When sec 12(2) cpc application is acceptable and when it is not acceptable in the light of High Court decision
Section 12(2) CPC کا دائرہ اختیار اور حدود — 2025 CLC 312 کا تجزیہ
پس منظر
ہائی کورٹ کے اہم نکات
3. وکیل کی غفلت کا بہانہ قابلِ قبول نہیں
4. فراڈ یا غلط بیانی کے کوئی ثبوت نہیں دیے گئے
عدالتی نتیجہ
اہم اصول
Must read judgement
2025 C L C 312
[Sindh]
Before Salahuddin Panhwar and Khadim Hussain Soomro, JJ
ABDUL QADIR ---Petitioner
Versus
PROVINCE OF SINDH through Secretary Cooperation Department Karachi and 7 others ---Respondents
Constitutional Petition No.D-703 of 2010, decided on 2nd May, 2024.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Active participation of the applicant in the proceedings---Silence of applicant after passing of impugned order and not challenging same before the Supreme Court---Principle of acquiescence and acceptance attracted---Plea of negligence of counsel---Applicant challenged order qua conversion of amenity plot into residential plot on the grounds of fraud, misrepresentation or lack of jurisdiction---Contention of the applicant was that he should not be penalized for negligence of counsel---Validity---Party has the right to sue the counsel for damages if the counsel's act or omission was negligent, but this does not absolve the party from the consequences of the counsel's actions in the litigation itself---Applicant had sufficient time to challenge the decision before the Supreme Court and his failure to do so within the prescribed time frame suggested his acquiescence or acceptance to the order---Law does not favour those who sleep on their rights---Applicant had failed to point out any illegality, fraud, or misrepresentation in the impugned order and without such allegations being substantiated, there was no basis to challenge the validity of the order---Right of the applicant to sue the counsel before the concerned Bar Council or for damages was a separate matter and was not pertaining to the validity of the order itself---Legal system operates on the premise that the counsel's actions are attributable to the client and this principle is necessary for the administration of justice---Applicant's failure to challenge the judgment may also be interpreted as an implicit acceptance of the alleged fallout of the original order---Section 12(2), C.P.C., may be invoked solely in instances where a judgment, decree, or order has been rendered against an individual oblivious to the proceedings culminating in said judgment, decree, or order and conversely, when an individual has actively contested legal proceedings or is duly served but elects not to contest, the sole recourse available is to pursue the established legal remedies of Appeal, Revision, Review, or Petition for Leave to Appeal, as delineated by law, rather than resorting to an application under S.12(2), C.P.C.---Privilege of invoking S.12(2), C.P.C., does not extend to a party who, by virtue of its own omission, finds itself contesting---Sanctity of S. 12(2), C.P.C., must not be compromised by permitting its use as a stratagem to impugn the integrity of a decision on the grounds of fraud, misrepresentation, or lack of jurisdiction, especially after the window to challenge such a decision through Appeal, Revision, Review, or Petition for Leave to Appeal has elapsed or has been voluntarily relinquished---Application under S.12(2), C.P.C., was dismissed, in circumstances.
Mst. Kubra Begum and others v. Shad Begum and others 1996 SCMR 2096; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 Disting.
Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926 and Amanullah Soomro v. P.I.A through Managing Director/Chairman and others 2011 SCMR 1341 rel.
Shoukat Ali Shaikh for Petitioner.
Ikhtiar Khan Soomro for Respondent No.3.
Khurram Ghayas for S.M.P.A.
Ms. Nazia Siddiqui for K.D.A.
Ghulam Akbar Lashari for S.B.C.A.
Imran Ahmed for Applicants.
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