PLJ 2011
[
Present:
Hafiz Abdul Rehman Ansari,
J.
GHULAM
JANAT etc.--Petitioners
versus
Mst. SIANI MAI etc.--Respondents
W.P.
No. 9326 of 2009, decided on 22.12.2009.
Civil
Procedure Code, 1908 (V of 1908)--
----S.
12(2)--Constitution of
Constitution
of
----Art.
199--Civil Procedure Code, (V of 1908), S. 12(2)--Constitutional
petition--Jurisdictional defect in orders which were assailed in writ
petition--Suit was dismissed as withdrawn due to compromise--Application u/S.
12(2) of CPC was filed for recalling of order--Question of--Application for
recalling the order could not be filed u/S. 12(2), CPC as the suit was not yet
finally decided--Held: Lower Appellate Court dismissed the revision of the
petitioner against recalling of order assailed in civil revision--There were
concurrent findings of facts which cannot be disturbed in writ jurisdiction
unless there was some jurisdictional defect in the orders which were assailed
in the writ petition--Petition was dismissed. [P.
171] B
Mian Anwar Mobeen
Ansari, Advocate for Petitioners.
Date
of hearing: 22.12.2009.
Order
Learned
counsel for the petitioner submits that on 22.7.2008 the Plaintiff No. 1 Mst. Siani Mai respondent in the
present writ petition got recorded her statement and also marked her thumb
impression on the file. She recorded her statement to her extent. The
compromise is effected to her extent. She withdraws
her from the prosecution to her extent. She alongwith
others had filed a suit for declaration. Later on the miscellaneous application
was filed before the learned trial Court to recall order dated 22.7.2008.
Learned trial Court vide order dated 23.4.2009 accepted this application and
civil revision was filed against this order for recalling the order dated
22.7.2008 before learned District Judge which was dismissed vide order dated
12.8.2009 by learned Additional District Judge, D.G.Khan.
2. Learned counsel submits that the respondent Mst. Siani Mai should have filed
application under Section 12(2) of CPC. The sanctity is attached to the
proceedings of the Court. The learned trial Court committed illegality in
recalling its order dated 22.7.2008. As fraud was alleged no issue was framed
on the application and no evidence was recorded. The learned trial Court
committed illegality in recalling its order dated 22.7.2008. The learned
counsel has made reliance on "Shaukat Rehman vs. Tamour Ahmad
Khan" (2004 CLC 281).
2. Heard.
3. The case cited by the learned counsel for the
petitioner is distinguishable from the instant case. In the cited case in the
light of statement of the plaintiff the suit was dismissed as withdrawn due to
compromise on 19.2.1997. On 3.3.1997 an application under Section 12(2) CPC was
filed for setting aside the order dated 19.2.1997. In the case in hand suit was
not dismissed finally. It was still pending for final adjudication. Statement
for withdrawal of suit to the extent of Mst. Siani Mai was recorded on 22.7.2008 and the case was
adjourned to 11.9.2008. The case was heard on different dates. During the pendency of this suit application for recalling of the
order dated 22.7.2008 was filed just after three days Mst.
Siani Mai rightly filed an application of recalling
the order dated 22.7.2008 as suit was still pending before the learned trial
Court while case cited by the learned counsel for the petitioner after
recording of the statement of the plaintiff for withdrawal of the suit was
dismissed finally. Section 12(2) of CPC reads as under:--
"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."
The
word `final' is used for a judgment and decree or order. The application under
Section 12(2) of CPC can be passed against the final judgment and decree or
order, as such, the order dated 22.7.2008 was not final order passed by the
earned trial Court which could not be assailed under Section 12(2) of CPC.
After 22.7.2008 the suit continued to proceed and on 23.4.2009 the suit was
finally decided. Mst. Siani
Mai had no option except to file an application for recalling the order dated
22.7.2008. To me she rightly filed the application for recalling the order
dated 22.7.2008. She could not file application under Section 12(2) of CPC as
the suit was not yet finally decided or order dated 22.7.2008 passed on the
statement of Mst. Siani
Mai, was not final order in the suit so the contention of the learned counsel
for the petitioner that only remedy for setting aside order dated 22.7.2008 was
through application under Section 12(2) of CPC, this contention of the learned
counsel for the petitioner with utmost humility is not tenable. The instant
case presented by the learned counsel does not advance his case.
4. Both the Courts below did not accept the
arguments of the learned counsel for the petitioners. Learned trial Court
rightly recalled its order dated 22.7.2008 and the learned lower appellate
Court dismissed the revision of the petitioners against the recalling of order
dated 22.7.2008 assailed in the civil revision. There are concurrent findings
of facts which cannot be disturbed in writ jurisdiction unless there is some
jurisdictional defect in the orders which are assailed in the writ petition.
The learned Additional District Judge in detail has narrated the situation
relating to Mst. Siani Mai
who is stated to be an old lady is stated to be hard of hearing not able to
record her statement. Learned
Additional District Judge observed
that the learned trial Court rightly recalled its own order dated 22.7.2008,
hence this revision petition. There is no error in the orders passed by learned
trial Court as well as by the learned lower appellate Court. The civil revision
is dismissed in limine.
(R.A.) Revision
dismissed.