DIN MUHAMMAD vs DEFENCE HOUSING AUTHORITY; LAI'ORE through its
This petition for leave to appeal challenged a Lahore High Court judgment that set aside lower court orders and remanded a case. The High Court had allowed the respondent to amend their application under Section 12(2) of the Code of Civil Procedure to include an objection regarding territorial jurisdiction, directing the trial court to frame and decide this as a preliminary issue. The petitioner contended that a jurisdiction objection not raised at the earliest opportunity could not be raised later, and that a transfer of property during suit pendency, being hit by Section 52 of the Transfer of Property Act, would not confer locus standi to challenge a decree under Section 12(2) CPC. The Supreme Court, after reviewing the record and arguments, upheld the High Court's decision, affirming that a decree passed by a court without territorial jurisdiction is a nullity and that the High Court rightly directed the trial court to allow the amendment and decide the preliminary issue of jurisdiction. The petition for leave to appeal was dismissed.
- Can an objection to territorial jurisdiction be raised during arguments even if not initially included in an application under Section 12(2) of the Code of Civil Procedure?
- Is a decree or order passed by a court lacking territorial jurisdiction a nullity?
- Should a trial court allow amendment of an application under Section 12(2) of the Code of Civil Procedure to raise an objection of territorial jurisdiction?
- Should a preliminary issue on territorial jurisdiction be framed and decided when such an objection is raised?
- Does Section 52 of the Transfer of Property Act affect the locus standi of a transferee during the pendency of a suit to challenge a decree under Section 12(2) of the Code of Civil Procedure?
- Section 16, Code of Civil Procedure
- Section 12(2), Code of Civil Procedure
- Section 52, Transfer of Property Act
ORDER
Ejaz Afzal Khan, J.--This petition for leave to appeal has arisen out of the judgment dated 21.01.2015 of the Lahore High Court, Lahore whereby the learned Judge in its Chambers allowed the: petition filed by the respondents, set-aside the order of the fora below and sent the case back by holding as under: "6. It is an admitted fact that Respondent No. 3's suits was regarding the transfer of immovable property and s'ach the same is covered under Section 16 of Code of Civil Procedure; no doubt the petitioner has not raised the objection of territorial jurisdiction in their application under Section 12(2), CPC but have raised the said objection during the arguments and as such the learned trial Court was bound to allow the petitioner to amend the petition for raising the objection of territorial jurisdiction. In case the trial Court is not having territorial jurisdiction to entertain the suit, the decree or order will be nullity. As this issue has not been attended to by the learned trial Court, I feel it appropriate that the matter, is remanded to the learned trial Court with the direction that the learned trial Court will allow the petitioner to amend the application under Section 12(2), CPC and after obtaining amended reply to the application' will frame an issue on the point of jurisdiction as preliminary issue and will decide the matter after hearing the parties in accordance with law. As it is an old matter, the learned trial Court will decide the same within three months on receipt of certified copy of this judgment even at the cost of day-to-day hearing."
2. Learned ASC appearing on behalf of the petitioner contended that where the question of jurisdiction was not raised at the earliest possible opportunity, it could not be raised subsequently, therefore, the finding of the learned trial Court and the Revisions Court was not open to any interference. Learned ASC next contended that where the property was transferred during the pendency of the suit, such transfer being hit by Section 52 of the Transfer of Properly Act will not clothe the beneficiary of such transfer with a locus-standi to challenge the decree so passed through an application under Section 12(2), CPC.
3. Learned ASC appearing on behalf of the respondents contended that where the Court passing the decree did not have jurisdiction, the decree would be a nullity in the eye of the law and that this objection was not only raised in the application under Section 12(2), CPC but also during the course of arguments.
4. We have gone through the entire record carefully and have considered the submissions of the learned ASCs for the parties.
5. Paragraph of the impugned judgment quoted above shows that the learned Judge of the High.
Court in its Chambers, by taking stock of the entire situation, rightly held that the petitioner before the High Court be allowed to amend his application under Section 12(2), CPC a preliminary issue on jurisdiction be framed and decided, accordingly. We, at this stage, don't feel persuaded to interfere with the impugned judgment.
6. For the reasons discussed above, this petition being without merit is dismissed and the leave asked for is refused.
(R.A.) .