This petition for leave to appeal is directed against the judgment dated 16.3.2005 whereby application under Section 12(2) CPC preferred on behalf of petitioner alongwith CMA No, 7971 of 2004 have been dismissed.
2. Pursuant to ex-parte proceedings suit for recovery instituted on behalf of respondent has been decreed which was assailed by way of filing an application under Section 12(2) CPC on the main ground that respondent had obtained the decree by giving incorrect address of the petitioner amounting to misrepresentation and fraud. The 'application has been rejected vide order impugned, hence this petition.
3. Malik Muhammad Imtiaz Mahl, learned ASC appeared on behalf of petitioner and contended that legal and factual aspects of the controversy have not been dilated upon in its true perspective which resulted in serious miscarriage of justice and the learned single Judge of High Court of Sindh at Karachi has dismissed the application preferred on behalf of petitioner under Section 12(2) CPC without any lawful justification and by ignoring fraudulent conduct and misrepresentation of the respondent who obtained decree by concealing the correct address of the petitioner. It is next contended that the learned single Judge in Chambers has not adverted to the facts of the case with diligent application of mind and dismissed the application preferred under Section 12(2) CPC in an arbitrary manner without framing any issue or recording evidence. It is also contended that no order for depositing the decretal amount within fifteen days could have been passed by the learned single Judge in chambers.
4. We have carefully examined the contentions as agitated on behalf of the petitioner, scanned the entire record with his eminent assistance and perused the judgment impugned carefully. An in- depth scrutiny of the record would reveal that the petitioner and his counsel remained absent on 15.2.2005 and 17.2.2005 and no plausible justification could be furnished for such absence. Besides that the order dated 17.2.2005 could not be complied with for the reasons best known to the petitioner, however, the learned ASC on behalf of petitioner could not justify non-compliance of the order dated 17.2.2005. The prime contention of the learned ASC on behalf of petitioner that the correct address of the petitioner was concealed, appears to have been made in oblivion of the relevant record which is demonstrative of the fact that correct business address of the petitioner was mentioned by the respondent and it is the same address on which the decree passed in favour of respondent was got transferred from Karachi to Sargodha. It is not the case of petitioner that incorrect business address was mentioned by the respondent. No fraud has been committed or misrepresentation made by the respondent which are sine qua non for invocation of the provisions as contemplated in Section 12(2) CPC. In fact a futile exercise appears to have been made by the petitioner to flout the judgment/decree passed against him.
5. In view of what has been stated above, we do not find any merit in this petition, which is dismissed and leave refused.