P L D 2013 Supreme Court 478

P L D 2013 Supreme Court 478

Present: Main Saqib Nisar and Iqbal Hameedur Rahman, JJ

NASRULLAH KHAN and others---Petitioners

Versus

MUKHTAR-UL-HASSAN and others---Respondents

Civil Petition No.2435-L of 2012, decided on 15th March, 2013.

            (Against the judgment dated 19-9-2012 of the Lahore High Court, Lahore passed in Writ Petition No.22320 of 1996).

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

----S. 12(2)---Application under S.12(2), C.P.C.---Forum---Scope---Such application was to be filed before the court which passed the final judgment---"Final judgment"/decree/order---Scope---Final decree/order of the last court in the series, even if such decree was of affirmation, should be considered and treated to be final judgment/decree/order in  terms of S.12(2), C.P.C. for approaching the relevant forum---Where the decree/order of a forum below had been affirmed by the higher forum on merits, both on points of fact and law, it should be such decree/order (of higher forum) which attained the status of final decree-order within the  purview of S.12(2), C.P.C.---Where a decree/order has been modified or reversed by the Appellate or Revisional Court, it shall be such decree/order (of Appellate or Revisional Court), which will be final in nature for the purpose of S.12(2), C.P.C. and accordingly application  could only be initiated before such forum which had altered the verdict.

            Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. 2012 SCMR 147; Sarfraz v. Muhammaad Aslam Khan and another 2001 SCMR 1062; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Muhammad Yousaf through Legal Heirs and others v. Noor Din and others PLD 2002 SC 391 and Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900 distinguished.

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

----Ss. 2(2), 96 & 115---Merger of decree, principle of---Scope---When a judgment and decree of a court below was assailed in appeal or revision before the higher forum and it was affirmed by such (higher) forum, the decree/order of the forum below merged into the decree of the higher forum, meaning thereby, that it was integrated, implanted, inculcated, infixed and instilled into the decree of the higher forum and became the decree/order of the higher forum for all legal intents and purposes.

            Maulvi Abdul Qayyum v. Syed Ali Asghar shah and 5 others 1992 SCMR 241 ref.

            Ahmed Waheed Khan, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

            Qasim Haroon Cheema son of Respondent No.2 for Respondent.

            Date of hearing: 15th March, 2013.

JUDGMENT

            MIAN SAQIB NISAR, J.---In a suit for administration filed by Khurshid Alam against Khan Bahadur etc., the petitioners were not a party;  however,  a  preliminary  decree  in  the  suit  was  passed  on 31-4-1984, against which an appeal was filed by the aggrieved  persons (the defendants of the case) which was dismissed on 2-10-1985. Thereafter, the final decree was passed on 10-4-1986 which again was assailed by the defendants and we are told that the same was disallowed by the learned Appellate Court on 17-4-1988, on the point of limitation. As per the contents of this petition (para 2) the petitioners moved an application on 8-3-1987 under section 12(2), C.P.C., challenging the said decrees before the learned trial court (note: if the date 8-3-1987 is correct the appeal against the final decree was yet pending at that time) which, after  the  contest, was  dismissed  by  the  court vide order dated 17-9-1995, on merits. The petitioners challenged this order in the revisional jurisdiction before the District Judge, which was accepted in the terms, that the preliminary decree was modified and some shares were allocated to the petitioners in the suit property. The respondents-decree holders assailed this decision vide Writ Petition No.22320 of 1996 before the learned Lahore High Court, which has been accepted through the impugned judgment, on the sole point that the application under section 12(2), C.P.C. was not competently filed by the petitioners before the trial court, as it should only have been initiated before the Appellate Court, which had passed the final decree(s) (both vis-a-vis preliminary and final decree(s)). Learned counsel for the petitioner by relying upon a judgment of this Court reported as Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. (2012 SCMR 147) has argued that the said application would have been maintainable before the appellate forum only if the judgment/decree had been modified or reversed by it, but when the decree was simply endorsed and upheld in appeal, the final decree, for the purposes of section 12(2), C.P.C., shall remain to be of that Court which had initially passed it. As in the instant case it is/was the trial court, therefore, the proper forum for such application was the trial court and not the Court of Appeal. In support of his contention learned Advocate Supreme Court  has also placed reliance upon the judgments of this Court reported as Sarfraz v. Muhammad Aslam Khan and another (2001 SCMR 1062), Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516), Muhammad Yousaf through Legal Heirs and others v. Noor Din and others (PLD 2002 SC 391) and Abid Kamal v. Mudassar Mustafa and others (2000 SCMR 900).

2.         Heard. On the analysis of the law cited before us, we find that the judgment reported as Muhammad Aslam (supra), has no nexus to the proposition at hand with respect to those decisions which are affirmed in appeal or the revision, and there is no element of modification or reversal; because, there can be no cavil to the proposition and the two opinions with regards to the situation that where a decree/order has been modified or reversed by the Appellate or the Revisional Court, it shall be that decree/order, which shall be final in nature, for the purposes of section 12(2), C.P.C., and accordingly the application can only be initiated before such forum which has altered the verdict. As in Aslam's case, the decree was modified by the learned High Court, so it was rightly held by this Court that the application (12(2), C.P.C.) could competently be filed before it. In the other judgment reported as Khawaia Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516); the facts of the matter are:- the order passed by the Board of Revenue (BOR), when challenged in the learned High Court, in its constitutional jurisdiction, was not interfered with (note: however from a portion of this judgment an impression can also be gathered that such order of BOR was reversed by the learned High Court); the application before the learned High Court under section 12(2), C.P.C. filed by an aggrieved person was allowed by the said Court and the question which came up for the resolution before the apex Court was "which of the judgments/orders can be treated as final judgment/order in terms of subsection (2) of section 12, C.P.C.". And this court held "If this Court merely reaffirms a judgment or order of a High Court by refusing leave (emphasis supplied by us), the final judgment in terms of subsection (2) of section 12, C.P. C. will be of the High Court and not of the Supreme Court. However, if the. 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 event the final judgment or order would be of the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded  the forums provided under the Settlement Law" (note: the underline portion of the judgment does not seem to be in line with the facts of the case; as the order of the BOR was upheld by the High Court). In the case of Sarfraz ibid, the judgment in appeal passed by the learned District Judge was challenged before the learned High Court in revision which was withdrawn, thus it was enunciated "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" (note: i.e. the application was under section 12(2) CPC). 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 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 revision 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 Ali Asghar 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 instance, 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 pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the 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) 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 the 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. Thus, it would be ludicrous to conceive and hold that the questions of facts and law which have been finally approved, endorsed, affirmed and settled by the higher forum should be allowed to be examined, annulled and obliterated by a forum below, whose decision stands affirmed in the above manner. Therefore, we are of the considered view that the impugned judgment in this case has been rightly founded on the principle of merger; however before parting it may be observed that in the case Khawaja Muhammad Yousaf (supra), an exception has been taken to the rule of merger in relation to the apex Court, particularly in respect of those judgments/orders which are affirmed by this Court in the sense that leave has been refused.

            In the light of the above, we do not find any error in the impugned judgment of the High Court calling for interference in the instant jurisdiction. The petition, therefore, has no merits which is hereby dismissed. Leave refused.

MWA/N-5/SC                                                                                     Petition dismisse