MUHAMMAD ASHRAF vs KASHIF IQBAL through Mst. Fakhar-un-Nisa and another
This civil revision petition challenges the appellate court judgment upholding the dismissal of the petitioner's application under Section 12(2) of the Code of Civil Procedure 1908. The core legal question concerns the competency of a second revision against an order deciding an application under Section 12(2) of the Code of Civil Procedure 1908, as well as the locus standi of a third party to file such an application when the judgment debtor, being their father, is alive and has not challenged the decree. The Lahore High Court held that a second revision petition is not competent and that a third party lacks locus standi to challenge a decree under Section 12(2) of the Code of Civil Procedure 1908 when the affected defendant is alive and has not challenged it. The court laid down the principle that a person cannot maintain an application under Section 12(2) of the Code of Civil Procedure 1908 against a decree passed against another living person who has chosen not to challenge the same.
- Is a second revision petition competent against an order passed by the first appellate court in a matter originating from an application under Section 12(2) of the Code of Civil Procedure 1908?
- Does a person have the locus standi to file an application under Section 12(2) of the Code of Civil Procedure 1908 against a decree passed against their living father who has not challenged the decree?
- Can a civil revision be treated as a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973?
- Section 12(2), Code of Civil Procedure 1908
- Article 199, Constitution of Islamic Republic of Pakistan 1973
ORDER
' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioner has challenged the judgment/order dated 19-9-2009 passed by learned lower appellate court whereby appeal filed by the petitioner was dismissed and the judgment/order dated 21-11-2005 passed by learned Civil Judge, Chakwal whereby application under section 12(2) of C.P.C. Filed by the petitioner was dismissed.
2. The first question posed to learned counsel that how this civil revision is competent when against the order of dismissal of application under section 12(2) of C.P.C. No appeal was provided but a revision could have been filed, learned counsel states that as the appeal was filed and the same was decided on merits by the learned lower appellate court, therefore, he has filed this civil petition, which is competent.
' I am afraid, this answer is not tenable under the law as the appeal was not provided against the decision of application under section 12(2) of C.P.C. By. The learned trial court. At the most revision could have been filed and even if the learned first appellate court has entertained and decided the appeal as an appeal, same can be treated as decision of the revision which was competent, therefore, after the revision, second revision is not competent. As the matter is pending before this Court since 2009, therefore, this Court can convert the revision into a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and decide the same as such if any question of law is raised, therefore, I am going to see the merits of the case also without formal converting it into a constitutional petition.
3. According to brief facts respondent No, 1, who was minor at that time, filed a suit for declaration on 22-5-1999, against respondent No, 2, who is tis real grandfather and a contesting written statement was filed but record shows that subsequently a written compromise was submitted on 6-6-2002 and on the basis of written compromise the learned trial court decreed the suit on 6-6- 2002. Petitioner feeling himself aggrieved by the judgment and decree filed an application under section 12(2) of C.P.C. On 19-6-2002 on the ground that previously before the High Court in a criminal proceeding a compromise was filed by the owner i,e, defendant of the suit, who is father of the applicant, that he will transfer his owned property in equal shares among all the legal heirs.
Replies to the application under section 12(2) of the C.P.C. Were filed by the plaintiff as well as defendant of the suit, though the defendant has supported the applicant of application under section 12(2) of C.P.C. But the question is whether the petitioner-applicant is having locus-standi to file an application under section 12(2) of C.P.C. When the defendant of the suit, who is his father, is alive and has not filed any such application. Learned trial court after recording evidence of the parties dismissed the application with cost of Rs,10,000 and as noted above the appeal was preferred Which was also dismissed by the learned first appellate court. In the above circumstances, applicant/ petitioner ' was having no locus-standi to file application under section 12(2) of C.P.C. When a decree has been passed against a person who is alive and has not challenged the decree in any proceedings before any forum. In this view of the matter, in the above circumstances, this revision petition is not competent and even on the touchstone of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the matter has been seen, no case is made out, therefore, this petition stands dismissed.