ALLAH DAD & others vs ABDUL GHANI & others
This matter arises from an appeal filed by Allah Dad and others against the judgment of the Lahore High Court, which dismissed their revision petition against the order of the Additional District Judge, Lodhran. The core legal question was whether an application under Section 12(2) of the Code of Civil Procedure 1908 should be filed before the original court that passed the decree or the appellate court that finally disposed of the matter. The Supreme Court of Pakistan held that where a regular second appeal has been filed against a decree, the judgment and decree of the appellate court constitute the final judgment, and therefore an application under Section 12(2) CPC must be filed before that appellate court, being the proper forum. The appeal was accordingly dismissed, affirming that the application was rightly rejected for being filed before the wrong forum.
- Which court is the proper forum to entertain an application under Section 12(2) CPC when a regular second appeal has been decided against the decree?
- Does a judgment passed in second appeal supersede the original decree for the purposes of filing an application under Section 12(2) CPC?
- Can an application under Section 12(2) CPC be entertained by a court whose decree merged into the judgment of a superior appellate court?
- Section 12(2), Code of Civil Procedure 1908
Sardar Muhammad Raza Khan, J.--Allah Dad and others have been granted leave to appeal from the judgment dated 20.5.2002 of learned Lahore High Court, Multan Bench, whereby, their revision petition against the judgment dated 25.8.2001 of Additional District Judge, Lodhran was dismissed. Resultantly, application filed by the appellants under Section 12(2) CPC stood dismissed on the ground that Additional District Judge had no jurisdiction to entertain such application.
2. Briefly, Allah Dad etcetera as owners of the property, on 19.12.1974, entered into an agreement to sell with one Abdul Ghani. As the contract was not performed, Abdul Ghani brought a suit for specific performance of contract, which was dismissed by the trial Court on 10.4.1984. On appeal, the Additional District Judge, vide judgment dated 7.5.1990, set aside the judgment of the trial Court and granted a decree in favour of Abdul Ghani. It was upheld by the learned High Court on 29.5.1997, against which leave to appeal was refused by the Supreme Court on 20.10.1997.
3. The owners initiated, apparently, a mala fide fresh round of litigation by filing an application under Section 12(2), CPC on 29.5.1999 before the Additional District Judge, which was dismissed. A revision was filed before the High Court which, through the impugned judgment dated 20.5.2002, met the same fate but on the ground that, in the circumstances, application under Section 12(2), CPC was to be filed before the High Court and not before the Additional District Judge.
4. The final judgment' with reference to Section 12(2), CPC has been defined by this Court in Mubarik Ali's case (PLD 1995 SC 564) as one which, so far as the Court. rendering it is concerned, is unalterable if it is not sought to be modified, reversed or maintained by preferring an appeal, revision or review. In the circumstances of the present case, the decree was originally granted by the Additional District Judge. It would have been final, had no regular second appeal been filed there against. The fact is that a regular second appeal was filed before the High Court in its appellate jurisdiction. In the circumstances, the judgment in appeal dated 29.5.1997 was the final judgment and hence application under Section 12(2), CPC was bound to be filed before the High Court being the last Court of fact. This view was maintained by this Court in Abid Kamal's case (2000 SCM R 900), that a Court finally deciding the appeal would be a proper Court to entertain application under Section 12(2), CPC.
5. In the given conditions, the learned High Court has rightly held that the application under Section 12(2), CPC was filed before the wrong forum. No exception can be taken thereto. The appeal is hereby dismissed.