MUHAMMAD IBRAHIM QURESHI vs MUHAMMAD ASLAM S — 2023 PLD 555 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD IBRAHIM QURESHI VS MUHAMMAD ASLAM S. 12---Bar to further suit---Recording of evidence---Limitation---Scope---Recording of evidence is not mandatory when the pleadings do not disclose mixed question of law and facts---When the question of limitation is one which can be resolved purely on the basis of law, without adverting to the facts, the same can be resolved even without framing the issues. S. 12---Bar to further suit---Recording of evidence---Scope---Allegations of fraud and misrepresentation normally involve investigation into questions of fact but not in every case it is obligatory for the Court to frame issues and record evidence. S. 12---Bar to further suit---Scope---Fraud and misrepresentation, which are grounds for the application of S. 12(2) of the Code, should have been practiced during the proceedings in the Court and not outside the Court. S. 12---Bar to further suit---Scope---Section 12(1), C.P.C. provides that when a person is precluded by rules in respect of any particular cause of action then on such cause of action he is not entitled to institute a further or separate suit in any court---Subsection (2) of S. 12, C.P.C. provides the remedy of filing application against the judgment and decree or order, if obtained by fraud, misrepresentation or want of jurisdiction---Combined reading of the two subsections makes it profusely clear that application under S. 12(2) of the Code can only be made if the misrepresentation is made or fraud is committed with respect to the subject matter of the suit on which the order, judgment or decree is passed, as the aggrieved litigant is precluded under S.12(1) of the Code to pursue an independent remedy. S. 5---Condonation of delay---Scope---Date of knowledge---Where application under S. 5 of the Limitation Act, 1908 was filed with the averments that the Court had been contacted as and when the petitioner came to know about the decree impugned therein, High Court observed that the contention was not plausible as no specific date of knowledge was given. S. 5---Condonation of delay---Scope---Facility regarding extension of time for challenging an order cannot be legitimately stretched to any length of unreasonable period at the whims, choices or sweet will of the delinquent party and date of knowledge of the challenged order must be established on sound basis. S. 12---Bar to further suit---Recording of evidence---Scope---Framing of issues and recording the evidence is obligatory when the Court considers that any such issue is raised in the application which is required to be resolved by leading evidence, however, when the Court dealing with the application is satisfied that the application can be decided even without framing the issues and the same does not involve any complicated question of fact, the framing of issue or recording evidence is not inevitable---It is primarily the satisfaction of the Court of first instance dealing with the application under S. 12(2), C.P.C., which is important and no yardstick for the same is fixed and the same varies from case to case.

MUHAMMAD IBRAHIM QURESHI vs MUHAMMAD ASLAM S — 2023 PLD 555 LAHORE-HIGH-COURT-LAHORE

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