2003 PLP 1522 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner Maqsood Ahmad Siddiqui seeks leave to appeal against the order, dated 12-4-2002 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby H.C. A. No.57 of 2002 filed by him was dismissed in limine, alongwith listed C.M.A. No.472 of 2000 with costs of Rs.10,000.

2. The background leading to the filing of the instant petition in nut-shell is that the petitioner had preferred C.M.A. No.472 of 2000 under section 12(2), C.P.C. in First Civil Appeal No.7 of 1991 filed by respondent No.2 Muhammad Aslam against Khawaja Ghaus Mian respondent No.3 before the learned High Court of Sindh at Karachi. It was stated therein that the petitioner had purchased a shop bearing No. 36 R.K. Square, New Challi, Shahrah-e-Liaquat, Karachi from respondent No.2 Muhammad Aslam through a registered sale-deed duly executed. Thereafter, he was, put, into its physical possession and was still in possession as its lawful owner. The fact of the litigation in between respondents Nos.2 and 3 known to the petitioner subsequently who in connivance with each other and under a conspiracy, obtained judgment and decree against respondent No.2 which collusive litigation went into the First Civil Appeal bearing No.7 of 1997 in between them and they wrongly and illegally entered into a compromise with each other in the said appeal which was disposed of on the basis of said compromise.

3. In pursuance to the compromise decree, respondent Muhammad Aslam kept on depositing the monthly instalment. Since, he defaulted, as such, Khawaja Ghaus Mian respondent preferred an application against respondent Muhammad Aslam on 3-5-1993 to the above fact and in consequence whereof Nazar was directed to attach the property. The petitioner came to know of the above fraudulent act of the respondent on 5-12-1993 the moment Nazar accompanied by respondent and his counsel visited the above-mentioned shop in his occupation. It was thereafter, he preferred application under section 12(2), C.P.C. as an intervener.

4. It is pertinent to note hem that First Civil Appeal No.7 of 1991 was filed under section 96, C.P.C. before the learned High Court of Sindh against the order of learned District Judge which was disposed of by a consent order, as stated above. It was in the above mentioned appeal, the petitioner had filed C.M.A. 472 of 2000 under section 12(2), C.P.C. which was dismissed vide impugned judgment. The learned Division Bench of High Court non-suited the petitioner mainly on the ground that in view of section 15 of the Law Reforms Ordinance, 1972 read with section 3, High Court appeal would not be competent before it against the judgment of learned Single Judge while exercising civil appellate jurisdiction under section 96, C.P.C. 4-A. At this juncture, reference to subsection (1) of section 3 of Law Reforms Ordinance, 1972, would be appropriate which clearly stipulate that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

5. From the above resume, it is evident on the face of it that the above mentioned High Court's appeal was filed against the judgment of learned Single Judge while exercising its appellate civil jurisdiction under section 96, C.P.C., thus not maintainable.,

6. Finding no exception to the impugned judgment, the same is maintained. The petition is dismissed and leave to appeal refused. M.B.A./M-849/S???????????????????????????????????????????????????????????????????????????????? Petition dismissed.