MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH S — 2025 SCMR 1936 SUPREME-COURT

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MOBISERVE PAKISTAN (PVT.) LIMITED VS V-TECH S. 12(2), O.IX, R.13 & O.VI, R.4---Defendant seeking setting aside of ex parte judgment and decree by filing application under section 12(2) C.P.C.---Competency and legality---Legal question before the Court was as to "whether application under section 12(2) C.P.C. or under Order IX, Rule 13 C.P.C. would be competent?---Key distinction between applicability and competency of both applications stated---Section 12(2) of C.P.C. provides a remedy to challenge a judgment, decree, or order obtained by: (i) fraud (ii) misrepresentation, or (iii) want of jurisdiction---However, mere use of these terms is not sufficient, rather specific particulars must be provided as required by Rule 4 of Order VI, C.P.C.---It allows any person affected by such a decree or order to apply to the court that passed it, seeking to set it aside---This provision is not limited to parties to the suit but extends to any person aggrieved by the decree or order---It means an application under section 12(2) C.P.C. is maintainable when the decree or order was obtained by deliberate deception or suppression of material facts from the Court---However, the judgment supports a broader reading that includes fraud between the parties affecting the decree---For instance, if a plaintiff fabricates documents or misleads the court to secure a favorable judgment, the affected party can invoke Section 12(2) of C.P.C.; when the decree results from unintentional but material misstatement of facts by a party, leading the court to pass an erroneous order---For example, if a party misrepresents the ownership of property in a suit, the aggrieved party may apply under this section; and when the court lacked inherent jurisdiction to pass the decree or order---For instance, if a court passes a decree in a matter outside its territorial or pecuniary jurisdiction, an application under Section 12(2) of C.P.C. can be filed---Additionally, a person not a party to the suit but affected by the decree e.g., a third party whose property is wrongly included in a decree, may apply under this section---The application must be filed in the same court that passed the decree or order---The applicant must prove fraud, misrepresentation, or lack of jurisdiction with cogent evidence---The scope of application under Section 12(2) of C.P.C. is broader than Order IX Rule 13, C.P.C., as it is not limited to ex-parte decrees and can be invoked by non-parties---Whereas, Order IX, Rule 13 of C.P.C. provides a remedy to set aside an ex parte decree passed against a defendant who was unable to appear when the suit was called for hearing---It applies only to defendants and is limited to ex-parte decrees---An application under Order IX Rule 13, C.P.C. is maintainable when: the defendant was not duly served with the summons, or the service was defective, preventing their appearance; the defendant(s) was prevented from appearing due to sufficient cause, such as illness, accident, or other unavoidable circumstances; the decree was passed ex- parte, i.e., in the absence of the defendant, without hearing their defense---The application must be filed by the defendant in the court that passed the ex-parte decree---The defendant must demonstrate that they were not served or had sufficient cause for non-appearance---The court may set aside the decree in terms (e.g., costs) and allow the defendant to contest the suit---Unlike Section 12(2) C.P.C., this provision Order IX, Rule 13, C.P.C. is limited to ex-parte decrees and does not cover fraud or jurisdiction issues unless they relate to service or non-appearance---Key distinctions between the applications under section 12(2) and IX(13), C.P.C. are that Section 12(2) C.P.C. addresses fraud, misrepresentation or lack of jurisdiction and applies to any decree or order, while Order IX Rule 13, C.P.C. is restricted to ex-parte decrees; Section 12(2) C.P.C. can be invoked by any aggrieved person, including non-parties, while Order IX Rule 13, C.P.C. is available only to defendants; Section 12(2) C.P.C. focuses on substantive defects (fraud, misrepresentation, jurisdiction), while Order IX Rule 13, C.P.C. addresses procedural issues (non-service, sufficient cause); Section 12(2) C.P.C. seek to set aside the decree or order entirely, while Order IX Rule 13, C.P.C. seeks to restore the suit for hearing on merits---In light of the above, an application under Section 12(2) C.P.C. lies when a decree or order is tainted by fraud, misrepresentation, or lack of jurisdiction, as seen in cases like fabrication of documents or jurisdictional overreach---Conversely, an application under Order IX Rule 13, C.P.C. lies when an ex-parte decree is passed due to non-service of summons or sufficient cause for the defendant's non-appearance, such as illness or defective service---The court must assess the facts and evidence to determine the appropriate remedy under each provision.

MOBISERVE PAKISTAN (PVT.) LIMITED vs V-TECH S — 2025 SCMR 1936 SUPREME-COURT

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