Federal Constitutional Court says mistakes do not justify relief under Section 12(2)

ISLAMABAD: The Federal Constitutional Court (FCC) on Thursday held that mistakes or negligence by a party involved in litigation do not give that party the right to seek relief under Section 12(2) of the Code of Civil Procedure (CPC).

Section 12(2) of the CPC allows an aggrieved party to challenge a final judgment, decree or order before the same court on the grounds of fraud, misrepresentation or lack of jurisdiction.

In a judgment authored by Chief Justice Aminuddin Khan, the court observed, "A party, when associated with the proceedings, has every right to plead its case and rebut the other side’s case to protect its rights. However, when a party contests a suit or proceedings and remains unsuccessful thereafter, it has no right to file an application under Section 12(2) CPC."

A two-member bench headed by the chief justice and including Justice Ali Baqar Najafi heard a civil appeal filed by Mian Tahir Raza against a Lahore High Court order dated May 14, 2019. The FCC upheld the high court’s decision, stating that it could not differ from the findings recorded by the LHC and, as a result, dismissed the appeal.

Property dispute traced back to 1985 suit

According to the judgment, the matter arose from a declaration suit filed in 1985 by respondent Mubasher Ahmed, who claimed ownership of a property. He had challenged a registered power of attorney in favour of respondent No. 2 as well as a registered sale deed through which the plot had been transferred to the present appellant.

The appellant had bought the property from respondent No. 2, who had acted as attorney for the plaintiff. The judgment said respondent No. 2 filed a written statement and later disappeared, while the appellant submitted a written statement and contested the case.

After evidence was recorded and a full trial was conducted, the suit was decreed on April 17, 1993. An appeal filed by the appellant was dismissed by the Additional District Judge, Lahore. A civil revision petition was then filed before the Lahore High Court, which was also dismissed after the high court agreed with the concurrent findings of the lower forums and held that those findings were supported by the record.

Section 12(2) plea and later proceedings

The appellant later moved an application under Section 12(2) CPC, arguing mainly that after the civil revision had been decided, he came to know that the plaintiff and his father had committed fraud upon the court by claiming that the plaintiff was a minor when the power of attorney had been prepared.

The application was initially accepted summarily by the high court without recording evidence, on the basis of treating the facts stated in the Section 12(2) application as correct. That order was challenged before the Supreme Court, which remanded the matter to the trial court.

Thereafter, the civil judge, First Class, Lahore, dismissed the application on Nov 11, 2008. A revision petition against that order was also dismissed on Sept 14, 2009. A further petition was dismissed by the LHC on May 14, 2019, leading to the present appeal before the FCC.

Limits of writ jurisdiction

While deciding the appeal, the FCC said that in civil cases, where the trial court and the appellate court have returned concurrent findings of fact on the basis of evidence, a court exercising writ jurisdiction cannot replace those conclusions merely because another view may also be possible.

The court referred to the Supreme Court’s 1974 Muhammad Hussain Munir case and said the high court’s jurisdiction under Article 199 was confined to examining whether the lower forum had acted within its jurisdiction.

The judgment further stated that an error of fact, regardless of its seriousness, cannot be corrected in writ jurisdiction unless it results in a jurisdictional defect. The FCC observed that the appellant was required to point out some jurisdictional defect before the high court in the orders passed by the forums below, but failed to do so. It therefore held that the writ petition had been rightly dismissed.