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 an 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 Muhammad 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 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 aside 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 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 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 CLC 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 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 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.
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 relevant 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 passed 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 merely 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 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 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 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 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), 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.”
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/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 Majlish-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 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 dismissed