P L D 2015 Peshawar 39

P L D 2015 Peshawar 39

Before Ikramullah Khan, J

MUNICIPAL CORPORATION, PESHAWAR through Administrator and another---Petitioners

Versus

TAIMUR-UL-HASSAN and another---Respondents

Civil Revision No.45-P of 2014, decided on 23rd January, 2014.

Civil Procedure Code (V of 1908---

----Ss. 12(2) & I15---Setting aside of judgment decree or order--- Forum---Pendency of proceedings---Judgment and decree passed by Trial Court was maintained by Lower appellate Court as well as High Court and matter was pending before Supreme Court---Petitioners filed application under S.12(2), C.P.C. before Lower Appellate Court for setting aside its judgment maintaining that of Trial Court---Lower Appellate Court dismissed the application on the ground that it has to be filed before the last court affirming judgments of courts below--- Validity---Application under section 12(2), C.P.C. was to be filed before the court, which was last in series except where an appeal revision or leave to appeal was dismissed on any ground except merit--- High Court did not find any patent infirmity, irregularity or legal flaw in the judgment passed by Lower Appellate Court as the same was based on correct appreciation of law---Revision was dismissed in circumstances.

Nsrullah Khan and others v. Mukhtiar ul Hassan and others PLD 2013 SC 478; Muhammad Aslam v. Molvi Muhammad Ishaq 2012 SCMR 147; Sarfaraz v. Muhammad Aslam Khan 2001 SCMR 1062; Muhammad Yousaf v. Federal Government 1999 SCMR 1516; Muhammad Yousaf v. Noor Din and others PLD 2002 SC 391; Abid Kamal v. Muddassar Mustafa 2000 SCMR 900; Maulvi Abdul Qayyum v. Syed Ali Ashgar Shah and 5 others 1992 SCMR 241; Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 and Allah Dad and others v. Abdul Ghani and others PLD 2010 SC 580 rel.

Ziauddin Siddique for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd January, 2014.


JUDGMENT

IKRAMULLAH KHAN, J.---Through the instant civil revision, petitioners have assailed herein, the impugned judgment dated 4:11-2013, passed by the learned Additional District Judge, Peshawar whereby the petition under section 12(2), C.P.C., 1908, filed therein by the petitioners was dismissed.

2. In essence, the petitioners had challenged the judgments and decree dated 19-12-2011, rendered therein Civil Appeal No. 48/13 of 2013 by the learned Additional District Judge, Peshawar thereunder provisions contained in section 12(2) C.P.C.,1908. The learned Additional District Judge, Peshawer vide his impugned judgment dated 4-11-2013, dismissed the said application, hence the instant revision.

3. The learned counsel for the petitioners contended that as the judgment and decree rendered by the learned Civil Judge, Peshawar dated 21-4-2011, in Suit No. 1601/1 was merged into the judgment and decree dated 19-12-2011, of the learned Additional District Judge, Peshawar passed on Appeal No. 48/13 of 2013, therefore the forum whereof application under section 12(2), C.P.C., 1908, has to be preferred was the Court of Additional District Judge, Peshawar. and petitioners in contemplation of the provisions contained in section 12(2), C.P.C., 1908, rightly had been preferred their application before the learned Additional District Judge, Peshawar being the appellate Court, who passed the final judgment/decree in Suit No. 48/13 of 2013, on appeal, but the learned Courts below, misconstrued the law and illegally dismissed their application under section 12 (2) C.P.C., 1908, which has not only caused miscarriage of justice but have also deprived of the petitioners therefrom their legal rights.

4. I have heard the learned counsel for the petitioners and have considered his valuable arguments in light of law and facts on record.

5. The record reveals that the learned Civil Judge, Peshawar, rendered the judgment/decree dated 21-4-2011 in Suit No.160/1 instituted by predecessor department of petitioners, in favour of respondents, which was assailed in appeal before the learned Additional District Judge, Peshawar by the predecessor department of petitioner, which appeal was dismissed by the learned Additional District Judge, Peshawar vide his judgment/decree dated 19-12-2011. The defunct department preferred thereof a revision petition before this Court, which was dismissed vide the judgment dated 6-5-2013. The defunct department filed a civil petition for leave to appeal before the apex Court which is still, subjudice.

6. The learned Additional District Judge has dismissed the petition under section 12(2), C.P.C., 1908, of the petitioners on the sole proposition that the petition under section 12(2) C.P.C., 1908, shall be filed in the last Court, who had affirmed the judgment of the Courts below on the analogy that the original judgment and decree of trial Court merged into the judgment and decree of the Appellate or revisional Court as the case may be.

7. To resolve this controversy and to combat with the legal proposition that in case where the judgment/decree passed by the trial Court, which attained the finality upto the appellate or revisional Court without any amendment or modification in the original judgment/decree of the trial Court, in such situation what would be the proper forum for filing of an application under section 12(2), C.P.C., 1908, on grounds of fraud, misrepresentation or want of jurisdicticn. I intend to give reference herein below to some landmark judgments of the apex Court, but it would be not out of context to reproduce herein below the original text of the provisions contained in section 12(2), C.P.C., 1908 as:--

"12. Bar to further suit. --(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any court to which the code applies.

[(2) Where a person 'challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit].

8. The issue herein, remained under consideration since the inception of subsection (2) of section 12 of C.P.C., 1908; before the apex Court as well as before Hon'ble High Courts of the country. Different views and interpretation have been offered by Hon'ble Superior Courts but I will reproduce herein below the recent judgment rendered there in the case of "Nasrullah Khan and others v. Mukhtiar ul Hassan  and others" (PLD 2013 SC 478), by the apex Court whereas it is held as:--

"Application under section 12(2), C.P.C., 1908, such application was to filed before the Court which passed the final judgment. Thus notwithstanding the reversal or modification of the decree/order, if the decree/order of a forum below, which has been affirmed by the higher forum on merit, both on 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., 1908".

9. In this judgment the apex Court, has elaborately discussed the cases, wherein similar question of law had decided by the apex Court. The pronouncements of the apex Court whereas various propositions of law pertaining to the provisions contained in section 12(2), C.P.C., 1908, are referred here-as:--

"Muhammad Aslam v. Molvi Muhgmmad Ishaq" (2012 SCMR 147),

"Sarfaraz v. Muhammad Aslam Khan" (2001 SCMR 1062), "Muhammad Yousaf v. Federal Government" (1999 SCMR 1516),

"Muhammad Yousaf v. Noor Din and others" (PLD 2002 SC 391),

And "Abid Kamal v. Muddassar Mustafa" (2000 SCMR 900).

All the above mentioned judgments were brought under consideration by his lordship Mr. Justice Mian Saqib Nisar but reliance was placed on the. case of "Maulvi Abdul Qayyum v.  Syed Ali Ashgar Shah and 5 others" (1992 SCMR 241), in regard to doctrine of merger of judgments.

Similar view had also been held by the apex Court in case of "Mubarak Ali v. Fazal Muhammad and another" (PLD 1995 SC 564) which is as under;?

"What is intended by section 12(2), C.P.C., 1908, is that a party must go to that Court which has finally decided the matter, if it desirous to secure a reversal of its judgments, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word final can mean the last in series of judgment, decrees or orders which may have been passed. It can also mean that which is no longer further alterable and which has acquired finality, it is in the latter sense that the word final appears to have been used in section 12(2), C.P.C., 1908. A decision can only be treated as final if it is unalterable except by any of the means provided by the Code of Civil Procedure or by any special procedure applicable to the given case".

10. In another case, reported as "Allah Dad and others v. Abdul Ghani and others" (PLD 2010 SC 580) it was held by the apex Court that:--

"The final judgment with reference to section 12(2), C.P.C. has been defined by this Court in Mubarik Ali's case PLD 1995 SC 564 as one which, so far as the Court rendering it is concerned, is unalterable if it is not sought to be modified, reversed or maintained by preferring an appeal, revision or review. In the circumstances of the present case, the decree was originally granted by the Additional District Judge. It would have been final, had no regular second appeal been filed there against. The fact is that a regular second appeal was filed before the High Court in its appellate jurisdiction. In the circumstances, the judgment in appeal dated 29-5-1997 was the final judgment and hence application under section 12(2), C.P.C. was bound to be filed before the High Court being the last Court of fact. This view was maintained by this Court in Abid Kamal's case 2000 SCMR 900, that a Court finally deciding the appeal would be a proper Court to entertain application under section 12(2), C.P.C".

11. The principle enunciated by the apex Court, through rendering the above mentioned judgments, and to summarize the proposition raised herein, it is held that the application under section 12(2), C.P.C., 1908, shall be filed before the Court, which is last in series except where an appeal, revision or leave to appeal was dismissed on any ground except merit.

12. Keeping in view, the judgment of the apex Court cited hereinabove, "Nasrullah Khan v. Mukhtar-ul-Hassan" (PLD 2013 SC 478) there shall be no more confusion in proposition that the decree passed by the trial Court was either modified, altered, varied, reversed or held intact in both eventualities the final judgment in purview of section 12(2), C.P.C., 1908, be the decree passed by the last Court in the series, except where either appeal, revision or leave to appeal was dismissed in limine on any other ground, alien to merit.

13. In the case in hand, the revision against the concurrent judgments of both the Courts below was dismissed by this Court and the matter is still pending before the apex Court, whereas leave to appeal has already been granted, in such a situation, the petitioners, instead of filing application under section 12(2), C.P.C., 1908, before any competent Court, may take recourse to the august Supreme Court of Pakistan to apply thereto implead themselves in the panel of petitioners, for the sole reason that petitioners are successor in interest of the defunct authority, who had applied there before the apex Court as petitioners.

14. I find no patent infirmity, irregularity or legal flaw in the impugned judgment, which is based on correct appreciation of law, not warranted interference, therefore in light of the aforementioned reasons, this petition is accordingly dismissed in limine. However, the petitioners would be at liberty to adopt the proper procedure if they so advised.

MH/78/P                                                                                              Petition dismissed.