2006 PLP 1890 (MLD)

SARMAD JALAL OSMANY, J.

The facts in all these Civil Revisions are identical and hence they are being disposed of through this common order.

2. Briefly stated the Respondents had filed Civil Suits Nos.35 of 1967 and 36 of 1967 before the learned Civil Judge, Thari Mirwah, District Khairpur against the Applicants for declarations and injunctions etc., which were decreed ex parte against which the Applicants had filed applications under section 12(2), C.P.C. for setting aside the same on the ground of fraud/misrepresentation etc. Simultaneously the Applicants had also moved applications under sections 151, 152 and 153, C.P.C. seeking corrections in the said Judgments/Decrees. Thereafter the Applicants had moved separate applications before the learned District Judge, Khairpur under section 24, C.P.C. for transfer of these applications from the Court of learned Civil Judge, Thari Mirwah to any other Court in District Khairpur on a number of grounds inter alia, that the Respondents being influential in the area are threatening the Applicants who reside in Lahore etc. However, these applications were dismissed vide the impugned orders on the ground that only the Court which passed the judgment and decree had the power to set aside/amend the same and hence these Revision Applications.

3. In support of the eases, learned Counsel for the Applicants has submitted that the learned District Judge fell into error by holding that under section 12(2), C.P.C. only that Court which passed the Judgment and Decree had the power to set aside the same and hence on this ground alone dismissed the transfer applications. Similarly, on the same reasoning the learned District Judge also dismissed the applications-under sections 151 and

152. C.P.C. Per learned Counsel, this is an incorrect view of the law since under section 24, C.P.C. the High Court and the District Court enjoy wide powers to transfer any Suit, Appeal or other proceedings pending in a subordinate Court to any other Court competent to try or dispose of the same. Per learned Counsel, this includes applications under sections 12(2), 151 and 152, C.P.C.-In support of this proposition he has relied upon Mst. Nigar Bibi and others v. Salahuddin Khan and others (PLD 1990 SC 76), Muhammad Azam and another v. Tariq Transport Company Ltd., through Managing Director, Jhelum and 2 others 2001 CLC 702, Messrs Crescent Glass Works v. Messrs Hashwani Sales and Services Ltd. (2003 YLR 35), Shujat Hussain v. Aslam Riaz Hussain (1994 MLD 2079), Jehana v. Mst. Parveen (1995 MLD 991), Mst. Ghulam Fatima v. Mst. Husna (2002 YLR 1651), Muhammad Hussain v. Mst. Razia Bibi (1999 MLD 3030), Noorul Ameen v. Muhammad Hashim (1992 SCMR 1744), Dilawar Shah v. Executing Court of VII Senior Civil and Family Judge, Karachi East (PLD 1996 Kar. 174). Hence learned Counsel has prayed that these Revision Applications be allowed and the proceedings pending before the learned Civil Judge, Thari Mirwah be transferred to any other Court in District Khairpur.

4. On the other hand, Mr. Qalanar Bux Phulpoto, appearing on behalf of the Respondents has fully supported the impugned orders on the ground that under section 12(2), C.P.C. only the Court which passed the final judgment and decree is competent to set aside the same. Similarly, only the same Court can entertain applications under section 152, C.P.C. In support of this submission learned Counsel has relied upon Faisalabad Development Authority v. Raja Jehangir Nasir (2004 SCMR 1247) and Mst. Riaz Fatima v. Ch. Ijaz Ahmed (1999 YLR 2681).

5. I have heard both learned Counsel and my conclusions are as follows.

6. In the first instance, it would be advantageous to reproduce the provisions of section 12(2) of the C.P.C.: "12(2). Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." Similarly, under section 152 of the C.P.C. clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties. Under section 24 of the C.P.C. a general power has been given to the District Courts and the High Courts for transferring any suit, 'appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try and dispose of the same. Hence, the issue, which needs to be resolved in these matters, is whether the applications under sections 12(2) and 152, C.P.C. filed by the Applicants can be transferred from the Court which passed the judgment and decree to another Court. In this respect, it would be seen that per settled law, it is only the Court which passed the final judgment/order can set aside the same under section 12(2), C.P.C. or for that matter entertain any applications under 'section 152 for correcting any arithmetical or grammatical mistakes in such judgment etc. In this regard, reference can be made to the case of Faisalabad Development Authority v. Raja Jehangir Nasir (supra) and the case of Abid Kamal v. Muddassar Mustafa (2000 SCMR 900).

7. Insofar as the cases, cited by learned Counsel, are concerned, in my opinion, the same are not relevant to the facts and circumstances of the cases at hand. In the case of Mst. Nigar Bibi and others v. Salahuddin Khan (supra) it was held by the Hon'ble Supreme Court of Pakistan that the ex parte order passed by one Judge of the learned Lahore High Court could be recalled by another Judge under section 12(2), C.P.C. where the first Judge was not available. Hence the issue was regarding recalling of an order passed by one Judge by another Judge which is not the same as recalling of an order/judgment passed by one Court by another Court, as is prayed in the present matters. Again in the case of Muhammad Azam and another v. Tariq Transport Company Ltd. through Managing Director, Jhelum and 2 others (supra) a learned Single Judge of the Lahore High Court came to the conclusion that where the pecuniary jurisdiction of the Civil Court was not attracted in post remand proceedings, it could not set aside the decree under section 12(2), C.P.C. passed in an arbitration matter and hence entrusted the same to the Court having the proper jurisdiction for decision afresh. The same conclusion was reached by learned Single Judge again in the case of Jehana v. Mst. Perveen (supra). Again the case of Ghulam Fatima v. Husna is not relevant to the present controversy at all as a learned Single Judge of the learned High Court reached the conclusion that a fresh suit challenging the decree in an earlier suit could always be treated as an application under section 12(2) and hence did not warrant dismissal. A similar conclusion was reached by the Hon'ble Supreme Court of Pakistan in the case of Noorul Ameen v. Muhammad Hashim (supra). Similarly in the case of Muhammad Hussain v. Mst. Razia Bibi a learned Single Judge of the learned High Court held that an application under section 12(2) can only be decided after recording evidence which is merely stating the settled law in this respect.

8. For all the foregoing reasons, these revision applications are dismissed. S. M.B./A-109/K Applications dismissed.