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High Court Appeal No.31 of 1987, decided on 30th March, 1987
---Ss.12(2) & 151--Application for setting aside decree on ground of fraud--Appeal against rejection of application--Competency of application--Where Court proceeded with case ex parte after due service on defendant and defendant was unable to point out any fraud, misrepresentation or want of jurisdiction, application under S.12(2), C.P.C., held, would not be competent and liable to be dismissed being misconceived.
Faizanul Haq for Appellant.
Date of hearing: 30th March, 1987.
.--This appeal is directed against the order dated 6-10-1986 passed by a learned Single Judge of this Court in J. M. Appeal No.42 of 1986, dismissing the appellant's application under Section 12(2),CPC R/W Section 151, C.P.C.
The brief facts leading to the filing of the above appeal are that the respondent filed Suit No.691 of 1980 for the recovery of Rs.95,000 plus interest and costs. The appellant was served with the summons of the suit, after that he had put in appearance inasmuch as he filed his written-statement. After framing of the issues the case was listed for evidence, inter alia on 10-10-1983 for which he was allegedly given a notice by the office of the High Court. After that when the case had come up for evidence again the appellant was not allegedly served with the notice of the date of hearing as the learned counsel for the respondent had allegedly pointed out Rule 20 of the Sind Chief Court Rules (O.S.), which does not provide any notice for the date of hearing after service of the summons on a defendant. The learned Single Judge agreed to the above submission and proceeded with the suit and decreed the suit in favour of the respondent. Thereupon, the applicant filed the aforesaid application, which was dismissed by the learned Single Judge by the order under appeal as being misconceived.
We have called upon the learned counsel for the appellant to satisfy us, as to how the appellant's application a/s. 12(2), CPC was competent as there was no fraud committed by the respondent nor there was any misrepresentation nor there was any infirmity of jurisdiction. He was unable to satisfy us as evidently there was no such fraud or misrepresentation or the case of want of jurisdiction. The learned Single Judge had proceeded with the suit ex parte after due service of summons on the appellant. It was his duty to have been present on the date of evidence after ascertaining the date. In this view of the matter, the learned Single Judge has rightly held that the appellant's aforesaid application was misconceived. We, therefore, dismiss this appeal in limine.
These are the reasons in pursuance of the short order of even date.
H. B. T./U-14/K Appeal dismissed
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