Maulvi Anwar-ul-Haq, J.--This ICA proceeds against order dated 14.11.2005 passed by a learned Single Judge, in. Chamber, of this Court, whereby C.M. No, 2297/04 filed by the appellants for setting aside of judgment dated 9.7.2002 passed in W.P. No, 117-R/98 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-prate 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 ICA is not competent. He relies on the cases of Maqsood Ahmed Siddique v. Nisar Ahmad and others (2003 SCMR 1552) 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 LRs of Muhammad Siddique and Muhammad Shrdar who were impleaded as Respondents No, 4 and 5 respectively in the writ petition filed by contesting Respondents No, 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 practicing at Kasur. On 12.7.2004 C.M. No, 2297/04 was filed by the appellants tor re-haring of the writ petition. The application was purportedly filed under Section 12(2), P read with Order XLI Rule 21 CPC for setting aside the ex-parte judgment. It was dismissed vide the impugned order for the reason that since an ICA was filed against the said judgment and the same having been dismissed, the application under Section 12(2) CPC 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 ICA No, 620/02 filed by the Respondents No, 1 to 3 and 7 in the writ petition. We have examined the same and found that the ICA 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) CPC 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 rehearing, on the grounds stated therein within the meaning of Order IX Rule 13 CPC 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 ICA 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 case of Maqsood Ahmed Siddique, ICA filed against an order passed by this Court dismissing an application under Section 12(2) CPC for setting aside of a judgment passed in exercise of appellate jurisdiction under Section 96 CPC was held to be not maintainable while in the said case of Amin-ud-Din Khan, the ICA was not held maintainable as the appellant had vailed a remedy of review against the judgment impugned.
7. This ICA is accordingly allowed. The result would be that C.M. No, 2297/04 shall be deemed to be pending and decided accordingly in the light of the observations made above. No orders as to costs.