SALAH-UD-DIN Versus ZIA FARHAT

ORDER

MUHAMMAD MUNIR KHAN, J.--- As common questions of facts and law are involved in these two petitions (Civil Petitions for Leave to Appeal Nos.271 and 273 of 1995 filed by Salah-ud-Din against Mst. Zia Farhat, we propose to dispose them of through single order.

2. These petitions directed against the order dated 25-5-1995 of Peshawar High Court, Peshawar arise from the facts that there was a dispute between the parties over house No.42, situate at G.T. Road, Nishtarabad, Peshawar City. Salah-ud-Din petitioner filed suit for declaration that he was owner in occupation of the house and Mst. Zia Farhat respondent was a Benami purchaser of the house. Mst. Zia Farhat filed counter-suit for possession of the house against Salah-ud-Din petitioner. Both the suits were filed before the Civil Judge, Peshawar. As a result of compromise between the parties, the suit of Salah-ud -Din petitioner was decreed and suit of Mst. Zia Farhat respondent was dismissed on 10-7-1988. After about three years, on 30-6-1991, Mst. Zia Farhat moved two applications under section 12(2) of the C.P.C. for setting aside the judgments and decrees passed in the aforesaid suits on the ground of fraud. During the pendency of the applications under section 12(2) of the C.P.C., Salah-ud-Din, on 2-5-1995 filed two Miscellaneous Applications under Order VII, Rule 11, C.P.C. for the rejection of the applications under section 12(2), C.P.C., on the ground of non-maintainability, which were dismissed by the Civil Judge, Peshawar on 14-5-1995. Feeling aggrieved thereby, he filed Revision Petitions, which were also dismissed by the Peshawar High Court, Peshawar in limine on 25-5-1995. Hence these petitions.

2. Learned counsel for the petitioner submitted that the allegations made in applications under section 12(2), C.P.C., accepted at face value, no case for setting aside the judgments and decrees, under section 12(2), C.P.C. was/is made out,. and as such, the applications were liable to be dismissed as not competent without recording any evidence. Learned counsel for the respondent has supported the impugned orders.

3. We have considered the submission made by the learned counsel for the parties carefully. We do 'not agree with the learned counsel for the petitioner. These petitions have been filed against interim orders passed in petitions under section 12(2), C.P.C. which have not been disposed of by the learned Civil Judge so far. It is doubtful that the application under section 12(2) C.P.C. is a plaint within the meaning of Order VII, Rule 1, C.P.C. or the same can be dismissed under Order VII, Rule 11, C.P.C. on the grounds mentioned in the applications of the petitioner. It is by now well-settled that non-interference by this Court in exercise of powers under Article 185(3) of the Constitution with interim orders of the High Court is a rule and interference is an exception. We do not see any .exceptional ground to interfere with the impugned orders.

4. Leave to appeal is, therefore, refused and both the petitions are dismissed.

A.A./S-988/S Leave refused.