ZILA'COUNCIL SHEIKHUPURA vs MUHAMMAD AR1F
This matter concerns a petition for leave to appeal arising from a dispute over interest payments claimed by the respondent, Muhammad Arif, against the petitioner, Zila Council, Sheikhupura. The trial court initially decreed the respondent's claim. The petitioner subsequently filed a Regular First Appeal, which was dismissed as withdrawn. The petitioner then filed an application under Section 12(2) of the Code of Civil Procedure 1908 to challenge the withdrawal order, which the High Court dismissed, stating that Section 12(2) was inapplicable and that there was no provision for returning an appeal for refiling. The core legal question was whether the petitioner could pursue a fresh appeal after the initial appeal was withdrawn and the subsequent challenge under Section 12(2) was rejected. The Supreme Court disposed of the petition by observing that the High Court's order did not preclude the petitioner from filing a fresh appeal against the original trial court decree. The Court held that if the petitioner is so advised, it may seek its remedy by filing a fresh appeal before the High Court, thereby clarifying the procedural path for the petitioner.
- Does the withdrawal of a Regular First Appeal preclude the appellant from filing a fresh appeal against the original trial court decree?
- Is an application under Section 12(2) of the Code of Civil Procedure 1908 an appropriate remedy to challenge an order allowing the withdrawal of an appeal?
- Section 12(2), Code of Civil Procedure 1908
ORDER
MUHAMMAD ARIF, J.--- In this matter a suit brought by respondent Muhammad Arif claiming the amount of interest of Rs. 12,72,655/- on account of the same having been utilized by the petitioner Zila Council, Sheikhupura, was decreed on 7.7.1997. The petitioner-Zila Council brought Regular First Appeal No. 265 of 1997 which was sought to be disposed of through C.M. No. 1-C of 1999 and was allowed on 20.4.1999 as below:- "Allowed. The appeal stands dismissed as having been withdrawn." Petitioner-Zila Council resorted to an application under section 12(2), CPC to impugn the order dated 20.4.1999 which was disposed of through the impugned order dated 24.11.1999 with the observation that reliance of the petitioner on. The case reported as Moula Bakhsh versus Muhammad &hid (PLD 1990 SC 596) would tantamount to recognizing a right in favour of the petitioner to file the appeal afresh. Paragraph 2 of the order reads thus: "If that be so, the appellant would file a fresh appeal. There is no provision under which the appeal can be returned for refiling. Even otherwise, section 12(2), CPC has absolutely no applicability."
2. Learned counsel for the petitioner when confronted with the above situation asked for making an observation to the effect that the petitioner-Zila Council can bring a fresh appeal, learned counsel for the respondent stated that it is to the same effect that the order impugned through this Petition has been passed by the learned members of the Division Bench of the High Court.
3. In this view of the matter, this petition is disposed of with the observation that as the disposal of Civil Miscellaneous Applications vide order dated 24.11.1999 clearly talks of the availability of a right of the petitioner-lila Council to tile a fresh appeal against the judgment and decree made by the Trial Court on 7.7.1997, the petitioner, if so advised, may seek its remedy by filing a fresh appeal before the High Court.