2002 PLP 3343 (YLR)

Awan Muhammad Hanif Khan for Appellants. CH. IJAZ AHMAD, J.‑‑ Respondents Nos.5 to 12 filed Constitutional Petition No.16319 of 1999 with the following prayers:‑ " It is respectfully prayed that the order dated 26‑8‑1999 be declared to have been passed without lawful authority and is nullity and non existent. Unless the appeals of the petitioner against rejection of nomination papers, are decided on merit and no election could be held. It is further prayed that election held on 29‑8‑1999 may also be declared to have been conducted in violation of law and election rules and are also mala fide, bogus and partial. The Elections so held are infact nullity and non‑existent and may be set aside and direction be given to respondent No. 1 to hold fair, free transparent and impartial elections under the supervision of care‑taker commits Consisting of a member each from contesting parties and a honest and impartial official of the Co‑operative Department. It is further prayed that elections held on 29‑8‑1999 may not order to be notified till the final disposal of the main writ petition." The aforesaid writ petition was accepted by the learned Single Judge vide judgment dated 2‑10‑2001 and the impugned order of respondent No. dated 26‑8‑1999 was set aside. The appellants being aggrieved filed C.M. No. 1 of 2001 under section 12(2), C.P.C. read with section 151 C.P.C. on behalf of Saif‑ur‑Rehman Toor and Naik Muhammad, who described themselves as resident Members of Canal View Co operative Housing Society, Lahore for setting aside the judgment dated 2‑10‑2001 passed by the learned Single Judge in the aforesaid writ petition. The learned Single Judge dismissed the aforesaid application vide judgment dates 7‑2‑2002.Hence, the present Intra‑Court Appeal.

2. When questioned about the maintainability of the appeal learned counsel of the appellants contends that any order passed under section 12(2), C.P.C. is an order in exercise of original jurisdiction, thus in view of section 3 of the Land Reforms Ordinance, 1972, I.C.A. would be competent.

3. We are not afraid, this contention has no force. Infact, as per provisions of section 12(2)C., there is a bar for tiling a separate suit to challenge the judgment/order on the basis of fraud and misrepresentation and want of jurisdiction through an independent suit, but same Court has been conferred with the authority to take cognisance of the matter, if the judgment or order falls within the purview of section 12(2), C.P.C. These proceedings are not akin to the original nature of proceedings referred to in section 3 of the Law Reforms Ordinance, 1972. It may be pertinent to state here that any order passed under Section 12(2), C.P.C., is not treated to be a decree and thus no appeal is provided under the provision of Civil Procedure Code. In arriving to this conclusion, we are fortified by the following judgments: (1) "Ahmad and another v. The Additional District Judge, etc." (PLD 1990 Lahore 425). (2) "Nathu Khan. v. Muhammad Rafiq and others." (1987 CLC 1501). (3) "Gahna Khan v. Mitha" (PLJ 1983 Lahore 166). (4) "Munir Ahmad Khan and others v. Sami‑Ullah Khan, etc." (1982 CLC 625).

4. In view of above analogy, it is not Conceivable that any order passed by this Court under section 12(2), C.P.C. would be an order in the exercise of the original civil jurisdiction amenable to I.C.A., therefore this appeal is not competent and the same is dismissed. S.I.Q./S‑784/L Appeal dismissed.