2010 PLP 360 (CLC)

CH. NAEEM MASOOD, J.

This petition has been filed with the following prayer:

"To accept the petition and set aside the judgment and decrees of both the Courts below." In the pro forma the original suit is mentioned to have been instituted on 8-5-1978 and decided on 28-9-1987. Whereas, the first appeal has been mentioned to have been filed on 30-4-1990 and decided on 23-12-1990.

2. The brief facts of the case are that a civil suit for declaration was filed by Jan Muhammad, Mst. Fatto and Abdul Ghani plaintiffs against Muhammad Shafi, Ramzan, Ghulam and Saleh. File contains the written statement filed only by Muhammad Shafi.

3. The parties led their respective evidence and vide order dated 28-9-1987, ex parte proceedings were taken against the defendants and the suit was decreed in favour of the plaintiff.

4. Muhammad Shafi defendant/respondent No.8 filed an application dated nil before the learned trial Court for setting aside the order dated 28-9-1987 passed by the learned trial Court. The court-fee, however, as available on application at page 65 is dated 18-4-1983. This application was dismissed vide order dated 24-2-1990.

5. Against the order dated 24-2-1990, an appeal was filed by Muhammad Shafi respondent with a prayer to set aside the ex parte order/decree dated 28-9-1987. This appeal was dismissed by the learned Additional District Judge, Khanewal vide order dated 23-12-1990. Muhammad Shafi respondent No.8 does not appear to have pursued the matter further. From file of the petitioner it, however, appears that an application. under section 12(2), C.P.C. was filed before learned Additional District Judge, Khanewal by Muhammad Saleh petitioner with a prayer to set aside the order dated 28-9-1987 and dated 23-12-1990. The learned Additional District Judge dismissed the said application under section 12(2), C.P.C. before him observing that the said Court was not seized of the matter which culminated in the decree dated 28-9-1987, wherein the ex parte decree was obtained and that the said Court had merely disposed of the appeal against the order dated 24-2-1990 vide its order dated 23-12-1990.

6. The learned counsel for the petitioner contends that the petitioner had filed an application under section 12(2), C.P.C. which merited to be accepted by the learned Additional District, Judge. It is also submitted that the petitioner was bona fide purchaser of share of the respondents and was therefore, impleaded as party in the suit and was entitled to be heard. It is further contended that the decree dated 28-9-1987 was passed without recording any evidence. It was further contended that the plaint was liable to be 'rejected under Order VII, rule 11, C.P.C.

7. Conversely, die learned counsel for the respondents has vehemently controverted the arguments of the learned counsel for the petitioner and has supported the impugned orders. He has further contended that the whole proceedings have been taken in confusion.

8. I have heard the learned counsel for the parties and have perused the record.

98. It is pertinent to notice that the petitioner has not challenged the ex parte order dated 24-2-1990. The ex parte order passed against the defendants was challenged only by Muhammad Shafi, respondent No.8. After the dismissal of the application for setting aside the ex parte order it was only Muhammad Shafi respondent No.8 who has filed an appeal against the order dated 24-2-1990. Hence onward Muhammad Shafi, respondent No.8 does not appear to have chosen to file a revision petition.

10. So for as the petitioner is concerned, he had not challenged the ex parte order. However, he chose to file an application under section 12(2), C.P.C. for setting aside the ex parte order/decree dated 28-9-1987 passed by learned trial Court, as also the order dated 23-12-1990 passed by the learned Additional District Judge, Khanewal. The original decree was passed on 28-9-1987. The application to set aside the said decree was filed on 2-10-1991. The same was thus barred by time.

11. Besides the learned Additional District Judge correctly observed in his judgment dated 22-4-1993 that as the decree dated 28-9-1987 was passed by the learned trial Court and not by the learned Additional District Judge, therefore, the application under section 12(2), C.P.C. was not filed before the learned trial Court who had passed the decree dated 28-9-1987. The learned appellate Court had nothing to do with any fraud or collusion committed before the learned trial Court. Such issue merited to be raised before the learned trial Court. In this respect, better it is to borrow wisdom from the law laid down by this Court and the honourable apex Court. It has been held in PLD 1995 SC 564 in case titled as "Mubarak Ali v. Fazal Muhammad" as under:

"What is intended by section 12(2) C.P.C. is that a party must go to Court, which has finally decided the matter, if it desires to secure a reversal judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction." Likewise dictum laid down in 1979 YLR 2681 titled Mst. Riaz Fatima v. Ch. Ijaz Ahmad relying upon PLD 1995 SC 564 is as follows:

"Amending Ordinance X of 1980 took note of the aforesaid situation and enacted that where a person challenged the validity of judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction, such person shall approach the same Court and filing of separate suit was prohibited. Underlying purpose of this legislation was to weed out/curb the flow of false and vexatious suit on the plea misrepresentation, fraud/want of jurisdiction and such person was required to approach the Court, which passed such final judgment, decree or order. The next issue which arises is what is/was the final Court which passed/passes final judgment, decree or order. This provision clearly says that application has to be removed to the Court which passed/passes the final judgment, decree or order. The expression "final Court" came up for correction of Mubarik Ali Fazal Muhammad and another PLD 1995 SC

564. Speaking for the Bench, His lordship Mr. Justice Rustam S. Sidhwa said: "What is intended is that a party must go to that Court which has finally decided the matter, if it desires to secure a reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word "final" can mean that the last in a series of judgments, decree or orders which may have been passed." In 1999 YLR 2720 titled Muhammad Yousaf v. Noor Din it was held:

"(ii) The word "Final" means in the series of judgment, decree or order which is no longer alterable by the Court passing the said judgment, decree or order. The question as to which is that Court, shall depend upon the facts and circumstances of the case. For example, if the Supreme Court dismisses leave to appeal on mere technical ground and without touching the merits of the case, it will not be a final judgment but if leave is refused and the Court renders the decision on merits after assessing the merits and demerits of the case, then that judgment of apex Court, on the basis of doctrine of merger, will be final judgment. This rule also applies to this Court and subordinate Court." In 1999 SCMR 1555 titled Province of Punjab v. Muhammad Irshad, it was held;

"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 when 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." Similarly in PLD 1991 SC 197 titled Government of Sindh v. Ch. Fazal Muhammad the dictum laid down was:

"The first question for consideration is that what is the scope of section 12(2), C.P.C. before we proceed to examine the question. Section 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." A perusal of the above provision would show that the petitioner could challenge the validity of (i) judgment, (ii) decree (iii) or order on the plea of (a) fraud (b) misrepresentation and (c) want of jurisdiction by application to the Court which passed the final judgment, decree or order." The Ratio Decidendi in 1993 SCMR 1171 titled Secretary Ministry of Religious Affairs and Minorities v. Syed Abdul Majid is to the same effect as follows:

"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."

12. As a result of the above discussion, I find no force in the revision petition, which is dismissed. The parties are left to bear their own costs. S.A.K./M-301/L Revision dismissed.