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S.
12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---dismissal of suit for non-prosecution---Non-issuance of
notice of restoration application to defendants and fresh notices after
suit restored---Passing of ex parte decree on 6-4-2009 and getting
possession of suit house by plaintiff through its execution---Application
under S.12(2), C.P.C. for setting aside ex parte decree by legal heirs of a
defendant, who died on 14-1-2008 during pendency of suit---Order of Trial
Court allowing application under S.12(2), C.P.C. and setting aside whole
decree upheld by Appellate Court---Plaintiff's plea that such decree
could be set aside partly to the extent of deceased defendant and not
other defendants, who had not participated in proceedings under S. 12(2),
C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of
defendants and against a dead person, whose signatures appearing on
Vakalatnama did not tally with his signatures on suit agreement---Such ex
parte decree could not enjoy sanctity attached to a judicial order---Ex
parte decree had been set aside on grounds of fraud committed by
plaintiff and disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most solemn
proceedings---Tainted actions would be void ab initio wholly and not
partly---Section 12(2), C.P.C. equated fraud with illegality invalidating
a defective order fully and not by some degree---Such ex parte decree
must be set aside wholly and not partly as there were no degrees of
invalidity---Plaintiff had not pointed out any jurisdictional defect in
the impugned orders---High Court dismissed constitutional petition, in
circumstances.
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