ABDUL KARIM Versus BASHIR AHMAD

ORDER

The civil revision has arisen out of a suit for partition brought by respondent No.l, Bashir Ahmad, against the petitioner, Abdul Karim and respondents Nos.2 to 9, Mst. Emina Bibi and others. In that suit he had also prayed for a declaration to the effect that judgment and decree passed by a Civil Judge, on 1st November, 1971, in an earlier suit, in regard to the land sought to be partitioned was void and ineffective as against his (Bashir Ahmad's) rights. His plea was that the said judgment and decree were obtained by fraud and misrepresentation. The Civil Judge who was seized of the subsequent suit, passed a preliminary decree on 11th February, 1980 which was challenged by the petitioner by taking appeal before an Additional District Judge. The appeal was ultimately withdrawn by him stating that he would resist the suit on the score of the provisions of subsection (2) of section 12 of the Code of Civil Procedure. The appeal was, therefore, dismissed on 17th December, 1983. The petitioner then moved an application before learned trial Court contending that in view of subsection (2) of section 12 of the Code of Civil Procedure, the learned trial Court had no jurisdiction to hear the suit wherein judgment and decree passed on 1st Novemder, 1971, had been assailed on the plea of fraud and misrepresentation, and prayed for rejecting of the plaint. His application was dismissed by the learned trial Court on 4th December, 1984 and on the same date final decree was passed in favour of the respondent No.l. Petitioner then preferred an appeal against the final decree.

2. Preliminary objection raised by the respondents was that no appeal lay against the final decree. This proposition was not disputed by learned counsel for the petitioner. It was, however, urged by him that the order relating to dismissal of his application for rejection of plaint was not sustainable. This plea was repelled by the learned Additional District Judge, who was seized of the appeal, in the following words: ‑

"In the first instance, it shall be seen that the appellant seems to have no locus standi to file such an application, for against the preliminary decree, he having gone in appeal had got the same dismissed. Whatever objection to the jurisdiction of the Court he has taken through the present application could well be agitated before the Court of appeal. By with drawing the appeal, he has subscribed to the fact that the trial Court did have the jurisdiction to pass the preliminary decree. However, the question being of inherent jurisdiction of the Court, I have also adverted to the said fact on its merits. The said objection seems to have been taken on the strength of section 12(2), C.P.C. The said amendment came into force on 26‑3‑1980. The learned trial Court on the basis of the latest pronouncement on the subject was not wrong in coming to the conclusion that section 12(2), C.P.C. had no retrospective effect."

In result, the appeal was dismissed by the learned Additional District Judge holding that it had no merit and was also incompetent. The petitioner has, therefore, come up into revision to this Court.

3. It was contended by learned counsel for the petitioner, who was appellant before the learned Additional District Judge and one of the defendants in the suit, that the suit in which the final decree was passed was time‑barred and as such the final decree could not stand.

4. A perusal of the copy of written statement placed on the record reveals that the plea of limitation was not raised by the petitioner before the learned trial Court. Even if he had raised it at A any other stage and it had not found favour with the learned trial Court, its finding in this regard could be assailed in appeal against the preliminary decree but since the said appeal was withdrawn by the petitioner, it is not open to him to take up the issue of limitation at the stage of appeal against the final decree or before this Court in connection with his civil revision. It is noteworthy that the question of limitation was not raised by the petitioner in the grounds of appeal against the final decree. All this shows that his plea in this behalf is an afterthought. Also for the reasons stated just above, it cannot be entertained at this stage. No finding by this Court in the matter is, therefore, called for.

5. Learned counsel for the petitioner did not find any fault with the reasoning of the learned Additional District Judge in support of the order of the learned trial Court whereby the application for rejection of plaint on the strength of subsection (2) of section 12 of the Code of Civil Procedure was rejected. To my mind, that reasoning is sound and cogent. Thus, the order passed on the above application is not open to any legitimate exception.

6. Looked from any angle, there is no force in this civil revision. It is, accordingly, dismissed in limine.

H.B.T./A‑322/L Revision dismissed.