P L D 2017 Balochistan 61
Before Muhammad Ejaz Swati, J
MUHAMMAD RAMZAN and 2 others ---Petitioners
Versus
CHUGAIR and 3 others ---Respondents
Civil Revision No.116 of 2011, decided on 6th April, 2017.
(a) Civil Procedure Code (V of 1908) ---
----S. 12(2) ---Application under S.12(2), C.P.C.---Forum ---Scope---Application under S.12(2),
C.P.C. would lie to the Court which passed the final judgment ---Application under S.12(2),
C.P.C was to be filed before a court which was last in series except wh ere an appeal, revision or
leave to appeal was dismissed on any ground except merit ---Where decree/order of a forum
below had been affirmed by the higher forum on merit both on point of fact and law then same
would merge into the decree of higher forum ---Said decree/order of higher forum would be final
for the purpose of S.12(2), C.P.C.--- If Supreme Court had merely affirmed the judgment or order
of High Court by refusing leave to appeal then final judgment in terms of S.12(2), C.P.C. would
be that of the H igh Court and not of Supreme Court ---If Supreme Court had reversed the
judgment of High Court and recorded findings on question of fact or law contrary to what was
held by the High Court then final judgment or order would be of Supreme Court for the purpos e
of S.12(2), C.P.C.--- Impugned judgment and decree was assailed in appeal and appellate Court
had affirmed the same on merits both of fact and law involved therein---Judgment and decree
which attained the status of final decree/order in terms of S.12(2), C.P.C. was that of appellate
Court ---Application under S.12(2), C.P.C. should have been filed before the appellate Court ---
No illegality or irregularity had been pointed out in the impugned judgment and decree passed by
the Appellate Court ---Revision was dismissed in circumstances.
PLD 1995 SC 564; PLD 2002 SC 391; PLD 2009 Kar. 123; 1983 CLC 1948; 2012 CLC
1897 and PLD 2010 SC 580 ref.
PLD 2013 SC 478 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 12(2) ---'Final' ---Meaning.
Muhammad Usman Lasi fo r Petitioners.
Khalil Ahmed Panezai for Respondents.
Date of hearing: 15th March, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The petitioner Muhammad Ramzan filed an
application under Section 12(2) of Civil Procedure Code (C.P.C.) before the Qazi Lasbela a t
Uthal (hereinafter the "the trial Court") for setting aside of judgment and decree dated 10th
September 2009 passed by the trial Court on the ground to have obtained through
misrepresentation and by committing fraud.
2. The respondents contested the appl ication, however, the learned Qazi allowed the
application vide order dated 12th November 2010 and set aside the judgment and decree under
application.
3. The respondents challenged the above order by way of filing appeal before Majlis -e-
Shoora, Lasbela at Hub (hereinafter the "appellate Court"), which after notice and hearing
accepted the appeal and set side the order dated 12th November 2010 passed by the trial Court
vide judgment and decree dated 31st January 2011 (hereinafter the "impugned judgment and
decree") on the ground that final judgment and decree in the case was passed by the appellate
Court, therefore, the trial Court was not competent to set aside the judgment and decree dated
10th September 2009.
4. The learned counsel for the petitioners contended that the impugned judgment and decree
passed by the learned Judge of appellate Court is contrary to law and facts; that the judgment
under challenge was decreed in absence and knowledge of the petitioners, therefore, the learned
trial Court while co nsidering the above aspect of the matter allowed the application under
Section 12(2) P.P.C; that the judgment and decree under application passed by the trial Court
was assailed in appeal before the Majlis -e-Shoora, but the same was affirmed by the appella te
Court, therefore, in absence of any modification in the decree, the forum of application under
Section 12(2) C.P.C. was the trial Court; that the learned Judge of appellate Court misinterpreted
the law and passed the impugned order, which is liable to be set aside. The learned counsel for
the petitioners placed reliance on the judgments reported in PLD 1995 Supreme Court 564 and
PLD 2002 Supreme Court 391.
5. The learned counsel for the respondents opposed the contention of the learned counsel for
the pe titioners and contended that the judgment and decree dated 10th September 2009 passed by
the Qazi Lasbela at Uthal was challenged by Shamboo son of Din Muhammad and others in
appeal before the Majlis -e-Shoora, Lasbela at Hub where the judgment and decree of the trial
Court was maintained, therefore, under the law the application under section 12(2), C.P.C. was
competent before the appellate Court. He placed reliance on case reported in PLD 2009 Karachi
123, PLD 2013 Supreme Court 478, 1983 CLC 1948, 2012 CL C 1897 and PLD 2010 Supreme
Court 580.
6. Heard the learned counsel for the parties and perused the record of the case. The
judgment and decree dated 10th September 2009 passed by Qazi Lasbela at Uthal was
challenged by Shamboo son of Din Muhammad and othe rs by way of filing Civil Appeal No.54
of 2009 before the Majlis -e-Shoora, Lasbela at Hub. The appellate Court vide judgment and
decree dated 30th January 2010 after hearing the learned counsel for the parties and considering
the merits of the case dismiss ed the appeal and upheld the judgment and decree dated 10th
September 2009 passed by the trial Court. The argument of the learned counsel for the petitioner
that final judgment and decree was of the trial Court as the said judgment and decree was neither
modified nor reversed by the higher forum is not tenable.
Subsection (2) of section 12 C.P.C. speaks of the principle that if a decree, order or
judgment is obtained by fraud, misrepresentation or where question of jurisdiction has risen such
order, decree and judgment shall be challenged through an application to the court which passed
the same and no other suit shall lie. The relevant is reproduced herein below:
"12(2) C.P.C. "where a person challenged the validity of a judgment, decree or order on
the p lea 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."
From the above, it appears that the application under this subsection lies to the court
which passed the final judgment; the intention is that a party must go to that court which had
finally decreed the matter.
The word (final) can mean the last in serie s of judgment, decree or order which may have
been passed. It can also mean that which is no longer further alterable and which has acquired
finality. An Application under section 12(2) C.P.C. is to be filed before a Court, which was last
in series except where an appeal, revision or leave to appeal was dismissed on any ground except
merit. Where the decree/ order of a forum below has been affirmed by the higher forum on merit,
both on point of fact and law, the decree/order of the forum below merged into t he decree of the
higher forum, should be such decree/order (Appellate or Revisional Court) which will be final
for the purpose of section 12(2) C.P.C. If the Hon'ble Supreme Court merely affirms the
judgment or order of High Court by refusing leave, the fi nal judgment in terms of section 12(2)
C.P.C. will be of the High Court and not of the Supreme Court, and if, however, the Hon'ble
Supreme Court reverses the judgment of the High Court and record findings on question of fact
or law contrary to what was hel d by the High Court in that event, the final judgment or order
would be of Hon'ble Supreme Court for the purpose of Section 12(2), C.P.C.
In the case of Nasrullah Khan v. Mukhtar -ul-Hassan and others PLD 2013 Supreme
Court 478, the Hon'ble Supreme Court o f Pakistan settled the question of final
judgment/decree/order in terms of section 12(2) C.P.C. as under:
"The other cases which have been cited at the bar by the learned counsel for the
petitioners, more or less, are in the same context and in line with the law laid down in
Khawaja Muhammad Yousaf dictum. But in none of the matters, the principle of merger
has been taken into account, which concept/rule is imminently established and recognized
by now, and is lucidly comprehended and is applied in our syste m of dispensation of
justice and the jurisprudence. It is well settled on the basis of merger principle, that when
a judgment and decree of a court below is assailed in appeal or revision before the higher
forum and it is affirmed by that (higher) forum, f or all intents and purposes, the
decree/order of the forum below merges into the decree of the higher forum, meaning
thereby, that it is integrated, implanted, inculcated, infixed and instilled into the decree of
the higher forum and becomes the decree/ord er of the later forum for all legal intents and
implications. It is on account of this established principle (of merger), that in the case
reported as Maulvi Abdul Qayvum v. Syed Ali Ashghar Shah and 5 others (1992 SCMR
241) it has been held "it appears that in holding that the period of limitation for execution
of the decree commenced from the date of the decision by the Appellate Court, the rule
that the decree of the Court of first instant, merged into the decree of Appellate Court,
which alone can be ex ecuted, was not present to the mind of the learned Judge. It is to be
remembered that till such time, an appeal or revision from a decree is not filed, or such
proceedings are pending but no stay order has been issued, such decree remains capable
of execut ion but when the Court of last instance passes that decree only that decree can
be executed, irrespective of the fact, that the decree of the lower Court is affirmed,
reversed or modified." This is the crux of the matter. From the above it is clear that for all
legal purposes, it is the final decree/order of the last Court in the series, even if such
decree etc. be of affirmation, which has to be executed and should be considered and
treated to be the final judgment/decree/order in terms of Section 12(2) C. P.C. for
approaching the forum. Thus, notwithstanding the reversal or modification of the decree/
order, if the decree/order of a forum below, which has been affirmed by the higher forum
on merits, both on the points of the facts and the law involved there in, it shall be that
decree/order, which attains the status of the final decree/order etc. within the purview of
section 12(2), C.P.C. It is so because the higher forum has not only endorsed the point(s)
of fact and law and has agreed with the reasoning an d conclusion of the lower forum, but
may be, has upheld the decision(s) challenged before it, by substituting and supplying its
own reasons and by substantially doing away with the reasoning of the decision(s)
challenged before it."
In the instant case, t he judgment and decree dated 10th September 2009 passed by Qazi
Lasbela at Uthal, was assailed in Civil Appeal No.54/2009 before the Majlis -e-Shoora, Lasbela
at Hub and the appellate Court vide. judgment and decree dated 30th January 2010 after hearing
the learned counsel for the parties affirmed the judgment/ decree of the trial Court on merits,
both fact and law involved therein, therefore, it shall be the judgment/decree which attained the
status of the final decree/ order in term of section 12(2), C.P.C , hence the application under
Section 12(2), C.P.C. was bound to have been filed before the Majlis -e-Shoora Lasbela at Hub.
The learned counsel for the petitioners has failed to point out any other illegalities or
irregularities in the impugned judgment an d decree to warrant interference by this Court.
In view of above, the Civil Revision Petition No.116 of 2011 is dismissed. The parties are
left to bear their own costs.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.