2004 PLP 1066 (YLR)

Section 9 of the Specific Relief Act, inter alia, states that:-- "No appeal shall lie from any order or decree passed in any suit instituted under this section nor stroll any review of any such or decree be allowed. " When the above provision of law was pointed out to Mr. Rehman, learned counsel for the respondent, he conceded that an appeal against an order passed under section 9 of the Specific Relief Act was not maintainable; however, he vehemently contended that the respondents had filed an application under section 12(2), C.P.C. on the ground that Asghar had obtained the decree by fraud and misrepresentation which was dismissed by the trial Court by Order dated 4-10-2002. As the question of fraud and misrepresentation is a serious matter involving both questions of law and fact, an appeal under section 104, C.P.C, was maintainable. In order to appreciate the arguments of the learned counsel, it would be appropriate to reproduce the provisions of section 12(2), C.P.C. which was inserted by Ordinance X of 1980 dated 26-3-1980 which reads as follows:-- "(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. " It is pertinent to mention here that an order passed on an application under section 12(2), C.P.C. does not culminate in any decree but is simply an order on a miscellaneous application filed under one of the many provisions of C.P.C. Section 104, C.P.C. which specifies the orders from which an appeal may be filed under C.P.C. reads as under:-- "104. Orders from which the peal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-- (f) an order under section 35-A; (ff) an order under section 47; (g) a order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section. " A plain reading of the above section makes it clear that an order under section 12(2), C.P.C. is not mentioned in the provision. Further Order 43, C.P.C. gives a list of the orders under the provisions of section 104 which are from clause (a) to clause (w), a total 23 clauses in number, from which an appeal shall lie to an Appellate Court. Section 12(2), C.P.C. is not included in this list also. It appears that after the addition of subsection (2) in section 12, C.P.C., no amendment either in section 104 or in Order 43 was made by the Legislature and consequently, no appeal lies under the provisions of C.P.C. against an order passed under section 12(2), C.P.C. There is no other law also which provides an appeal against such an order. In the absence of the availability of an appeal, the only remedy available to a party who is aggrieved by an order passed under section 12(2), C.P.C. is to file a revision under section 115, C.P.C. which the respondents did not do. They did not even file an application or orally requested the Appellate Court to treat the appeal as a revision. It is clear that the appeal filed by the respondents before the District Judge, Karachi Central was not maintainable and that the learned District Judge exceeded his jurisdiction in not only entertaining the appeal but also modifying the order of the trial Court for which he had no authority in law. The judgment of the learned District Judge is therefore without jurisdiction, a nullity in the eye of the law and liable to be set aside. In view of the above, the revision Application is allowed, and the judgment dated 20-12-2002 passed by the learned -District Judge, Karachi Central is hereby set aside and the Order of the learned IVth Senior Civil Judge and Rent Controller, Karachi Central passed on 6-2-2002, in Civil Suit No.855 of 2000 is hereby confirmed with costs throughout. In the initial stage of the arguments it transpired that the law was against the respondents. Mr. Jamilur Rehman learned counsel for the respondents, was therefore advised to be short and confine his arguments to the law points only as the Court had several cases in the Cause List of the day but in spite of the advice and thereafter several warnings of imposition of costs for frivolous and vexatious arguments he persisted and argued the matter by referring to several documents in the file on the point of facts to justify that the judgment of the District Judge acting as an Appellate Court modifying the decree of the trial Court was in accordance with law. He wasted more than one hour of the Court's time in his frivolous arguments which time could have been more fruitfully utilize in hearing and disposing of other matters. The respondents shall, therefore, pay to the applicant a sum of Rs.3,000 as compensatory costs under section 35-A. C. P. C. Mr. Akbar states 'that the compensatory costs instead of being paid to him may be deposited in High Court Medical Fund. Accordingly, Mr. Jamil is directed to deposit a sum of Rs.3000 with the Nazir of this Court within 30 days. S.A.K./A-13/K Revision accepted.