RAHMAT HUSSAIN JAFFERI, J.--- The present Appeal is directed against the order dated 9.6.1998 passed by learned VIth Addl. District Judge, Larkana in Civil Appeal No. 91/1989, Muhammad Ashraf v. Sikandar A.I, by which the learned Judge had allowed the application under Section 12(2), C.P.C.
Of the respondents and set aside the decree dated 29.4.1989 passed by the learned 111rd Senior Civil Judge, Larkana in F.C. Suit No. 25 of 1986.
2. During the pendency of appeal, the applicant Sikandar A.I (hereinafter referred to as the applicant) died, therefore, his legal heirs were joined.
3. The facts giving rise to the present Revision are that the applicant filed the F.C. Suit No. 25/1986 for Specific Performance of Contract and Perpetual Injunction against the respondents Nos. 1 and 2 on the grounds that the respondents Nos. 1 and 2 agreed to sale the shop measuring 475 sq.Ft.
Situated in Dokari for consideration of Rs.20,000/- . The respondents Nos. 1 and 2, failed to perform their part of contract, therefore, the applicant filed the suit. The respondents Nos. 1 and 2 contested the matter. They denied of having executed any agreement of sale. The suit was tried after framing of issues. The Trial Court decreed the suit vide decree dated 29.4.1989.
4. The respondents Nos. 1 and .2 challenged the said judgment and decree before the District Judge, Larkana by filing appeal on 28.6.1989. The appeal was admitted. The respondents Nos. 1 and 2 were directed to deposit the costs for Paper Book which they failed to pay in spite of chances given to then. Then, ultimately on 20.6.1990 the appeal was dismissed by the learned VIth Addl.
District Judge for non- prosecution on the grounds that the appellants and their Advocates were absent and costs for the Paper Book were not deposited.
5. After the dismissal of appeal, the applicant filed an execution application, which was allowed, and the Nazir of the Trial Court executed the sale-deed.
6. On 4.3.1991 the respondent No. 3 Mst. AamnaBibi filed an application under Section 12(2), C.P.C.
Before the Trial Court for setting aside the judgment and decree on the ground that it was obtained by practicing fraud upon the Court. The Trial Court dismissed the application on 2.4.1991, being not maintainable, as it should have been filed before the Appellate Court. The respondent No. 3 challenged the said order before District Court by moving Civil Revision Application No. 11/1991. On 16.10.1991, the respondent No. 3 withdrew the said Revision Application, as such, the learned District Judge dismissed the said application as withdrawn vide order dated. 16.10.1991.
7. On 13.4.1991, the respondents Nos. 2 and 3 filed fresh application under Section 12(2), C.P.C. Before VIth Addl. District Judge, Larkana for setting aside the judgment and decree passed by the Trial Court and order dated 20.6.1990 passed in Civil Appeal No. 91/1989. The said application was contested by the applicant. The learned VIth Addl. District Judge, Larkana framed issues and allowed the parties to lead evidence, which, they did. After considering the material available on the record the application under Section 12(2), C.P.C. Was allowed under the impugned order.
8. The legal heirs of the applicant were dissatisfied with the said order, therefore, they have preferred the present Revision Application.
9. The learned Advocate for the applicants has raised a preliminary objection, about the jurisdiction of the learned Vlth. Addl. District Judge, Larkana, to entertain the application under Section 12(2), C.P.C. He has stated that under Section 12(2), C.P.C. The Court, which passed final judgment and decree, can be approached for setting aside the same but in the present case the final judgment and decree were passed by the learned IIIrd Senior Civil Judge, Larkana, therefore, the learned VIth Addl. District Judge, Larkana had no jurisdiction to entertain the application. He has further argued that the order dated 20.6.1990, passed in Civil Appeal No. 91/89 by the VIth. Addl.
District judge, cannot be termed as judgment and decree because through this order the appeal filed by respondents Nos. 1 and 2, was dismissed for non-prosecution; that the judgment and decree of the Trial Court cannot be merged in the said order, therefore, the order dated 20.6.1990 cannot be termed as final order, judgment and decree within the meaning of Section 12(2) of C.P.C.
He has relied upon Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCM R 1516); Sarfraz v. Muhammad Aslam Khan and another (2001 S.C.M.R. 1062) = (PLR 2001 SC (Pak) 1179), Mrs. Alice Walter v. Islamuddin Qureshi (PLD 1968 Kar. 9).
10. On the other hand learned Advocate for the respondents Nos. 1 and 2 has stated that the preliminary objection was not raised in the memo. Of Appeal, therefore, the applicants cannot take plea of jurisdiction before this Court for the first time. He has further argued that in the first instance the respondent No. 3 approached the Trial Court for setting aside the judgment and decree by moving application under Order 12(2), C.P.C. But the Trial Court dismissed her application on the ground of lack of jurisdiction, therefore, it was challenged by filing Revision Application which was withdrawn with a view to file an application before the learned Vith Addl. District. Judge, Larkana; that under these circumstances, the respondents Nos. 2 and 3 had filed the application under Section 12(2), C.P.C. Before the learned VIth Addl. District Judge, Larkana as he had passed the final order dated 20.6 1990. He has further stated that the judgment and decree passed by learned IIIrd Senior Civil Judge, Larkana were merged in the order of the learned Vlth Addl. District Judge, Larkana dated 20.6.1990, as such, the said order becomes final, therefore, the application u/S. 12(2), C.P.C. Was required to be filed before the said Court hence it had jurisdiction to hear and adjudicate the matter. He has relied upon Mubarik A.I v. Fazal Muhammad and another (PLD 1995 S.C. 564); Baz Muhammad and others v. Mst. Zelekha and others (P.L.D. 1997 S.C. 300); Shabir Hussain v. Mst. Anwar Sultan through 3 legal heirs (1986 C.L.C. 903) and Haji Muhammad Siddik v. Pir Bux and another (1983 C.L.C. 1949).
11. I have given due consideration to the arguments and case-law cited by the parties' Advocates. It will be advantageous to reproduce sub-section (2) of Section 12, C.P.C. Which reads as under:, "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."
A bare reading of above provision shows that application of setting aside the judgment and decree or order on the ground of fraud, misrepresentation or want of jurisdiction shall be moved to the Court which passed the final judgment, decree or order and not by separate suit.
12. In this case the controversy between the parties is whether the order dated 20.6.1990 passed by learned Vith Addl. District Judge, Larkana is final order within the meaning of Section 12(2), C.P.C. It is an admitted position that through the said order, the appeal of the respondents was dismissed for non-prosecution and for non-depositing the costs of paper book. As such, the said order was not passed after considering the facts and law involved in the appeal nor the Appellate Court had given any finding on the question of facts or law or reverse as confirm the findings of the Trial Court after considering the facts and law involved in the matter, therefore, the said order cannot be termed as adjudication of the controversy involved in the appeal on the factual or legal' aspect of the case, as such, the said order cannot be termed as final order.
13. The learned Advocate for the respondents has relied upon the case of Mubarak A.I v. Fazal Muhammad and another (supra). In the said case leave to appeal was refused but the Hon'ble Supreme Court of Pakistan considered the said order as final within the meaning of Section 12(2), C.P.C. He has also relied upon the case Muhammad Yaqoob v. Mst. Nooran, etc. (1983 CLC 48) in which the similar view was taken by the Lahore High Court. In the third decision relied upon by the learned Advocate viz. Shabbir Hussain v. Mst. Anwar Sultana (supra) it was held by this Court that such application should be filed before the Court which passed the last order. Lastly, the learned Advocate for respondents has relied upon Baz Muhammad and others v. Mst. Zelkha and others (supra) in which the Hon'ble Supreme Court of Pakistan granted leave to consider the question of refusal of leave by Supreme Court to be the final order or not.
14. On the other hand learned Advocate for the applicant has relied upon the decision of Hon'ble Supreme Court of Pakistan given in Khawaja Muhammad Yousif v. Federal Government (supra). In the said decision, the decision of Mubarak A.I v. Fazal Muhammad and another (supra) was considered and it was found in conflict with the earlier decision of the Hon'ble Supreme Court of Pakistan delivered in the case of Secretary, Ministry of Region Affairs and Minorities and two others v. Sayed Abdul Majid (.1993 SCM R 1171), in which it was observed that refusal of leave to appeal would not come within the ambit of Section 12(2), C.P.C. Being.The final order. The said view was approved by the Hon'ble Supreme Court in this authority and at page 1524 it was observed as under:- It may be pointed out at the judgment in the case of Mubark A.I (supra), quoted hereinabove, does not lay down a broad proposition that simpliciter refusal of leave by the Supreme Court would constitute a final order for the purpose of Section 12(2), C.P.C., but it is qualified with the condition "that 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 was also clarified that this Court had discretion to take up or not to take-up petition filed under Section 12(2), C.P.C. For disposal, considering that, under Rule 5 of Order 1 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 or whether it would act in review under Order XXVI of the Rules. The above question was also left open. It may also be observed that even otherwise the above observations relied upon by Mr. Gul Zarin Kiani cannot negate what has been clearly held in the case of Secretary, Ministry of Religion Affairs and Minorities and 2 others v. Saved Abdul Majid (1993 SCM R 1171) (supra). In our view, the law enunciated in the above case of Secretary, Ministry of Religion Affairs and Minorities and 2 others v. Sayed Abdul Majid (supra) reflects, the correct legal position. If this Court merely re-affirms a judgment or order of a High Court by refusing leave, the final judgment in terms of sub-section (2) of Section 12, C.P.C. Will be of the High Court and not of the Supreme Court. However, if the Supreme au! I., reverse a judgment of High Court and record a finding on question of fact or law contrary to what was held by the High Court for the purpose of sub-section (2) of Section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded by the forums provided under the Settlement Law."
The above view was further affirmed in another decision delivered in case of Sarfraz v. Muhammad Aslam Khan (2001 S.C.M.R. 1062) = (PLR 2001 SC (Pak) 1179).
15. As regard the merger of the decree of the Trial Court in the order dated 20.6.1990 passed by the learned VIth Addl. District Judge, Larkana, this Court dealt with the said point in a case of Mrs. Alice Walter v. Islamuddin Quraishi (PLD 1968 Kar. 19), in which certain exceptions have been pointed out and those exceptions are that if the appeal is dismissed in limine, or in default or for having been insufficiently stamped, or because no appeal actually lay or was withdrawn or had abated and the decision was not given on merits, in such eventuality, the decree of the Trial Court would not be merged in the above-mentioned orders.
16. In the present case the appeal was dismissed for non-prosecution and for non-deposit of the cost of paper book, therefore, the judgment and decree of the Trial Court cannot be merged in the said order, particularly, when the decision was not given on merits.
17. As regard the arguments of the learned Advocate for the respondents that the appellant had not raised the point of jurisdiction before the lower Courts, therefore, he cannot raise the same. In this connection it is pointed out that this is a revision application in which one of the ground for filing revision is to be examined as to whether the lower Court had exercised its jurisdiction vested in it by law or not. In this view of matter the arguments of the learned Advocate has got no force.
However, I have examined the revision application, it has been found that ground No. 8 deals with the statement that the decree was upset unnecessarily, illegally and without lawful authority. Even otherwise, the point of jurisdiction can be raised at any stage of the proceedings. Reliance is placed on cases Ghulam Jillani v. Government of Pakistan (PLD 1967 SC 373); Rasheed Ahmed v.
The State (PLD 1972 SC 271) and Wall Dad v. Deputy Commissioner. Karachi and 2 others (RD 1975 Kar. 202).
18. After considering the material available on the record, I am of the considered view that the order dated 20.6.1990, passed by VIth Addl. District Judge, Larkana, cannot be termed as final order within the meaning of Section 12(2), C.P.C. Therefore, the said Court had no jurisdiction to entertain the application.
Above are the reasons of my short order dated 26.2.2003 by which the revision application was disposed of in the following manner:- "Heard the Advocates for the applicant and respondents Nos. 1 to 3, perused the record of this case and law involved in the matter. For reasons to be recorded separately, impugned order dated 9.6.1998 is set aside as the Vith Additional Sessions Judge, Larkana had no jurisdiction to entertain application under Section 12(2), C.P.C. The said application was wrongly entertained by the said Court as it should have been filed before the Trial Court. Learned VIth Additional Sessions Judge, Larkana is directed to return the application under Section 12(2), C.P.C. For presenting it before the Trial Court for decision in accordance with law. However, provisions of Article 14 of Limitation Act, can be examined by the Trial Court in the light. Of peculiar circumstances of this case, if a point of limitation is raised before the said Court, which shall be decided by the Trial Court, in accordance with the law. The revision application is allowed in the above terms."