2007 PLP 1865 (CLC)

MAULVI ANWARUL HAQ, J.

This hits-Court appeal proceeds against order dated 14-11-2005 passed by a learned Single Judge, in Chambers, of this Court, whereby C.M.No.2297 of 2004 filed by the appellants for sating aside of judgment dated 9-7-2002 passed in Writ Petition No.117/R of 1998 has been dismissed.

2. Learned counsel for the appellants contends that the impugned judgment fails to take note of the entire contents of the said C.M. which, in fact, was filed for setting aside of an ex parse judgment primarily on the ground that the appellants had not been served in the case. Learned counsel for the contesting respondents, on the other hand, argues that the order having been passed in a miscellaneous application cannot be said to have been passed in exercise of original jurisdiction and as such the infra-court appeal is not competent. He relies on the cases of Maqsood Ahmed Siddiqui v. Nisar Ahmed and others 2003 SCMR 1522, and Amin-ud-Din Khan v. Water and Power Development Authority and others 2004 CLC 382.

3. We have gone through the writ petition records, with the assistance of the learned counsel for the parties. The appellants before us are stated to be the L.RS. of Muhammad Siddique and Muhammad Sardar who were impleaded as respondents Nos.4 and 5 respectively in the writ petition filed by contesting respondents Nos. 1 to

7. The writ petition was heard on 9-7-2002 and the judgment of the even date narrates that the said predecessors of the appellants had been proceeded against ex parte as none had appeared on their behalf despite an intimation to their learned counsel practising at Kasur. On 12-7-2004 C.M. No.2297 of 2004 was filed by the appellants for rehearing of the writ petition. The application was purportedly filed wider section 12(2), C.P.C. read with Order XLI, Rule 21, C.P.C. for setting aside the ex parte judgment. It was dismissed vide the impugned order for the reason that since an infra-court appeal was filed against the said judgment and the same having been dismissed, the application under section 12(2), C.P.C. could be competently filed only before the said appellate forum.

4. Learned counsel for the appellants has filed a certified copy of order dated 15-1-2003 passed in Infra-Court Appeal No.620 of 2002 filed by the respondents Nos.1 to 3 and 7 in the writ petition. We have examined the same and found that the infra-court appeal was dismissed on a short ground that the said appellants had no locus standi to file the same. The merits of the judgment were not referred to at all. To our mind, in the said circumstances the doctrine of merger would not be applicable and an application under Section 12(2), C.P.C. was competent before the original Court.

5. We have also examined the said application filed by the appellants and we find that for all intents and purposes it was an application for setting aside of the ex parte judgment and prayed for a re-hearing on the grounds stated therein within the meaning of Order IX, rule 13, C.P.C. which provision is applicable to writ proceedings. The application is accordingly to be treated as such.

6. So far as the said contention of Mr. A.R. Shaukat, Advocate, is concerned, the same is not tenable at all. Present Infra-court appeal is governed by section 3(2) of the Law Reforms Ordinance; 1972. For all purposes the impugned order has been passed by the learned Single Judge in exercise of the jurisdiction vesting under Article 199 of the Constitution while deciding an application containing the said prayer vis-a-vis a judgment pronounced under the said provision of law. It is also not an interim order as the said application for grant of the said substantive prayer .stands decided finally. The judgments cited by the learned counsel as noted are not at all attracted to the facts of the present case. In the said case of Maqsood Ahmed Siddiqui, Infra-court appeal filed against an order passed by this Court dismissing an application under section 12(2), C.P.C. for setting aside of a judgment passed in exercise of appellate jurisdiction under section 96, C.P.C. was held to be not maintainable while in the said case of Amin-ud-Din Khan, the intra -court appeal was not held maintainable as the appellant had availed a remedy of review against the judgment impugned.

7. This Intra-court appeal is accordingly allowed. The result would be that C.M. No.2297 of 2004 shall be deemed to be pending and decided accordingly in the light of the observations made above. No orders as to costs. F.B./5-149/L Appeal allowed.