A Judgment and Order Obtained Through Fraud (Part 2)

I gave you a lecture on Section 12, sub-section 2 of the CPC. But this 12(2), in our legal community, is spoken as '12-2', it's actually Section 12, sub-section 2 of the Code of Civil Procedure, the civil procedure court's Section 12 sub-section 2. Now let me read Section 12 to you so you get a bit of understanding of what the law actually says. Section 12 addresses the bar on further suits, its sub-section 1 is what? Where any person, for whatever reason, is not bound by the principles regarding instituting a further suit relating to any particular cause of action, no suit will be instituted in any court in relation to the grounds of such action on which the court will hear an application. This is clear: it stopped the plaintiff, the law says you cannot file any further suit, so he cannot file that suit. Now sub-section 2, which is operative in our society, what is it? Where a person contests a decree, order, or judgment on the ground of fraud or misrepresentation, or claims some lack of jurisdiction, he will obtain a remedy by application to the court which passed the final decree, order, or judgment, and not through a separate suit. Keep this in mind: if in any case, any civil case, fraud has been played, misrepresentation has been made, or the court lacked jurisdiction, and through that fraud, that misrepresentation, and without jurisdiction, some order, some decree, or judgment has been obtained, you do not need to file a separate suit. Someone filed a suit against you, after filing that suit he committed fraud on the court, which you can describe, this fraud, or made misrepresentations, which you can tell the court about, that these misrepresentations were made, the court lacked jurisdiction, you can tell the court that for these reasons the court has no jurisdiction, and he obtains that judgment and decree with all its effects, you don't need to file a separate suit to get it set aside, you need to write an application. Now what will this application's structure be? This application's structure will be that you file that application in the same court in which that case was decided. Two things come up here, ordinary people can also benefit from this, but this lecture is especially for lawyers. Two things come up here, that the application will be filed in the same court that passed that judgment, decree, or order. Now if that court still exists, I want to tell you two things, listen carefully. The court exists, but the judges have kept changing over time. Now it's not the same judge, it's a different judge, that doesn't mean the judge changed so the court changed, the court still exists. You need to go to that same court, the staff in the English branch of the Sessions Judge's office will tell you, you go and say, sir, this judge gave this judgment in 1997, please check your record and tell us whether this court is still functioning or has been abolished, he checks and says, yes, this court still exists, and currently this judge presides over it. You will not file it like other suits, marked to a senior civil judge and sent onward, don't file it that way, you need to go directly to that same court and file that application there, what needs to be attached with that application I'll tell you later. Now if that court has been abolished, that court has ceased to exist. In 1997 a judge gave a judgment, after giving the judgment six or seven judges rotated through, then at some stage that court was administratively abolished, and whatever work, whatever cases it had, were distributed among different courts. Now the court that gave that judgment, or passed that order, that judgment, or order, that court no longer exists, it has been abolished. A court is not a person's name, a court is a continuing institution, judges come and go, the court remains there. Now that court has ceased to exist, whatever cases it had were distributed among different courts, and eventually the court was abolished. Now what procedure do you follow? You've prepared that same 12(2) application, you have it ready. On top of it you need to attach a covering application, in which you need to state, addressed to the District Judge, to the honourable District Judge of such-and-such city, in that application you write that, sir, this judgment was given in such-and-such year, now we have learned that this court has been abolished, therefore we request that this judgment and decree, or this order, is based on fraud, is based on misrepresentation, is without jurisdiction, so we are filing this 12(2) application, which is attached with this application, that this application be marked to a civil judge so he can decide it, the District Judge will send it to any civil judge whose jurisdiction it falls under, saying, you decide this. Now that covers the filing. Now this application's structure: 1. The name of the court to which it should go, with the name of the current presiding judge of that court. 2. Below that, you write the title of the case in reference, or in English, 'with reference to,' you write the title of the suit filed on the basis of fraud and misrepresentation, or where there was no jurisdiction. 3. Then below that write the date of the judgment, when this judgment was given. 4. Then after that write the names of the parties, write your own name, whether you're one, two, four, whatever, you write, you become the applicant, petitioner, and there's a slight difference between these two, which I'll explain. 5. Now against whom, against those who filed that suit and obtained the decree. Obtained the judgment or obtained an order, write their names, below write 'respondents,' below that give the title, for setting aside the decree and order, along with the whole law of mischievous suits, under Section 12 sub-section 2 CPC, application, dated such-and-such, granted by such-and-such, or order dated such-and-such, granted by such-and-such, according to such-and-such title, such-and-such, this is what you need to title it.