2007 PLP 2944 (YLR)

SAIYED SAEED ASHHAD, J.

This High Court Appeal has been filed under Rule 43, C.P.C. read with section 3 of Law Reforms Ordinance XII of 1972 and section 15 of Ordinance X of 1980 against the order of a learned Single Judge of this Court dated 11-12-2003 dismissing C.M.A. No.6427 of 2003 in Suit No.1229 of 2003.

2. C.M.A. No.6427 of 2003 was an application under O.XXXIX, Rules 1 & 2, C.P.C. seeking injunction against the respondents from creating third .party interest in respect of suit property or handing over the possession thereof to anyone else till the decision of the suit.

3. It is pertinent to note that the appellant had earlier filed two Suits bearing Nos.1696/2001 and 16971200). The said suits were between the same parties and the subject-matter thereof was also the sane as in Suit No.1229/2003. Both the suits were .decreed on the basis of comprise arrived at between the aforesaid parties, whereby, the suit properties were put to be auctioned for leasing them out for 99 years. Auction was held and respondent No.7/defendant No.7 was declared to be the successful bidder, Before as well as after the auction the appellant/plaintiff moved a number of applications, which were disposed of. The appellant/plaintiff also filed appeals bearing High Court Appeals Nos.205/2003 and 206/2003. Both the appeals were withdrawn by the appellant/plaintiff with permission to file fresh suit vide order dated 6-11-2003. The appellant/plaintiff also filed Constitutional Petition No.D-1236 of 2003 challenging the auction proceedings, which was also disposed of without providing any relief. Thereafter, the appellant/plaintiff filed the above Suit No.1229 of 2003. The contention raised by the appellant/plaintiff in Suit No.1229 of 2003 is that the auction, whereby the lease of 99 years was granted in favour of respondent No.7ldefendant No.7 was not in accordance with law as 99 years lease could have been granted only in favour of the appellant/plaintiff in view of section 124 of Ordinance XXVII of 2001.

4. We have heard the arguments of Mr. M.A. Khan, Advocate for the appellant and have perused the material on record.

5. The appellant/plaintiff has filed two Suits Bearing Nos.1696 of 2001 and 1697 of 2001 in respect of the subject matter, which is subject matter of this appeal and subsequent Shit No.1229 of 2003. Both the suits were disposed of by way of compromise. Thereafter, the appellant filed two separate appeals challenging the compromise decrees, which he withdrew with permission to file a fresh suit. In the appeal he had alleged that the compromise was entered into by fraud and/or misrepresentation. If it was so, then the. compromise decree in the two 'suits ought to have 'been assailed by way of application under section 12(2), Cr.P.C. as a compromise decree is non-appealable in view of the provisions of section. 96(3) of the Civil Procedure Code. The parties to suit by seeking to a settlement to the controversy involved therein give up their right of appeal by virtue of such agreement and contest decree operates as an estoppel. There are exceptions whereby an appeal will be maintainable against a consent decree but thefacts and circumstances of the suits did not being the consent decrees within the class of decrees wherein an appeal could be filed. The Civil Procedure Code provides a specific provision for assailing the decrees obtained by way of fraud and/or misrepresentation which is embodied in section 12 of the Civil Procedure Code. The appellant instead of filing the appeal should have filed applications under section 12(2), C.P.C. in both the Suits Bearing Nos.1696 of 2001 A and 1697 of 2001 for setting aside the decree on the ground that they were obtained by fraud and/or misrepresentation. Even while applying to withdraw the said two appeals no sought permission to file fresh suit instead of filing applications under section 12(Z) of the Civil Procedure Code. An order of the Court which is not in accordance with law cannot clothe a party with the right to file or institute proceedings which he is not legally entitled to do. By the impugned order allowing withdrawal of the two appeals and permitting the appellant to file fresh suit if the appellant did not acquire the right to file fresh suit and moved the above miscellaneous application. The learned single Judge had rightly dismissed the Miscellaneous Application No.642712003 holding that the appellant had failed to make out a prima facie case and would not suffer any irreparable loss.

6. This High Court Appeal is absolutely without any substance and does not merit consideration. Accordingly, it stands dismissed in limine along with the miscellaneous application pending therein. ??????????? H.B.T./S-62/K???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.