1987 PLP 2107 (CLC)

Abdur Rauf and others v. Abdur Rahman Khan Advocate PLD 1982 Pesh. 172; Adnan Afzal v. Capt. Sher Afzal P L D 1969 SC 187; Mst. Noor‑un‑Nisa and another v. Muhammad Sarwar and another P L 0 1984 Pesh. 24 and National Bank of Pakistan v. Taj Muhammad P L D 1984 Lah. 417 ref. Sh. Naveed Sheharyar for Petitioner. Tanvir Ahmad Khan,Addl. A.‑G. for Respondents. This petition has emerged out of the following facts: A suit for permanent injunction was filed by the petitioner and respondent No.2 against respondent No.3, before the learned Civil Judge, Gujrat on 31‑1‑1975, which was decreed on 3‑4‑1975. This was challenged by respondent No.1 on the ground of fraud etc. before the learned Civil Judge, Gujrat through a suit for declaration and consequential relief instituted on 1‑4‑1978. Petitioner and respondent No.2 filed their reply/written statement on 23‑4‑1978, whereas reply/written statement of respondents 3 and 4 was submitted on 15‑5‑1978. Subsequently, petitioner moved an application on 28‑1‑1986, seeking dismissal of the suit in view of the provisions enshrined in section 12 (2) of the Code of Civil Procedure. This was dismissed by the learned Civil Judge on 2‑4‑1986, whereupon the petitioner preferred Civil Revision No. 7/86, which came up for hearing before the learned Additional District Judge, Gujrat, who was pleased to dismiss the same vide order dated 4‑2‑1987. Hence the present petition . The sole contention of the learned counsel for the petitioner is that subsection (2) of section 12 of Civil Procedure Code, was introduced by virtue of Civil Procedure Code (Amendment) Ordinance, 1980 (Ordinance X of 1980) which envisages an application to be made to the same Court with a view to challenging the validity of a judgment, decree, or order on the ground of fraud etc. and not a separate suit; and it being a procedural law was operative retrospectively; consequently the suit filed by respondent No.1 on 1‑4‑1978 was liable to be dismissed and the two Courts below have acted without lawful authority. He has placed reliance on the case of Abdur Rauf and others v. Abdur Rahman Khan Advocate PLD 1982 Pesh. 172 to support his point. There is no cavil with the legal proposition put forth by the learned counsel for the petitioner as to the intended effect of S.12 (2) CPC and that procedural law applies retrospectively in generality of cases; however, the facts of this case has peculiar features of its own. The suit was filed on 1‑4‑1978, whereas the amendment came into force in the year 1980; and the petitioner kept on waiting for 6 long years, duly participating in the proceedings, before he entertained the notion to move the application out of which the present proceedings have emerged i.e. on 2‑4‑1986. The evidence of respondent No.1/1 plaintiff has already concluded. The suit has also celebrated its 9th anniversary. To my mind, this application seems to have been moved for extraneous consideration with a view to preventing the further progress of the suit, lest it reaches its logical conclusion within the forceable future. If the impugned order is set aside, the obvious result would be that the case is to start afresh, then the 9 years so far consumed in the legal journey of this litigation will go by the wind. It is a well‑settled law that if retrospective operation of a procedural law causes inconvenience or results into obvious injustice, unnecessary expenses or results into consequential detriment to one of the parties for no fault of his; then such a law need not be given retrospectivity. Reliance in this regard is placed on the cases of Adnan Afzal v. Capt. Sher Afzal P L D 1969 SC 187, Mst. Noor‑un‑Nisa and another v. Muhammad Sarwar and another PLD 1984 Pesh. 24 and National Bank of Pakistan v. Taj Muhammad PLD 1984 Lah.

417. In view of the above, I am of the opinion that any interference in the impugned order as prayed for would cause hindrance in the dispensation of justice, therefore, this petition does not justify any interference and is dismissed in limine. M . B . A . / A‑139/L?????????????????????????????????????????????????? ??????????? Petition dismissed.