1. ' An identical factual matrix was a common feature of the subject-matter in litigation, in appeal - F.A.O. No, 115 of 1994 and civil miscellaneous No,267-C of 1994 instituted in this Court by the petitioners. Since the appeal and the original petition involved common points of law and facts for decision in them, it shall be convenient to deal with them together in a single judgment. For a proper appreciation of the controversy between the parties, a reference to salient facts of the case shall be necessary.
2. ' 456 Kanals, 16 Marlas of agricultural land situated in Kot Mela Ram of Tehsil and District Lahore belonged to Saleem Khan. He was a displaced person and it was allotted to him. On 12-6-1957, he agreed in writing for its sale to Mr. Aslam Riaz Hussain for a sum of Rs,32,000. Since the sale was not finalized in terms of agreement concluded between the parties. Mr. Aslam Riaz Hussain instituted a civil suit for specific performance of agreement to sell against Saleem Khan, on 11-6-1960, in the Civil Court at Lahore for completion of the sale of the land in his favour. Saleem Khan resisted the suit. As a result of contested trial, suit for specific performance was decreed in favour of the plaintiff, on 29-1-1970 in the trial Court. Saleem Khan preferred an appeal from the decree. Appeal was allowed and the suit was remanded for re-trial on five issues added in the judgment of the appellate Court. Upon remand, suit was again decreed in favour of the plaintiff on 17-2-1986.
3. Saleem Khan again preferred an, appeal from the decree of the trial Court. His appeal was entrusted for hearing to an Additional District Judge of Lahore. In course of his appeal, Saleem Khan died and his legal representatives were substituted for him on record. They were respondents Nos.2 to 4 in the present civil revision. On 26-10-1987, learned Additional District Judge dismissed the appeal on merits, and, affirmed the judgment of the trial Court in favour of the plaintiff now respondent No,1. Thereupon, substituted heirs of Saleem Khan filed a petition in revision numbered Civil Revision 319/D/86 for canvassing the correctness of the decree given in appeal. It was dismissed, in limine, on 28-6-1988, by A.S. Salam, J. As his Lordship then was. He had adverted to the merits of the case in his order dismissing the civil revision in limine. His decision was impugned before the Supreme Court in C.P.S.L.A. No,986/L of 1988. Petition for leave to appeal was dismissed, on 18-6-1989, by the Supreme Court. Legal representatives of Saleem Khan applied for review of this order. Petition for review was also dismissed. Copy of the order, however, was not placed on the file of this Court. In execution of decree passed in the suit for specific performance, sale-deed for the above land was executed in favour of the decree-holder at the instance of Execution Court and registered also. At this stage, a little swerve and digression from the main stream was necessary.
4. During the pendency of the suit for specific performance in the Civil Court, Saleem Khan also agreed for sale of his 441 Kanals, 6 Marlas of land out of the land in dispute to Ch. Shujaat Hussain and Ch. Pervaiz Elahi. This agreement may have been reduced in writing but its original or copy was not put on record of this Court. On 12-9-1981, Saleem Khan was shown to have executed a sale-deed in respect of the above land in favour of Ch. Shujaat Hussain and Ch. Pervaiz Elahi for a sum of Rs,6,00,000.
5. ' On 11-2-1993, petitioners namely Ch. Shujaat Hussain and Ch. Pervaiz Elahi instituted a miscellaneous petition under section 12(2) of-Civil P.C. In a Civil Court at Lahore for abashment of final judgment in the suit for specific performance passed in favour of Mr. Aslam Riaz Hussain. On 17-10-1993, the application under section 12(2), Civil P.C. Was returned to the petitioners for its presentation in competent jurisdiction. The return was ordered on the analogy of Order VII, Rule 10, Civil P.C. There upon, the petition was presented to a successor Court of the Court which had affirmed the decree in appeal passed by the trial Court in the suit for specific performance. In course of its hearing, a miscellaneous petition was submitted by the petitioners for amending the main petition for adding a few more facts. Respondent No,1 objected to the maintainability of the petition under section 12(2), Civil P.C. And questioned it on its merits also. On hearing arguments, learned Judge below held that this Court lacked jurisdiction to try the petition and consequently, ordered its return for representation to the Court of competent jurisdiction. The view taken by him was that decision by the predecessor Court lost its identity by merger in the judgment of the Superior Courts. In consequence, he directed return of the petition from his Court for its presentation in the Court of competent jurisdiction. This order was assailed in first appeal under Order )(LIB, Rule 1(a), Civil P.C. Separately, a petition under section 12(2), Civil P.C. Was also submitted in this Court. Both were simultaneously heard and were being disposed of together in this judgment.
6. ' It was argued that the final judgment given in the suit for specific performance was that of learned Additional District Judge who had dismissed the appeal on merits after hearing the parties and its identity was not merged in the judgment of the High Court dismissing the civil revision in limb; though, the merits of the case were examined by the High Court. Upon this legal premise, it was urged that application under section 12(2), Civil P.C. Could competently have been filed before the successor Court of the Court which had heard first the appeal and dismissed it on merits after hearing the parties. The contention urged was that the "final" judgment envisaged in section 12(2), Civil P.C. Was that of the Court which had heard and decided the matter on merits in presence of both the parties. It was further urged that fraud, misrepresentation and collusion raised mixed questions of fact and law and could not be satisfactorily resolved without settlement of proper issues and taking evidence from the parties on them. It was also urged that true legal representatives of deceased Saleem Khan were not substituted on record and, therefore, proceedings taken on their behalf and the decision rendered in them were corium non juice and were liable to be struck down on this score. It was also argued that the petitioners were bona fides purchasers of the land in dispute for valuable consideration without notice of pending lis, yet, they were omitted from the proceedings and condemned unheard. It was submitted that the plaintiff in the suit for specific performance ought to have impleaded them as party-defendants in his suit for allowing them a chance of defence and a fair contest with him. It was lastly argued that since in the firm view of the petitioners, an application under section 12(2), Civil P.C. Was competent before the Court below and return of it was erroneously ordered, an appeal was competent from the order under Order XLIII, Rule 1(a) of Civil P.C.
7. ' I shall take the last point first for consideration because if it was found that a return was erroneously ordered, the matter shall have to be remanded for reconsideration by the Court ordering return of the application filed under section 12(2) of Civil P.C. Section 104, Civil Procedure Code read with Order XLIII ibid gave list of appealable orders. An order under Rule 10 of Order VII, Civil Procedure Code returning a plaint for its presentation to proper Court was appealable under clause (a) of Rule 1 of Order XLIII, Civil Procedure Code, rule 10 of Order VII, Civil Procedure Code provided that the plaint shall be liable to be returned for being presented to the Court in which the suit should have been instituted. This clause applied only to the orders returning plaints and not to orders made in connection with matters other than plaints. An application under section 12(2), Civil Procedure Code though in the nature of a substitutive remedy for an independent suit was yet a mere application and was not equivalent to a plaint itself. Therefore, clause (a) of Rule 1 of Order XLIII, Civil Procedure Code providing for an appeal from the order of returning the plaint was inapplicable to an order for return of application under section 12(2), Civil Procedure Code for its representation in competent jurisdiction. In Pehlwan v. Abdul Sattar and others 1986 M LD 606, the Court took the view that order by the Appellate Court directing return of a memorandum of appeal was not appealable under Rule 1 of Order XLIII, Civil P.C. It was found that the expression return of plaint did not cover return of memorandum of appeal. I followed this view in Muhammad Amin v.
8. Afzal Ahmad alias Afzaal Ahmad and another 1986 CLC 126 (Lahore). Furthermore, an order dismissing the application under section 12(2), Civil P.C. May itself be not susceptible to an appeal either as a decree or an appealable order. Even in cases where the application under section 12(2), Civil P.C. Was allowed and the decree passed was set aside on grounds of fraud, misrepresentation or want of jurisdiction, a revision was filed. In Venkata Reddi and others v. Ventrapragada Ramabrahmam and another AIR 1953 Mad. 417 dealing with the appealability from an order passed for return of an application, the Madras High Court observed:--- "The learned counsel has, in my opinion rightly maintained that the right of appeal is not a matter of procedure but a substantive right which unless expressly given by the Statute cannot be held to be available to a litigant. The interpretation to be placed upon the language in Order 43, Rule 1(a), is, in my opinion, this namely, that if under Order 7, Rule 10, an order for the return of a plaint has been made, that will certainly be appealable. I am inclined to think that the right of appeal under that provision cannot stand attracted to orders made in connection with matters other than suits or plaints merely because of section 141, Civil P.C. Which can only imply and involve that the mode of trial laid down by the Code in regard to suits will be available in the case of all original petitions as well. It is stated by Mr. Krishna Rao that there is unreported ruling of this Court (Wadsworth, J.) in support of his present submission. I am satisfied that even apart from any such authority the submission of the learned counsel is sound and that the preliminary point of objection of Mr. Nagaramayya based upon section 141, Civil P.C. Has no force and must be repelled".
9. On this analogy, therefore, the order directing return of the application under section 12(2), Civil Procedure Code on account of lack of jurisdiction in the Court for entertaining it was not appealable under Order XLIII, Civil Procedure Code. Therefore, the appeal filed against it did not lie.
10. In that event it could be treated as a civil revision and learned counsel for the petitioner also orally requested for it. There was no bar in law for converting an incompetent appeal into a civil revision for its hearing on merits. I, therefore, treat the appeal as a civil revision from the order returning the application under section 12(2) of Civil P.C. In case, it was finally held that the application under section 12(2), Civil P.C. Could competently be filed in the lower Court, its order shall be set aside and the matter returned to it for its adjudication. Conversely, if it was held that the Court below had no jurisdiction to entertain the application under section 12(2), Civil P.C. And the proper Court to hear it was the High Court, civil revision shall be found to have served no useful purpose and, the matter shall then be examined by the High Court on its merits. This brings me to the fore-most question about the jurisdiction of the Court to entertain and try the application under section 12(2), Civil P.C.
11. Decision on the question turned on the language of section 12(2), Civil P.C. It reads: "Bar to further suit.---(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.
(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."
12. ' Subsection (2) was added to section 12 by Ordinance X of 1980. Effect of it was a total substitution of a remedy of an independent civil suit for setting aside of the judgments, decrees or orders on plea of fraud, misrepresentation or want of jurisdiction by a simpler and also cheaper remedy of an application to the Court which had passed the final judgment, decree or order sought to be set aside. A separate suit for it was expressly prohibited in the new scheme of the Legislation. Presence of subsection (2) on the Statute, however, did not bar exercise of inherent powers by a Court or Tribunal for recalling of its orders procured by fraud, misrepresentation or want of jurisdiction from it The question squarely, arising before the Court was about the connotation of the term "final" judgment, decree, or order. To put it differently, with reference to the facts of this case which shall be' the final judgment; the judgment of the High Court dismissing the civil revision on merits in limine or the judgment of Additional District Judge which had dismissed the appeal on merits from the judgment of the trial Court. In Muhammad Yaqub v. Mst. Nooran and others 1983 CLC 1948, it was said that the final judgment in the event of dismissal of special leave to appeal was the Supreme Court and an application under section 12(2), Civil P.C. Lay to it. In Mrs. Rukha Rafiq Chaudhry and another v. Major Malik Muhammad Ishaq and 7 others 1986 CLC 1211 (Lahore), I had an occasion to deal with section 12(2), Civil P.C. And the term 'final' judgment, decree or order in it.
13. In this case, I relied on the case of Muhammad Yaqub v. Mst. Nooran and also the theory of merger of judgment and held that final judgment in the case was that of the Supreme Court and, therefore, an application under section 12(2), Civil P.C. Lay to it. Dealing with a similar proposition arising under section 12(2), Civil P.C., the Supreme Court in CAs. Nos. 273 and 274 of 1987 observed: "What is intended is that a party must go to that Court which has finally decided the matter, if it desires to secure a reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word `final can mean the last in a series of judgments, decrees or orders which may have been passed. It can also mean that which is no longer further alterable and Which has acquired finality. It -is in the latter sense that the word 'final' appears to have been used in section 12(2). A decision can only be treated as final if it is unalterable, except by any of the means provided by the Code of Civil Procedure or by any special procedure applicable to the given case. Thus, a final judgment, decree or order would mean a judgment, decree or order, so far as the Court rendering it is concerned, is unalterable, if it is not sought to be modified, reversed or amended by preferring an appeal, revision or review application. The appellant desires the reversal of the two decrees passed by the High Court in R.SAs. Nos. 176 and 177 of 1984. The appellant at one stage did file two petitions to this Court seeking leave to appeal, which he withdrew on 24-1-1987 as he had earlier filed two applications before the High Court on 18-1-1987 for setting aside the two decrees on the ground that they had been obtained by fraud.. This Court, by its two orders dated 24-1-1987 permitted the appellant to withdraw the two petitions for leave and dismissed the same accordingly as withdrawn. These two orders cannot be treated as final disposal of the case. They neither finally decided any matter directly in issue in the case in respect of the rights of the parties nor did they decide any issue which went to the foundation of the case which could never, whilst the decision stood .Be questioned. The test whether the two orders disposed of the proceedings completely before this Court and the cases were never kept alive for being dealt with further, is not met. Rather, the two orders opened up scope for the decrees in the two regular second appeals being challenged before the High Court under section 12(2) of the Code of Civil Procedure. The two orders of this Court passed on 24-1-1987 were, therefore, not final judgments, decrees or orders within the meaning of section 12(2) of the Code. Had the appellant not withdrawn the two petitions seeking leave, the answer may have been different. Had leave been granted, the decision in the two appeals would have definitely led to final judgments or decrees. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere, whilst the decisions lasted. It is a different matter, whether this Court would take up petitions filed under section 12(2), C.P.C. For disposal, considering that under rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the Rules. Whether it would act in review ' under Order XXVI of the Rules, or under rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case (PLD 1982 SC 146) that a party who desires to show that a decision was obtained by fraud, need not do so by separate suit, but may do so by moving the same Court, would, depend upon each case separately. However, we are not confronted with this situation and, notwithstanding the views expressed, we would leave the matter open. The learned Judge of the High Court relied upon Muhammad Yaqoob v. Mst. Nooran (1983 CLC 48) for the orders which he passed, referring also to Ch. Rafiq Ahmad Shad v. Punjab Road Transport Board (1985 SCM R 1919) for the view that the principle contained therein was not applicable to the cases before him. Both these rulings are distinguishable, so far as where the facts of the present case are concerned."
14. ' In the instant case, the High Court in Civil Revision No,319 of 1986 examined the merits of the case; expressed on it and then dismissed the revision in limine. Thereafter, the matter was taken up in petition for leave to appeal before the Supreme Court, in C.P.S.LA. No,986 of 1988. Their Lordships of the Supreme Court also dealt with the facts on merits of the case and observed: "After hearing the learned counsel for the petitioner and having gone through the record of the case, we have come to the conclusion that this petition has no merit which deserves dismissal straightaway. As the case of the petitioners stands concluded by concurrent findings of fact based on proper appreciation of evidence by the three Courts below in favour of the respondents and does not warrant any interference by this Court, especially as it has not been shown to us that there has been any misreading or non-reading of any relevant evidence by the said Courts. The petition is, therefore, dismissed. Leave refused."
15. ' A petition for review was filed. It also failed. I have had not the benefit of reading the review order passed by the Supreme Court. Therefore, I am unable to comment on its contents. Reverting to the "finality" of judgment, decree or order and doctrine of merger, in Altap Ali v. Jamsur Ali AIR 1926 Cal.
16. 638, side note (a) reads: "The expression of opinion dismissing the appeal is a judgment, although as a matter of practice such judgments are not pronounced in the form prescribed under Order 41, rule 31, and so the dismissal of an appeal under Order 41, rule 11 by the High Court is a decree within the definition of a decree in section 2(2)."
17. ' In Jamuna Prasad Rai v. Rajballam Rai AIR 1937 Pat. 349, side note (b) reads: "The difference between the wording of sub-rule (1) and sub-rule (2) of Order 41, rule 11, Civil P.C., is significant. Sub-rule (2) provides for `an order that the appeal be dismissed', if the appellant does not appear when the appeal is called on for hearing. The intention is clear to make the order under this sub-rule not appealable; and for this there are two good reasons; first, the ground of dismissal under Order 41, rule 11(2) being non-appearance the Court has not considered and adjudicated on the question whether there is any merit in the appeal; secondly, the Code has provided another remedy under Order 41, rule 19 by application for the re-admission of the appeal, and if that application is refused an appeal lies under Order 43, rule 1(t). But an appellant has no such remedy when his appeal is dismissed under Order 41, rule 11, sub-rule (1). Such a dismissal has, so far as the Court pronouncing it is concerned, the finality which is an essential ingredient in the definition of 'decree' in section 2(2); and in substance, it expresses an adjudication within that definition, to the effect that the appeal is without merit."
18. ' In Muhammad Oomer, Muhammad Noorullah v. S.M. Nooruddin AIR 1952 Bom. 165, side note (c) reads: "It is only on a judicial determination that the order of the lower Court becomes merged in the decision of the Court of appeal. But no merger takes place when the Court of appeal does not judicially determine the appeal but dismisses it on any preliminary ground like limitation or maintainability. Then, on the dismissal by the appellate Court, the order that still stands is the order of the lower Court and not the order of the Court of Appeal."
19. ' In Annapu Ramanna v. Ponduri Sree-Ramulu and others AIR .1958 Andhra Pradesh 768, side note
(a) reads: "There is no difference in essence between a judgment dismissing an appeal under Order 41, rule 11, C.P.C. Or that made under Order 41, rule 37, C.P.C. In both the cases, the judgment of the appellate Court adjudicate upon the rights of the parties though in one case the manner of disposal is concise and speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate Court that governs the rights of the parties. As the appellate decree is the final decree and the decree of the lower Court merges with it, it follows that the application for amendment of the decree should be made to the appellate Court. Side note (b) of the case reads: "The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is, therefore, a decree as defined under section 2(2), C.P.C."
20. ' In Durga Singh v. Wahid Raza and others AIR 1965 All. 226, the headnote of the case reads: "There is no difference in essence between a judgment dismissing an appeal under Order 41, rule 11, C.P.C. And that made under Order 41, rule 37. In both the cases the judgment of the appellate Court adjudicates upon the rights of the parties, though in one case the manner of disposal is concise and speedy, and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate Court that governs the rights of the parties. The appellate decree is the final decree and the decree of the lower Court merges with it. The doctrine of merger applies even where a second appeal has been dismissed by the High Court summarily under Order 41, rule 11. It follows that in such a case the application for amendment of the decree must be made to the High Court and not to the lower appellate Court."
21. ' In State of Madras v. Madurai Mills Co. Ltd. AIR 1967 SC 681, it was held that: "The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or provisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or provisional order in each case and the scope of the statutory provisions conferring the appellate or provisional jurisdiction."
22. ' In Kantilal Khodabhai Patel v. Chiba Bava Bhandari AIR 1967 Born. 310, the headnote of the Cr.P.C.
23. Reads: ""Civil P.C. (1908), Order 9, rule 13, Order 41, rule 11 and section 151--Hearing of application under Order 9, rule 13 after disposal of appeal--Appeal dismissed summarily under Order 41, rule 11- Application under Order 9, rule 13 is not competent since the decree of the trial Court merged with that of the appellate Court---The appeal is always a rehearing of the suit---The question whether he disposal of appeal has been under Order 41, rule 11 or after issue of notice to the respondent makes no difference---The trial Court can review its order and restore the decree under section 151 if it has already set it aside without knowledge of the dismissal of the appeal."
24. ' In Kamaichand Beniprasad v. Pooranchand Moolchand AIR 1970 Madhya Pradesh 199, side note
(b) runs: "Even when an appeal is dismissed under rule 11 of Order 41, Civil P.C., the original Court's decree merges in the appellate Court's decree and the original. Court's decree ceases to exist. This will be so even if the order be under rule 32 of Order 41 and the difference in the language of rule 11 and rule 32 does not affect the position. The words 'may dismiss the appeal' occurring in rule 11 and the expression the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred under rule 32 have the same legal implication. There is no difference, whether the appeal is dismissed after notice or without notice, provided always that the dismissal is on merits. This rule does not, however, apply to cases where the appellate Court has not dealt with the merits of the case as in the case of simply dismissing the appeal for default."
25. ' In Hakam Singh v. Jaswa nt Singh and others AIR 1974 Punjab and Haryana 235, the headnote reads: "Where the High Court while dealing with appeals under the previsions of Order 41, rule 11 applies its mind fully to the legal points as well as to the evidence, and finding that the case is frivolous and without any merit, dismisses the same, such dismissal results in conclusive determination of the rights of the parties as also a formal expression of an adjudication. It results in the confirmation of the decree appealed against. It is correct that the Court acting under Order 41, rule 11 does not make any alteration in the judgment or decree appealed against. Nevertheless, it is the final determination of the controversy as it adjudicates upon the question raised by the appellants so far as it is necessary to adjudicate upon them for the purposes of the appeal. Further, under Rule 9 of Chapter 14-B of Volume 1 of the Rules and Orders of Punjab High Court, confirmation of a decision by the appellate Court under Order 41, rule 11, is a decree as given in section 2(2) of the Code. This rule though applicable to the subordinate Courts, further strengthen the view that an order passed under Order 41, rule 11 is to be construed as a decree. It is correct that under Rule 9 of Chapter 14-B of Volume 1, decree is required to be framed as is mentioned in rule 9 of Chapter 4-H of Volume 5. However, this difference is of no essence as the order passed under Order 41, rule 11 satisfies all the ingredients of a decree. The non-framing of decree-sheet in a case which is dismissed by this Court under Order 41, rule 11 is immaterial."
26. ' Reverting to the facts once again to resume the thread, it was necessary to observe that the High Court had dismissed the revision on merits in limine. It has applied its mind to the facts of the case and the points arising for determination on them and then had found that the judgment impugned before it was not liable to interference. This was clearly a judgment on merits by the High Court.
27. Similarly, the Supreme Court, though briefly, had adverted to the facts of the case and points for determination in it also. The Supreme Court refused leave to appeal and also maintained its decision later in review petition. In the above context it could not be urged that the judgment of the High Court in revision was not a "final" judgment within the contemplation of subsection (2) of section 12, Civil P.C. In terms of section 12(2) ibid, the effect of the judgment of the High Court though given on merits in limine could not be set at naught by recourse to a Court below it because it militated against the graded hierarchy of Courts. Black's Law Dictionary (Fifth Edition) defines "Final" Last; conclusive; decisive; definitive; terminated; completed. In its use in reference to legal actions, this word is generally contrasted with "interlocutory". The same Dictionary defines "Final judgment" as one which finally disposes of rights of parties, either upon entire controversy or upon some definite and separate branch thereof'.
28. ' The Concise Oxford Dictionary (The New Edition for the 1990s) gave this meaning to the term "final":--- "(1) Situated at the end, coming last,
(2) conclusive, decisive, unalterable. Putting an end to doubt,
(3) concerned with the purpose or end aimed at."
29. ' Therefore, the final judgment, decree or order spoken in subsection (2) of section 12 must be the judgment rendered on merits by the High Court, though in limine. Jurisdiction in revision was a part of the general appellate jurisdiction of the High Court as a Superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally, it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense". See Shankar Ramchandra Abhyankar v. Krishnan Dattatraya Bapat AIR 1970 SC I. Therefore, on the analogy of Rule 11 of Order 41, Civil Procedure Code applicable to hearing of the appeal in limine, if the High Court dismisses the revision petition on merits in limine hearing, its judgment shall take the field and shall be held to be a final judgment in the case. Therefore, the proper forum for entertaining the C application under section 12(2), Civil Procedure Code and for its adjudication was the High Court itself and it alone had the jurisdiction to determine its merits. In this view, connected appeal converted into a Civil Revision No,2406 of 1994 must fail in limine.
30. After having dealt with the question of jurisdiction to entertain the application under section 12(2), Civil P.C., I shall advert to the rule of lis pendens contained in section 52 of the Transfer of Property Act, 1882. The rule was an expression of the principle that pending a litigation nothing new should be introduced in it for avoiding adversely affecting the rights of litigating parties. Suit for specific performance of contract to transfer immovable property are suits in which the rights to immovable property is directly and specifically in question and were subjects to lis pendens. Effectiveness of the rule was not dependent on the doctrine of notice. It is based on public policy. It equally applies to bona fide transfers for consideration and without notice. Essential requirements of the principle behind section 52 were: (1) pendency of a civil suit, (2) non-collusive character of the suit, (3) any right to immovable property being in question in that suit, (4) the other party having the same right under the decree in that suit. The consequence of the principle would be that the transaction pendente lite shall not be allowed to affect the rights under the decree. Neither Saleem Khan nor his successors substituted for him on record, disclosed sale of land in dispute in favour of Ch. Shujaat Hussain and Ch. Perwaiz Elahi to the Court seized of the lis. Despite alleged sale, the defence was prosecuted by them with due diligence and fervour right up to the level of Supreme Court. Record did not disclose any element of fraud or misrepresentation by them nor was it alleged or established against the decree-holder. Plea of want of jurisdiction in the Court deciding the suit, hearing the appeal and revision was not urged either. There was no element of collusion between the parties either. The suit, appeal and revision arising from it were fought out on merits by the parties at arms length. Therefore, pendente lite purchasers of the land were bound by the decree passed by Court of competent jurisdiction in the suit for specific performance of the contract for sale of it.
31. ' Lastly comes the question about non-representation of the estate of Saleem Khan by his true legal representatives. Learned counsel argued that upon death of Saleem Khan, his true heirs were not brought on record and, therefore, the proceedings taken by them were invalid. The contention had no substance in it. On demise of Saleem Khan his legal representatives were substituted on record for taking further proceedings in. The matter. None objected to their substitution as legal representatives of Saleem Khan. His alleged true heirs did not intervene at any stage of proceedings for becoming a party to them. Even now, they were not before the Court. Next comes the plea for inquiry. Ordinarily, a factual inquiry raised on pleas of fraud and misrepresentation for avoidance of a judgment, decree or order of a Court I could be satisfactorily resolved by settlement of issues and taking of evidence from the parties, but the rule was neither universal nor inflexible. It depends upon the facts and circumstances in each case. In the instant case, neither settlement of issues on pleas of fraud and misrepresentation was required nor was it necessary to hold a factual inquiry by taking evidence from the parties. The matter was simple. Ch. Shujaat Hussain and Ch. Perwaiz Elahi had allegedly purchased the land in dispute during the pendency of the civil proceedings for specific performance of an agreement to sell in favour of Mr. Aslam Riaz Hussain. Therefore, they were bound by the decree passed in the suit in his favour and could not claim independent status of bona fide purchasers for value of the land without notice. In my opinion, the controversy was rightly resolved by the final judgment of the High Court in C.R.
32. No,319/D of 1986 on 28-6-1988. There was neither fraud nor misrepresentation involved in it.
33. Therefore, the civil miscellaneous was devoid of any merit in it. In consequence, it is dismissed in limine.