2016 Y L R 1266
[Lahore]
Before Ali Akbar Qureshi, J
MUHAMMAD NAEEM IQBAL KHAN---Petitioner
Versus
WASEEM SHAFI and 12 others---Respondents
C.R. No.32 of 2015, heard on 21st January, 2015.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Application under S.12(2), C.P.C.---Scope---Such application was to be filed before the court which passed the "final judgment"---When second appeal had not been decided on merit, same could not be termed as "final judgment" within purview of S. 12(2) of C.P.C---Final judgment, decree and order could only be challenged by filing an application under S.12(2), C.P.C., if the case had been decided on merits both on points of facts and the law involved therein.
Nasrullah Khan and others v. Mukhtar-ul-Hassan and others PLD 2013 SC 478 and Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. 2012 SCMR 147 ref.
Muhammad Shareed Karkhi Khera for Appellants.
Makhdoom Ijaz Hussain Bukhari and Mian Anwar Mubeen Ansari for Respondents.
Date of hearing: 21st January, 2015.
JUDGMENT
ALI AKBAR QURESHI, J.---The petitioner through this civil revision, has challenged the validity of the order dated 07.07.2011 passed by learned Special Judge (Rent), Multan, judgment dated 12.10.2011 passed in appeal, and order dated 01.12.2014, whereby the application under section 12(2), C.P.C. filed by the petitioner, against the judgment dated 12.10.2011 passed in appeal, was dismissed being without any substance.
2. The petitioner, claiming himself the purchaser of the suit land, detail of which is given in the head-note, filed an application under section 12(2), C.P.C. against the judgment dated 12.10.2011 passed by the learned Additional District Judge, Multan, in appeal against the acceptance of Ejectment Petition by the learned Special Judge (Rent), Multan, alleging therein, that the respondents Nos.1 to 5 claiming themselves the owners of the suit land, filed an ejectment petition against one Mst. Shameem Akhtar, tenant of the suit property and finally by playing fraud and misrepresentation obtained an ejectment order by the learned Rent Tribunal on 07.07.2011, therefore, the order passed by the learned Rent Tribunal and affirmed by the learned Appellate Court, is liable to be set aside by applying the Provision of Section 12(2), C.P.C.
3. The learned Additional District Judge, Multan, after hearing the arguments of the parties, dismissed the application on the ground, that the petitioner has failed to point out any iota of misrepresentation or fraud played with the court.
4. The respondents Nos.6 to 9 filed S.A.O. No.17 of 2011 titled Mst. Shameem Akhtar, and others v. Waseem Shafee", wherein the petitioner also filed an application to implead in S.A.O. Later on, the S.A.O. No.17 of 2011 was dismissed by this Court.
5. Thereafter, the petitioner filed an application under section 12(2), C.P.C. before the learned trial court, which was dismissed.
6. Then, the petitioner filed an application before the learned Additional District Judge, the learned Judge, after hearing the arguments, dismissed the application on 01.12.2014. Hence, this civil revision.
7. Learned counsel for the petitioner has argued only one point, that the application under section 12(2), C.P.C., is maintainable before this Court, as the learned courts below have refused to entertain the application under section 12(2), C.P.C. filed by the petitioner. Reliance is placed on the case titled Nasrullah Khan and others v. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) and Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. (2012 SCMR 147).
8. As depicts from the record of the case, that the petitioner challenged the validity of an order dated 12.10.2011 before the learned Additional District Judge, Multan, by filing an application under Section 12(2), C.P.C. on the ground, that the petitioner had purchased the suit land after paying huge amount as earnest money through an agreement to sell, the possession had already been given to the petitioner by the original owner of the suit land, namely Ghulam Muhammad and by virtue of the agreement to sell, the tenant occupying the suit land as tenant came under the tenancy of the petitioner, therefore, respondents Nos.1 to 5 had no authority in law to file any ejectment petition, claiming themselves the owners of the suit land against the tenant. The ejectment petition, as recorded in the order impugned herein, was affirmed in appeal by the learned Additional District Judge, Multan, against which S.A.O. No.17 of 2011 was filed, which was dismissed on 01.12.2014, in the following words:--
"No authorized person is present on behalf of the appellants. The name of the learned counsel for the appellants has duly been reflected in today's cause list.
2. This appeal was filed beyond limitation and according to the office report it was thirteen days barred at the time of its institution.
3. Called repeatedly. Same is the position. No justification to keep this appeal pending.
4. Dismissed."
9. Learned counsel for the petitioner has relied upon the esteemed judgment cited as Nasrullah Khan and others v. Mukhtar-ul-Hassan and others (PLD 2013 SC 478), which is not applicable upon the facts of the present case. In the above judgment their Lordship in an elaborative manner interpreted section 12(2), C.P.C. and the words used by the legislature i.e. final judgment/decree/order, for approaching the forum. The relevant para is as under:-- (PLD 2013 SC 478).
"It is on account of this established principle of (merger), that in the case reported as Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241) it has been held "It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower court is affirmed, reversed or modified." This is the crux of the matter. From the above it is clear that for all legal purposes, it is the final decree / order of the last Court in the series, even if such decree etc. be of affirmation, which has to be executed and should be considered and treated to be the final judgment/decree/order in terms of Section 12(2), C.P.C. for approaching the forum. Thus, notwithstanding the reversal of modification of the decree/order, if the decree / order of a forum below, which has been affirmed by the higher forum on merits, both on the points of the facts and the law involved therein, it shall be that decree/order, which attains the status of the final decree/order etc. within the purview of section 12(2), C.P.C. It is so because the higher forum has not only endorsed the point(s) of fact and law and has agreed with the reasoning and conclusion of the lower forum, but may be, has upheld the decision(s) challenged before it, by substituting and supplying its own reasons and by substantially doing away with the reasoning of the decision(s) challenged before it. Thus, it would be ludicrous to conceive and hold that the questions of facts and law which have been finally approved, endorsed, affirmed and settled by the higher forum should be allowed to be examined, annulled and obliterated by a forum below, whose decision stands affirmed in the above manner."
10. From the order, passed by this Court, dated 12.11.2014, it is crystal clear, that the S.A.O. No.17/2011 was not decided on merits, whereas the Honourable Supreme Court of Pakistan in the judgment supra has observed, that final judgment, decree and order can only be challenged by filing an application under section 12(2), C.P.C., if the case has been decided on merits both on points of facts and the law involved therein and this type of the judgment/order will attain the status of the final decree/order etc. within the purview of section 12(2), C.P.C.
11. Even otherwise, as recorded by the learned appellate court, that the petitioner could not point out any ingredient of fraud or misrepresentation played with the court, therefore, the application is otherwise not maintainable and particularly in view of the principle laid down by the Honourable Supreme Court of Pakistan, the application under section 12(2), C.P.C. filed by the petitioner is not maintainable before this Court. The learned counsel for the petitioner although argued the case at length but failed to make out any case of interference, therefore, resultantly, this Civil Revision is dismissed. No order as to cost.
MM/M-69/L Revision dismissed.
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