' NASIR SAEED SHEIKH, J Through the instant review application, order dated 1-11-2006 passed by a learned Single Judge of this Court on C.M.No.1056/C of 2002 moved under section 12(2) of C.P.C.
Has been sought to be reviewed by the petitioners No.1 to 4.
2. Briefly stating the facts of the case are that a Civil Revision No.2732 of 1994 was pending before this Court in which an order dated 12-6-2002 was passed by a learned Single Judge of this Court. A civil suit in respect of the land measuring 20 marlas was decreed by a learned Civil Judge Mandi Bahauddin and ultimately the matter came up before this Court on 12-6-2002 and the civil revision was disposed of with the following observations and decision:-- "In view of this situation the present revision petition is disposed of in the following manner that the judgment and decree in question passed by the First Appellate Court is set aside and a decree of declaration as prayed for by the plaintiffs in their original suit is passed in their favour, which shall be subject to the deposit of the price as for the commercial property in accordance with the rates fixed by the Provincial Government for this purpose till 31-8-2002. In the event of their failure to deposit the amount, the decree of the First Appellate Court shall remain in force and the present revision petition in that even shall stand dismissed. The parties are left to bear their own costs."
2. The Municipality Mandi Bahauddin moved an application under section 12(2) of C.P.C. Through C.M. No.1056 of 2002 for setting aside the judgment dated 12-6-2002 which was allowed by a learned Single Judge of this Court. The paragraphs Nos.6, 7, 8 and 9 of the order dated 1-11-2006 are relevant and are reproduced below:-- "(6) Learned counsel for the applicant Municipality next contended that the plaintiffs had not even complied with the judgment dated 12-6-2002 and had sought permission to deposit a sum of Rs.2,20,000 calculated at the rate of Rs.11,000 per marla although there was no determination of such price by the Provincial Government as required by the judgment dated 12-6-2002. This argument has merit. Learned counsel for the plaintiffs was; therefore, asked to explain the basis or which they had sought to acquire title in commercial property by depositing a sum of Rs.11,000 per marla. He was not in a position to give a satisfactory answer. He merely contended that the plaintiffs had applied to the Tehsil Nazim, Mandi Bahauddin for permission to deposit the price of the suit-land at the rate of Rs.11,000 per marla and that this figure was arrived at on the basis of some order passed by the Deputy Commissioner, Gujrat on 22-11-1986. I have gone through this arder wherein dwellers in katchi abadies, who were in possession of more than five marlas of land, were to be charged at the rates determined by some District Implementation Committee. The order of the Deputy Commissioner, Gujrat, stipulates a price of Rs.11,000 per marla for commercial properties in Dhaka Colony where the suit property is located.
(7) The reliance made by the plaintiffs on the aforesaid order constitutes a devious and mala fide attempt on their part to acquire title in the suit property at a gross undervalue. It is firstly to be noted that the order of the Deputy Commissioner does not show any legal basis enabling him to fix prices of properties nor could any statutory instrument be referred to on behalf of the plaintiffs authorizing the creation of a District Implementation Committee.
(8) Secondly, even if there was a lawful basis for passing the order dated 22-11-1986, the, prices determined in 1986 could not possibly be relevant for determining the market price of commercial property in 2002. Thirdly, it is clear from the judgment dated 12-6-2002, that the plaintiffs were required to deposit the price for commercial property fixed by the Provincial Government for commercial property and not for property in a Katchi Abadi. It is obvious from the record that the plaintiffs did not take any steps whatsoever to approach the Provincial Government for fixing a price for the suit property in terms of the judgment dated 12-6-2002, nor did the plaintiffs produce on record any law, statutory instrument or other document having the sanction of law, to enable determination of the price, which they were required to deposit vide judgment dated 12-6-2002.
(9) In the foregoing circumstances, I am left in no doubt at all that the plaintiffs have failed to make the deposit required of them on the basis of the judgment dated 12-6-2002. In these circumstances, in terms of the said judgment, the judgment of the learned appellate Court dated 13-7-1994 stands affirmed. This application is decided in these terms."
3. The petitioners preferred a C.P.L.A. No.2091/L of 2006 against the judgment/order dated 1-11-2006 passed in C.M. No.1056/C of 2002 in Civil Revision No.2732 of 1994 whereby the application under section 12(2) of C.P.C. Was accepted by the learned Single Judge of this Court. This C.P. Came up for hearing before the Hon'ble Supreme Court of Pakistan and was dismissed as having been withdrawn. The short order dated 15-12-2006 passed by the Hon'ble Supreme Court of Pakistan is, as under:-- "The learned counsel, after seeking instructions from the petitioners, seeks permission to withdraw this petition. He, however, states that the petitioners would like to avail some other appropriate remedy for the redress of their grievance.
(2) Be that as it may, this petition is dismissed as having been withdrawn. "
4. The petitioners then moved this review application before this Court on 16-2-2007 for review of the order dated 1-11-2006.
5. The learned counsel for the respondents have raised preliminary objection that the review application moved by the petitioners is barred by limitation and that once the petitioners have opted to prefer the civil petition for leave to appeal against the order dated 1-11-2006 and withdrew the said application from the Hon'ble Supreme Court of Pakistan, the instant review application is not competent on this score as well.
6. The learned counsel for the petitioners has controverted this contention and objection of the learned counsel for the respondents by arguing that the Hon'ble Supreme Court of Pakistan allowed the petitioners to move the review application while disposing of C.P.No.2091/L of 2006 vide order dated 15-12-2006 and that the review application is also within time as according to the learned counsel for the petitioners this is filed within 90 days of the order passed on 1-11-2006 and after the decision of the C.P.L.A. No.2091/L of 2006 on 15-12-2006.
7. We have considered the arguments the learned counsel for the parties and have perused the record with their assistance.
8. We would like to first take up the point of bar of limitation as per the law prescribed for review of a judgment passed by, the High Court. In this respect, Articles 162 and 173 of the First Schedule of the Limitation Act, 1908 are relevant and are reproduced below:-- "162 1 2 3 For a review of judgment by a High Court in the exercise of its original jurisdictionTwenty daysThe date of the decree or order 173.
1 2 3 For a review of judgment exceptinthe cases provided for by Article 161 and Article 162Ninety daysThe date of the decree or order"
9. The period of limitation prescribed in Article 162 is 20 days for review of a judgment by a High Court passed in the exercise of its original jurisdiction. Article 173 of the First Schedule of the Limitation Act, 1908 provided a limitation of 90 days for review of a judgment if the case does not fall within the purview of section 161 and 162 of the First Schedule. Article 161 deals with the review of a judgment by the Court of Small Causes or by a Court invested with the jurisdiction of Small Causes, therefore, is inapplicable. In the instant case, a review application C.M.No.5/C of 2007 has been instituted seeking review of the judgment dated 1-11-2006 passed by this Court upon C.M.No.1056/C of 2002 in Civil Revision No.2732 of 1994, 1056/C of 2002 was an application moved under section 12(2), C.P.C. For setting aside or recalling of the order dated 12-6-2002 passed by this Court in Civil Revision No.2732 of 1994 by a learned Single of this Court. In this context, section 12(2) of C.P.C. For invoking of which C.M.No.1056/C of 2002 was moved is relevant and is reproduced:-- "12. Bar to further suit:---(1)
(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."
10. Section 12(2), C.P.C. Confers an exclusive jurisdiction for exercising the powers described in section 12(2), C.P.C. Upon the Court which passed the final judgment, decree or order sought to be set aside. In the instant case, the application under section 12(2) of C.P.C. Was instituted before the learned Single Judge of this Court for setting aside of the order dated 12-6-2002 passed by this Court in Civil Revision No.2732 of 1994. This application under section 12(2), C.P.C. Was only and only entertainable before this Court. The concept of "original jurisdiction" introduced by Article 162 of the First Schedule of Limitation Act, 1908 would, therefore, be fully applicable to the facts and circumstances of the instant case as the application under section 12(2) of C.P.C. Could not have been moved before any other Court. The High Court therefore, for the purpose of setting aside of the order dated 12-6-2002 passed in Civil Revision 2732 of 1994, exercised its "original jurisdiction" and passed the order dated 1-11-2006. The petitioners moved review application C.M.No.5/C of 2007 for the review of the order dated 1-11-2006 and was therefore under obligation to institute the review application within a period of 20 days as prescribed in Article 162 of the First Schedule of Limitation Act, 1908. The petitioners instituted the review application through Diary No.2672 dated 16-2-2007 before this Court for review of the order dated 1-11-2006. It is also noted that the petitioners moved an application for obtaining the certified copy of the order dated 1-11-2006 of this Court on 24-1-2007 which copy was mace available to the petitioners on 14-2-2007. The very application was moved by the petitioners for obtaining certified copy of the order dated 1-11-2006 after the period of 20 days and the limitation period had already expired. The C.P.L.A. No.2091/L of 2006 was disposed of on 15-12-2006. The certified copy of the order dated 15-12-2006 was applied for on 25-1-2007 by wasting away ten days and the copy was delivered by the office of the Supreme Court on 3-2-2007. Review application instituted before this Court was moved on 16-2- 2007. It is also not a legally acceptable argument of the learned counsel for the petitioner that the instant review application has been moved with the specific permission of the Hon'ble Supreme Court of Pakistan. No such permission is specifically readable in the order dated 15-12-2006 passed by the Hon'ble Supreme Court of Pakistan as reproduced above. The review application C.M.No.5/C of 2007, therefore, moved by the petitioners is hopelessly barred by time and is liable to be dismissed on this score alone. The review application C.M.No.5/C of 2007, is accordingly dismissed.