PLJ 2017 Quetta 110
Present : MUHAMMAD EJAZ SWATI , J.
MUHAMMAD RAMZAN and 2 others --Petitioners
Versus
CHUGAIR and others --Respondents
C.R. No. 116 of 2011, decided on 6.4.2017.
Civil Procedure Code, 1908 (V of 1908) --
----S. 12(2) --Fraud and misrepresentation --Decree --Challenged to --Question of --Jurisdiction --
Validity --If a decree or order or judgment is obtained by fraud misrepresentation or where
question of jurisdiction has arisen such order, decree or judgment shall be challenged through a n
application to the Court which passed the same and no other suit shall lie. [Pp. 112 & 114] A &
C
PLD 2013 SC 478, ref .
Word and Phrases --
----Final --Defines --It means the last in series 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.
[P. 112] B
Mr. Muhammad Usman Lasi, Advocate for Petitioners.
Mr. Khalil Ahmed Panezai, Advocate for Respondents.
Date of hearing: 15.3.2017.
JUDGMENT
The petitioner Muham mad Ramzan filed an application under Section 12(2) of Civil Procedure
Code (C.P.C) before the Qazi Lasbela at 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 application, however, the learned Qazi allowed the application
vide order dated 12th November 2010 and set aside the judgment and decree under applica tion.
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 aside the order dated 12th November 2010 pas sed 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 competen t to set aside the judgment and decree dated 10
th 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 considering 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 appellate
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
petitioners and contended that the judgment and decree dated 10th September 2009 passed by the
Qazi Lasbela at Uthal was challenged by Sham boo 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 appellat e Court. He placed reliance on case reported in PLD 2009 Karachi 123, PLD
2013 Supreme Court 478, 1983 CLC 1948, 2012 CLC 1897 and PLD 2010 Supreme Court 580.
6. Heard the learned coun sel 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 others by way of filing Civil Appeal No. 54/2009 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 dismissed the appeal and upheld the judgment and decree dated 10th September 2009
passed by the trial Court. The argument of the learned counse l 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.
Sub- section (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 rel evant is reproduced herein below:
“12(2), C.P.C. “where a person challenged 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 pa ssed the final judgment, decree or order and
not by a separate suit.”
From the above, it appears that the application under this sub- section 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 series 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 the decree of the higher forum, should be such decree/ order (Appellate or Provisional Court) which will be final for the purpose of Section 12(2), C.P.C. If the Hon’ble Supreme Court mer ely affirms the
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, 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 held 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/s Mukhtar -ul-Hassan & others PLD 2013 Supreme Court 478,
the Hon’ble Supreme Court of 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 fo r 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 system 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 re vision before the higher
forum and it is affirmed by that (higher) forum, for 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/order 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 Qayyum v. Syed A li 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 fir st instant, Merged into the decree of Appellate Court,
which alone can be executed, 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 pend ing but no stay order has been issued, such decree remains capable
of execution 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 m odified.” 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), CPC 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 t he facts and the law
involved therein, 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 and 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, the 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/orde r 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 Majlish- e-Shoora Lasbela at Hub. The
learned counsel for the petitioners has failed to point out any other illegalities or irregul arities in
the impugned judgment and 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.
(W.I.B.) Petition dismissedThis 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,
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