2015 Y L R 2638

2015 Y L R 2638

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AYUB---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.725 of 2002, heard on 17th July, 2013.

(a) Civil Procedure Code (V of 1908)---

----S.12(2)---Decree of Civil Court upheld in appeal by Appellate Court---Filing of application under S.12(2), C.P.C. for setting aside such decree---Maintain-ability---Remedy under S. 12(2), C.P.C. would lie before Court having passed final judgment/order--- Judgment/decree of Court below would merge into judgment/ decree of Appellate Court or Revisional Court, which would attain status of final decree/order within purview of S.12(2), C.P.C.---Applicant was required to have filed such application before Appellate Court---Such application was dismissed for being not maintainable.

            Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564; Allah Dad and others v. Abdul Ghani and others PLD 2010 SC 580; Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others 2010 SCMR 18; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555 and Chan Peer Shah v. Shafi Ullah and others 2006 YLR 3229 ref.

            Black's Law Dictionary and Nasrullah Khan and others v. Mukhtiar-ul-Hassan and others PLD 2013 SC 478 rel.

(b) Civil Procedure Code (V of 1908)---

----S.12(2)---Limitation Act (IX of 1908), Art. 181---Decree of Civil Court upheld in appeal by Appellate Court on 14-9-1995---First application under S. 12(2), C.P.C. for setting aside such decree dismissed on 18-1-2001 by Civil Court for being not maintainable and appeal filed there-against dismissed by Appellate Court on 25-9-2001---Second Application under S.12(2), C.P.C. for setting aside such decree filed before Appellate Court on 2-10-2001---Applicant's plea was that he sought his remedy before wrong forum on wrong advice of his counsel---Validity---Applicant had filed second application after more than 5 years of gaining knowledge about dismissal of appeal against such decree on 14-9-1995---Applicant had failed to show that he had approached wrong forum with due care and diligence---Appellate Court had rightly declined to condone delay in filing second application---High Court dismissed revision petition in circumstances.

            Manazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300 rel.

            Muhammad Akbar Ali Cheema for Petitioner.

            Malik Imtiaz Mehmood Awan for Respondents.

            Date of hearing: 17th July, 2013.

JUDGMENT

            MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant constitutional petition the petitioner has assailed the judgment and decree of the learned Senior Civil Judge dated 19-1-2001 and that of the learned Additional District Judge, Rahimyar Khan dated 25-9-2001 and 2-2-2002 whereby the application of the petitioner filed under section 12(2) of the C.P.C. has been dismissed.

2. Brief facts of the case are that one Nehal Muhammad, predecessor-in-interest of respondents Nos.2 to 12 filed a suit for declaration against Subani widow of Fateh Muhammad and two others claiming therein that he was entitled to inherit 3/8th share in the estate left by Fateh Muhammad and sought cancellation of inheritance Mutation No.564 dated 11-9-1965. The suit was contested. The learned trial Court framed necessary issues and after recording evidence of both the parties decreed the suit on 19-10-1989 in favour of the plaintiff/ Nehal Muhammad. Feeling aggrieved, the defendants filed appeal, which was dismissed vide judgment and decree dated 14-9-1995. The predecessor in interest of the present petitioners filed application under section 12(2) of the C.P.C. before the learned trial Court, which was dismissed on 19-1-2001, on the ground that the same was not maintainable before the trial Court as the judgment and decree passed by the said court had merged into the judgment and decree of the learned appellate Court. The order dated 19-1-2001 was assailed in appeal, which was also dismissed, vide judgment of the learned Additional District Judge, Rahimyar
Khan dated 25-9-2001. Thereafter, on 2-10-2001, the petitioner filed another application under section 12(2), C.P.C. before the learned Additional District Judge, which was also dismissed on 2-2-2002, being barred by limitation. Hence, the instant writ petition.

3. Learned counsel for the petitioner contends that both the courts below have misconstrued the law on the point of forum of filing application under section 12(2) of the C.P.C. He submits that in the present case the judgment and decree of the learned trial Court was upheld in appeal by the learned Additional District Judge, therefore, for the purposes of filing application under section 12(2) C.P.C. the available forum was the learned trial Court and not the appellate Court. In support of his contentions he has relied upon the cases of Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516) and Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564). He further submits that after the dismissal of first application under section 12(2) C.P.C. second application was filed just as an abundant caution but the same was also illegally dismissed due to the bar of limitation. He argues that the petitioner has been vigilantly pursuing his case and the delay, if any, was caused due to the wrong advice of the learned counsel, which was liable to be condoned.

4. Conversely, the learned counsel for the respondents argued that for all intents and purposes the forum for filing application under section 12(2) of the C.P.C. was the Appellate Court as the judgment and decree passed by it was the final judgment. He has relied upon the cases of Allah Dad and others v. Abdul Ghani and others (PLD 2010 SC 580), Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others (2010 SCMR 18), Faisalabad Development Authority v. Raja Jahangir Nasir and others (2004 SCMR 1247) and Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa (1999 SCMR 1555). He argued that limitation for filing application under section 12(2) C.P.C. is 3 years and as such second application before the learned Additional District Judge was barred by limitation and in this context he has relied upon the case of Chan Peer Shah v. Shafi Ullah and others (2006 YLR 3229).

5. Arguments heard. Record perused.

6. The petitioner's first application under section 12(2) of the C.P.C. was dismissed by the learned trial Court as well as the appellate Court, on the ground that the same was not filed before right forum. Second application was dismissed by the learned appellate Court being time barred. In this view of the matter, this court has to dilate upon two issues, firstly, right forum of filing application under section 12(2) of the C.P.C. and secondly, limitation for filing such an application. Issue for determination of forum in this respect is taken first. As per record, the suit was decreed by the learned trial Court in favour of the plaintiff/Nehal Muhammad, vide judgment and decree dated 19-10-1989, which was assailed in appeal before the learned Additional District Judge, Rahim Yar Khan. In appeal, the judgment and decree of the learned trial Court was upheld. From a bare reading of the provisions of section 12(2) of the C.P.C. it is evident that for seeking setting aside of a decree on the basis of fraud and misrepresentation remedy lies before the Court, which passed the final judgment/ order. In Black's Law Dictionary the word "final decision" is defined as under:--
         
"One which leaves nothing open to further dispute and which sets at rest cause of action between parties. Judgment or decree which terminates action in Court which renders it. One which settles rights of parties respecting the subject matter of the suit and which concludes then until it is reversed or set aside. The filing of signed findings and conclusions and order for judgment. Synonymous with final judgment or decree."
         
In the same dictionary the word "final decision" and "final judgment" has been defined as under:
         
"One which finally disposes of rights of parties, either upon entire controversy or upon some definite and separate branch thereof…… judgment is considered "final" only if it determines the rights of the parties and disposes of all of
the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy."
         
It is well settled that judgment and decree of the court below merges into the judgment and decree of the appellate or revisional court and the said judgment/order attains the status of the final decree/order within the purview of section 12(2) of the C.P.C. Reliance in this regard is placed on the case of Nasrullah Khan and others v. Mukhtar-ul-Hassan and others (PLD 2013 Supreme Court 478) wherein it has been held that where the decree/order of a forum below has been affirmed by the higher forum on merits, both on points of fact and law, it should be such decree/order of higher forum which attains the status of final decree/order within the purview of section 12(2) of the C.P.C. and it would by the said higher forum before which the application under section 12(2) of the C.P.C. is to be initiated. In the said judgment it has further been held that where a decree/order has been modified or reversed by the appellate or revisional court, it shall also be such decree/order (of appellate or revisional court) which will be final in nature for the purposes of section 12(2) of the C.P.C. and accordingly application could only be initiated before such forum which had altered the verdict. In these circumstances, this Court is of the opinion that the petitioner should have filed application under section 12(2) of the C.P.C. before the appellate Court. Therefore, the
findings of both the courts below that the petitioner's application being not maintainable do not suffer from any factual or legal error.

7. Now coming to the question of limitation it is observed that the petitioner approached the right forum i.e. the appellate Court on 29-1-2001 whereas according to the petitioner's own showing he had gained knowledge of passing of the impugned judgment and decree when the appeal was dismissed i.e. 14-9-1995. Admittedly, the petitioner filed his second application under section 12(2) of the C.P.C. after more than 5 years and as such it was blatantly barred by limitation as provided under Article 181 of the Limitation Act. There is no force in the argument of the learned counsel for the petitioner that the delay should be condoned on the ground that the petitioner had been pursuing his remedy before wrong forum under the wrong advice of his learned counsel. In the case of Monazah Parveen v. Bashir Ahmed and 6 others (2003 SCMR 1300) the Hon'ble Supreme Court of Pakistan has held that delay could not be condoned on the basis of wrong advice tendered by advocates as it was essential for the defendant to show that he followed the remedy before wrong forum acting with due care and caution on the basis whereof delay could be condoned but the defendant had failed to establish such fact. In the present case also the petitioner had also failed to show that he had approached the wrong forum with due care and caution and as such the learned appellate Court has rightly declined to condone delay in filing the application under section 12(2) of the C.P.C.

8. In view of the foregoing reasons, I do not find any ground to interfere with the findings of the two courts below as the same do not suffer from any legal or factual infirmity. Resultantly, the instant petition is dismissed.

SAK/M-234/L                                                                                     Petition dismissed.