1993CLC824 (PLP)

‑‑‑‑S. 115‑‑‑Revision ‑‑‑Dismissal of revision as withdrawn‑‑‑Effect‑‑‑Where revision before High Court had not been decided on merits but had been dismissed as withdrawn, dismissal of same being without any reservation, had to be equated with decision given on merits. Seerat Hussain Naqvi.for Petitioner. Ch. Muhammad Jehangir Wahla for Respondents Nos. 1 and

2. Nemo for Respondent No.3. Date of hearing: 18th October,1992. This revision calls in question the order of the learned Additional District Judge, Faisalabad passed on the 7th of May, 1991, whereby he had upheld the order of the Civil Judge Ist Class, Faisalabad dated the 19th of September, 1989, whereby he had returned the petition under section 12(2) of the Code of Civil Procedure, under Order VII, rule 10 of the Code of Civil Procedure to the petitioner for its presentation before the proper Court.

2. The petitioner had challenged the judgment and decree dated the 29th of May, 1983 on the basis of fraud and misrepresentation under section 12(2) of the Code of Civil Procedure. This petition was resisted by the respondents who sought its rejection on the ground that the said decree of the learned trial Court was appealed against and, therefore, had merged into the decree passed by the first appellate Court. Not only this after the decision of the first appellate Court, the same was taken to the High Court. The learned counsel for the petitioner has stated at Bar that the said revision petition in the High Court was not decided on merits but the same was with drawn by the present petitioners.

3. Learned Courts below had rightly upheld the objection of the respondents and held that since the decree of the learned Civil Judge was appealed against, therefore, it had merged into the decree passed by the A learned Additional District Judge vide order dated the 7th of May, 1991 and, therefore, the petition under section 12(2) of the Code of. Civil Procedure could only be in the appellate Court and not in the Court of first instance. If any authority be needed, that is available at Muhammad Yaqoob v. Mst. Nooran etc. (1983 CLC 1948).

4. There is another insurmountable hurdle in the way of the maintainability of the petition. The petition under section 12(2) of the Code of Civil Procedure was incompetent after the said order of the learned Additional District Judge had unsuccessfully been challenged in the High Court. The contention of the learned counsel for petitioner that the revision before the High Court had not been decided on merits but had been dismissed as withdrawn is of no help to him. Admittedly, the dismissal was without any reservation, therefore, it has to be equated with a decision given on merits. The ruling of this Court which comes to my mind is cited at Subedar Muhammad Hussain v. Mst. Shah Begum and others (1990 MLD 2100). It was observed therein as under". Thus,‑ reference to a Court in section 12(2) did not include in its purview a High Court. Further, a Judge of a High Court could not be styled to be a "Presiding Officer" and a fortiori his judgments were not amenable to the remedy provided by section ‑ 12(2), C.P.C. As a corollary, such a remedy could be availed only against the judgments etc. of the subordinate Courts. Even otherwise, a High Court is primarily a Court of supervisory jurisdiction rather than a forum landing itself into factual inquiries of determining fraud etc. in respect of its own judgments."

5. For reasons aforementioned the petition is no longer tenable in the circumstances of the case and the same is hereby dismissed leaving the parties to bear their own costs. AA./G‑91/L Revision dismissed.