1999 PLP 3082 (MLD)

Proceedings decided either because of a procedural default in a party or on merits, same constitute final order/judgment

Such an order/judgment differs only in quality from the point of view of legal aesthetics if the same is not on merits, but it nevertheless remains a final pronouncement of a Court of law and has same weight and effect as a judgment/decree on merits. Date of hearing: 25th January, 1999 This is an application under section 12(2) read with section 151, C. P. C. whereby the applicant, namely, Dur Muhammad son of Haji Ranjho Fakir seeks to set aside the decrees and judgments passed in Second Appeal No. 334 of 1970 and Civil Appeal No. 43 of 1969 and F. C. Suit No. 9 of 1967 on the grounds that these were obtained fraud and misrepresentation. The brief facts of the case are that a House No. II--B/134 situated at Naushero Feroz was allegedly purchased by the applicant through a registered sale deed dated 28-2-1968 from the appellant (Kamal Shah), who in turn had purchased the said house from the Settlement Department. The applicant claims to be in possession of the said house since then. Subsequently the respondent No-1 (Namdar Khan) filed a suit against the appellant (Kamal Shah) and the Government of Pakistan in the Court of Civil Judge First Class, Nawabshah being F. C. Suit No. 9 of 1967 without making the applicant a party in the said suit even though he happened to be in possession of the said property. The suit was decreed in favour of the respondent No.

1. Consequently the appellant (Kamal Shah) preferred an appeal from the said decree in Suit No. 9 of 1967 but again the applicant was not impleaded as party. On the dismissal of this appeal by the District Judge, Nawabshah the appellant (Kamal Shah) filed second appeal in this Court and again the applicant was not joined as a party in the proceedings. It appears that second appeal was dismissed for non prosecution on 9-5-1982 i.e. after about 12 years of the second appeal having been filed. In consequence of this dismissal of the second appeal it seems a writ of possession was issued in favour of the respondent No. 1 (Namdar Khan) for the said house. It is when the bailiff went to the property in question with' the writ of possession that the applicant learnt about legal proceedings that had taken place in respect of the said property behind his back. The contention, of the learned counsel for the applicant is that considering that the applicant was in possession of the property, which fact ought to, have been known by both the parties to the litigation that has been referred to above. It was the bounden duty of the plaintiff as well as the defendant to ensure that the applicant was made a party to these proceedings. The learned counsel for the applicant submits that the fact that the applicant was not made a party is in itself indicative of the fact that the entire proceedings in the Court leading to second appeal were collusive and were tainted with fraud. A perusal of the order sheet of the second appeal clearly shows that the parties to these proceedings were not really interested in these proceedings and have seldom appeared to argue the appeal. The appeal on the face of it appears to have been filed for a special purpose that is to lend credibility to the proceedings that had taken place so far. Upon having learnt about these proceedings carrying on behind the back of the applicant, the applicant filed an application. under section 12(2) read with section 151, C. P. C. being CMA 1379 of 1987 on 2?-11-1987. Unfortunately this application was never given proper hearing because of the initial doubts regarding the maintainability of this application in second appeal. It has been contended, though rather half heartedly, by various counsels during various hearings that this application cannot be heard in second appeal and it should be filed in the Court by which the initial decree in the suit was passed. This is an interesting point of law and in order to determine as to whether this application could have been filed in this Court in the second appeal or not it will be advantageous to reproduce section 12(2), C. P. C. which reads as under:-- "S. 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." The language of this provision of law is very clear inasmuch as it lays down that the application under his provision has to be made to the Court which passed the final judgment, decree or order. Thus, the crucial question in order to determine this point is "what is final judgment" because it is only then can it be determined as to which Court should this application be filed in. It is by now a well-settled proposition of law that an appeal is in continuation of a suit since the filing of an appeal from a decree in a suit entails that the dispute has not been finally resolved. It is only when the remedy permitted in law is either not availed or time for it lapses that the decree passed in the proceedings attains finality. This phenomenon has often also been described as merger of the suit with the appeal. In these views I am fortified by 1993 C L C 1257 and 1986 C L C 1211. Whatever the language used to describe this situation the fact that unless and until a dispute, to resolve which a petitioner has come to the Court is finally resolved no final judgment would deem to have been passed. Consequently once the appellate Court has finally decided the appeal and no appeals have been filed there from then that would the final judgment, Since in this case the first appeal was filed and decided and then the second appeal was filed it would obviously mean that the judgment in the first appeal was not final judgment and the final judgment would be that of the second appeal because no further recourse is available to the aggrieved person from this second appeal It has been urged before me by Mr. Khurshid Alam Khan, learned counsel for respondents Nos. l to 3 that since the second appeal was dismissed for non -prosecution this cannot be regarded as a final judgment. I find that to be a feeble argument. Whether a proceeding is decided because of a procedural default by a party or on merits, it remains a final order judgment and it only differs in quality from the point of view of legal aesthetics if it is not on merits but it nevertheless remains a final pronouncement of a Court of law and has same weight and effect as a judgment decree on merits. I, therefore, find that the pronouncement in the second appeal resulting in the dismissal of this appeal by order dated 9-5-1982 is a final judgment and consequently the application under section 12(2), C. P. C. would lie in this Court. I have already recorded my finding to the effect that these proceedings were collusive and tainted with fraud. Ordinarily in such matters evidence is led to determine whether the judgment was obtained through fraud or misrepresentation. But in this case I see no reason for evidence to be led because admittedly the applicant was in possession of the property from the beginning and he was not made a party to any of the proceedings spanning a period of 30 years even though it was easy to see for the parties that the applicant would be directly affected by any decision in those proceedings. Fraud and misrepresentation is present, therefore, on the face of record, the counter-affidavit filed by the appellant is also very sketchy and does not challenge the application in unequivocal terms. Consequently I allow this application and, therefore, set aside the judgment of the Civil Appeal No. 43 of 1969 before the District Judge, Nawabshah and judgment and decree in F. C. Suit No. 9 of 1967 before the Civil Judge First Class Nawabashah. Q.M.H./K-69/K Application allowed.