Iftikhar Chodhary's Judgement on Preemption law from 2001

PLJ 2001 SCI 134 [Appellate Jurisdiction] Present : abdur rehman khan, iftikhar muhammad chaudhry and , rana bhagwandas, JJ. SARFRAZ-Appellant versus MUHAMMAD ASLAM KHAN and another-Respondents Civil Appeal No. 1919 of 1996, decided on 16.3.2001. (On appeal from judgment dated 1.8.1996 passed by Peshawar High Court, Abbottahad Bench, Abbottabad in Civil Misc. No. 140 of 1993). (i) Civil Procedure Code, 1908 (V of 1908)-- —-S. 12(2)--NWFP Pre-emption Act, 1987, S. 35-Respondent filed application u/S. 12(2), CPC seeking annulment of decree on the ground being without jurisdiction, which was accepted by trial Court, but this order was set aside in revision by High Court on the ground that it had no jurisdiction to entertain application as its decree had merged in order of High Court passed in revision-Accordingly, respondent filed application u/S. 12(2), CPC before High Court, which was accepted-Appellant's contention that High Court had no jurisdiction as it had not dilated upon merits of case, because revision filed by him was dismissed as withdrawn-Held : District Judge had decided the appeal, whereas revision filed before High Court was withdrawn without deciding it on merits, therefore, High Court had no jurisdiction to entertain and decide application-Impugned order was set aside and application u/S. 12(2), CPC was dismissed. [P. 1145] M 2000 SCMR 900 fol. (ii) Constitution of Pakistan, 1973-- —-Art. 203-D(3)(b)-Punjab Pre-emption Act, 1913-NWFP Pre-emption Act, 1950-Muhammadan Law of Pre-emption-Repugnant to Injunction of Islam-Pr-emption law-Declaration of-Its effect-Article 203-D(3)(b) of Constitution did not provide that if any law had been declared against Injunctions of Islam, proceedings instituted under said law would also come to an end on the date fixed by Court for making such law in consonance with Injunctions of Islam-At the best, its effect would be that fresh suits of pre-emption after stipulated date could not be instituted under such law, but claimants would be entitled for enforcement of their rights under Muhammadan Law-Held: An action started by a person would be completed under same law, even if it had been repealed during pendency of the action unless new law had saved pending proceedings. [P. 11431D&E (iii) Limitation Act, 1908 (IX of 1908)-- -—S. 3 read with Art. 181-Civil Procedure Code, 1908, S. 12(2)-Setting aside of Decree-Application u/S. 12(2), CPC~Acceptance of~Challenge to-Appellant's suit was decreed by trial Court on 15.4.1987~In his appeal, sale price of land was reduced, but feeling dissatisfied filed revision before High Court, which was withdrawn, and after that respondent withdrew pre-emption money from trial Court-On 17-10-1992, respondent filed application u/S. 12(2), CPC seeking annulment of decree being without jurisdiction-Application was accepted by trial Court, but its order was set aside in revision by High Court on the ground that it had no jurisdiction to entertain application as its decree had merged in order of High Court-Accordingly, respondent filed before High Court application u/S. 12(2), CPC along with two applications, one L.r condonation of delay and second for permission to deposit pre-emption money which he had already drawn-High Court accepted application-Contention of appellant inter-alia was that application was barred by time-Held : Respondent by his conduct was estopped to challenge decree after lapse of 5 years without offering explanation as to why he did not file proceedings before proper forum competent to determine whether impugned decree had been passed without jurisdiction or not-Held further : Application u/S. 12(2), CPC was barred by time, and no justification was available to High Court to condone inordinate delay contrary to principle of natural justice, because in the meanwhile valuable rights had accrued in favour appellant-Held Further : Respondent had not only conceded to decree of trial Court, but had also withdrawn sale consideration during appeal filed by appellant and felt satisfied-Impugned judgment of High Court was set aside and application u/S. 12(2), CPC was dismissed. [P. 1144] H, K & L. «iv) Limitation Act, 1908 (IX of 1908)-- —-Art. 181-Application u/S. 12(2), CPC-Limitation for-Although under Limitation Act, no specific time was prescribed for filing of application u/S. 12(2), CPC, therefore, Article 181 of Limitation Act being residuary would govern such proceedings, according to which maximum period of 3 years had been prescribed for filing application under Section 12(2), CPC. [P. 1144] I (v) NWFP Pre-emption Act, 1987-- —-S. 35 read with NWFP Pre-emption Act, 1950-Civil Procedure Code, 1908 (V of 1908), S. 12(2)-Constitution of Pakistan, 1973, Art. 185- Setting aside of decree-Application u/S. 12(2), CPC-Acceptance of- Challenge to-Appellant's pre-emption suit was decreed by trial Court on 15.4.1987-He succeeded in appeal in reducing sale price of land, but still feeling dissatisfied filed revision before High Court, which he withdrew on 17.6.1989-On 17.10.1992, respondent filed application u/S. 12(2), CPC seeking annulment of decree having been passed after 31.7.1987 fixed in judgment PLJ 1986 SC 576-Trial Court accepted application, but its order was set aside in revision by High Court on the ground that it had no jurisdiction to entertain application as its decree had merged in order of High Court dated 17.6.1989-Accordingly, respondent filed before High Court application u/S. 12(2), CPC, which was accepted-Appellant's contention that decree dated 15.4.1987 was saved by S. 35 of NWFP Pre emption Act, 1987-Respondent's contention that in terms of S. 35 of the Act, decree passed by Civil Court after 31.7.1986, 1.8.1986 and 28.4.1987 would stand abated-Held : In pursuance of directions of Supreme Court, the Act was promulgated on 28.4.1987, and till then NWFP Pre-emption Act, 1950 was holding field and Court was also bestowed with jurisdiction to decide cases accordingly as it was repealed from commencement of that Act, thus, any proceedings and decree passed during this period would not be rendered without jurisdiction and void-Held Further : On account of non-filing of appeal, decree dated 15.4.1987 would be deemed to have attained finality under the law applicable till then-Held Further : On account of observations made in case reported in PLD 1986 SC 360, Court seized with appellant's suit would not lose its pecuniary or territorial jurisdiction, because recommendations were to the extent of bringing existing pre-emption laws in accordance with Injunctions of Islam. [P. 1141 to 1144] A, B, C & G PLJ 1986 SC 576; PLD 1987 SC 287; 1992 SCMR 445 ref. (vi) Pre-emption- -—Law of pre-emption-Repeal of-Effect of-Right of pre-emption being a substantial right of an individual could not be taken away merely due to repeal of law under which suit for its enforcement was filed—At the best, such newly enacted law would be deemed to have retrospective effect by necessary implication, because such change would only be deemed to be procedural. [P. 1143] F Order-- —-Void order-Setting aside of~Limitation for-Against a void order, aggrieved person was required to initiate proceedings within reasonable time, instead of invoking jurisdiction of Courts after lapse of considerable time when order/decree under attack in fact had achieved finality. [P. 1144] J Mr. Muhammad Munir Peracha, ASC and Mr. Ejaz Muhammad Khan, AOR for Appellant. Mr. Muhammad Hussain Lughumani, ASC and Mr. Imtiaz Muhammad Khan, AOR (Absent) for Respondents. Date of hearing : 19.2.2001. judgment Iftikhar Muhammad Chaudhry, J.--In this appeal order dated 1st August 1996 passed by learned Peshawar High Court, Abbottabad Bench in Civil Miscellaneous Application No. 140 of 1993 on an application under Section 12(2) CPC filed by the respondents has been assailed whereby on accepting the application decree of possession through pre-emption operating in favour of appellant (plaintiff) dated 15th April 1987 was set aside and suit filed by him was dismissed. Briefly stating facts of the case are that appellant instituted civil suit Bearing No. 1/1 of 1983 against the respondents in the Court of Civil Judge Mansehra for possession of the land through pre-emption measuring 6 kanais 15 marl as equal to 1827/3888 shares out of 14 kanals 6 marlas bearing Khasra No. 1934 situated in Village Buffa, Tehsil and District Mansehra has succeeded in getting the decree dated 15th April 1987 subject to payment of cost of Rs. 90.000/- as price of the land besides payment of mortgaged amount of Rs. 40.000/- to the mortgagee because as far back as 18.10.1981 the vendor had mortgaged it to Mst. Gul Andamy. The appellant succeeded in getting the amount of sale reduced to Rs. 50,000/- in appeal vide order dated 2.11.1987 passed by District Judge Mansehra, however, subject to the equity of redemption. The appellant still felt dis-satisfied so far as the sale price of the land was concerned, as such he invoked the revisional jurisdiction of the High Court for the redressal of his grievance but withdrew the revision filed by him on 17th June 1989. In the meanwhile on 4th July 19S9 the respondent (vendee) withdrew the pre-emption money from the trial Court. It may be noted that he had also conceded to the judgment/decree of the trial Court dated 15th April 1987 as he did not challenge it before the appellate or revisional courts. On 17th October 1992 respondent presented an application under Section 12(2) CPC before the Civil Judge seeking annulment of the judgment/decree dated 15th April 1987 on averments that in view of the judgment of the Supreme Court of Pakistan in the case of Government of N.W.F.P. through Secretary Law Department V. Malik Said Kamal Shah (PLD 1986 S.C. 360) no decree could have been passed in pending suits after the stipulated date i.e. 31st July 1986. Learned Civil Judge accepted the application vide order dated 3.2.1993. The appellant being dis-satisfied from the order of the Civil Judge preferred Revision Petition before District Judge Mansehra who allowed the same on 6th May 1993 with the observations that the trial Court had no jurisdiction to entertain the application under Section 12(2) CPC because the judgment/decree has merged in the order of the High Court dated 17th June, 1989. Accordingly respondent filed application under Section 12(2) CPC alongwith two applications one under Sections 5/14 of the Limitation Act for condonation of delay and second or permission to deposit Rs. 60,000/- the sale price which he has already drawn. Learned High Court vide impugned order has accepted the application of the respondent. Mr. Muhammad Munir Peracha ASC and Mr. Muhammad Hussain Lughumani appeared on behalf of both the parties respectively. It is contended on behalf of the appellant as under — (a) the decree dated 14th April 1987 passed in favour of appellant and against the respondents was saved under Section 35 of the N.W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the "Act"), therefore, the judgment in the case of Rozi Khan and others vs. Syed Karim Shah and others (1992 SCMR 445) was not applicable to the facts of the present case. (b) The application under Section 12(2) CPC was barred by time as it was filed after more than 5 years, 2 months and 25 days from the date of the passing of the decree, therefore, it was liable to be dismissed on this ground alone. (c) Learned High Court had no jurisdiction to entertain and dispose of the application under Section 12(2) CPC because the suit was decreed by learned Civil Judge and learned Appellate Court i.e. District Judge Mansehra had confirmed it. As far as High Court is concerned it has not dilated upon the merits of the case because the revision so filed by the appellant was dismissed as withdrawn. Learned counsel for the respondents controverting the above arguments stated :— (i) In pursuance of the judgment of this Court in the case of Government of N.W.F.P. through Secretary Law Department vs. Malik Syed Kamal Shah (PLJ 1986 SC 576 = PLD 1986 S.C. 360) last date for the enactment of pre-emption laws was fixed to be 31st July 1986 meaning thereby that any decree passed thereafter by the Civil Court would be void. As such the decree obtained by the appellant on 15th April 1987 was not protected under Section 35 of the Act which was promulgated with effect from 28th April 1987, therefore, High Court was quite justified in setting aside the decree in view of the principles of law enunciated by this Court in 1992 SCMR 445. (ii) As the judgment/decree dated 15.4.1987 passed by Civil Judge is without jurisdiction, therefore, no limitation will run against the respondents. Alternatively the decree can also be considered void in the eye of law as it was passed after 31st July 1986, therefore, no limitation will run. (iii.i The respondent preferred application under Section 12(2) CPC before the Civil Judge who had accepted the same but appellant himself challenged it before District Judge who vide order dated 6th May, 1993 concluded that application will be competent before the High Court. The appellant did not object on such observations uf the Appellate Court inasmuch as he conceded to the jurisdiction of the High Court because no objection in this behalf was taken when the matter was subjudice before the High Court. We have heard parties counsel and have carefully gone through the impugned order as well as the law on the subject. It is imperative to note that this Court while examining the appeals of Government of NWFP and others mace certain recommendations to bring the laws of pre-emption applicable in the Provinces of Punjab and N.W.F.P. as well as Martial Law Regulation No. 115 in accordance with the Injunctions of Islam and expressed that if possible a consolidated law of pre-emption be enacted accordingly til! 31st July 1986. Such date was fixed in pursuance of Article 203-D <3)(b) of the Constitution of Islamic Republic of Pakistan. In pursuance of the decision of this Court and time so fixed by this Court the Act was promulgated with its date of commencement from 28th April 1987. As per its Section 35 the NWFP Pre-emption Act, 1950 was repealed and the judgments and decrees passed by the courts under the repealed Act of 1950 were saved. For convenience Section 35 is reproduced hereinbelow :-- "35. Repeal. (1) The North West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XTV of 1950), is hereby repealed. (2) In the cases and appeals filed under the law referred to in Sub section (1) in which judgments and decrees passed by the Courts have become final, further proceedings, if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under Sub-section (2) and instituted under the law, referred to in Sub-section (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act." It is an admitted position that in the instant case decree was passed by the Civil Judge on 15th April 1987 against which no appeal was filed by the contesting respondent. In other words he conceded to the judgment inasmuch as when appellant challenged the judgment/decree of the trial Court dated 15th April 1987 in appeal seeking reduction of the sale consideration no cross objection was filed by the respondent. Moreover the judgment was defended by him and prayed that it be maintained as it is indicated from the judgment/order of the Appellate Court dated 2.11.1987. However, the appeal was partially allowed as the sale consideration was reduced from Rs. 90,000/- to Rs. 50,000/-. Against the order of the Appellate Court respondent did not take exception as he did not challenge it. However, appellant filed revision before the High Court but the same was dismissed as withdrawn. In the meanwhile on 4th July 1989 the respondent withdrew the amount of sale consideration from the Court. On account of such conduct of the respondent it can be inferred that as against the decree he had no objection on passing of the decree dated 15th April 1987. During this period this Court decided Civil Appeals in the case ofRozi Khan and others vs. Syed Karim Shah and others (1992 SCMR 445) challenging the order of the Peshawar High Court dated 6th April 1988 and llth February 1987. In this judgment Section 35 of the Act reproduced hereinabove came under consideration. This Court amongst others formulated following question for determination :-- (i) What is the impact of the repeal Section namely Section 35 of the N.W.F.P. Pre-emption Act, 1987 (X of 1987) on suits and appeal which were instituted under the N.W.F.P. Pre-emption Act, 1950 but were still pending when the above-mentioned Act X of 1987 was enforced on 28.4.1987. The above question after careful deliberation was answered as follows :— "In view of the foregoing we are inclined to hold that the words judgments and decrees passed by the Courts have become final" in Sub-section (2) of Section 35 mean "those judgments and decrees wherein the suit of the pre-emption has been decreed by the courts rendering it". In so thinking we are fortified by the circumstance that this Court has always understood and consistently expounded the concept of finality in Pre-emption Statutes on this premises. (See, inter alia, Bibi Jan u. R.A. Monny PLD 1961 S.C. 69 at pages 75/76; SardarAli v. Muhammad All PLD 1988 SC 287 at page 354). In the light of the foregoing, the effect of the provisions of Section 35 of the new Islamic Law of pre-emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre emption (i.e. 1.8.1986 when the principles of Islamic Common Law became applicable in the absence of any statutory law or after 28.4.1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.W.F.P. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emtpor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act. The submission that only such a decree can be considered to be a final where all the legal remedies provided for its challenge and in fact resorted to, have been exhausted and is not confined to the judgment and decree of the Court rendering it or in other words a final judgment implies the judgment or the decree of the highest forum to which the case is taken cannot be accepted. Indeed such an interpretation would defeat the provisions of Sub-section (2) of Section 35 of the 1987 Act. This Sub-section provides that 'further proceedings if any relating to such cases and appeals shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. Now, if the highest forum has finally decided a case nothing would remain to be done thereafter except, perhaps, the attestation of mutations and the execution of the decree. However, for such proceedings distinct procedure has been laid down in other statutes such as the Land Revenue Act and Civil Procedure Code." Learned counsel for the appellant contended that learned High Court has not properly considered the above principle of law pronounced by this Court with regard to saving clause of Section 35 of the Act whereas on the other hand learned counsel for the respondent stated that in terms of Section 35 of the Act any order/decree passed by a Civil Court after 31st July 1986/lst August 1986 and before 28th April 1987 when the Act was enacted shall stand abated. We have considered the contentions of the learned Advocates in view of the above observations of this Court and we are inclined to associate ourselves with Mr. Muhammad Munir Peracha in view of the observations made by this Court in the case of Rozi Khan (supra) wherein it has been observed that if at the time of enforcement of the Islamic Law of Pre emption i.e. 1.8.1986 when the principles of Common Islamic Law became applicable in the absence of any statutory law or after 28th April 1987 when the Act was promulgated a final decree for pre-emption in favour of plaintiff/appellant had already been passed and appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed) the said further proceedings shall be governed and decided under the provisions of the Old Act (N.W.F.P. Pre-emption Act, 1950). In the instant case after the recommendations of this Court in the judgment of Government of N.W.F.P. vs. Syed Kamal Shah remained pending uptil 15th April 1987 when suit was decreed. No appeal against it was filed, therefore, it would be deemed that the suit had been decreed rightly under the NWFP Pre-emption Act, 1950 which was repealed with effect from 28th April 1987 when the Act was promulgated. Had the respondent filed appeal it would have been treated an appeal under the Repealed Act of 1950. On account of non-filing of the appeal the decree dated 15th April 1987 shall be deemed to have achieved finality under the law which was applicable till then and no objection can be raised legitimately by the respondent on its existence as per his conduct. Even otherwise on account of observations by this Court in the case of Government of NWFP the Court seized with the appellant's suit will not lose its pecuniary or territorial jurisdiction because the recommendations were to the extent of a bringing the existing pre-emption laws in accordance with the Injunctions of Islam. If the argument so advanced on behalf of the respondent is accepted it would lead to open a pandora box in pursuance whereof all the judgments/decrees passed in pre-emption suits shall be deemed to have been passed without jurisdiction, thereby creating a choas and anomalous position for decree holders. Whereas this Court has always understood and consistently expounded the concept of finality in pre-emption statutes as held in Rozi Khan's case (Supra). In the said judgment reference to the case of Sardar All v. Muhammad All (PLD 1987 SC 287) has been made wherein it has been held as under :— "I may also observe that the contrary plea raised an behalf of the respondents that even in those cases where a decree in favour of the plaintiff has been passed before 31.7.1986 but an appeal or revision is pending against it in an higher forum will also be liable to be set aside if it is based on the assertion of a right which has been found repugnant to the Injunctions of Islam in Said Kamal Shah's case because after 31.7.1986 there will not be any existing contemporaneous law in support to it; is also fallacious. The law is well settled that where the rights of the parties have been judicially determined with reference to the terms of a law in force at the time of the adjudication, the finality of such a judgment will not be affected merely because the law on the basis of which that decision was rendered has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment. This rule was clearly enunciated by the Privy Council in John Lemm v. Thomas Alexander Mitchell (L.R. 1912 Appeal Cases 400) which related an action for criminal conversion but was dismissed on May 5, 1908 as incompetent. On December 11, 1908, however, an Ordinance (Hong Kong Ordinance 20/1908) was promulgated which gave a right to the respondent to bring such an action. It was held that although the enactment purported to have retroactive effect, a subsisting judgment, which was founded on the then existing law, could not be annulled without explicit words to that effect. This rule has been adhered to by this Court and it has, in a recent judgment in the case of Pir Bakhsh and others v. The Chairman Allotment Committee and others PLD 1987 SC 145, reiterated it and cited with approval the following observations made by this Court in the earlier case of Income-tax Officer v. Cement Agencies Ltd. (PLD 1969 SC 322), "the view, that I have taken receives support from the decision of this Court in Civil Miscellaneous Petition No. K- 21 of 1968 (Works Co-operative Housing Society and another v. The Karachi Development Authority) decided on the 20th January, 1969. In this case, my Lord the Chief Justice, in his judgment, referred to the decision of the Privy Council in the case of Lemm v. Mitchell, LR 1912 A.C. 400. The Privy Council observed that even a legislative measure like an Ordinance expressly given retroactive effect could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed. To the same effect is the decision in the case of Eyre v. Wynn Mackenzie 19861 Ch. D 135". As it has been observed hereinabove that on 28th April 1987 in pursuance of the directions of this Court the Act was promulgated and till then the NWFP Pre-emption Act, 1950 was holding the field as it was repealed from the commencement of the Act, therefore, any proceedings conducted and decree passed during this period shall not be rendered without jurisdiction and void because the Act of 1950 was holding the field and the Court was also bestowed with jurisdiction to decide cases accordingly. In addition to it Article 203 D(3)(b) of the Constitution of Islamic Republic of Pakistan does not provide that if any law has been declared against the Injunctions of Islam the proceedings instituted under the said law shall also come to an end on the date fixed by the Court for making such law in consonance with the Injunctions of Islam. At the best its effect would be that the fresh suits of pre-emption after the stipulated date will not be instituted under the law which has been found contrary to the Injunctions of Islam but the claimants would be entitled for the enforcement of their rights under the Muhammadan Law, like the Provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits are applicable. Even otherwise it is a settled principle of law that an action started by a person shall be completed under the same law even if it has been repealed during pendency of the action unless the new law has saved the pending proceedings. Undoubtedly a right of pre-emption is a substantial right of an individual and it cannot be taken away merely due to repeal of law under which suit for its enforcement was filed. At the best such newly enacted law shall be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural. Reference in this behalf may be made to the case of Malik Gul Hassan & Co. and 5 others v. Allied Bank of Pakistan (1996 SCMR 237). Thus the case in land viewed from this angle as well would lead to draw inference that the decree dated 15.4.1987 was not liable to be set aside on the ground that it has been passed without jurisdiction or otherwise is void in the eye of law and no limitation will run against it for getting the same set aside. Even if the arguments of respondent are accepted for sake of arguments still the decree dated 15.4.1987 was not liable to be interfered because as per the narration of facts noted hereinabove the respondent by his conduct was estopped to challenge the same after a long period of about 5 years without offering explanation as to why he did not file proceedings before the forums competent to determine whether impugned decree has been passed without jurisdiction or not. In this behalf it may be noted that although under the provisions of the Limitation Act no specific time has been prescribed for filing of application under Section 12(2) CPC, therefore, Article 181 of Limitation Act being residuary will govern such proceedings according to which maximum period of three years has been prescribed for filing the application under Section 12(2) CPC. Learned counsel contended that the consent of the respondent in not challenging the decree within time would not render it valid one in view of the judgment reported in PLD 1971 S.C. 124. The principle laid down in this judgment is distinguishable thus it has not rendered any help to the respondent. It may also be noted that even against a void order an aggrieved person is required to initiate proceedings within reasonable time, instead of invoking the jurisdiction of the Courts after lapse of considerable time when the order/decree under attack in fact had achieved finality as in the instant case the respondent had not only conceded to the decree of the trial Court but had also withdrawn the sale consideration during pendency of the appeal which was filed by the appellant and thereafter he felt satisfied and all of a sudden filed application in the year 1992 after lapse of period of more than 5 years with the prayer that decree passed on 15th April 1987 be set aside as it has been passed without jurisdiction. Thus we are of the opinion that no plausible explanation was offered in approaching the Court after lapse of more than 5 years. Therefore, in view of the principles laid down by this Court in the case of Muhammad Raz Khan vs. Government of N.W.F.P. and another (PLD 1997 S.C. 397) we are inclined to hold that the application under Section 12(2) CPC was barred by time and no justification was available to learned High Court to condone inordinate delay contrary to the principles of natural justice because in the meanwhile valuable rights had accrued in favour of the appellant. As far as the question of determination of the forum for filing of the application under Section 12(2) CPC is concerned it has been examined in depth in the case of Abid Kamal vs. Muddassar Mustafa and others (2000 SCMR 900). Relevant paras therefrom are reproduced hereinbelow :— "It is to be noted that the above view was expressed by three Hon'ble Judge of this Court whereas case of Mubarak AH v. Fazal Muhammad and another (PLD 1995 SC 564) was heard by two Hon'ble Judges and whereas last mentioned case was also heard by three Hon'ble Judges including the Hon'ble Chief Justice, Mr. Justice Ajmal Mian (as he then was) who has authored the judgment, therefore, the view expressed by the majority of Judges prevailing right from the time when the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) was decided shall prevail. In both the cases i.e. 1993 SCMR 1711 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final 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, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that even the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C. 4. In the case in hand as well this Court had refused to grant leave to respondent Muddassar Mustafa and others, therefore, keeping in view these facts we are of the opinion that application under Section 12(2), C.P.C. subject to all just exceptions will be competent before the Court which had finally decided the appeal. Thus, request made by the learned counsel for petitioner is allowed with the observation that the Court seized with the matter if instituted under Section 12(2), C.P.C. shall sympathetically consider request if made for condonation of delay in filing of the application, because petitioner consumed some time in pursuing instant proceedings." Thus in view of the above principle we are of the opinion that as in the case in hand learned District Judge Mansehra had decided the appeal vide judgment dated 2.11.1987 whereas the revision filed before the High Court was withdrawn on 17.6.1989 without deciding it on merits, therefore, High Court had no jurisdiction to entertain and decide the application. ' For the foregoing reasons appeal is accepted as a result whereof impugned order dated 1st August 1996 is set side and the application under Section 12(2) CPC is dismissed. Appellant shall also be entitled for the costs throughout. (S.A.K.M.) Appeal accepted.