1999 PLP 1555 (SCMR)

AJMAL MIAN, CJ.--This is an application under Order V, Rule 3 of the Supreme Court Rules, 1980, against the order dated 14-11-1997 of the learned Assistant Registrar, Supreme Court of Pakistan, declining to entertain the petitioner's application under section 12(2) of the C.P.C., The brief facts are that respondent Muhammad Irshad Bajwa filed a suit against the petitioner, for a declaration that he had become owner of the suit property mentioned in his plaint. It was averred that initially it belonged to Noor Hussain and Karam Din, who had sold the same to Muhammad Sultan. Predecessor-in-interest of the respondent pre-exempted the sale by fling a suit for pre-emption, which was decreed. It was further averred that the petitioner was interfering with the enjoyment of suit land and was not allowing the respondent to cut trees standing on the suit land. Permanent injunction was also suit for restraining the petitioner from interfering with the use of the disputed trees on the Suit land. The above suit was resisted by the petitioner inasnnuch as, inter alia, written statement was filed, wherein it was averred that the suit land was allotted in favour of the Forest Department on 10-2-1948 and 24-2-1953. It was also pleaded that the Forest Department. to whom the suit land was sold by the Chief Settlement Commissioner, was not bound by allotment in favour of any person. On the basis of the pleadings of the parties a number of ,issues were framed, evidence was recorded, the parties were heard and the suit was decreed. However, upon appeal by the petitioner, the Additional District Judge through his judgment dated 27-1-1994, remanded the case to the trial Court with the direction to provide them opportunity to adduce evidence. Thereupon, the trial Court after providing further opportunity to the petitioner and after hearing the parties, again decreed the suit on 25-9-1994, which was maintained in Appeal No. 135 of 1994 and in Civil Revision No. 296 of 1995 by the learned Additional District Judge and the High Court, respectively. Against the above concurrent Judgments/decrees the p9titioner filed Civil Petition for Leave to Appeal No. I 109-L of 1996, which was dismissed by this court by the judgment dated 18-1-1997, after referring to the evidence and finding recorded by the Courts below. It appears that the petitioner filed above application under section 12(2), C.P.C. in or about June, 1998, which was not entertained. In support of the above application, Mr. M. Zaman Bhatti, learned counsel for the petitioner/applicant, has vehemently contended that the respondent obtained the judgment and decree by practising fraud inasmuch as he suppressed by relevant revenue record. Learned counsel has invited our attention to the photostat copies of the alleged Jamabandi of the suit land for 1939-40. However, he candidly conceded that these documents were not filed earlier. The question at issue is as to whether above application was competent under subsection (2) of section 12 of the C.P.C. in respect of the above order of refusing leave. Subsection (2) of section 12 of the C. P.C. provides that 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. To reinforce his submission the learned counsel has invited our attention to a leave-granting order of this Court in the case of Baz Muhammad and others v. Mst. Zelekha and others (PLD 1997 SC 300) and to the case of Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564). In the first case it is true that leave has been granted to consider whether an application under section 12(2), C.P.C, would be competent, though C.P.C. is not applicable to the proceedings before this Court, or a review petition would he competent. In the above second case the subject-matter was an ex parte decree which was set aside by the appellate Court arid the case was remanded with the direction to decide application under section 12(2), C.P.C. The above leave granting order cannot be cited in support of the proposition that an application under section 12(2), C,P.C. was competent before this Court. In the second case the question at issue before this Court was, whether an order of dismissal of the petition for leave to appeal for the reason that the same was not pressed could constitute a final judgment, decree or order in terms of section 12(2), C.P.C. On the contrary, there is a direct judgment of this Court against the view what has been canvassed by the learned counsel for the petitioner/applicant. In the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) inter alia the following was held: "It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court. Section 12(2), C.P.C. being a part of it will be applicable. In this connection the next point for consideration is whether in view of the' fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad (PLD 1991 SC 197), such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and, therefore, the application filed by the appellants there was competent. " We are in respectful agreement with the above view. The above Miscellaneous Application is, therefore, dismissed with the observation that if an application under section 12(2), C.P.C. is competently filed, the Court will, examine the same on merits according to law. H.B.T./P-32/S Application dismissed.