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P L D 2025 Lahore 249

Before Mirza Viqas Rauf, J
Mst. MISBAH IFTIKHAR and another---Petitioners
Versus
Mst. ALEESA and 3 others---Respondents
Writ Petition No. 1234 of 2023, heard on 26th September, 2024.
(a) Constitution of Pakistan---
----Art. 199---Civil Procedure Code (V of 1908), S.12(2)---Family Courts Act
(XXXV of 1964), S. 14---Family Courts Rules, 1965, R.3---Constitutional petition---
Maintainability---Filing of application under S.12(2), C.P.C., against the decree
passed by the Appellate Court---Under R. 3 of the Family Courts Rules, 1965, the
courts of the District Judge, the Additional District Judge are also designated as
Family Courts along with the Civil Judge but ordinarily functions of Family Courts
are assigned to the Civil Judge and the District Judge and the Additional District
Judge acts as appellate court as is evident from the bare reading of S.14 of the
Family Courts Act, 1964 (Act)---Additional District Judge, who decided the
application of petitioners under S.12(2), C.P.C., was officiating as Appellate Court,
thus, writ petition was maintainable.
(b) Family Courts Act (XXXV of 1964)---
----S. 17---Civil Procedure Code (V of 1908), S.12(2)---Decree passed by the
appellate court challenged through application under S.12(2), C.P.C.---
Maintainability---"Person" competent to file application under S.12(2)---Scope---By
virtue of S.12(2), C.P.C., any person can challenge the validity of judgment, decree
or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an
application to the court which passed the final judgment, decree or order---Term
"person" used in S. 12(2) has wider import and cannot be narrowly interpreted, so as
to restrict it to refer to only a judgment debtor or his successors but it should be read
to include any person adversely effected even though not a party to the proceedings
wherein such decree, judgment or order is passed---Scope of S.12(2), C.P.C., is not
narrow but wide enough and it is not restricted to the judgment, decree or order
obtained while playing fraud with the court but it also extends to the cases where a
judgment, decree or order has been obtained by the parties through fraud inter se by
concealment of true facts---Despite an embargo in terms of S.17 of the Act there is
no legal impediment in the way of an aggrieved person moving an application under
S.12(2), C.P.C., before the Family Court---Constitutional petition was allowed, in
circumstances.
Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR 1145
and Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773
ref.
Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR
1145; Fozia Mazhar v. Additional District Judge, Jhang and others PLD 2024 SC 771

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and Fozia Mazhar v. Additional District Judge and 2 others 2021 CLC 270 rel.
(c) Civil Procedure Code (V of 1908)---
----S.12(2)---Constitution of Pakistan, Art.199---Decree, setting aside of---Plea of
fraud and misrepresentation---Application under S.12(2), C.P.C., was dismissed
summarily on the ground of maintainability and also on merits without framing of
issues---Validity---Though it is not a principle of universal application that in each
and every case, the court is bound to frame the issues before deciding the fate of an
application under S.12(2), C.P.C., but where misrepresentation and fraud have been
alleged and prima facie a case is made out, in such an eventuality said application
should not be dismissed summarily---Allegations levelled by the petitioners in their
application had due force to compel the court to frame issues instead of dismissing
the application in a cursory and slipshod manner---On the one hand, the Appellate
Court held the application under S.12(2), C.P.C., not maintainable and on the other
dilated upon its merits---After forming negative opinion about the maintainability of
application the Appellate Court should have simply dismissed the same on said score
instead of delving into its other merits.
Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773
rel.
Agha Muhammad Ali Khan for Petitioners.
Mirza Muhammad Nazakat Baig for Respondent No.1.
Respondents Nos.2 and 3: Ex-parte.
Date of hearing: 26th September, 2024.
JUDGMENT
MIRZA VIQAS RAUF, J.---This petition under Article 199 of the Constitution
of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution")
stems from the judgment dated 16th February, 2023 handed down by the learned
Additional District Judge, Hassan Abdal (Attock), whereby he proceeded to dismiss
the application of the petitioners moved under Section 12(2) of the Code of Civil
Procedure (V of 1908) (hereinafter referred to as "C.P.C.").
2. Factual backdrop of this petition is that respondent No.1 (hereinafter referred to
as "respondent") instituted a suit for recovery of dower, maintenance and dowry
articles against respondents Nos.2 and 3. Suit was ultimately partly decreed by way of
judgment dated 4th February, 2020 whereunder "respondent" was held entitled to
recover a house as part of dower along with other reliefs claimed. Being aggrieved
respondents Nos.2 and 3 preferred an appeal before the learned Additional District
Judge, Hassan Abdal (Attock) but it was partly allowed vide judgment and decree
dated 18th December, 2020 maintaining the decree qua house as part of dower. After
passing of decree in her favour, "respondent" filed an execution petition wherein as
per claim of the petitioners, property owned by them was made subject to satisfaction
of decree, which prompted them to move an application under Section 12(2) of the
"C.P.C." before the learned Additional District Judge, Hassan Abdal (Attock). The
application was, however, dismissed through impugned judgment.

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3. On presentation of this petition a query was put to learned counsel for the
petitioners on 7th April, 2023 with regard to competency of this constitutional
petition, who in return sought time for the purpose of assistance. On the next date i.e.
14th April, 2023 in the light of contentions of learned counsel for the petitioners, this
petition was admitted for regular hearing with the observation that question of
maintainability shall be decided at final stage.
4. Record reveals that despite service, respondents Nos.2 and 3 did not appear and
as such they were proceeded against ex-parte vide order dated 10th September, 2024.
5. Agha Muhammad Ali Khan, Advocate representing the petitioners submitted
that Family Court is defined in Section 2(b) read with Section 3 of the Family Courts
Act, 1964. He added that learned Additional District Judge since acted in the
capacity of appellate court so cannot be termed as Family Court and as such writ
petition is maintainable. Learned counsel contended that petitioners as well as
"respondent" are daughters-in-law of respondent No.3, who at the time of their
marriages given the property and house subject matter of suit as dower to them but on
filing of suit by "respondent", this material fact was not brought on record
fraudulently, which resulted into passing of impugned judgment and decree. It is
further contended by learned counsel that on attaining knowledge, the petitioners
moved an application under Section 12(2) of the "C.P.C." which has been dismissed
in a summary manner, while holding that such an application is not maintainable in
view of Section 17 of the Family Courts Act, 1964. It is emphatically argued that
application of the petitioners was also dismissed being bereft of any merits. Learned
counsel submitted that impugned judgment is tainted with illegalities and not tenable.
In support of his contentions, learned counsel placed reliance on Muhammad Arshad
Anjum v. Mst. Khurshid Begum and others (2021 SCMR 1145) and Muhammad
Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 Supreme Court 773).
6. Conversely, learned counsel for "respondent" though seriously resisted this
petition but did not question its maintainability. Learned counsel submitted that
application under Section 12(2) of the "C.P.C." was rightly turned down by learned
Additional District Judge. He added that provisions of the "C.P.C." are stricto sensu
not applicable before the Family Court. Learned counsel contended with vehemence
that impugned judgment is unexceptionable and calls for no inter-ference.
7. Heard. Record perused.
8. Suit was instituted by "respondent" while invoking the provisions of the Family
Courts Act, 1964 (hereinafter referred to as "Act, 1964"). As per preamble of the
"Act, 1964", it was enacted to make provision for the establishment of Family Courts
for the expeditious settlement and disposal of disputes relating to marriage and
family affairs and for matters connected therewith. Section 2 deals with the
definitions clause and it defined "Family Court" as under :-
"(b) "Family Court" means a Court constitute under this Act"
Section 3 of the "Act, 1964" mandates the Government of Punjab to establish Family
Courts, which reads as under :-
"S. 3. Establishment of Family Courts.---(1) Government shall establish one or

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more Family Courts in each District or at such other place or places as it may
deem necessary and appoint a Judge for each of such Court:
Provided that at least one Family Court in each District, shall be presided over by
a woman Judge to be appointed within a period of six months or within such
period as the Federal Government may, on the request of Provincial
Government, extend;
(2) A woman Judge may be appointed for more than one District and in such cases
the woman Judge may sit for the disposal of cases at such place or places in
either District, as the Provincial Government may specify.
(3) Government shall, in consultation with the High Court, appoint as many
woman Judges as may be necessary for the purposes of subsection (1)."
9. It would not be out of context to mention here that a Family Court is a Civil
Court in every aspect despite the exclusion of the provisions of the "C.P.C." with
exception to Sections 10 and 11 and the Qanun-e-Shahadat Order, 1984 by virtue of
Section 17 of the "Act, 1964". Though in terms of Rule 3 of the Family Courts
Rules, 1965, the courts of the District Judge, the Additional District Judge are also
designated as Family Courts along with the Civil Judge but ordinarily functions of
Family Courts are assigned to the Civil Judge and the District Judge and the
Additional District Judge acts as appellate court as is evident from the bare reading
of Section 14 of the "Act, 1964". For ready reference and convenience Section 14 is
reproduced below :-
"S. 14. Appeals.---(1) Notwithstanding anything provided in any other law for the
time being in force, a decision given or a decree passed by a Family Court
shall be appealable--
(a) to the High Court, where the Family Court is presided over by a District Judge,
an Additional District Judge or a person notified by Government to be of the
rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case.
(2) No appeal shall lie from a decree passed by Family Court-
(a) for dissolution of marriage, except in the case of dissolution for reasons
specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim
Marriages Act, 1939;
(b) for dower or dowry not exceeding rupees thirty thousand;
(c) for maintenance of rupees one thousand or less per month.
(3) No appeal or revision shall lie against an interim order passed by a Family
Court.
(4) The appellate Court referred to in subsection (1) shall dispose of the appeal
within a period of four months."
It is thus evident that learned Additional District Judge, Hassan Abdal (Attock) who

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decided the application of petitioners under Section 12(2) of the "C.P.C." was
officiating as appellate court, thus this writ petition is maintainable and the query is
answered accordingly.
10. Now adverting to the moot point as to whether an application under Section
12(2) of the "C.P.C." is maintainable before a Family Court established under the
"Act, 1964" in view of exclusion of provisions of the Code ibid in the light of Section
17 of the "Act, 1964"; suffice to observe that provisions of the "C.P.C." are generally
ousted to the Family Courts to frustrate the technicalities to hamper the proceedings
before the Family Courts, as the "Act, 1964" stresses upon speedy settlement of
family disputes. The exclusion of provisions of
the "C.P.C.", however, does not mean that it cannot be pressed into service at all
by the Family Courts. Where there is no provision in the "Act, 1964" to deal with a
subject, provisions of "C.P.C." can be invoked for the advancement of ends of
justice. Needless to reiterate that the provisions of the "C.P.C." are though stricto
sensu not applicable in family matters but the Family Court is always competent to
mold the relief keeping in view the circumstances of each case to foster justice.
11. Needless to mention that subsection (2) of Section 12 of the "C.P.C." was
initially not the part of Code even. It was added through Ordinance 10 of 1980. Prior
to insertion of subsection (2) in section 12 of the "C.P.C." one has to institute a suit
for setting aside of a judgment, decree or order obtained by practicing fraud upon the
court but with the introduction of subsection (2), fresh suit was barred.
12. By virtue of subsection (2) of Section 12 of the "C.P.C." any person can
challenge the validity of judgment, decree or order on the plea of fraud,
misrepresentation or want of jurisdiction by filing an application to the court which
passed the final judgment, decree or order. The term "person" used in subsection (2)
has wider import and cannot be narrowly interpreted, so as to restrict it to refer to
only a judgment debtor or his successors but it should be read to include any person
adversely effected even though not a party to the proceedings wherein such decree,
judgment or order is passed. The scope of Section 12(2) of "C.P.C." is not narrow
but wider enough. It is not restricted to the judgment, decree or order obtained while
playing fraud with the court but it also extends to the cases where a judgment, decree
or order has been obtained by the parties through fraud interse by concealment of
true facts.
13. In the case of Muhammad Arshad Anjum v. Mst. Khurshid Begum and others
(2021 SCMR 1145) while dealing with a similar proposition, Supreme Court of
Pakistan ruled as under :-
"4. Petitioner's recourse to defend his title in the disputed land, decreed in
respondent's favour as her dower, before the Family Court and latter before
the Additional District Judge, though somewhat haphazard, nonetheless, was
the only option available to him. The Family Court decreed the suit, without a
full dress trial merely upon failure of respondent's husband to take special
oath, a circumstance that too prevailed with the learned Appellate Court.
Ostensible contest remained restricted between the spouses without slightest
breach in the nuptial bond, to the exclusion of rest of the world. Failure of

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petitioner's Constitution petition in the High Court also turned out a far cry.
Throughout the contest, respondent relied upon technical barricades, thus, the
questions that call for our consideration are whether exclusion of the
provisions of the Code of Civil Procedure, 1908 barring sections 10 and 11
thereof, stood in impediment to petitioner's approach to the Family Court for
re-examination of the judgment within the contemplation of section 12(2) of
the Code or that he should have asserted his claim of being a bona fide
purchaser with consideration through an intervener in civil plenary
jurisdiction?
The Family Courts Act, 1964 (W.P. Act XXXV of 1964) (the Act) was enacted
for " expeditious settlement and disposal of disputes relating to marriage and
family affairs and for matters connected therewith"; provisions of the Qanun-
e-Shahadat Order, 1984 (P.O. No.10 of 1984) and those of the Code except
sections 10 and 11 have been excluded to achieve the legislative intent. The
exclusion of normal rules of procedure and proof, applicable in civil plenary
jurisdiction for adjudication of disputes in proceedings before a Family Court,
is essentially designed to circumvent delays in disposal of sustenance claims
by the vulnerable; this does not derogate its status as a Court nor takes away
its inherent jurisdiction to protect its orders and decrees from the taints of
fraud and misrepresentation as such powers must vest in every tribunal to
ensure that stream of justice runs pure and clean; such intendment is
important yet for another reason, as at times, adjudications by a Family Court
may involve decisions with far reaching implications/consequences for a
spouse or a sibling and, thus, there must exist a mechanism to recall or rectify
outcome of any sinister or oblique manipulation, therefore, we find no clog on
the authority of a Family Court to re-examine its earlier decision with a view
to secure the ends of justice and prevent abuse of its jurisdiction and for the
said purpose, in the absence of any express prohibition in the Act, it can
borrow the procedure from available avenues, chartered by law.
Question of non-applicability of the Code barring sections 10 and 11 thereof came
up before the Court in the case of Muhammad Tabish Naeem Khan v.
Additional District Judge Lahore and others (2014 SCMR 1365), in the said
case, plea of ouster of procedure was repelled as under:
"We are not persuaded to hold, that the ex parte decree dated 4.7.2008 was void,
for the reason that there is no provision in the West Pakistan Family Courts
Act, 1964 to strike off the defence of the petitioner, when he failed to file the
written statement, thus, it (decree) should be ignored; suffice it to say that the
Family Court is the quasi judicial forum, which can draw and follow its own
procedure provided such procedure should not be against the principles of fair
hearing and trial, .".
In the case of Haji Muhammad Nawaz v. Samina Kanwal and others (2017 SCMR
321) it was reiterated that:
"Family Court, whether as a trial court or an executing court, are governed by the
general principles of equity, justice and fair play".

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Impact of fraud practiced upon tribunals exercising plenary or limited

jurisdictions, respectively, cannot be procedurally classified as in all
jurisdictions it unredeemedly vitiates the very solemnity of adjudication, a
wrong that cannot be countenanced and must be remedied through dynamic
application of equitable principles of law and such approach has been
approved by this Court in a good number of cases arising out of erstwhile rent
laws that too excluded wholesale application of the Code. See PLD 1975 SC
331 The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil
Khan and others, 1992 SCMR 917 Tanveer Jamshed and another v. Raja
Ghulam Haider, 1992 SCMR 1908 Mst. Fehmida Begum v. Muhammad
Khalid and another, 1993 SCMR 226 Fazal Elahi Malis through legal heirs v.
Miss Abida Reasat Rizvi, 1997 SCMR 1986 Haji Khudai Nazar and another
v. Haji Abdul Bari, 2000 SCMR 540 Masjid Intizamia Committee and others
v. Anjuman-e-Falah-o-Bahbood and others, 2001 SCMR 577 Hanif and
others v. Malik Armed Shah and another, 2005 SCMR 882 Suhail Printing
Press v. Syed Aley Eba Zaidi, 2007 SCMR 818 Muhammad Tariq Khan v.
Khawaja Muhammad Jawad Asami and others, 2007 SCMR 1434
Ammanullah Khan Leghari v. Abid Shaikh Ahmed, 2014 SCMR 1694 Sheikh
Saleem v. Mrs. Shamim Attaullah Khan and others and 1984 CLC 2855
Abdul Salam v. Mrs. Tahira Zaidi.
5. Recourse to plenary jurisdiction as suggested by the learned counsel for the
respondent would be a journey into a blind alley as in the face of a final
decree by the Family Court, holding the field, the proposed course would
inevitably lead to a chaotic collusion, if at all the petitioner ever succeed.
Therefore, in the circumstances, reconsideration/re-examination of the
impugned judgment and decree by the learned Family Court is the only
expedient option, conducive to the interest of the contestants. The petition is
converted into appeal and allowed with no order as to costs. Impugned
judgment dated 04.03.2019 is set aside, as a consequence thereof, appellant's
claim in the property as mentioned in his application be attended by the
learned Additional District Judge Multan before whom his application under
section 12(2) of the Code shall be deemed as pending. Since this matter is
pending for considerable time, the learned Court seized of the matter, in the
fullness of time, shall decide it with all convenient dispatch sooner rather than
later."
14. In a recent judgment in the case of Fozia Mazhar v. Additional District Judge,
Jhang and others (PLD 2024 Supreme Court 771) Supreme Court of Pakistan
reiterated the same principles. The relevant extract from the same is reproduced
below :-
"Issue No. I
Application of Section 12(2) of C.P.C. in proceedings before Family Courts
8. Section 17 of the Act clearly provides that:
"17.(1) Save as otherwise expressly provided by or under
this Act, the provisions of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984),
and the Code of Civil Procedure, 1908, except sections 10 and 11 shall not
apply to proceeding before any Family Court in respect of Part I of Schedule.

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(2) Sections 8 to 11 of the Oaths Act, 1872, shall apply to all proceedings before
the Family Courts."
The letter of the above stated law is but clear, vesting the Family Court not to be
shackled by rigors of intricate procedural rules provided under C.P.C., and
granting the Family Court, the authority to proceed swiftly to resolve the
dispute between the estranged spouses. A glance through the jurisprudence
regarding the applicability of the provisions or for that matter, the general
principles enunciated in C.P.C. that have developed over time by this Court
would be beneficial for addressing the present issue before us. Some of the
pertinent discourse on the subject rendered by this Court is contained in the
following decisions:
Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool (2010 SCMR 1840)
The issue in this case involved a challenge made to an ex-parte order passed by the
Family Court in suits for possession of dowry articles and maintenance. The
Court held that the Family Court had correctly dismissed the application for
setting aside ex-parte decree on merits as well as being time barred, and
observed that though the provisions of C.P.C. and law of evidence are not
applicable qua the proceedings before the Family Court in terms of Section
17 of the Act yet the Family Court has to regulate its own proceedings in
accordance with the provisions of the Act, and thus, the Family Court is not
barred to follow the principles of C.P.C.
Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore (2014
SCMR 1365)
The challenge made to an ex-parte order maintaining the decisions of the Family
Court, District Court, and the High Court allowing the maintenance allowance
to a spouse and granting her the dowry decree was repelled by this Court,
since the challenging petitioner neither filed for seeking the setting aside of
the ex-parte decree passed against him nor did he file any appeal against the
same. This Court further opined that, if a defendant of a family matter, who is
duly served; and especially the one who appears and disappears and also does
not file his written statement within the time allowed to him by the Court, the
Court shall have the inherent power to proceed to strike-off his defence, and
to pass an ex parte decree in line with the principles, as are enunciated by
C.P.C. In any case, it was held that striking-off defence of a party by the
Family Court cannot be considered to be void.
Muhammad Arshad Anjum v. Mst. Khurshid Begum (2021 SCMR 1145)
In this case, the petitioner purchased land unaware that it was under attachment
due to a decree of the Family Court in favor of the respondent. The question
before the Court was in essence, whether the exclusion of certain provisions
of C.P.C. provided under Section 17 of the Act barred the petitioner from
approaching the Family Court for a re-examination of the judgment within
the contemplation of Section 12(2) of C.P.C. or that he should have asserted
his claim of being a bona fide purchaser with consideration as an intervener in
civil plenary jurisdiction. The Court ruled that the Family Court had the
authority to re-examine its earlier decision to ensure justice and prevent abuse

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of its jurisdiction and for the said purpose, in the absence of any express
prohibition in the Act, it could borrow the procedure from other legal
avenues. The petition for leave to appeal was allowed, overturning the
impugned judgment, and allowing the application of the petitioner under
Section 12(2) of C.P.C. to proceed.
9. Given the above clear view of this Court on the issue, we have no manner of
doubt that the Family Court may apply the general principles enshrined in
C.P.C. in proceeding with not only the trial but also exercise jurisdiction in
entertaining an application of an aggrieved party, challenging the validity of a
judgment, decree or order on the plea of fraud or misrepresentation, as was
done by the respondent in the present case, and rightly maintained so by the
three Courts below."
15. In the case of Fozia Mazhar v. Additional District Judge and 2 others (2021
CLC 270) in somewhat similar facts and circumstances this Court held as under:--
"6. In view of the above, If for the sake of arguments this Court considers that
application section 12(2) of the Code of Civil Procedure, 1908 was not
maintainable due to non-applicability of C.P.C., even then the learned Judge
Family Court in a case where as decree or order has been obtained through
fraud, deceits, misrepresentation or on any of such grounds, the learned Judge
Family Court can competently entertain such an application under the
inherent jurisdiction, which is presumed and considered to be vesting in all
Courts, Tribunals or authority of even limited jurisdiction, because it is a
settled principle of law that fraud vitiates the most solemn proceedings even
and the decrees, orders or the judgments obtained in pursuit of these
intentions or actions are to be reviewed, reversed, recalled or upset. This rule
is based on the principle that an authority if can do act or pass an order,
judgment or decree, it can undo it also but with some exceptions also, if the
authority has been defrauded in the passing of that act, order or judgment.
In addition to the above, the general rule that power of review does not exist
unless it is expressly conferred by law, has got two well-established exceptions
i.e. (i) a court has inherent jurisdiction to set aside judgment or order which it
had delivered without jurisdiction; (ii) a court or authority has the power to
review an order or judgment obtained by fraud. Reliance is placed on The
Chief Settlment Commissioner, Lahore v. Raja Muhammad Fazil Khan and
others (PLD 1975 SC 331). In this view of the matter, when facts of this case
are considered and read, it appears that the order dated 27.04.2015 has been
obtained by the petitioner through misrepresentation, because in the entire file
of the suit proceedings, Wakalatnama of Mr. Muhammad Asif Mughal
Advocate, allegedly representing the respondent No.3 through his special
attorney, is not available, which shows that he neither represented the
respondent during the proceedings of suit nor he appeared as counsel till the
decision of the suit on 04.04.2015; thus, there is nothing on record to suggest
that the respondent No.3 was duly represented and even the first order which
is in the handwriting of the learned Judge Family Court shows the presence of
only Fozia Mazhar, the petitioner and margin of order sheet bears her
signatures and thumb impression and only her statement is available on file

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and no statement of special power of attorney of the respondent No.3. When

the position remained as such, the learned trial Court was vested with
jurisdiction to undo the order dated 27.04.2015 obtained by the petitioner
through misrepresentation.
7. Pursuant to the above discussion, it can safely be held that there appears no
jurisdictional error, legal infirmity and illegality in the impugned order and
judgment passed by the learned Courts below, rather vested jurisdiction has
judiciously and aptly been exercised. The impugned order and judgment are
upto the dexterity and do not call for any interference by this Court in
exercise of extraordinary constitutional jurisdiction. Resultantly, while placing
reliance on the judgments supra, the constitutional petition in hand being
without any force and substance stands dismissed. No order as to the costs."
After having an overview of the principles laid down in the above cited judgments no
cavil left to hold that despite an embargo in terms of Section 17 of the "Act, 1964"
there is no legal impediment in the way of an aggrieved person moving an application
under Section 12(2) of the "C.P.C." before the Family Court.
16. Next comes the propriety of impugned judgment to the extent of deciding the
application of the petitioners in a summary manner; suffice to observe that though it
is not a principle of universal application that in each and every case, the court is
bound to frame the issues before deciding the fate of an application under Section
12(2) of the "C.P.C." but where misrepresentation and fraud have been alleged and
prima facie a case is made out, in such an eventuality said application should have not
been dismissed summarily. In somewhat similar circumstances Supreme Court of
Pakistan in the case reported as Muhammad Akram Malik v. Dr. Ghulam Rabbani
and others (PLD 2006 Supreme Court 773) held as under :-
"4. We have examined the above-mentioned contentions in the light of relevant
provisions of law and record of the case. We have minutely perused the
judgment impugned whereby the revision petition preferred on behalf of
respondent has been accepted. There is no cavil with the proposition that an
application preferred under section 12(2), C.P.C. could have been summarily
dismissed if it is without any substance but generally where misrepresentation
and fraud have been alleged and prima facie a case is made out, in such an
eventuality such application should have not been dismissed summarily and
without recording the evidence. It is worth mentioning that primarily it is the
satisfaction of the Court concerned either to frame issues, record evidence or
decide such application as may be deemed fit and proper after considering the
merits of each case. No yardstick can be fixed for rejection of such
applications. A similar proposition was discussed in case Ghulam Muhammad
v. Ahmed Khan 1993 SCMR 662 wherein it was observed as follows:--
"It is correct that the determination of allegations of fraud and misrepresentation,
usually involved investigation into the questions of fact but it is not in every
case that the Court would be under obligations to frame issues, record
evidence of the parties and follow the procedure prescribed for decision of the
suit. If it were so, the purpose of providing the new remedy would be
defeated. In our view, the matter is left, to the satisfaction of the Court which

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has to regulate its proceeding and keeping in view the nature of the allegations
in the application, may adopt such mode for its disposal, as in consonance
with justice, the circumstances of the case may require. It is within the
competence of the Court to frame formal issues and record evidence if the
facts of a particular so demand.
5. It is well-entrenched legal proposition that the framing of issues depends on the
circumstances of each case, nature of alleged fraud and the decree so
obtained. Framing of issues in every case to examine the merits of the
application would certainly frustrate object of section 12(2), C.P.C. which is
to avoid, protracted and the time consuming litigation and to save the genuine
decree-holder from grave hardships, ordeal of further litigation, extra burden
on their exchequer and simultaneously to reduce unnecessary burden on the
Courts below which are already overburdened."
5. The petition in question has also been adjudged on the touchstone of the
criterion as mentioned herein above. We are of the considered view that
misrepresentation and fraud have been alleged in the application preferred
under section 12(2), C.P.C. as is indicative from para. 6 of the application
which has been reproduced in the order impugned. In fact the learned trial
Court has not appreciated the contents of application in the light of provisions
as contained in section 12(2), C.P.C. and dismissed the same in a casual and
cursory manner. In view of the circumstances of the case and allegations
levelled in the application under section 12(2), C.P.C. it should have not been
dismissed summarily. The learned High Court has exercised its discretion
judiciously and the order impugned being well based does not warrant
interference as no prejudice whatsoever has been caused to the petitioner who
would have ample opportunities to canvass his point of view and substantiate
his claim and rebut the allegation of misrepresentation and fraud before the
Courts concerned."
Keeping in mind the facts and circumstances of the case in the light of above noted
principles an inference can easily be derived that the allegations levelled by the
petitioners in their application are having due force to compel the court to frame
issues instead of dismissing the application in a cursory and slipshod manner. Even
otherwise it seems quite strange that on the one hand, the learned Additional District
Judge held the application under Section 12(2) of "C.P.C." not maintainable and on
the other dilated upon its merits. Needless to reiterate that after forming negative
opinion about the maintainability of application the learned Additional District Judge
should have simply dismissed the same on said score instead of delving into its other
merits.
17. The nutshell of above noted threadbare discussion is that the learned Additional
District Judge while dismissing the application under Section 12(2) of "C.P.C." filed
by the petitioners has erred in law. This petition is thus allowed, impugned judgment
dated 16th February, 2023 is set aside being illegal and unlawful. As a consequence,
application moved by the petitioners under Section 12(2) of "C.P.C." shall be deemed
to be pending before the learned Additional District Judge, Hassan Abdal (Attock),
who shall decide the same afresh after framing of necessary issues arising therefrom
with all swiftness. No order as to costs.

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SA/M-132/L Petition allowed.

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