2010 PLP 1851 (YLR)

FAISAL ARAB, J.

This order disposes of the application filed under section 12(2) of Civil Procedure Code in Rent Appeal No. 1 of 2009. This Rent Appeal was dismissed by this Court vide judgment dated 27-4-2009. The Applicants of this application who were also appellants in the Rent Appeal, have raised the plea that as judgment in appeal was obtained by the respondent by suppressing material facts from the Court therefore it was obtained by misrepresentation and hence they are entitled to invoke section 12(2) of Civil Procedure Code for relief.

2. For deciding this application under section 12(2) Civil Procedure Code, the relevant facts are that the respondent, who is landlord of the Shop No.2, Ground Floor, Plot No.12-D, Stadium Lane No.1, Phase-V, Defence Housing Authority, Karachi filed eviction application before the Rent Controller against his tenants i.e. the applicants on the grounds of personal need, default and making unauthorized additions and alterations. After service of summons, the applicants' counsel appeared before the Rent Controller on 9-9-2008 and undertook to file Vakalatnama on the next date. On the next two succeeding dates i.e. 7-10-2008 and 14-10-2008, no one appeared on behalf of the applicants, however the matter was adjourned. Then on the next date i.e. 8-11-2008 applicants' counsel filed Vakalatnama. The matter was then adjourned to 18-11-2008 for filing of written statement. On 18-11-2008 no written statement was filed but a request for adjournment was made by the applicants counsel that was granted and last chance was given to the applicants to file their written statement by next date. On the next date i.e. 22-11-2008 no one appeared before the Rent Controller on behalf of the applicants. On account of failure of the applicants to appear and file their written statement, the Rent Controller closed the side of the applicants and ordered to proceed ex parte in the matter. The respondent was then directed to file his Affidavit-in-Ex parte Proof that was filed. After considering the contents of the Affidavit-in-Ex parte Proof, the Rent Controller passed eviction orders of the applicants on 25-11-2008. Against this order, the Applicants preferred appeal before this Court taking the ground that sufficient opportunity to file written statement was not given by the Rent Controller and prayed that Rent Controller's order be set aside so that rent case could proceed afresh on merits. This Court however vide judgment dated 27-4-2009 dismissed the appeal of the applicants after taking into consideration that several opportunities were already extended by the Rent Controller to the applicants but they on account of their own indolence failed to avail such opportunities. Hence, the applicants were not considered to be given yet another opportunity to contest the rent case on merits. Resultantly, the Rent Appeal was dismissed and the applicants were directed to hand over vacant physical possession of the shop to the respondent within 30 days.

3. After dismissal of their Rent Appeal, the applicants filed the present application under section 12(2), CPC on 20-5-2009 challenging the judgment passed in appeal. Subsequently, the applicants also filed a Petition for Leave to Appeal before the Hon'ble Supreme Court impugning the judgment in appeal. However, the Petition filed in the Supreme Court was not pressed, which was dismissed vide order of the Supreme Court dated 12-6-2009. After withdrawal of their appeal from the Supreme Court, the applicants confined themselves to pursue remedy under section 12(2) of the Civil Procedure Code only.

4. Mr. Mushtaq A. Memon, learned counsel for the applicants, argued that appeal was dismissed by considering pleas of the respondent only which too were factually incorrect as the same are not borne out from the record, therefore the judgment in Rent Appeal was obtained by the respondent on the basis of misrepresentation of facts which entitle the applicants to invoke provisions of section 12(2) of Civil Procedure Code. In support of his contention he relied upon the cases reported in PLD 1959 Karachi 221, 1993 SCMR 710 (Para-5) 1992 ALD 513, 2005 CLC 1599, 2006 SCMR 753, 1994 CLC 1044, 2003 SCMR 1300 and 2004 SCMR 843.

5. In response to the arguments of Mr. Mushtaq A. Memon, Mr. Farogh Naseem, learned counsel for the respondent argued that once appeal filed by the applicants was decided on merits then the only remedy available with applicants was to file petition leave to appeal before the Supreme Court as the Supreme Court was the only higher forum to reverse the findings given by this Court in Rent Appeal. He submitted that the applicant did file Petition for Leave to Appeal bearing No.473-K of 2009 in the Supreme Court but withdrew the same on 12-6-2009 and preferred to pursue their remedy under section 12(2) of Civil Procedure Code which remedy is not available to a party which contested an appeal but failed in getting relief. He therefore concluded his argument by stating that in these circumstances, the application filed under section 12(2) of the Civil Procedure Code was not maintainable in law and liable to be dismissed. In support of his contentions, Mr. Faroogh Naseem relied upon cases reported in 2002 CLC 166 PLD 2002 SC 500, 1993 SCMR 710, 1988 CLC 242, 1986 CLC 747, PLD 1993 Lahore 88, 1989 CLC 937, PLD 1995 Karachi 341, 2002 PTD 87, 2003 CLD 326, 2008 SCMR 79, 2008 SCMR 226, 1997 PSC 1377, 2006 MLD 366, 2003 CLC 1472 and 2008 CLC 75.

6. Admitted position is that after service of summons, the applicants appeared before the Rent Controller and contested the matter on merits. Then on account of their failure to file written statement, the Rent Controller decided to proceed ex parte against the applicants and after considering the pleas taken by the respondent only passed eviction order of the applicants. The applicants then preferred appeal before this Court, which was dismissed on merits. The applicants then challenged the order of dismissal of their appeal first by filing application under section 12(2) Civil Procedure Code and also by filing petition for leave to appeal before the Supreme Court. Then after withdrawing their petition from the Supreme Court, confined themselves to seek remedy only in their application that was filed under section 12(2) of the Civil Procedure Code.

7. When the Rent Controller passed order dated 22-11-2008 debarring the applicant from filing written statement and decided to proceed with the case ex parte by giving directions to the respondent to file affidavit-in-Ex parte Proof, the only recourse that was left with the applicants at that stage was to get such order set aside from the same Court in order to regain their right before the Rent Controller to file written statement so that they may be able to contest the matter on merits. The applicants did not pursue this remedy before the Rent Controller. In the meantime, the Rent Controller passed ex parte eviction orders of the applicants on 25-11-2008.

8. The effect of an ex parte order is that it virtually shuts the door on a party to defend its case on merits and Court considers legal and factual pleas of only one side. In order to regain the right of defending legal proceedings and be heard on merits, it was in the interest of the applicants to get the ex parte decisions set aside in appeal. The applicants did file Rent Appeal before this Court, and after hearing the parties it was dismissed on merits. It was held that before proceedings ex parte against the applicants, the Rent Controller extended several opportunities to them to file their written statement but on account of their own indolence they failed to avail such opportunities. Thus this Court did not give yet another opportunity to the applicants to file written statement and contest the matter on merits before the Rent Controller. The applicants then challenged the decision given in Rent Appeal by filing application under section 12(2) of the Civil Procedure Code as well as by filing petition for leave to appeal in the Supreme Court. However, the applicants withdrew their petition from the Supreme Court and decided to seek relief in the application under section 12(2) Civil Procedure Code.

9. In this background of the proceedings, the question which needs to be examined is does an application filed under section 12(2) of the Civil Procedure Code is maintainable in law. In other words can the provisions of section 12(2) of Civil Procedure Code be pressed into service by a party, which contested the proceedings but failed to obtain any relief on merits. It is also to be seen as to what is the effect of withdrawal of petition from the Supreme Court, which is the only higher forum that could set aside the judgment passed by this Court on 27-4-2009 in the Rent Appeal.

10. When a decision is given in any legal proceedings against a party which was duly served then the remedy for unsuccessful party is to challenge the same under the provisions of Parts VII and VIII of the Civil Procedure Code, in case the decision emanates from a suit. In case a decision pertains to a matter which emanates from a Special Statute, then the provisions of appeal provided in that Statue could be availed by an unsuccessful party. Once a contesting party gives up its remedy provided either under Parts VII and VIII of the Civil Procedure Code or under a Special Statute, as the case may be, then the decision attains finality. The unsuccessful party which was duly served with summons or notice then cannot resort to the provisions of section 12(2) Civil Procedure Code to impugn a decision. If this is allowed then this would mean to give to a party, which has contested a legal proceedings or failed to contest the same even after due service, another opportunity to attack a decision before the same Court which has already decided against him. This remedy under section 12(2) of Civil Procedure Code is not meant for a party that could have availed the ordinary remedy provided under Parts VII and VII of the Civil Procedure Code or under a Special Statute, whatever the case may be, but failed to avail such remedy or if availed consciously gave it up. The provisions of section 12(2) of Civil Procedure Code cannot be used as a substitute or alternative for the ordinary remedy of appeal. Once a contesting or defaulting party gives up or fails to avail remedy of appeal, then the matter attains finality and remains no more open to challenge. This finality is accorded by law irrespective of the fact that an aggrieved party is otherwise able to demonstrate that it has a valid case on merits. The whole idea behind this principle of finality is that at reaching a certain stage every litigation must come to an end no matter any party may be unduly benefited on account of the bar of finality to a legal proceedings. Law envisages a stage when litigation must come to an end without any further challenge. This principle of finality is well enshrined in the doctrine of Res Judicata as well as in the statutes prescribing limitation for initiating any legal proceedings. This principle cannot be trampled by allowing a contesting or defaulting party to have recourse to provisions of section 12(2) of the Civil Procedure Code to be used as an alternative or substitute for the remedy that was though available but consciously given up. For a contesting or defaulting party, the remedy lies only before the appellate forum provided in law and not under section 12(2) of the Civil Procedure Code. The intent and object behind enacting the principle of finality as provided in the doctrine of Res Judicata or the law of limitation would be defeated if the doors of further litigation on the contesting or defaulting party are not shut after a controversy has been decided and the remedy to challenge the same before appellate forum is no more avail-able by efflux of time. This principle of finality, which is accorded by law to a controversy or a decision of Court of law, remains irrespective of the fact that a contesting party is otherwise able to demonstrate that it has a valid case on merits.

11. The maintainability or otherwise of an application filed under section 12(2) of Civil Procedure Code can be examined from another angle also. Prior to the enactment of section 12(2) of the Civil Procedure Code any person, not aware of any judgment, decree or order which has prejudiced his right, title or interest, could have challenged the same by filing a separate suit and taking the plea of fraud, misrepresentation or want of jurisdiction. This remedy of separate suit was available only to an aggrieved person who had no knowledge of the decision which affects his rights, title or interests. In other words he was not a contesting party in the legal proceedings in which a judgment, decree or order was passed affecting his right, title or interest. This remedy of filing a separate suit was never available to an aggrieved person who was himself a contesting party in any legal proceedings. For a contesting party, prior to enactment of section 12(2) of Civil Procedure Code, the remedy provided under Parts VII and VIII of the Civil Procedure Code was available, if the decision under challenge was given in a suit or the forum of appeal provided under a Special Statute was available, if the decision under challenge emanates from a Special Statute. Prior to enactment of section 12(2) of Civil Procedure Code it was not conceivable at all that a person who was a contesting party shall be extended the option to challenge a legal decision by fling a separate suit instead of availing the ordinary remedy of appeal provided under Parts VII and VIII of the Civil Procedure Code or the remedy of appeal provided under a Special Statue, whatever the case may be. Had both the options been extended to a contesting party, then the principle of finality, as discussed above, would have stood nullified. Even after the incorporation of section 12(2) in the Civil Procedure Code, the same position has to continue as the amendment does not have the effect to nullifying the principle of finality. The only difference that has occurred after the amendment is that the remedy of filing a separate suit that was available to a non-contesting party prior to amendment has been taken away. The non-contesting party now has to file application under section 12(2) of the Civil Procedure Code in the Court that passed the final order at his back which has prejudiced his right, title or interest.

12. Thus the remedy of section 12(2) of the Civil Procedure Code is available to a person who is either not a party to any proceedings or if is a party but was not duly served with summons or notice and decision has been given against him as if summons or notice was duly served upon him. The provisions of section 12(2) of the Civil Procedure Code can be invoked only in a situation where a judgment, decree or an order has been obtained against a person who had no knowledge of the proceedings in which a judgment, decree or order has been passed. On the other hand where a person was himself contesting a legal proceedings, or was served but abstained from contesting the matter then for such a person the only remedy left with him is to invoke remedies of Appeal, Revision, Review or Petition for Leave to Appeal as provided in law and not by filing application under section 12(2) of the Civil Procedure Code. The right to invoke provisions of section 12(2) of the Civil Procedure Code cannot be extended to a person who is himself a contesting party but on account of his own default was ordered to be proceeded ex parte. Likewise, where a person who may have a right to invoke the provision of section 12(2) of the Civil Procedure Code, if he avails regular remedy before the appellate forum then too he is estopped from challenging the validity of any decision under the provision of section 12(2) of Civil Procedure Code. Section 12(2) of the Civil Procedure Code cannot be allowed to be used as an opportunity to attack the validity of a decision on the plea of fraud, misrepresentation or want of jurisdiction, once the opportunity to challenge the same in Appeal, Revision, Review or Petition to Leave to Appeal was available but has either been allowed to lapse by efflux of time or if availed was given up subsequently.

13. When a decision is rendered by a Court after hearing a party then the only remedy left with such a party is to challenge the same before the higher forum available in law. Failure to do so would allow the decision to attain finality. This Court in its decision in Rent Appeal dated 27-4-2009 upheld the decision of the Rent Controller dated 25-11-2008 which was the result of ex parte proceedings. This decision in Rent Appeal attained finality as petition for leave to appeal filed before the Supreme Court, which was the only appellate forum to challenge the same was withdrawn by the applicants. This decision in Rent Appeal was open to challenge only through a petition for leave to appeal and not under section 12(2) of the Civil Procedure Code as the decision was given after hearing the applicants, therefore it cannot be said that it was obtained at the back of the applicants by playing fraud or misrepresentation. Whatever pleas were taken by the respondent, were taken in the proceedings in which the applicants were themselves contesting party and had the opportunity to put their own defence and rebut the case of the other side. The applicants themselves squandered this opportunity on account of their own default and indolence. If the applicants were dissatisfied with the decision in Rent Appeal given by this Court, then they ought to have availed the remedy before the higher appellate forum i.e. before the Supreme Court but after availing such opportunity, the applicant withdrew their petition for leave to appeal from the Supreme Court on the notion that their remedy lies under the provisions of section 12(2) of the Civil Procedure Code, which remedy in fact they did not have in law. In these circumstances, the case law relied upon by the applicants' counsel is of no help to applicants' case.

14. It may be pointed out that in certain exceptional situation provisions of section 12(2) of Civil Procedure Code can also be invoked by a person who is aware of the legal proceedings. For example an intervener, who has applied to a Court to be joined as a party and had not yet been ordered to be so joined. While pendency of his application, if the parities to the case obtains an order at the back of the intervenor without notice to him, which may prejudice any of this right, title or interest then in such a situation the intervenor can file an application under section 12(2) of Civil Procedure Code in order to get such order set aside. For such exceptional situation provisions of section 12(2) of Civil Procedure Code cannot be invoked by a party who was a contesting party or inspite of service of summons or notice had opted not to contest the legal proceedings.

15. From the above discussion, it becomes quite evident that except for the exception narrated above, the provisions of section 12(2), C.P.C. are not available to an aggrieved person who has contested the legal proceedings or in spite of service had opted not to contest the proceedings. Any decision that goes against him in any legal proceedings can only be challenged by him by taking the matter to higher appellate forum provided in law but he cannot invoke provisions of section 12(2) of Civil Procedure Code.

16. In view of the above discussion, it is evident that the application filed under section 12(2) of Civil Procedure Code was not maintainable as the applicants were themselves contesting the Rent Appeal in their capacity as appellants till it was finally decided on 27-4-2009. Hence their application filed under section 12(2) of Civil Procedure Code is dismissed. S.A.K./T-7/K Application dismissed.