P L D 2013 Supreme Court 478

April 20, 2017

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