2013 Y L R 565
2013 Y L R 565
[Lahore]
Before Syed Iftikhar Hussain Shah, J
NOORANG---Petitioner
Versus
UMAR DARAZ and others---Respondents
C.Ms. Nos.1156-C/R and 656-C/95 in Civil Revision No.474-D of 1994, decided on 4th December, 2012.
(a) Civil Procedure Code (V of 1908)---
----Ss. 12(2), 141 & O.IX R 13---Application under S. 12(2), C.P.C. was dismissed for non-appearance of applicant---Procedure---Applicant sought restoration of said application on the ground that his counsel had passed away and he therefore had no knowledge as to the fixation of application for hearing---Validity---Procedure for deciding application under S. 12(2), C.P.C. was the same which was applicable for adjudication of disputes and even otherwise under S. 141, C.P.C., procedure prescribed in C.P.C. in respect of suits was to be followed as far it could be made applicable in all proceedings in any court of civil jurisdiction---If application under S.12(2), C.P.C. was dismissed for non-appearance, then procedure prescribed for restoration of the same under O.IX, C.P.C. will be applicable for the restoration of the application---Ground taken by applicant in his restoration application was supported by affidavit and same was within time---High Court allowed application for restoration of application under S. 12(2), C.P.C. in circumstances.
(b) Administration of justice---
----Law favoured adjudication of disputes among litigants on merits and technicalities should not be made a hurdle in the way of justice.
Syed Muhammad Ali Gilani for Applicant.
Ch. Habib Ullah Nehang for Respondents.
ORDER
SYED IFTIKHAR HUSSAIN SHAH, J.---The petitioner has made this petition for the restoration of C.M. No.656-C of 1995 moved under sec-tion 12(2), C.P.C. in Civil Revision No.474 of 1994, which was dismissed in default due to the non-appearance of the petitioner on 14-5-2012.
2. Learned counsel for the petitioner has contended that the learned counsel representing the petitioner before this Court had passed away and the petitioner had no knowledge about the fixation of the petition before this Court; that the absence of the petitioner was neither intentional nor due to his negligence, therefore, the same is liable to be restored.
3. On the other hand, learned counsel for the respondents has contended that there is no provision for the restoration of application made under section 12(2), C.P.C. and the application for the restoration lies only when a suit is dismissed. Furthermore, different Advocates had been representing the petitioner on different dates and late Mirza Manzoor Ahmad, Advocate was not the only learned counsel representing the petitioner throughout the proceedings, therefore no cogent reason exists to restore the petition.
4. Arguments heard. Record perused.
5. The petitioner made a petition under section 12(2), C.P.C. for setting aside judgment and decree dated 24-5-1995 passed in Civil Revision No.474-B of 1994 on the basis of fraudulent compromise. On 14-5-2012 nobody appeared on behalf of the petitioner despite repeated calls, therefore, the petition was dismissed. The petitioner has made application for the restoration of the said petition. Under section 12(2), C.P.C., a judgment, a decree or order obtained by practising fraud and misrepresentation can be challenged and no separate suit lies. The procedure for deciding the said petition is the same which is applied for the adjudication of civil suits and appeals. Even otherwise under section 141, C.P.C. the procedure prescribed in the Code of Civil Procedure in respect of suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. If an application made under section 12(2), C.P.C. is dismissed due to non-appearance of the petitioner, then obviously the procedure prescribed for the restoration of the suit under Order IX, C.P.C. will be applicable for the restoration of the application.
6. The petitioner has alleged that his original counsel had passed away and he had no knowledge of the fixation of the petition before this Court and the application has been made within time which is duly supported by an affidavit. The law favours the adjudication of disputes among the litigants on merits and the technicalities should not be made hurdle in the way of justice.
Therefore, in the interest of justice, the application in hand is allowed and C.M. No.656-C of 1995 is restored to its original number. Office to fix the same on 19-12-2012.
KMZ/N-76/L Application allowe
[Lahore]
Before Syed Iftikhar Hussain Shah, J
NOORANG---Petitioner
Versus
UMAR DARAZ and others---Respondents
C.Ms. Nos.1156-C/R and 656-C/95 in Civil Revision No.474-D of 1994, decided on 4th December, 2012.
(a) Civil Procedure Code (V of 1908)---
----Ss. 12(2), 141 & O.IX R 13---Application under S. 12(2), C.P.C. was dismissed for non-appearance of applicant---Procedure---Applicant sought restoration of said application on the ground that his counsel had passed away and he therefore had no knowledge as to the fixation of application for hearing---Validity---Procedure for deciding application under S. 12(2), C.P.C. was the same which was applicable for adjudication of disputes and even otherwise under S. 141, C.P.C., procedure prescribed in C.P.C. in respect of suits was to be followed as far it could be made applicable in all proceedings in any court of civil jurisdiction---If application under S.12(2), C.P.C. was dismissed for non-appearance, then procedure prescribed for restoration of the same under O.IX, C.P.C. will be applicable for the restoration of the application---Ground taken by applicant in his restoration application was supported by affidavit and same was within time---High Court allowed application for restoration of application under S. 12(2), C.P.C. in circumstances.
(b) Administration of justice---
----Law favoured adjudication of disputes among litigants on merits and technicalities should not be made a hurdle in the way of justice.
Syed Muhammad Ali Gilani for Applicant.
Ch. Habib Ullah Nehang for Respondents.
ORDER
SYED IFTIKHAR HUSSAIN SHAH, J.---The petitioner has made this petition for the restoration of C.M. No.656-C of 1995 moved under sec-tion 12(2), C.P.C. in Civil Revision No.474 of 1994, which was dismissed in default due to the non-appearance of the petitioner on 14-5-2012.
2. Learned counsel for the petitioner has contended that the learned counsel representing the petitioner before this Court had passed away and the petitioner had no knowledge about the fixation of the petition before this Court; that the absence of the petitioner was neither intentional nor due to his negligence, therefore, the same is liable to be restored.
3. On the other hand, learned counsel for the respondents has contended that there is no provision for the restoration of application made under section 12(2), C.P.C. and the application for the restoration lies only when a suit is dismissed. Furthermore, different Advocates had been representing the petitioner on different dates and late Mirza Manzoor Ahmad, Advocate was not the only learned counsel representing the petitioner throughout the proceedings, therefore no cogent reason exists to restore the petition.
4. Arguments heard. Record perused.
5. The petitioner made a petition under section 12(2), C.P.C. for setting aside judgment and decree dated 24-5-1995 passed in Civil Revision No.474-B of 1994 on the basis of fraudulent compromise. On 14-5-2012 nobody appeared on behalf of the petitioner despite repeated calls, therefore, the petition was dismissed. The petitioner has made application for the restoration of the said petition. Under section 12(2), C.P.C., a judgment, a decree or order obtained by practising fraud and misrepresentation can be challenged and no separate suit lies. The procedure for deciding the said petition is the same which is applied for the adjudication of civil suits and appeals. Even otherwise under section 141, C.P.C. the procedure prescribed in the Code of Civil Procedure in respect of suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. If an application made under section 12(2), C.P.C. is dismissed due to non-appearance of the petitioner, then obviously the procedure prescribed for the restoration of the suit under Order IX, C.P.C. will be applicable for the restoration of the application.
6. The petitioner has alleged that his original counsel had passed away and he had no knowledge of the fixation of the petition before this Court and the application has been made within time which is duly supported by an affidavit. The law favours the adjudication of disputes among the litigants on merits and the technicalities should not be made hurdle in the way of justice.
Therefore, in the interest of justice, the application in hand is allowed and C.M. No.656-C of 1995 is restored to its original number. Office to fix the same on 19-12-2012.
KMZ/N-76/L Application allowe
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