MAQSOOD AHMED SIDDIQUI vs NISAR AHMED and others
The petitioner sought leave to appeal against a High Court order that dismissed his challenge to a consent decree. The petitioner, claiming to be a bona fide purchaser of a shop, filed an application under Section 12(2) of the Code of Civil Procedure 1908, alleging that the respondents obtained the decree through collusion and fraud. The High Court dismissed the petitioner's appeal, ruling that an intra-court appeal was incompetent against a judgment passed by a Single Judge exercising appellate civil jurisdiction under Section 96 of the Code of Civil Procedure 1908. The core legal question was whether an appeal lies to a Division Bench against a judgment of a Single Judge passed in the exercise of appellate civil jurisdiction. The Supreme Court upheld the High Court's decision, affirming that under Section 3(1) of the Law Reforms Ordinance 1972, an intra-court appeal is only maintainable against a decree or final order made by a Single Judge in the exercise of original civil jurisdiction, not appellate civil jurisdiction. Consequently, the petition for leave to appeal was dismissed.
- Is an intra-court appeal maintainable against a judgment passed by a Single Judge of the High Court in the exercise of appellate civil jurisdiction?
- Does Section 3 of the Law Reforms Ordinance 1972 permit an appeal to a Division Bench from a decree passed by a Single Judge in the exercise of appellate jurisdiction?
- Under what circumstances is an appeal competent under Section 3 of the Law Reforms Ordinance 1972?
- Section 12(2), Code of Civil Procedure 1908
- Section 96, Code of Civil Procedure 1908
- Section 3, Law Reforms Ordinance 1972
- Section 15, Law Reforms Ordinance 1972
ORDER
' ABDUL HAMEED DOGAR, J.---Petitioner Maqsood Ahmad Siddiqui seeks leave to appeal against the order, dated 12-4-2002 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby H.C.A. No,57 of 2002 filed by him was dismissed in limine alongwith listed C.M.A. No,472 of 2000 with costs of Rs,10,000.
2. The background leading to the filing of the instant petition in nut-shell is that the petitioner had preferred C.M.A. No,472 of 2000 under section 12(2), C.P.C. In First Civil Appeal No,7 of 1991 filed by respondent No,2 Muhammad Aslam against Khawaja Ghaus Mian respondent No,3 before the learned High Court of Sindh at Karachi. It was stated therein that the petitioner had purchased a shop bearing No,36 R.K. Square, New Challi, Shahrah-e-Liaquat, Karachi from respondent No,2 Muhammad Aslam through a registered sale-deed duly executed. Thereafter, he was put into its physical possession and was still in possession as its lawful owner. The fact of the litigation in between respondents Nos.2 and 3 known to the petitioner subsequently who in connivance with each other and under a conspiracy, obtained judgment and decree against respondent No,2 which collusive litigation went into the First Civil Appeal bearing No,7 of 1997 in between them and they wrongly and illegally entered into a compromise with each other in the said appeal which was disposed of on the basis of said compromise.
3. In pursuance to the compromise decree, respondent Muhammad Aslam kept on depositing the monthly instalment. Since, he defaulted, as such, Khawaja Ghaus Mian respondent preferred an application against respondent Muhammad Aslam on 3-5-1993' to the above fact and in consequence whereof Nazar was directed to attach the property. The petitioner came to know of the above fraudulent act of the respondent on 5-12-1993 the moment Nazar accompanied by' respondent and his counsel visited the above-mentioned shop in his occupation. It was thereafter, he preferred application under section 12(2), C.P.C. As an intervener.
4. It is pertinent to note here that First Civil Appeal No,7 of 1991 was filed under section 96, C.P.C.
Before the learned High Court of Sindh against the order of learned District Judge which was disposed of by a consent order, as stated above. It was in the above mentioned appeal, the petitioner had filed C.M.A. 472 of 2000 under section 12(2), C.P.C. Which was dismissed vide impugned judgment. The learned Division Bench of High Court non-suited the petitioner mainly on the ground that in view of section 15 of the Law Reforms Ordinance, 1972 read with section 3, High Court appeal would not be competent before it against the judgment of learned Single Judge while exercising civil appellate jurisdiction under section 96, C.P.C.
4-A. At this juncture, reference to subsection (1) of section 3 of Law Reforms Ordinance, 1972, would be appropriate which clearly stipulates that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
5. From the above resume, it is evident on the face of it that the above mentioned High Court's appeal was filed against the judgment of learned Single Judge while exercising its appellate civil jurisdiction under section 96, C.P.C., thus not maintainable.
6. Finding no exception to the impugned judgment, the same is maintained. The petition is dismissed and leave to appeal refused.