' WAQAR AHMAD SETH, J.---Impugned herein is the order and judgment dated 20-9-2011 of learned Civil Judge XXIII Peshawar whereby application under section 12(2), C.P.C. Has been dismissed.
2. Precise facts of the case are that respondent filed a suit for recovery of Rs,20,000,00 (Rupees twenty lacs) as damages for mental torture, damaging the reputation of the respondent in the eyes of public, in the court of Senior Civil Judge, Peshawar on 11-6-1998; that the petitioner was summoned who appeared before the court engaged a counsel and filed written statement, but subsequently was placed ex parte, ex parte evidence was recorded and upon conclusion of the trial and hearing ex parte arguments, the learned trial court passed an ex parte decree in favour of the respondent against the petitioner on 18-10-2003.
3. According to the. Contention of the petitioner he got the knowledge of the ex parte decree, when in execution proceedings he was served upon, therefore, he submitted an application for setting aside ex parte decree which was dismissed on 21-7-2007, on the ground that no application for condonation of delay was filed along with the said application and as such the same was treated as hopelessly time barred.
4. Instant of challenging the said order before the appellate court, the present petitioner moved an application under section 12(2), C.P.C. On the ground of fraud, misrepresentation and collusion. The said application was also dismissed by the learned Civil Judge-V, Peshawar vide judgment dated 19-3-2009. Feeling aggrieved, the petitioner filed revision petition before the learned Additional District Judge-I, Peshawar but the same was returned on 31-10-2009 due to lack of pecuniary jurisdiction and finally petitioner filed Writ Petition No,1006 of 2010 before this august Court-which was dismissed in limine on 16-3-2010.
5. The present application under section 12(2), C.P.C. Has been filed on the point of jurisdiction to the effect that the main suit was instituted on 16-6-1998 and the same was decided on 18-10-2003 but on 1-10-2002. Defamation Ordinance, 2002 was promulgated and for all practical purpose it came into force at once and under section 13 of the newly promulgated law the jurisdiction of trial was vested in District Judge, therefore, the trial conducted by Civil Judge was not competent, the instant application under section 12(2), C.P.C. Was filed on 4-6-2011 against the judgment and decree dated 18-10-2003, but without any application for condonation of delay.
6. Learned counsel for the petitioner argued that no doubt the petitioner filed earlier application under section 12(2), C.P.C. But that was not on the ground of jurisdiction, therefore, the present application is to be treated as separate application independent of the earlier decided one; that no bar is provided in the law to file a fresh application under section 12(2), C.P.C. And as such, learned lower court has wrongly rejected the said application; that the learned lower/trial court did not dilated upon the fact that in earlier proceedings the question of jurisdiction was never argued and decided upon and as such it was duty of the court to have transferred the main case for trial immediately when Defamation Ordinance, 2002 was promulgated. Since the decree dated 18-10- 2003 was without jurisdiction, and as such, the entire structure and proceedings fall on the ground automatically; that no limitation runs against the void orders; the learned trial court had failed to take into consideration the contents of the present 12(2), C.P.C. Application in its true perspective which resulted in gross miscarriage of justice and warrants interference; that it is settled principle of law that the procedural changes in any law, is having retrospective effect and since promulgation of new Ordinance was procedural one, therefore, the court of competent jurisdiction was District Judge.
7. As against this, learned counsel for the respondent submitted that the petitioner has already exhausted each and every remedy available to him against the judgment dated 18-10-2003 and he is stopped to file another application under section 12(2), C.P.C. It was further contended that the matter has been agitated till Peshawar High Court in writ jurisdiction and the acceptance of the present application will amount to review of the judgment in writ petition, already decided.
Moreover, the provision of section 12(2), C.P.C. Were not intended to be duplication of proceedings provided in Rule 13 Order 9, C.P.C. And in this respect relied on 1987 SCM R 1440 and 2003 SCM R 1300.
8. Arguments heard and record perused.
9. I have given my careful consideration to the submission of learned counsel and with their assistance gone through the available record.
10. It is important to mention here that the judgment in writ petition has discussed the merits of the case as well and has passed the judgment while discussing each and every aspect of the case, the operative part of the judgment is reproduced herein below:-- "We have gone through the elaborate ex parte judgment of the learned trial judge, who has discussed each and every aspect of case, has made the appraisal of evidence according to the settled principle of law relating to appraisal of evidence and in support of his findings, the learned trial Judge has extensively referred to case-law on the subject and when from the evidence on record all the allegations have been fully established against the petitioner/ defendant and keeping in view the status of the respondent/plaintiff both official and from the point of family background, the damages by way of compensation awarded, could not be held to be excessive or legally unwarranted and when the petitioner has sought relief in extraordinary jurisdiction of this Court, when his conduct is blameworthy, disorderly and contumacious one, then, in the absence of any element of miscarriage of justice, having been caused to him, the petitioner cannot maintain this petition.
' For the aforesaid reasons and discussed from both factual and legal angles, we see no reason much less plausible one to interfere with well reasoned judgment of the trial Court and that too, in the above circumstances, hence, this petition is found devoid of legal merits and is dismissed in limine."
11. Apart from the legal position raised by the learned counsel for the petitioner, there is another aspect of the case as well. The petitioner had already availed the remedy under section 12(2), C.P.C. Which was dismissed by the competent court on 19-3-2009 and earlier to that petitioner also moved an application for setting aside the ex parte judgment and decree dated 18-10-2003 which was also dismissed. The law provides three years' limitation period for filing of application under section 12(2), C.P.C. And then for time barred application/petition section 5 of Limitation Act is the requirement but with the instant application no such condonation of delay application has been filed nor anywhere in the body of the application/petition under section 12(2), C.P.C. Any request/ground for condonation has been mentioned the only ground mentioned and agitated is that of "void" order.
12. Now the question is that as to whether the ex parte judgment and decree dated 18-10-2003 can be termed as void or not. In my humbly view once judgment and decree has been passed and the same is maintained till the High Court, in writ jurisdiction the same cannot be termed as void; secondly, it was incumbent upon the petitioner to have come to the court within time and with proper care because he previously approached the court for setting aside ex parte decree as well as by filing 12(2), C.P.C. On different grounds so he was supposed to be vigilant by that time and by now it is closed Chapter.
13. The law helps those who are vigilant and not the idle. Even before Peshawar High Court in writ jurisdiction the petitioner failed to point out the promulgation of Defamation Ordinance, 2002 and its effect and the judgment in writ petition was passed while thoroughly examining each and every aspect of the case.
14. Lastly, it is also held that the promulgation of Defamation Ordinance, 2002 has no repealing effect on the general law nor in the said Ordinance it was specifically mentioned that pending cases are to be transferred to the court of District Judge.
15. Article-264 of the Constitution of Islamic Republic of Pakistan. 1973 and Section-6 of the General Clauses Act, 1897 are referred.
16. Before parting with the judgment it will not be out of place to mention that petitioner also filed Civil Revision No,290 of 2011 against the attachment order passed by executing court, before Peshawar High Court. Peshawar Bench D.I.Khan but vide order dated 26-9-2011 committed to pay full payment/decretal amount within three months.
17. The learned trial court has dealt with the matter in a proper and reasonable manner. No exception could be taken to the said view as the same is neither perverse nor arbitrary. Learned counsel for petitioner argued the case at sufficient length but could not point out any loopholes in the impugned judgment nor any illegality is shown to have been committed by the court, 9(sic) In view of the above discussion, instant revision petition is dismissed with no order as to costs.