Remedy of Appeal or Revision provided against order of dismissal of Application under S.12(2) CPC ?

Описание: P L D 2023 High Court (AJK) 121

Before Chaudhary Khalid Rasheed, J

WALAYAT ALI---Appellant

Versus

SAFEER HUSSAIN SHAH and 4 others---Respondents

Civil Appeal No. 84 of 2014, decided on 23rd January, 2023.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Ex-parte judgement and decree, setting aside of---Respondent filed application under S. 12(2), C.P.C., for setting aside ex-parte decree allegedly obtained by fraud---Appellant/respondent filed objections therein---Civil Court framed issues in the light of pleadings, provided the parties opportunity to lead evidence and dismissed the application for want of proof and non-compliance of court order---District Court accepted the appeal of applicant---Held, that perusal of the order passed by the Trial Court revealed that the Civil Judge failed to appreciate the statements of the two witnesses produced by the applicant and simply stated that evidence produced by the applicant was insufficient, hence, the District Judge was justified to hold that the Trial Court had failed to appreciate the evidence led by the applicant in a legal fashion and passed the impugned order in a hasty manner---As some serious allegations had been levelled in the application which could only be resolved after recording evidence, therefore, the order recorded by the District Judge to allow the applicant by giving a chance to produce his entire evidence was justified irrespective of the fact that applicant was allowed sufficient opportunities to lead evidence---Law demands that cases should be decided on its merits and reasonable opportunity should be provided to the parties to prove their pleadings---Appeal was dismissed, in circumstances.

(b) Civil Procedure Code (V of 1908) ---

----S. 12(2)---Order recorded by Court under S.12(2), C.P.C.---Second appeal---Appeal filed by appellant was not competent because under the law an appeal could be filed against an order or decree if the same was specifically provided in the statute---As no right of appeal is provided in the statute against an order recorded by the court while deciding an application under S. 12(2), C.P.C., thus, the order recorded by the Court under S.12(2), C.P.C., can be assailed through revision petition and an order recorded by the Court in revisional jurisdiction can be assailed only through writ petition---Though appeal before the District Judge against the order recorded by the Trial Court in the application under S. 12(2), C.P.C., was not competent however, it was now a well settled precept that if first appellate Court had entertained and decided the mater as an appeal then same could be treated as decision of revision which was competent---Thus, the appeal filed by appellant was also liable to be dismissed on the ground of its maintainability.

2014 MLD 109 rel.


P L D 2019 Lahore 145
Before Amin ud Din Khan and Shakil ur Rehman Khan, JJ

Law did not provide substantive right of appeal under C.P.C. against the decision on application under S.12(2) C.P.C.---Right of appeal was not available in the present matter as constitutional petition was decided and application under S.12(2) C.P.C. had been dismissed-
2018 C L C 497

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mehfooz, J

Mst. RASHIDA BEGUM and 3 others----Petitioners

Versus

HABIB UR RAHMAN and 10 others----Respondents

W.P. No.609-M of 2017, decided on 10th August, 2017.

Civil Procedure Code (V of 1908)---

---S. 12(2) & O. VII, R. 11---Application for setting aside of decree was dismissed under O.VII, R.11, C.P.C.---Appeal---Maintainability---Order for dismissal of application under S.12(2), C.P.C. was not appealable---Petitioners had wrongly challenged the order of Trial Court in civil appeal which was dismissed---If wrong remedy was availed by any party then delay occurring in availing the said remedy was not condonable---Application under S.12(2), C.P.C. was filed after ten years
PLD 2016 SC 872; 2006 SCMR 531; 2002 SCMR 1761; PLD 2002 SC 500 and 2009 SCMR 40 rel.


2023 Y L R 452
[Lahore]

Before Shahid Bilal Hassan, J

not available to filed appeal against dismissal of application under S. 12(2) of Civil Procedure Code, 1908, which was treated as revision petition and was converted into Constitutional petition

2017 M L D 567

[Islamabad]

Before Moshin Akhtar Kayani, J

Civil Procedure Code (V of 1908)---
--Validity---Order under S. 12(2), C.P.C. was not appealable and only remedy of revision was available-- could be converted into revision---Appellate Court had not provided both of such remedies to the petitioner and has committed an illegality which was not protected under any law---Impugned order passed by the Appellate Court was set aside---Matter was remanded to the Appellate Court with the direction to decide the same within one month---Constitutional petition was allowed in circumstances.

2013 CLC 411 and 2014 MLD 109 ref.

PLJ 2011 Lah. 745; 2004 YLR 1066; 1992 SCMR 1908 and 1992 SCMR 917 rel.