SAEEDA BEGUM Versus MASOOD AKHTAR

1. The appellant has challenged the order of the Controller, whereby her defence was struck off, and ejectment order has been passed. On 14‑9‑1988 the learned Single Judge admitted the appeal for regular hearing and notice was issued to the respondent. He has filed application under section 12(2), C.P.C. alleging that the order of admission dated 14‑9‑1988 has been obtained by practicing fraud on this Court, and making mis‑statement and concealment of facts. He prays that the order of admission may be recalled and the appeal be dismissed. The first question which arises is whether in these circumstances section 12(2), C.P.C. is applicable or not. Section 12(2) reads as follows:‑

2. "12. Bar to further suit. (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of ‑any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.

(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis‑representation 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."

3. Without entering into the question whether section 12(2), C.P.C. is applicable to proceedings before the Controller, its bare reading makes it clear that it applies to judgment, decree or order validity of which has been challenged on ground of fraud, mis representation or want of jurisdiction. Another significant aspect is that in such cases, suit for setting aside such order is barred The question arises whether all the orders obtained by fraud or misrepresentation can be struck down under section 12(2) . In my view section 12(2) refers to such orders which are final in nature. The word order is preceded by the words judgment and decree which adjudicate the rights and decide the controversy finally. Again in the closing part of section 12(2) reference has specifically been made to "final judgment, decree" or order which clearly indicates that the legislature intended the remedy under section 12(2) to be applied to such orders which are not temporary, interlocutory or interim in nature. It is a well settled principle of interpretation of statutes that where specific words are followed by general words of the same class "the general expression is to be read as comprehending only things of same kind as designated by the preceding particular expression". This doctrine of ejusdem generis is applicable to section 12(2) with full force. For a proper and complete understanding and applicability of this doctrine reference can be made to Don Basco High School v. The Assistant Director E.O.B.1 PLD 1989 SC 128. Applying this principle it is obvious that the word "order" in section 12(2) refers to such orders which are in the nature of final judgment decree and B orders to which finality is attached. It will cover or which do not contemplate a subsequent final order to be passed after hearing both the parties. The object of section 12 (2) is to curtail multiplicity of proceedings by filing a suit challenging the validity of judgment, decree and order. This provision was introduced to provide a built‑in mechanism to deal with specified cases by Court which passed the final judgment, decree and order.

4. Any order which is of interim nature cannot be subjected to the provisions of section 12 (2) as there still remains final hearing C when all such illegalities can be pointed out before a final order is passed. In the present case an order admitting the appeal for regular hearing has been passed which is always of interim and tentative nature. It is after notice to other side and hearing the parties that` the Court will pass a final order or judgment. The respondent will have full opportunity to argue the case and point out the illegalities, ; fraud or misrepresentation alleged by the applicant. In my view the application is not maintainable and is dismissed.

5. A.A./S‑350/K Application dismissed.