SHABBIR HUSSAIN Versus ANWAR SULTAN

ORDER

1. This appeal has been preferred under section 21 of the Sind Rented Premises Ordinance, 1979 against the order dated 29th April, 1985, whereby passed by the, learned 10th Senior Civil Judge and Rent Controller, Karachi in Execution No. 11 of 1985 who while dismissing the application filed under section 12(2), C.P.C. filed by the judgment debtor directed him to deliver possession of all the three shops in respect of which ejectment order was passed on 30th January, 1984, against which the appeal (F.R.A. No. 221 of 1984) was dismissed by the High Court on 18th September, 1984, and against which the Civil Petition No. 534‑K of 1984 was also dismissed by the Honourable Supreme

2. Court of Pakistan by order passed on 21st January, 1985. It may also be mentioned that a review petition in the aforementioned civil petition filed was also dismissed by the Honourable Supreme Court by order passed on 22nd April, 1985.

3. I heard Mr. Hatif Khudai, learned Advocate for the appellant a length but I find that the application filed under section 12(2), C.P.C. by the appellant/Judgment‑debtor before the Rent Controller during the execution proceedigs after the order of ejectment passed by him had not only been confirmed by the learned Single Judge of this Cour in F.R.A. No.221 of 1984 but against which Civil Petition for leave t Appeal had also been dismissed by the Honourble Supreme Court o Pakistan, was not maintainable inasmuch as an application under the aforementioned provision could be made only before the Court which passed the final judgment, decree or order. Even a separate suit after the amendment introduced by incorporated subsection (2) of section 12, C . P. C . by Ordinance 10 of 1980 could not be filed. The view taken by me as above, I find support from the judgment Muhammad Yaqub v. Mst. Noran 1983 C L C 1948. The facts of the said case briefly stated are that on the evidence adduced by the parties, the Civil Judge found that the petitioner had better right of pre‑eruption as against the respondents/ vendees. The appeal filed by the respondents before the Additional District Judge was dismissed against which their second appeal was also dismissed on 20th April, 1980. Respondents then filed petition for Leave to Appeal before the Honourable Supreme Court of Pakistan but the same was also dismissed on 6th April, 1985. However, thereafter on 30th April, 1981, the respondent filed an application under section 12(2), C.P.C. before the Civil Judge, who had decreed the suit challenging the validity of the judgment and decree passed by him. On the plea of misrepresentation and fraud. The scope of provision under section 12(2), C.P.C., thus came to be considered in the Civil Revision Petition which came up before a learned Single Judge of Lahore High Court in the aforementioned case. The learned Judge after referring to subsection (2) of section 12, C.P.C. held that the rationale behind the amendment brought by incorporating subsection (2) of section 12, C.P.C. is the prevention of multiplicity of suits and, therefore, an application under the aforementioned provisions can only be made to the Court which passed the final judgment or decree and not to the Court of first instance. The learned Court accordingly held:‑

4. "In the circumstances of the under consideration case the respondents filed application under section 12(2) of the Code of Civil Procedure before the Court of Civil Judge, Chunian, i.e. a Court of first instance although the final judgment in the matter, was passed by the Supreme Court of Pakistan. It is an established proposition of law that the lower Courts' judgment merges into the judgment of the final judgment. It is, therefore, amply clear that in the circumstances of this case application under section 12(2) of the Code of Civil Procedure was not competent before the Court of Civil Judge, Chunian, but the same could be filed only before the Supreme Court of Pakistan."

5. The learned Judge accordingly further held the orders passed by the two Courts below in proceedings initiated on application made under section 12(2) as having no jurisdiction in the matter.

6. I am in respectful agreement with the principle laid down as above. The application filed under section 12(2), C.P.C. before the Rent Controller was not maintainable as he had no jurisdiction in the matter, after the order of the ejectment passed by him had been upheld by the learned single Judge of the High Court as well as by the Honourable Supreme Court of Pakistan. The appeal is accordingly dismissed in limine.

7. The appellant is allowed time till 30‑6‑1985 to vacate the premises as the lower Courts presently are closed on account of summer vacations.

8. A. A. Appeal dismissed.