' This application, under section 24 of the Code of Civil Procedure by Mst. Riaz Fatima and S. M.
Safdar Zaidi, seeks transfer of a suit for declaration and permanent injunction/titled "Ch. Ijaz Ahmad Khatana v. Khadim Hussain and others" from the Court of Mr. Abdul Qayyum Khan, Civil Judge, Faisalabad to the Court of Syed Shujaat Hussain Tirmizi, Civil Judge, Lahore.
2. Facts, briefly stated, giving rise to this application are these: On 1-12-1993, Ch. Ijaz Ahmad Khatana and Khan Akram Ali Khan/respondents brought a suit under section 42 of the Specific Relief Act against Khadim Hussain Chaudhry, Mst. Riaz Fatima and Mst. Mukhtar Fatima/applicants seeking declarations to the effect that they were bona fide purchasers of 2592 units vide agreement of sale executed by Khadim Hussain and for grant of permanent injunction restraining the defendants to alienate the aforesaid units to any other person except plaintiffs. It was averred that Mst. Riaz Fatima and;; Mst. Mukhtar Fatima were the owners of 2592 units under Claim. Book No,2207; Khadim Russain Chaudhry/defendant No,1 therein purchased the aforesaid units from Mst.
Riaz -Fatima and Mst. Mukhtar Fatima/displaced persons under an agreement of sale dated 29-11- 1990; that he sold the aforesaid units to plaintiffs for a sum of Rs,6,86,880 under agreement of sale dated 23-11-1993; that the plaintiffs were entitled to seek allotment of evacuee land in lieu of the above units but it seemed that the aforesaid refugees were trying to sell the said units to some other person.
' This suit, according to the applicants, was entrusted to Mian Muhammad Anwar, Civil, Judge, Faisalabad, who decreed it collusively on 10-3-1994. This is, however, not the whole factual matrix.
The aforesaid Ch. Ljaz Ahmad Khatana and Khan Akram All Khan/respondents herein instituted another suit under section 42 of the Specific Relief Act against Khadim Hussain, Mst.Riaz Fatima, S.M. Safder Zaidi and Chief Settlement Commissioner/Member, Board of Revenue. Lahore on 5-9- 1997 contending therein that Mst. Riaz Fatima and Mst. Mukhtar Fatima were displaced persons who had come from India and got their claim verified to the extent of 2592 units vide Book No 2207; that they sold the aforesaid units to Khadim Hussain Chaudhry by means of agreement of sale dated 29-11-1990; that the aforesaid vendee thereafter sold the aforesaid units to plaintiffs vide agreement of sale dated 23-11-1993; that thereafter the afore noted displaced persons joined hands with one S.M. Safdar Zaidi, obtained allotment of evacuee agricultural land measuring 371 Kanals, 9 Marlas situated in Revenue Estates of Halqa Bhema and Halqa Asal Lakhowal somewhere in 1996 and intended to sell, so allotted property. To anyone else to the deprivation of 'respondents Nos.
1. And 2 plaintiffs. This suit is still pending adjudication before Syed Shujaat Hussain Tirmizi, Civil Judge, Lahore.
3. Feeling aggrieved, Mst. Riaz Fatima and Mst. Mukhtar Fatima (since dead) represented by S.M.
Safdar Zaidi moved an application under section 12(2) of C.P.C. On 12-2-1997 alleging therein that the decree dated 10-3-1994 obtained by the respondents was collusive and based upon fraud and none of the applicants had appeared before the learned Civil Judge. Faisalabad; that the decree had been obtained by employing fake women before that Court. From the aforesaid, it clearly follows that one suit for declaration is pending adjudication before Syed Shujaat Hussain Tirmizi.
Civil Judge, Lahore and another application under section 12(2) is pending in the Court of Mian Muhammad Anwar, Civil Judge, Faisalabad. Confronted with this situation. Mst. Riaz Fatima and others had filed the instant transfer application.
4. Learned counsel for the applicant, in support of this application, urges as follows: Firstly, that the parties in the application under section 12(2) before Mian Muhammad Anwar, Civil Judge, Faisalabad and parties in the declaratory suit pending before Syed Shujaat Hussain Tirmizi, Civil Judge, Lahore are same; that the dispute relates to evacuee immovable property situated in two revenue estates of Lahore: that the pleas of the parties before both the Courts in the causes noted above are same. On the strength of above circumstances. It was suggested that it was proper and convenient that the application under section 12(2) of C.P.C. Be transferred from the Court of Mian Muhammad Anwar, Civil Judge, Faisalabad and be, entrusted to the Court of Syed Shujaat Hussain Tirmizi, Civil Judge, Lahore. Secondly that the property in dispute was situated in Tehsil Lahore and so the learned Civil Judge at Lahore had jurisdiction to hear both the causes relating to said immovable property. Thirdly, that the applicants are residents of Karachi, and had to prosecute two causes, which are facets of the same coin, in the Courts one at Lahore and the other at Faisalabad; that this was simply tortuous to the applicants. Learned counsel for the respondents, however, strongly opposed the application. He relied upon section 12(2) of the C.P.C. To contend that the Court. Which decreed the earlier suit, was only competent to decide the application moved by the Riaz applicant under section 12(2) of C.P.C. And the Court at Lahore had/has no jurisdiction whatsoever to entertain and decide that application. On this line of arguments it was suggested that the application under section 12(2) of C.P.C. Cannot be transferred to the Court at Lahore.
5. I have heard the learned counsel for the parties at a considerable length. Perused the record and attended to their conflicting contentions. The first and foremost question, which requires to be considered, is that whether this Court under section 24 of civil Procedure Code has power to transfer an application moved under section 12(2) of C.P.C. No doubt, aforesaid provision empowers High Court and the District Court to transfer, withdraw and re-transfer at any stage. Any pending suit, appeal or other proceedings, from one subordinate Court to another Court either suo mom or upon the move of aggrieved party. Power of this Court is overriding. It enables it to monitor and supervise the Courts subordinate to it. It is also well settled that the High Court can exercise this power under following conditions:---
(i) The Court, in which the suit, appeal or any proceedings pending, must be a Court of competent jurisdiction;
(ii) the Court to which such suit, etc. Is to be transferred should be competent to try or dispose of the controversy.
(iii) the Court to which the suit etc. Is transferred should be subordinate to the High Court/District Court/the Court ordering the transfer.
' Under the shades of above conditions, we herein proceed to examine as to whether the Court at Lahore is competent to hear and decide the application moved by the applicant Mst. Riaz Fatima and others under section 12(2) of C.P.C. The question is not free from difficultly. It is to be noted that subsection (2) was added in section 12 of C.P.C. By Ordinance X of 1980. Section 12, as embodied in Code of Civil Procedure, prohibited the filing and trial of suits in cases covered by Order 2, Rule 2, Order IX, Rule 9, Order XXII, rule 9 and Order XXIII, Rule 1, C.P.C. It is true, that the Court of plenary jurisdiction had and was/is possessed of inherent power to set aside its judgments, decrees and final orders, which were secured fraudulently or which were totally without jurisdiction. See Abdul Hamid v Abdul Ghani 1983 CLC 1022. Mst. Sardaran Bibi and 2 others v. Abdul Latif and 7 others (PLD 1952' Lah. 294), Midnapur Zamindari Co. Ltd. v Narayan Roy (AIR 1922 PC 241), Genda Lal v. Hazari Lal (AIR 1936 (All.) 21) (F.B.), Munshi Abdul Rahim Khan and others v. Fakir Muhammad Shah and another (AIR (33) 1946 Nagpur 401), Abdul Rahmin Mullik and others v. Azhar Ali Khan (AIR 1935 (Cal.) 1116), Venkatachala Padayochi and others v. Velayudha Padayachi (AIR 1935 (Mad.) 701). Thus a party was entitled to file a suit in order to seek setting aside a judgment and decree or a final order passed by a Court of plenary jurisdiction on the premises that the same had been obtained by fraud, misrepresentation or was without jurisdiction. Amending Ordinance X of 1980 took note of the aforesaid situation arid enacted that where a person challenged the validity of judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction, such person shall approach the same Court and filing of separate suit was prohibited. Underlying purpose of this legislation was to weed out/curb the flow of false and vexatious suit on the plea of 'misrepresentation, fraud/want of jurisdiction and such person was required to approach the Court which passed such final judgment, decree or order. The next issue which arises is what is/was the final Court which passed/passes final judgment, decree or order. This provision clearly says that application has to be moved to the Court which passed/passes the final judgment, decree or order. The expression "final Court" came up for consideration in Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564). Speaking for the Bench Justice Rustam S. Sidhwa said: "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 that 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 later 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.S.As. 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 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 discussion in the two appeals would have definitely led to final judgment or decree. 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 review under Order XXVI of the kules, 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."
' Applying the aforesaid rules to the facts of the case in hand, it is quite clear that Civil Judge, Faisalabad who passed the decree dated 10-3-1994 was final Court within the terms of section 12(2) of C.P.C. The point is as to whether' the Court at Lahore can be entrusted with the application under section 12(2) of C.P.C. Filed in the Court at Faisalabad. On the aforesaid view, I find the answer in negative. The expression "the" used before the 'word "Court" in section 12(2) is highly significant.
"The" is an article which particularizes. Noun before which it is put. See the definition of word "the" in Black Law Dictionary which is as follows: "The an article which particularizes the subject spoken of. "Grammatical niceties should not be resorted to without necessity; but it would be Extending liberality to an unwarrantable length to confound the articles 'a' and 'the'. The most unlettered persons understand that 'a' is indefinite, but "the" refers to a certain object."
Seen from this angle, I have no difficulty in coming to the conclusion that the word "the Court" used in section 12(2) cannot be used for the Court at Lahore. For the purpose of clearness, it may be noted that the Court which decides the lis finally, may not be only First Court. It may be First Court, First Appellate Court, Second Appellate Court or in some cases apex Court, when lis is finally decided over there on merit. Even it cannot be imagined that this Court his power under section 24 of C.P.C. To transfer any application moved under section 12(2) of C.P.C. From the apex Court to any other Court..
6. From the foregoing examination, it is, thus, clear that this Court had/has no jurisdiction- whatsoever to hear the transfer application in hand and transfer the application moved under section 12(2) of C.P.C. From the Court at Faisalabad to the Court at Lahore. The Court at Lahore is not competent-to' hear the said application. This application is, thus found to be incompetent and is hereby dismissed.
7. While parting with this order, the learned Court at Faisalabad in context of facts and circumstances of the case in hand, is directed to decide the application under section 12(2) of C.P.C. Within a period of one month commencing from the receipt of ,order of this Court. It shall also examine the application from the angle as to whether earlier suit filed by the respondents was competent before the Court of plenary jurisdiction on two premises i,e, on the basis of jurisdiction over subject-matter of tie suit. Secondly, whether the Court had territorial jurisdiction to hear the said suit as the property allotted in lieu of units is situated at Lahore. Furthermore, he is directed to decide the application strictly in accordance with law and not otherwise. Tile applicants will be well within their right to move an application to the transferee Court or the same Court when their application is decided finally.