IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE IQBAL HAMEEDUR RAHMAN
MR. JUSTICE TARIQ PARVEZ
CIVIL APPEALS NO.1176 AND 1177 OF 2015
AND CIVIL PETITION NO.1428-L OF 2015
(Against the order dated 11.6.2015 of the Lahore High
Court, Bahawalpur Bench passed in C.M.Nos.385,
388/2009 & 2051/2015)
Sahabzadi Maharunisa …in C.As.1176 & 1177/2015
Sahibzadi Madhia Abbasi …in C.P.1428-L/2015
…Appellant(s)/Petitioner(s)
VERSUS
Mst. Ghulam Sughran and another …in C.As.1176 & 1177/2015
Sahibzadi Faroq Kamal Abbasi, etc. …in C.P.1428-L/2015
…Respondent(s)
For the appellant(s):
(in C.As.1176 & 1177/2015)
Mr. Nadeem Iqbal Chaudhry, ASC
Qazi Zia Zahid, ASC
For the petitioner(s):
(in C.P.1428-L/2015)
Mr. M. Ozair Chughtai, ASC/AOR
For respondents 8 & 12:
(in C.As.1176 & 1177/2015)
Mr. M. Ozair Chughtai, ASC/AOR
For respondents 2(xviii) & 4:
(in C.As.1176 & 1177/2015)
Mr. Ejaz Ahmed Chaudhry, ASC
For respondents 15 & 22:
(in C.P.1428-L/2015)
Mr. Ejaz Ahmed Chaudhry, ASC
Amicus curiae: Malik Muhammad Qayyum, Sr. ASC
Ch. Mushtaq Ahmed Khan, Sr. ASC
Syed Najam-ul-Hassan Kazmi, Sr. ASC
Date of hearing: 19.01.2016
…
JUDGMENT
MIAN SAQIB NISAR, J.- In the instant matters we are
called upon to resolve the proposition as to which is to be considered
the “Court which passed the final judgment, decree or order”
within the meaning of Section 12(2) of the Code of Civil Procedure,
1908 (CPC) where an aggrieved person shall file such an application.
Civil Appeals No.1176 and 1177 of 2015
and Civil Petition No.1428-L of 2015
-: 2 :-
In the context of the above the facts of the instant appeals (along with
the CPLA) are:- respondents No.1 to 4 (plaintiffs) filed a suit for
possession against respondents No.5 to 11 (defendants) assailing
therein the validity of a gift mutation No.162 attested on 25.9.1944
by virtue whereof Muhammad Yar, the predecessor-in-interest of the
plaintiffs, gifted his property (suit property) in favour of Ahmad Yar, his
brother. The suit was initiated on 18.10.1965 and was partly decreed
on 11.6.1968. Both the parties being aggrieved of the above decree,
challenged the same through appeals, the plaintiffs filed RFA
No.11/1968, while the defendants instituted RFA No.27/1968. The
appeal filed by the plaintiff was partly allowed by the learned High
Court vide judgment dated 24.3.1986, but that of defendants was
dismissed through the same judgment. The defendants filed CA
No.193/1986 and CP No.73/1986, whereas the plaintiffs filed CP
No.473/1986, before this Court, all challenging the judgment dated
24.3.1986, while one Murad Bibi and Surriya Begum also filed
applications to be impleaded as parties before this Court in the
abovementioned appeal and/or petitions but were turned down with
the observation that they may avail the remedy before the appropriate
forum in appropriate proceedings. Thereafter, the appeal and
petitions were dismissed by this Court vide judgment dated
26.6.1991.
2. Aggrieved of the said judgments and claiming those to
have been procured by the respondents through fraud and
misrepresentation, the appellant (in CAs No.1176 and 1177/2015) filed
applications under Section 12(2) of the CPC vide CMs No.385 and
388/2009 in RFAs No.11 and 27/1968 respectively, and the
petitioner (in CP No.1428-L/2015) filed a similar application through CM
Civil Appeals No.1176 and 1177 of 2015
and Civil Petition No.1428-L of 2015
-: 3 :-
No.2051/2015 in RFA No.11/1968. These applications have been
dismissed vide the impugned judgment dated 11.6.2015 holding that
the application before the High Court is not competently filed, rather
in the light of the law laid down by this Court in Nasrullah Khan and
others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) the
appellate forum is the Supreme Court of Pakistan. Leave was granted
on 6.11.2015 to consider whether the applications under Section
12(2) of the CPC were rightly dismissed on the grounds that they
were only competent before this Court and also to consider the true
import of the case of Nasrullah Khan (supra); the order is reproduced
below:-
“Learned counsel for the petitioner states that the final
judgment in the instant matter had been passed by the
learned High Court in its appellate jurisdiction, and when
such judgment and decree was assailed before this Court, it
was kept intact. Therefore, the view set out by the learned
High Court while dismissing the application of the
petitioner under Section 12(2) CPC being not maintainable
in light of the law laid down in Nasrullah Khan and others
Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) is
not correct as the rule of merger is not attracted to cases
where judgments of the learned High Court have simply
been kept intact and no modification or reversal has taken
place. In such an eventuality the final judgment and order
shall be that of the learned High Court. Leave is granted to
consider the above. As a short point is involved, let this
matter be listed for