ZAIBUNNISA Versus SULTAN AHMAD

1. This First Rent Appeal is directed against the order, dated 16‑4‑1985 of the XIInd Civil

2. Judge and Rent Controller, Karachi whereby the application under section 12(2), C.P.C. filed by the appellant was dismissed.

3. The facts which give rise to this Appeal are that respondent No. 1 is the owner of property bearing No. G/11 on plot bearing Survey No. R.B. 5/29/3, situated at Roopchand Bellaram Road, Bara Tabela, Off Frere Road, Karachi which was transferred to him,‑ vide P. T . D . bearing No. K . Y . C . /14418 on 3‑5‑1975. The respondent No. 1 served notice under section 30 of the Act XXVIII of 1958 and called upon him to pay the entire arrears of rent for the date of the P . T . D . but he refused to accept the same. The said Noor Muhammad died leaving behind his mother the respondent No. 2. The respondent No. 1 filed eviction application No. 1989 of 1975 against the respondent No. 2. The respondent No. 2 resisted the eviction application. The eviction application was dismissed by the order, dated 10‑1‑1978 of XXIVth Civil Judge and Rent Controller, Karachi. The respondent No. 1 filed appeal before the District Judge, Karachi and which came up for hearing before VIIth Additional District Judge, Karachi who allowed the same, vide order, dated 27‑9‑1978 and remanded the same for further proceeding and disposal of the same in accordance with law. The respondent No. 2 being aggrieved against the order, filed appeal before this Court which was dismissed by Judgment, dated 21‑1‑1981.

4. Finally the eviction application was allowed by order, dated 28‑3‑1982 of the XIInd Senior Civil Judge and Rent Controller, Karachi.

5. The respondent No. 2 being aggrieved against the order, filed First Rent Appeal No. 491 of 1982 before this Court which was dismissed by this Court on 31‑10‑1984.

6. The respondent No. 2 being aggrieved against the judgment, filed Civil petition for Special Leave to Appeal being Civil Petition for Special Leave to Appeal No. 74 of 1985 before the Hon'ble Supreme Court. The petition was dismissed by the Hon'ble Supreme Court, vide order, dated 24‑2‑1985. The respondent No. 1 filed Execution Application No. 7 of 1985.

7. The appellant filed application under section 12(2), C.P.C. read with Order XXI, rule 58, C.P.C. stating therein that she was not arrayed as 'co‑opponent' as she is in possession of the case premises before and after the death of Noor Muhammad. The eviction proceedings are based on fraud and misrepresentation. The respondent No. 1 filed objections to the application.

8. The learned Rent Controller after taking into consideration the arguments of the learned counsel for parties dismissed the application, vide order, dated 16‑4‑1985.

9. The appellant being aggrieved against the order, dated 16‑4‑1985 of the XIInd Senior Civil Judge and Rent Controller has preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal.

10. Mr. Wafi Khan Yousufzai, the learned counsel for the appellant has contended that the learned Rent Controller erred in law in not affording opportunity to the appellant.

11. On the other hand Mr. Abdul Majeed Khan, the learned counsel for the respondent has submitted that the application under section 12(2) is not maintainable before the Rent Controller. In this connection he has placed reliance on the case of Muhammad Yaqoob v. Mst. Nooran etc. 1983 C L C 1948.

12. It is advantageous to reproduce the provisions of section 12(2), P.P.C. which read as under:‑

13. "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

14. The Courts have been held to be possessed by inherent power to set aside their own judgment, decree or final order. Civil Courts possess the jurisdiction to entertain suits to set aside decrees obtained by fraud or collusion. However, now by virtue of the newly‑added subsection (2) suit cannot be instituted to challenge the validity of the judgment, decree or order of a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction. Such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order.

15. The question, therefore, turns on whether the order of the Controller becomes merged in the Judgment of the appellate authority or appellate Court even where it dismisses the appeal without any modification of the Controller. It is obvious that when an appeal is made, the appellate authority or appellate Court can do one of the following things, namely (i) it may reverse the order under appeal (ii) it may modify the order under appeal, (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the Controller is either reversed or modified it is the order of the appellate authority or appellate Court which is operative order. The question, therefore, is whether there is any difference between these two cases and the third case where the appellate authority or appellate Court dismisses the appeal and confirms the order of the Controller. It seems to me that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate Court and the third kind of order passed by it. In all these cases after the appellate Court has disposed of the appeal, the operative order is the order of the appellate Court whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as an operative order as an appellate order of reversal or modification. I, therefore, feel on principle when once an order of Controller is taken) in appeal an appellate Court and then to the Hon'ble Supreme Court by A way of petition for special to leave which is refused, it is the order op, the Hon'ble Supreme Court which is the operative order after the petition) is refused or appeal is dismissed.

16. It is this principle that the appellate order is the operative order after the petition for leave to appeal is refused which in my opinion is the basis of the rule that the decree of the lower Court merges in the decree of the appellate Court.

17. It is settled position of law that the order, Judgment of the lower Court merges into the judgment of the appellate Court. This question has been considered by my learned brother K.A. Ghani, J. in) his unreported judgment, dated 12‑6‑1985 in F . R . A . 313 of 1985 Shabbi lr Hussain v. Mr. Anwar Sultan, in which my learned brother has come to the conclusion after giving cogent reasons that the application under section 12(2), C.P.C. was not maintainable before the Rent Controller as he had no jurisdiction in the matter, after the order of the eviction application passed by him had been upheld by the learned Single Judge of this Court as well as by the Hon'ble Supreme Court of Pakistan. The principle laid down in the above case was also laid in the case of Muhammad Yaqoob v. Mst. Nooran 1983 C L C 1948. The principles laid down were also agreed by my learned brother K.A. Ghani, J.

18. In the instant case the eviction order, dated 28‑3‑1982 was merged in the judgment, dated 31‑10‑1984 of this Court. The Civil petition for special leave to appeal was also dismissed by the Hon'ble Supreme Court. In this view of the matter the application was not competent before the Rent Controller.

19. For the above reasons the appeal is dismissed in limine.

20. H.B.T. Appeal dismissed.