TUFAIL H. EBRAHIM, J. --- Vide order dated 23.6.2010, the Honourable Supreme _Court in Civil Appeal No. 550/2009, against the order dated 31.3.2009 of the learned Single Judge in Chamber of the High Court of Sindh Karachi in Civil Revision No. 62/2002, has set aside the impugned order and remanded the matter back to this Court to decide the application under Section 12(2), CPC (CMA No. 27/2006). After hearing, all the parties.
2. Briefly the facts arising for the disposal of application u/S. 12(2), CPC are that on 6.6.1973 plaintiff Muhammad Sharif (since deceased) through his legal heirs had filed a Civil Suit No. 47/1973 for specific performance of contract and permanent injunction against defendant Syed Asghar Ali (since deceased) through legal heirs, in the Court of Civil Judge First Class, Khairpur. The said suit was decreed vide judgment dated 30.10.1980 in favour of the plaintiff, subject to payment of balance sale consideration and an additional amount. Both the plaintiff and defendant had preferred appeals against the said judgment in the High Court of Sindh at Circuit Bench, Sukkar and thereafter both the appeals were transferred to District Judge, Khairpur,
3. From the record it appears that the appeal filed by respondent (Syed Asghar Ali) was withdrawn on 19.5.2002, while the applicant (Muhammad Sharif) also moved an application for withdrawal of his appeal and also sought a one-month time period for payment of decretal amount fixed by the Trial Court. The learned II-Additional District Judge, Khairpur, however, while allowing withdrawal of the appeal, declined the prayer in respect of extension of time for payment of decretal amount and gave direction to the appellant to approach the Trial Court. The applicant accordingly moved an application before the Trial Court for extension in time for depositing the decretal amount, but it was declined vide order dated 30.5.2002. Being aggrieved by the aforesaid orders, the applicant on 3.6.2002, preferred civil revision application No. 62/2002 in the High Court Circuit Bench, Sukkur.
Notices were issued to respondents alongwith directions to the applicant to deposit the balance decretal amount. It is evident from the record that on 9.6.2002 respondent No. 4 had filed a statement in the said civil revision, seeking early fixation of the matter. The civil revision application was heard in absence of the respondents and the same was allowed, vide order dated 4.10.2007 whereby orders passed by the two Courts below were set aside. And the learned Trial Court was directed to proceed further with the suit for the purpose of final decree in accordance with the relevant provisions of law.
4. The respondents Nos.4 and 5 being aggrieved with the said order dated 4.10.2007 passed by the learned Single Judge of this Court filed an application under Section 12(2), CPC (CMA No. 27/2008) on the ground that the said orders were obtained by misrepresentation of facts and fraud. The said learned Judge of this Court Vide order dated 25.2.2009 converted the said application under Section 12(2), CPC into an application fora review and recalled the earlier order passed on 4.10.2007. The applicant had preferred Civil Appeal No. 559 of 2009 in the Supreme Court of Pakistan against the said order. The civil appeal was allowed vide order dated 23.6.2010 and the matter was remanded to High Court of Sindh to decide the application under Section 12(2), CPC (CMA No. 27/2006).
It may be pointed out that the applicant since filing of the civil appeal has expired and an application under Section 151 and Order XXII, Rule 3, CPC has been filed for bringing the legal heirs of the applicant on record. The said application is allowed by consent of both the learned counsels.
The amended title already filed is also taken on record.
5. The learned counsel for respondents Nos.4 and 5 argued that the impugned order dated 4.10.2007 is liable to be set aside as the case was heard without service of notice upon the respondents. The learned counsel further submits that neither the notice was served upon the respondents nor the notices were issued at the correct address of the respondent No. 4 since he had shifted his place of residence. It has also been alleged that no intimation notice to the parties had been issued as per the prescribed procedure and that the revision application was disposed of without first declaring respondents as ex parte or holding service good upon the respondents.
6. It was also urged that civil revision application is not maintainable against the order of the Trial Court. Per learned counsel the revision is not maintainable as there was provision for filing of appeal in terms of the final decree passed by the Trial Court. Per learned counsel the order of the learned Additional District Judge was fully complied by the respondents by filing application before the Trial Court for extension of time. And after the dismissal of the said application, the applicant could only file an appeal under the provisions of Section 96, CPC. Per learned counsel this fact was not disclosed by the applicant to the learned Single Judge at the time of hearing. The applicant thus obtained an order by misrepresenting and misleading the High Court. The learned counsel urged that the High Court had no jurisdiction to decide the civil revision and therefore prayed that the order dated 10.4.2007 may be recalled.
7. The learned counsel for the applicant has argued that the respondents were duly served in accordance with the law and in response to the service, respondent No. 4 appeared in Court on 23.9.2002 and made statement and also gave an undertaking to produce the remaining respondents on the next date of hearing. Per learned counsel again on 18.10.2002 respondent No. 4 appeared before the Court and filed a counter-affidavit to the injunction application CMA No. 397/2002. He once again undertook to either file the power-of-attorney of the remaining respondents or to file a vakalatnama in favour of an Advocate on the next date of hearing. Again on 17.2.2006 respondents Nos. 2, 4 and 5 were present in person before this Court. Per learned counsel the respondents were fully aware about the civil revision application and that under the law there is no requirement to pass any specific order for ex parte before hearing civil revision application.
8. The learned counsel for the applicants has argued that no proper application was filed by the respondent No. 4 for change of address, within the meaning of Order VII, Rule 24, CPC. Per learned counsel respondent No. 4 himself had appeared before the Court on several dates alongwith respondents Nos. 2 and 5 and had also given undertaking to file the power-of-attorney on behalf of other respondents or to file a vakalatnama of an Advocate on behalf of the remaining respondents. Per learned counsel under revisional jurisdiction, the High Court has the power to call for record of any case which has been decided by any subordinate Court and thereafter to scrutinize it and to rectify the same if found that the subordinate Court had exercised jurisdiction not vested in law or had failed to exercise jurisdiction so vested. Per learned counsel there is no misrepresentation and fraud on the part of the applicant and therefore the application u/S. 12(2).
CPC is liable to be dismissed.
9. I have heard learned counsel and perused the record . The main contention of the respondents Nos.4 and 5 in the said application is that they had not been served prior to the decision of the learned Single Judge. As per record the respondents are the legal heirs of the original defendant in the suit. The respondents were duly served, which was also recorded in the order of the learned Single Judge. Notices were issued to all the respondents at their given address. Respondent No. 4 appeared in Court on 23.9.2002 and made a statement and also gave an undertaking to produce the remaining respondents on the next date of hearing. On 18.10.2002 respondent No. 4 appeared in Court and filed a counter-affidavit to the injunction application CMA No. 397/2002 and he once again undertook to either file the power-of-attorney of the remaining respondents or to file a vakalatnama in favour of an Advocate on the next date of hearing. Again on 17.2.2006 respondents Nos. 2, 4 and 5 were present in person before this Court. The respondent No. 4 had filed a statement in Court on 19.9.2006; a bare perusal of the statement reveals that respondent No. 4 was pursuing the civil revision for the last four years and was fully aware of the dates of hearing i.e. On 17.2.2006, 31.3.2006 and 28.4.2006 and 19.2.2006.
10. From the record it can be concluded that respondents were fully aware of the civil revision application and had made several appearances before this Court and even intimation notices were issued by the office for hearidg on 4.10.2007. The respondents were under obligation to be diligent and to pursue the case. The learned counsel for the respondents Nos.4 and 5 has failed to point out any rules whereby this Court is under obligation or is lawfully required to issue intimation notice to the said respondents prior to each day of hearing and/or there is any requirement to pass any specific order for ex parte against the respondents, more so, since they had appeared before the Court.
11. The other contention of learned counsel for the respondents is that the respondent No. 4 had submitted an application for change of address is not lawful as no such application is available on record. Rule 24 of Order VII, CPC provides procedure for change of address, which is reproduced hereunder:- "A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform and may be either served upon the pleaders for such parties or be sent to them by registered. Post, as the Court thinks fit."
12. No such application was made by respondent No. 4 in terms of the aforesaid rule and the footnote of statement filed by respondent No. 4 cannot be considered an application within the meaning of Order VII, Rule 24. Even otherwise, since the respondents were duly served and had appeared in Court on more then one occasion, therefore it cannot be said that they were not served.
13. The third argument of the learned counsel relating to the jurisdiction of this Court to hear and decide civil revision application is also not maintainable as the counsel for the respondent has failed to point out any concealment or misrepresentation on the part of the applicant in the civil revision application. No such ground was raised by the respondent No. 4 in the counter-affidavit filed by him nor has it been stated how the respondents have been prejudiced by filing of such application. Since both the Courts below had rejected the application for enlargement of time to deposit the decretal amount, therefore, upon filing of the civil revision application by the applicant, the High Court, deriving powers under its revisional jurisdiction was competent to correct it in accordance with the law. Further, within the meaning of Section 115 of CPC, there is no bar or restriction whereby a civil revision application can only be filed against a single order, as conceded by the counsel of the respondents. Nos.4 and 5 during the course of arguments.
14. For the facts and reasons as aforesaid. I have come to the conclusion that there was no want of jurisdiction and the applicant has not misrepresented or committed any fraud or mislead the Court in obtaining Order dated 4.101010. Accordingly, application u/S. 12(2), CPC filed by the respondents Nos.4 and 5 alongwith all other pending applications are dismissed, except for CMA No. 5610/2010 with no orders as to costs.
Application u/S. 12(2), .