ALLAH DAD and others vs ABDUL GHANI and others

' 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), C.P.C. 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), C.P.C. 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), C.P.C. 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), C.P.C. 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 thereagainst. 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), C.P.C. 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), C.P.C.

5. In the given conditions, the learned High Court has rightly held that the application under section 12(2), C.P.C. Was filed before the wrong forum. No exception can be taken thereto. The appeal is hereby dismissed.