' SALIM KHAN, J.---A Suit No,215/1 was instituted by Muhammad Rafique son of Qalandar Khan on 24-10-1984, which was decreed on 20-5-1989. An appeal was instituted by Mst. Noor Jehan and others through R.F.A. No,30 of 1989 which was dismissed by this Court on 4-8-1994. The present petitioners filed petition under section 12(2), C.P.C. Vide Case No,3/12 instituted on 22-4-1998, which was decided on 5-5-2004. It is worth-mentioning that the learned Senior Civil Judge, Abbottabad vide the said impugned order discussed that it was a settled principle of law for adjudication of petitions under section 12(2), C.P.C. That the proper forum would be the Court which passed the final judgment/decree, and held that his Court did not have jurisdiction. He returned the petition to the petitioners for presentation before the proper forum. It was on 29-6-2004 that the petition was presented before this Court. The same is contested by the real respondents.
2. We heard the arguments of the learned counsel for the parties and perused the record.
3. The learned counsel for the petitioners contended that the judgment/decree dated 4-8-1994 passed by this Court and the judgment and decree in Suit No,215 of 2001 by the learned Senior Civil Judge, Abbottabad dated 20-5-1989 were liable to setting aside as these were the result of fraud and misrepresentation.
4. He, however, contended, on the point of jurisdiction, that it was the Court of the learned Senior Civil Judge/Civil Judge, Abbottabad, who had granted the original decree mentioned above, who had jurisdiction for the purposes of petition under section 12(2), C.P.C., and this Court was not the proper forum for the said petition but the learned Senior Civil Judge has given a wrong verdict on 5-5-2004, which was against the law as explained by the superior Courts.
5. The learned counsel for the respondents, however, contended that the appeal was decided by this Court and, therefore, it was this Court, and not the Court of the Senior Civil Judge, Abbottabd, which was the proper forum for the purposes of petition under section 12(2), C.P.C. The learned counsel for the respondents referred to 1993 CLC 1257 (Karachi) and contended that the judgment, decree and order of the learned Senior Civil Judge, Abbottabad had merged in the judgment of this Court, and, due to doctrine of merger, it was this Court, and not the Court of Senior Civil Judge, Abbottabad, which is the proper forum for the purposes of the petition under section 12(2), C.P.C. He also relied on PLD 1994 Lahore 119 as well as 1999 MLD 3082 in this respect. He also referred to PLD 1995 SC 564 and contended that this Court was the only proper forum as the appeal in question was dealt with by this Court. He further relied on 2001 MLD 1033 and 1997 CLC 1893.
6. The learned counsel for the petitioners relied on 1993 SCMR 1171 and contended that the petition under section 12(2), C.P.C. Was to be filed before the Court which had granted final judgment, decree or order and not before the Court which had merely confirmed the said judgment, decree or order by dismissing the revision, appeal, petition, or leave to appeal. He also relied on 2001 SCMR 1062 in this respect. In order to further explain the correct legal position, the learned counsel for the petitioners referred to paras 3 and 4 of the judgment reported as 2000 SCMR 900. The contents of para 3 of the said judgment are as under:-- "3 It is to be noted that the above view was expressed by three Honourable Judges of this Court whereas case of Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 was heard by two Honourable Judges and whereas last-mentioned case was also heard by three Honourable Judges including the Honourable Chief Justice, Mr. Justice Ajmal Mian (as he then was) who has authored the judgment, therefore, the view expressed by the majority of Judges prevailing right from the time when the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v.
Syed Abdul Majid 1993 SCMR 1171 was decided shall prevail. In both the cases i,e,, 1993 SCMR 1171 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms 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, Supreme Court reverses a judgment of a High Court and records a finding r n 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 purposes of section 12(2), C . P. C . "
' The same proposition, as contended by the learned counsel for the petitioners has further been explained in PLD 2002 SC 391. Paras 4 and 5 of the said judgment explicitly clarify the legal position.
These paras are reproduced as below:-- "4 The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir. Affairs and Northern Areas and others 1999 SCMR 1516 that if the Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave to appeal 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 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, the final judgment or order would be of the Supreme Court for the purposes of section 12(2), C.P.C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900.
"5 Adverting to the case in hand we find that by dismissing the petition for leave to appeal this Court had affirmed and not reversed the judgment of the Lahore High Court. The final judgment in terms of section 12(2), C.P.C. Is, therefore, of the High Court and as such there can be no dispute with the Proposition that jurisdiction to entertain and decide the application under section 12(2), C.P.C. Moved by the petitioners vests exclusively in the Lahore High Court."
7. In the light of the above arguments, with perusal of record, we have come to the conclusion that the impugned judgment granted by the learned Senior Civil Judge in Suit No,215/1 of 1984, decided on 20-5-1989, had finally decided the dispute between the parties of the said suit and the appeal in R.F.A. No,30 of 1989 decided on 4-8-1994 was dismissed, which amounted to confirmation of the said original judgment. No modification, alteration, amendment in the said judgment was made at the appellate level and the judgment in question was not partially or wholly reversed. It clearly meant that the impugned judgment remained intact and attained finality as it was not changed at the appellate level. It has clearly been held that, unless a decision is made or order is issued at the revisional or appellate level or in exercise of constitutional jurisdiction, which is other than the one made or issued by the Court against which the appeal, revision or constitutional petition has been filed, the judgment, decree or order by such Court shall attain finality. The proper forum, therefore, for submission of petition under section 12(2), C.P.C. Will be the Court whose judgment, decree or order has attained finality, and not the revisional, appellate or constitutional forum which has not changed or reversed the said judgment, decree or order.
8. The doctrine of merger of the judgment, decree or order of the Court into the judgment, decree or order of the Court at revisional or appellate level or exercising Constitutional jurisdiction will apply when such judgment, decree or order is modified, altered, changed or reversed by the respective judgment, decree or order at the stage of revision, appeal or exercise of Constitutional jurisdiction. In such a case the unchanged part of such judgment, decree or order shall; become part of the judgment, decree or order which changed, it otherwise. But, in cases in which such judgment, decree or order is kept intact, without any change or interference with it, the doctrine of merger does not apply, and the decision at the latter mentioned levels amounts to further confirmation of, and securing finality for, such judgment, decree or order.
9. As we have already held that the judgment of the learned Senior Civil Judge, Abbottabad, in the light of dismissal of the appeal by this Court, was the final judgment and decree which attained finality due to dismissal of appeal, with no further proceedings, the learned Senior Civil Judge, Abbottabad has erred in deciding that he lacked jurisdiction for entertaining the petition under section 12(2), C.P.C. In this case, and he wrongly returned the petition to the petitioners for its submission before any other forum.
10. The learned counsel for the petitioners had requested through the prayer for interim relief that the period spent before the learned Senior Civil Judge, Abbottabad after submission of the petition till its return and submission before this Court be condoned in special circumstances of the case.
As we have held that the petition was properly filed before the proper forum but was wrongly returned, and we intend to return the petition and direct the learned Senior Civil Judge, Abbottabad to deal with it in accordance with law and decide it on its merits, therefore, there is no need for condonation of delay for the said period, because the petition will be received by the learned Senior Civil Judge at the stage immediately before the impugned order, as if it was not returned by the impugned order.
11. In consequence to the above, we hold that the learned Senior Civil Judge, Abbottabad had the jurisdiction, as the proper forum for petition under section 12(2), C.P.C. In the circumstances of the case, and should have decided the petition on its own merits. We, therefore, return the petition to the learned Senior Civil Judge, Abbottabad with the direction as aforementioned. Parties are directed to appear there on 19-7-2006 for further proceedings. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.