ARSHAD ULLAH and another vs MUSLIM COMMERCIAL BANK and others
This matter arises from a petition filed before the Supreme Court of Pakistan challenging an order passed by the Lahore High Court dismissing an application under section 12(2) of the Code of Civil Procedure 1908. The core legal question was whether the withdrawal of a first appeal from order by the appellant bank constituted fraud, misrepresentation, or want of jurisdiction warranting interference under section 12(2) of the Code of Civil Procedure 1908. The Supreme Court held that the High Court's order disposing of the appeal as withdrawn on the appellant's request did not suffer from any fraud, misrepresentation, or lack of jurisdiction, and that the discretion exercised by the Single Judge in dismissing the section 12(2) application was sound. The key principle laid down is that the provisions of section 12(2) of the Code of Civil Procedure 1908 cannot be invoked to challenge a simple order of withdrawal of an appeal unless specific grounds of fraud, misrepresentation, or want of jurisdiction are clearly established.
- Can an order disposing of an appeal as withdrawn be set aside under section 12(2) of the Code of Civil Procedure 1908 on the ground of fraud or misrepresentation without showing specific foundational facts?
- Does the withdrawal of an appeal by an appellant constitute a case of want of jurisdiction?
- Whether objections regarding the maintainability of a fresh execution petition can be raised before the executing court instead of through a section 12(2) application?
- Section 12(2), Code of Civil Procedure 1908
' KHALIL-UR-REHMAN RAMDAY, J.--- An appeal filed by the respondent-Bank in the Lahore High Court bearing F.A.O. No,29 of 1993 came up before the said learned Court on 27-3-1998 when the same was disposed of with the following order:-- "27-3-1998, Ch. Muhammad Azam Chattha, Advocate.
' States that he would like to move the Executing Court again as he has obtained the certified copies of the required certificate.
(2) Disposed of accordingly.
(Sd.) Faqir Muhammad Khokhar, Judge
2. The present petitioners did not question this appellate order before any higher forum and instead made an application before the same learned High Court under section 12(2) of the C.P.C.
Praying for recall and setting aside of the said order, dated 27-3-1998. The said application was dismissed by a learned Judge in Chamber on 10-8-2000. However, with a clarification for the benefit of the present petitioner that if a fresh execution petition was filed by the respondent-Bank then maintainability of the same would be subject to the law permitting the same.
3. The petitioners are still not satisfied and have approached this Court impugning the said order, dated 10-8-2000 passed by the learned High Court on an application moved under section 12(2) of the C.P.C.
4. Despite our indications, the learned Advocate Supreme Court has kept us busy for about one and a half hour submitting that the above-mentioned F.A.O. No,29 of 1993 deserved to be dismissed for different reasons including being barred by time. We brought it to the notice of the learned Advocate Supreme Court that what was being challenged before us was not the older dated 27-3-1998 passed by the Honourable High Court in the said appeal but the order, dated 10- 8-2000 passed by the learned High Court on an application moved under section 12(2) of the C.P.C.
5. The said application was dismissed by the learned High Court that the order disposing of F.A.O.
No,29 of 1993, as having been withdrawn, was the result of any fraud or misrepresentation or was a case of want of jurisdiction. Despite assisting us for almost one and a half hour, the learned Advocate Supreme Court could not show even to us as to how an appellant before the High Court withdrawing its appeal could be declared to be guilty of committing fraud or making a.
Misrepresentation or how could dispose of the said appeal as withdrawn on the request of the appellant could constitute a case of want of jurisdiction.
6. We have not been able to find any infirmity in the discretion exercised by the learned Single Judge in dismissing the application under section 12(2), C.P.C. Through the impugned order, dated 10-8-2000 especially when, as has been mentioned above. A clarification had been made by the learned High Court for the benefit of the petitioners to the effect that a fresh execution petition before the learned executing Court would be competent only if the law so permitted. Needless to add that whatever, reservations or objections are being raised before us could conveniently be pleaded before the learned executing Court in the said fresh execution petition.
7. In this view of the matter, this petition is without merit and the same is accordingly dismissed.
Leave refused.
Cited by 2 cases
- MUHAMMAD YOUNUS and another vs VENUE GURDAS ADVANI and others 2015 CLD 390, 2015 YLR 276
- MUHAMMAD YOUNUS and anothers vs VENUE GURDAS ADVANI and others 2015 CLD 390