MUBARIK ALI vs FAZAL MUHAMMAD And Another
These are two petitions for special leave to appeal arising from the dismissal of applications filed under Section 12(2) of the Code of Civil Procedure 1908 by the High Court. The petitioner had initially challenged concurrent judgments and decrees through civil suits and subsequent appeals which were dismissed. After withdrawing his petitions for special leave to appeal before the Supreme Court with the intent to pursue a remedy under Section 12(2) of the Code of Civil Procedure 1908, he filed applications in the High Court. The High Court dismissed the applications, holding that because leave petitions were previously filed in the Supreme Court, the applications under Section 12(2) should have been filed in the Supreme Court instead. The core legal question is whether an application under Section 12(2) of the Code of Civil Procedure 1908 lies before the Supreme Court or the High Court when a petition for special leave to appeal against the lower court's decree was withdrawn. The Supreme Court granted leave to appeal, holding that the contention that final judgments were not passed by the Supreme Court when leave petitions were simply not pressed requires examination, thereby setting the matter down for a regular hearing.
- Whether an application under Section 12(2) of the Code of Civil Procedure 1908 lies before the Supreme Court or the High Court when a petition for special leave to appeal has been withdrawn?
- Does the withdrawal of a petition for special leave to appeal mean that the final judgment, decree or order was passed by the Supreme Court for the purposes of Section 12(2) of the Code of Civil Procedure 1908?
- Section 12(2), Code of Civil Procedure 1908
ORDER
SAAD SAOOD JAN, J.--These ar6 two petitions for special leave to appeal. They arise in the following circumstances.
2. The petitioner in these two petitions obtained an allotment of evacuee land against some units inherited by him from his father. By a registered deed he constituted one Tufail Muhammad as his attorney. Acting under the said deed Tufail Muhammad sold the land obtained by the petitioner by two separate transactions to favour of his brother. Fazal Muhammad. Subsequently, Fazal Muhammad brought two suit claiming that he was owner in possession of the land sold to him. The suits were decreed by the trial Court and the petitioner's appeals before the Additional District Judge and the High Court remained unsuccessful. He then sought special leave to appeal from this Court but subsequently he withdrew his petitions in this regard with the statement that he would seek his remedy under section 12 (2) of the Code of Civil Procedure. Soon thereafter he filed two applications under the said provision in the High Court. These were dismissed by the High Court on the ground that as the petitioner had earlier filed petitions for leave to appeal in the Supreme Court the said applications should have also been filed in that Court. The petitioner seeks leave to appeal from the orders of the High Court.
4. Section 12 (2), ibid, reads as follows:- "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."
5. The contention in support of these petitions is as the petitions for special leave to appeal were not pressed before this Court it could not be said that the final judgments in the two suits had been passed by this Court; in the circumstances the High Court was not justified in taking the view that the applications under section 12 (2) lay in this Court. This contention needs examination. Leave to appeal is granted. Security for costs in the sum of Rs.2,000 in each petition. The appeals may be made ready for hearing on the present record with permission to the parties to file additional documents.