1990 PLP 2100 (MLD)

AKHTAR HASSAN, J.--This Intra-Court Appeal is directed against the order, dated the 14th of January, 1990, of the learned Single Judge, whereby he refused to condone the delay of nine years in presenting an application under section 12(2), C.P.C., on the 26th of October, 1989, against the judgment and decree, dated the 21st of September, 1980, of this Court passed in Evil Revision No.1517/D-80.

2. It passes our comprehension how the I.C.A. was competent. The judgment and decree, dated the 21st of September, 1980, sought to be assailed were passed by this Court in its revisional rather than original civil jurisdiction. Section 3 of the Law Reforms Ordinance, 1972, does not contemplate an Intra- Court appeal against orders of the High Court passed in its appellate, or so to say, revisional jurisdiction. Original civil jurisdiction envisaged by it obviously related to either the trial of civil suits etc. on its original side, or the orders passed in writ petitions on the Constitutional side. Orders passed in Revisions ordinarily cannot be challenged even in Constitutional jurisdiction. Quite a number of authorities including Noor Muhammad v. Sarwar Khan, etc. PLD 1985 SC 131 and Ghulam Sarwar etc. v. Mst. Sultan Bibi etc. 1989 MLD 4873 consistently laid down this principle.

3. It was, however, argued that section 12(2), C.P.C., conferred original civil jurisdiction so as to attract the provisions of section 3 of the Law Reforms Ordinance, 1972, for filing the Intra-Court Appeal. No case-law was cited to support this view. Even otherwise, the contention appeared to be uninhering. The remedy of making an application under section 12(2), C.P.C., would arise only if there was a judgment, decree or order of a Court, meaning thereby that it was contemplated as a sort of reconsideration or re-opening or in a way review of a decided matter though on the limited grounds of fraud, misrepresentation or want of jurisdiction. The provision was an innovation recently introduced to enable the Court concerned to rethink over the matter on a ground which may come to light subsequent to the decision. Such a rethinking could not possibly be claimed to be an exercise of original jurisdiction. Previously an independent suit was permissible to challenge a judgment etc. on the abovementioned grounds, and disposal thereof was manifestly in the exercise of original jurisdiction of the Court. But now such a suit was barred, as the Court concerned has been empowered to give a second thought to its decision; and the second thought quite axiomatically could not be an exercise of "original jurisdiction". The contention was completely devoid of force.

4. There was still another reason to think against the tenability of the application under section 12(2), C.P.C., against the judgment of the High Court. The expression "Judgment" used in the above-mentioned provision was defined in section 2(9), C.P.C. It means the statement given by the Judge of the grounds of a1 decree or order; and the term "Judge" as defined in section 2(8), C.P.C., means a Presiding Officer of a Civil Court. "Civil Courts" have not been specifically defined anywhere. This was the observation made in Nazar Muhammad v. Murad Ali and others PLD 1960 (W.P.) Lah.

757. The C.P.C. also does not create any Court. Dost Muhammad etc. v. Rais Salik etc. PLD 1902 (W.P.) Quetta 82 was a direct authority on the point. However, section 3 of the Civil Courts Ordinance, 1962, seems to create and classify Civil Courts, of course, without attempting to w provide any typical definition therefor. Thus, classification-wise they arc: (1) the Court of Small Causes, (2) the Court of the District Judge, (3) the Court of the Additional District Judge, and (4) the Court of the Civil Judge. It has no reference to a High Court which, indeed, is the creation of Article 192 of the 1 Constitution. 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 priori his judgments were not amenable to the remedy provided by section 12(2), C.P.C. As a cerollary, 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. No doubt the decision rendered in Mst. Sara Bibi v. Mst. Aisha Bibi 1982 SCMR 494 was to the effect that such an application would tic before the High Court to challenge a judgment etc. passed by it in a writ petition, but the above aspect was not considered therein and, therefore, it could be distinguished.

5. The main grievance of the petitioner was that he should have been allowed condonation of nine years delay. His version was that since he was not a party to the suit giving rite to Revision No.1517/D of 1980 decided by this Court on the 21st of September, 1980, he could assail it on the ground of fraud etc. whenever it came to his knowledge. Earlier he had challenged the said decree by suit filed on the 20th of July, 1985, but it was dismissed on the 16th of September, 1989, on the ground that the only remedy against the decree was an application under section 12(2), C.P.C. Consequently he thought of filing the same as late as the 26th of October, 1989. He tried to explain away the time consumed by him in pursuing the wrong suit but the learned Single Judge rightly spurned it on the basis of the rule laid down in Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others PLD 1983 SC 385; Bashir Ahmad v. Government of the Punjab and others 1985 SCMR 333; Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Secretary, Government of Sindh. Education Department and another v. Syed Riyazul Hassan Zaidi and another 1986 SCMR 64 and Nek Muhammad v. A.C., Jhelum and others 1986 SCMR 1493. Mistaken advice by a counsel to institute a wrong remedy was held to be no ground for condonation of time taken therein. Further, the principle enunciated in Saeeduddin Ahmad Naqvi and others v. Abdul Ghafoor and others 1977 SCMR 306 and Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan and others 1986 SCMR 1086 is that condoning delay is a matter of discretion with the Court concerned, and if it chooses to exercise the same against the applicant, no exception may be taken to it in any further remedy. Besides, he was found to have wasted twenty-four days, after dismissal of his suit, in filing the application under section 12(2), C.P.C., before the learned Single Judge. No attempt was made by him to explain away that delay, though he was expected to account for each single day so wasted by him.

6. We rind from the above discussion that the Intra-Court Appeal was incompetent. Besides, it has no merit and is dismissed in limine. M.B.A./M-2321/L Appeal dismissed.