AMIN-UD-DIN KHAN, J. --- Through this civil revision the petitioner has challenged the order dated 11.6.2012, passed by the learned Additional District Judge, Jhang, whereby by entertaining the application under Section 12(2) of the CPC, moved by respondent No. 1, framed the issues and started the trial of the lis.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for specific performance against respondent No. 2 on 16.10.2004. The suit was decreed in his favour on 17.9.2009. The judgment- debtor preferred an appeal which was dismissed by the learned '1st Appellate Court on 1.2.2010.
During the pendency of the suit respondent No. 1/applicant of application under Section 12(2) of the CPC, claims to have purchased the, suit property through oral mutation No. 2127, attested on 31.1.2008. He previously filed an application before the learned Trial Court 'on 1.6.2010, the petitioner contested the aforesaid application by filing reply and vide order dated 21.1.2011, the learned Trial Court dismissed the same. Then respondent No. 1 after dismissal of the said application filed a fresh application under Section 12(2) of the CPC before the 1st Appellate Court on 26.7.2011, reply was filed by the petitioner and the learned Trial Court while ignoring the stance taken by the petitioner that second application is not maintainable has not only entertained the application but started proceedings upon the application after framing the issues. Order dated 11.6.2012, of entertaining application under Section 12(2) of the CPC and framing of issues is under challenged before this Court.
3. Learned counsel for the petitioner argues that even during the pendency of the suit, respondent No. 1, who is applicant of application under Section 12(2) of the CPC, moved an application under Order I, Rule 10 of the CPC, the same was dismissed and further that he claims to be purchaser of the suit land during the pendency of the suit which gives him absolutely no right and further his application under Section 12(2) of the CPC when dismissed on merits in the Trial Court after six months he has again moved an application before the learned 1st Appellate Court which is absolutely not maintainable. Learned counsel for the petitioner has relied upon Shamraz Khan and 8 others v. Muhammad Rafique and others (P.L.D. 2006 Peshawar 196), Muhammad Karini and 2 others v. Sher Bahadar and 6 others (2008 C.L.C. 1286), Messrs Silk Bank Limited v. Qazi Ehtishamul Hag and others (2011 S.C.M.R. 1854), Muhammad Aslam (Deceased) through LRs. And others v. Molvi Muhammad Ishaq (Deceased) through LRs. (2012 S.C.M.R. 147) and Asif v. Controller of Rents, etc. (N.L.R. 1988 Civil 12) to argue that proper forum for filing the application was the Trial Court as the appeal filed by the judgment-debtor was dismissed, the decree passed by the Trial Court was upheld and further that even respondent No. 1 has previously moved an application before the learned Trial Court.
5. On the other hand, learned counsel for the respondents argues that the first application was moved wrongly before the learned Trial Court who was having no jurisdiction, therefore, the application in hand has been moved rightly before the 1st Appellate Court, who has decided the appeal of the parties to the suit.
6. I have heard the learned counsel for the parties at length and have gone through the record with their assistance. I am clear in my mind that the application under Section 12(2) of the CPC is entertainable by the Court which has initially granted a decree, the decree of which Court has not been varied by any of the appellate fora. If the decree is modified or varied by the appellate forum, then the forum which has modified the decree the application will be entertained by that Court. In the case in hand the decree passed by the Trial Court has not been modified by the 1st Appellate Court, therefore, the application was maintainable by the Trial Court. I am further fortified by the judgments referred to by the learned counsel for the petitioner and furthermore even the first application under Section 12(2) of the CPC was filed before the Trial Court, the same was dismissed on merits by the Trial Court, after about six months the second application has been filed which is not maintainable but the argument of the learned counsel for the respondents, i.e. Applicant of application under Section 12(2) of the CPC, that the Trial Court was having no jurisdiction to entertain and decide the same is also incorrect on the basis of law and on the estoppel as I have held supra that the application was maintainable before the Trial Court and there is estoppel against respondent No. 1, who himself previously moved the application before the learned Trial Court, because it is settled principle of law that a person who invokes the jurisdiction of a Court cannot at any latter point of time take a plea that the Court was having no jurisdiction whose jurisdiction the party itself had invoked. <p.m> </p.m>