MUHAMMAD AMEER BHATTI, J. - Through this civil revision, the petitioner has challenged the order dated 09.03.2001 passed by the learned first Appellate Court, dismissing the application filed by the present petitioner under Section 12(2), CPC.
2. Brief facts of the case are that respondent No. 1/Muhammad Ali filed a suit for declaration against the present petitioner accompanied by an application under Order 39, Rules 1 & 2, CPC, which is pending adjudication before the learned Trial Court. The learned Trial Court vide its order dated 13.07.1995, granted an ad-interim relief to the plaintiff/respondent No. 1 on his application but thereafter no order for its extension or recalling was passed during the pendency of this suit. On 25,09.2010, the present petitioner filed an appeal against the said order of the learned Trial Court and the learned first Appellate Court vide its order dated 02.10.2010, suspended the operation of the impugned order i.e. 13.07.1995, thereafter, on 28.10.2010,. The petitioner withdrew the appeal. The respondent No. 1 filed an application under Section 12(2), CPC before the first Appellate Court on the ground that after obtaining the order dated 02.10.2010, alienated the property In dispute and took the possession by concealing the facts that another appeal had also preferred on 23.09.2010, which is pending adjudication before another learned ADJ and by suppressing the facts and committing fraud and misrepresentation another appeal was preferred which was got entrusted to Mr. Muhammad Yousaf Aujla, Additional District Judge, Lahore and after obtaining the order from the learned Additional District Judge, the present petitioner has succeeded in getting the sale- deed attested and subsequently mutation No. 67 was got sanctioned on 15.10.2010 and thereafter appellant withdrew the appeal on 28.10.2010. In the said application, respondents were summoned including the present petitioner, however, no one appeared on behalf of some respondents including the present petitioner. The learned first Appellate Court after recording the evidence of the parties, reached to this conclusion that the present petitioner intentionally got orders of suspension of the order dated 13.07.1995 by playing, fraud and misrepresentation, thus by accepting the application under Section 12(2), CPC, set aside the order dated 02.10.2010 restoration of the order of the learned Trial Court dated 13.7.1995 and consequently declare all the transactions executed (during this period the order dated 13.07.1995 passed by the learned Trial Court remain suspended) as null and void, having no legal effects upon the rights of the present respondent No.
1. This order was challenged by the petitioner under Section 12(2), CPC for setting aside the order dated 02.02.2011 on the main ground that application under Section 12(2), CPC was not maintainable before the learned first Appellate Court, however, the learned first Appellate Court vide its order dated 09.03.2011 dismissed the application of the present petitioner under Section 12(2), CPC, thus this civil revision.
3. Learned counsel for the petitioner emphasized his arguments on the ground that application under Section 12(2), CPC can only be filed before the Court, which passes the final order. Since the Additional District Judge has not passed any final order, hence application under Section 12(2), CPC filed by the respondent No. 1 was not maintainable. Reliance has been placed on Muhammad Abdul Kashem v. Sabdar Mallik and others (PLD 1961 Dhaka 129) and Haq Nawaz v. Muhammad Jan (PLD 1995 S.C. 561).
4. On the other hand, learned counsel for the respondent contends that application of the respondent No.1 before the learned first Appellate Court was competently filed within limitation and it has been rightly entertained by the learned first Appellate Court and the judgment relied upon by the present petitioner has no relevancy with the facts and circumstances of the case in hand, hence the petition has no merits and liable to be dismissed.
5. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
6. The main thrust of the learned counsel for the petitioner is that application under Section 12(2), CPC before the learned first Appellate Court was not maintainable. Since no final order has been passed by the learned first Appellate Court, the withdrawal of the appeal cannot be concluded as final order, hence application was misconceived and the same was liable to be dismissed. He has relied on the judgment of the Hon'ble Supreme Court ibid. The contention of the learned counsel for the petitioner is not tenable in the eye of law. He has hot only misapplied the law but also misinterpreted the precedent enunciated by the Hon'ble Supreme Court. Even uptill now the view of the Hon'ble Supreme Court is that where the leave has been refused, then the matter shall be deemed to be decided finally by the High Court and the leave refusing order where no difference of opinion has been drawn from the judgment of the High Court, then for the purposes of availing remedy under Section 12(2), CPC the judgment of the High Court is considered to be final. In the present case, the petitioner by playing fraud with the Court, succeeded in getting the order of suspension of the learned Trial Court and after completing all the transactions which have been stayed by the learned Trial Court, within a short span of 27 days, withdrew the main appeal as well as the application for interim relief, deemed to be considered the final order passed by the first Appellate Court. This order will not only be considered final but it is also first and last order.
7. There is no denying the fact that the order has been obtained by committing fraud as another appeal filed by the present petitioner was also pending adjudication against the same impugned order of the learned Trial Court wherein they had failed to get the order of the learned Trial Court suspended and by filing another appeal by concealing the factum of pendency of the earlier appeal, succeeded in getting a suspension (desirable) order from another learned Judge, which amounts tc playing a calculated fraud not with the present respondent No. 1 but also with the Courts, which cannot be countenanced by any standard of ethics. I do not feel any illegality or irregularity committed by the learned Court below which warranted summary interference in the order dated 09.03.2011 passed by the learned Additional District Judge.
8. In the light of foregoing discussion, the petition in hand is rather designed to perpetuate an ill- gotten gain, hence I am unhesitatingly inclined to dismiss the same with costs.