide of his claim in the suit, brings 
some evidence on the record, which is not found by the court to be 
credible and good enough for the proof of the agreement to sell or his 
claim for specific performance, only for the reason that the evidence 
which has been brought on record lacks quality and standard of 
proof, the suit shall not be dismissed by the court while allowing the 
application under Section 12(2) CPC. The reason for this is that 
because the pleadings of the party were not yet complete in the main 
matter, and the issues in relation to the merits of the case were even 
not yet framed, the plaintiff could not be said to have the awareness 
and knowledge to prove his suit or to have been put to notice that his 
suit shall be dismissed in the eventuality he does not prove his case 
on merits. The suit thus in such a situation cannot be dismissed as 
mentioned above rather has to be revived. In support of the above, 
reliance can be placed on the judgment of this Court reported as 
Falak Khurshid Vs. Fakhar Khurshid and others (2006 SCMR 
595) which enunciates the law to the effect “In fact in case the trial Court 
found after recoding of evidence that the judgment and decree were obtained by 
fraud and misrepresentation he would have only allowed the said application and 
would have reversed/set aside the judgment and decree passed by him earlier and 
allowed the parties affording opportunity to the parties to adduce evidence if so 
desired after filing of written statement by the appellant and to dispose of the suit in 
accordance with provisions of the Code of Civil Procedure”. As regards the 
judgment cited by the respondent’s counsel reported as Sheikh 
C.A.49 of 2015 
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Muhammad Sadiq Vs. Illahi Bakhsh and 2 others (2006 SCMR 
12), the same is distinguishable on its own facts. The main feature of 
the case is that the trial as also the appellate court had rejected the 
application under Section 12(2) CPC. However in its constitutional 
jurisdiction, when invoked by the appellant under Section 12(2), the 
High Court had concluded on certain legal aspects of the matter, and 
had allowed the writ petition, set aside the order of dismissal of 
application under section 12(2), C.P.C. and also rejected the plaint in 
the suit. It is thus in the context of the above that this Court had 
come to the conclusion “This is correct that in the normal circumstances if a 
decree is set aside under section 12(2), C.P.C., the case is remanded to the trial 
Court for decision of the suit on merits in accordance with law but in the facts 
and circumstances of the present case and the evidence brought on record by the 
parties in the proceedings under section 12(2), C.P.C., no useful purpose would 
be served in remanding the case to the trial Court”. In any case this is a 
leave refusing order and as is clear from the law laid down in 
Muhammad Tariq Badr and another Vs. National Bank of 
Pakistan and others (2013 SCMR 314), such an order by this 
Court refusing leave or granting the same is not the law enunciated 
by the court. Even otherwise as is clear from the reproduced 
paragraph, no law is being enunciated by the court and in the very 
special circumstances of that particular case the order of the High 
Court was not interfered with. Otherwise the court in very clear 
and unequivocal terms has avowed to the correct exposition of law 
i.e. when it expressed i.e. “This is correct that in the normal circumstances 
if a decree is set aside under section 12(2), C.P.C., the case is remanded to the 
trial Court for decision of the suit on merits in accordance with law”. This is 
an 
acknowledgment 
that 
only 
in 
very 
rare 
and 
special 
circumstances can the suit also be dismissed by the court while it 
C.A.49 of 2015 
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accepts an application under Section 12(2) ibid. This exception was 
resorted to in the judgment of the Lahore High Court reported as 
Allah Ditta and another Vs. Bashir Ahmed alias Faqiria (PLD 
1995 Lah 76). The validity of this judgment shall be examined in 
some appropriate case as it is absolutely inapplicable to the facts and 
circumstances of this case, as especially in that case, though the 
matter had the genesis in the application under Section 12(2) CPC, 
but subsequently a suit was filed and it is in the suit that the 
following issues were framed:- 
“(1) 
Whether the ex parte decree in Suit No.73 
dated 23-4-1966 was obtained fraudulently 
and collusively and by giving the wrong 
address of the plaintiff ? OPP. 
 
(2) 
Whether the sale of suit land took place for 
consideration and with the knowledge of 
the plaintiff ? OPD (onus objected to). 
  
(3) 
Whether the transaction in dispute is 
against Martial Law Regulation? If so, its 
effect? OPD. 
  
(4)  
Relief.” 
 
It is on the basis of such issues that the parties led evidence and the 
court came to the conclusion that when sufficient evidence has come 
on the record and the parties were cognizant of the real controversy, 
it was not necessary to revive the suit. Here the position is altogether 
different. As regards the judgment reported as Nirsan Singh Vs. 
Kishuni Singh (AIR 1931 Patna 204), the court did not give a 
definitive opinion that in all circumstances the suit should be 
dismissed when a decree having been obtained on the basis of fraud 
and mis-representation is set aside. The only exception again created 
thereto is that where the parties were aware of the controversy vis-à-
vis the merits of the case and had accordingly produced evidence to 
C.A.49 of 2015 
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that effect, in special situations, the court might dismiss the suit as 
well but here as is clear from the issues pointed out earlier, the 
parties were not cognizant of leading evidence vis-à-vis merits of the 
case, rather the pleadings of the parties were yet incomplete because 
no written statement had been filed by the respondent as yet, 
therefore, even if any evidence has been brought on the record by the 
decree holder/plaintiff to resist the application under Section 12(2) 
CPC to establish that an agreement to sell was executed in his 
favour, the defendant would not be precluded from getting the suit 
revived. It is postulated in the CPC that in normal course for the 
determination of a civil lis, after the plaint has been filed, the written 
statement must be called for, issues should be framed on the basis of 
the pleadings of the parties and the parties must be enabled to lead 
evidence according to the onus placed upon them and it is only 
thereafter while hearing the argument in terms of Section 20 Rule 1 
that judgment should be pronounced by the courts (note:- however this part 
of the judgment may not be construed to apply where plaint can be rejected under the law or summary 
dismissal of suit is permissible under any special law or CPC). All these aspects are 
conspicuously missing in the present case. Resultantly we allow this 
appeal and set aside the judgments of the courts below. The suit of 
the appellant is revived and the matter is remanded to the trial court 
for decision in accordance with law after requiring the written 
statement from the respondent. 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
Islamabad, the 
   JUDGE 
6th May, 2015 
Approved For Reporting 
Waqas Naseer/*