1. ' ARSHAD NOOR KHAN, J.---By this common judgment, I intend to dispose of the Civil Revision Application No,13/2006 Shankar and others v. Ranjho and others, Civil Revision Application No,14/2006 Ravo and others v. Chandoo and others and Civil Revision Application No,15/2006 Ravo through Legal Heirs v. Chandoo and others as facts and law involved in all the revision applications are identical and parties are also common.
2. ' The facts leading to the present revision application, in brief, are that the applicant Shankar filed Suit No,22/1989 which was subsequently re-numbered as 34/1999, for possession, mesne profits and perpetual injunction, against respondent Ranjho and others stating therein that he is the lawful owner of the agricultural land bearing S. No,233/1, 2 admeasuring 3.24 acres and S. No,381 admeasuring 0.27 acres situated in Deli Muhrabbpur Taluka Kandiaro District Naushero Feroze by registered sale-deed dated 18-10-1987 which was also mutated in the revenue record. Applicant was in possession of the suit land since its purchase and enjoy its produce and paid land revenue to the Government. The plaintiff got the suit land improved through tractor and the respondents through certain respectable persons approached him for obtaining the land on lease and as a result the suit land was given to the respondent Ranjho on lease at the rate of Rs,600 per acre for Kharif crop 1988. The respondents defaulted in payment of lease money; therefore, the applicant Shankar filed suit for possession, mesne profits and perpetual injunction.
3. ' The respondent Ranjho and others were served before learned trial Court who appeared and filed their written statements. Learned Senior Civil Judge, Naushero Feroze, vide judgment dated 30-11- 1993, and decree dated 7-12-1993, decreed the suit filed by the applicant Shankar. The respondent Ranjho and others being aggrieved against the judgment and decree filed Civil Appeal No,75/1993 before learned District Judge, Naushero Feroze, which was entrusted to the learned Additional District Judge, Kandiaro, who vide judgment dated 13-9-1995 and the decree of the even date, dismissed the appeal and maintained the judgment and decree passed by learned trial Court. The decree was, thereafter, not challenged before this Court. After about 5 1/2 years respondent Chandoo and others filed application under section 12(2), C.P.C, before 1st, Civil Judge, Kandiaro, praying therein for setting-aside decree passed earlier by the learned Senior Civil Judge, Kandiaro, duly affirmed by the Additional District Judge, Kandiaro. The learned Ist. Civil Judge, Kandiaro, served notice of this application on the applicants, who filed their objections and after hearing of learned counsel for the parties, learned civil Judge, Kandiaro, set aside the judgment and decree passed earlier by the senior civil Judge, Kandiaro, duly affirmed by the appellant Court, vide order dated 2-12-2003, and further directed to join Chandoo and others as necessary party in the main suit and after recording of evidence the suit may be decided within three months. While granting the applications under section 12(2), C.P.C, the learned civil Judge also consolidated Suit No,22/1989, 34/1993, 31/2000 and 42/2000 filed by the parties and after recording of evidence decreed the Suit No, 42/2000 filed by Chandoo and others and dismissed the suit filed by the present applicants. The applicants being aggrieved against the judgment and decree passed by Ist, civil Judge, Kandiaro, dated 31-3-2004, preferred Appeal No, 62/2004 and the respondents Cahndoo and others also filed Civil Appeal No, 57/2004 and Revo through his legal heirs also filed Civil Appeal No,63/2004 before the learned District Judge, who entrusted the same to the learned Additional District Judge, \\Kandiaro, who also consolidated the appeals filed by the applicants and respondents and disposed of the same vide consolidated judgment and decree dated 11-10- 2005 thereby maintaining the judgment and decree passed by the Ist. Civil Judge, Kandiaro, dated 31-3-2004, hence the present revision applications.
4. ' The respondents were served with the notice but after service they did not appear to contest the revision.
5. ' I have therefore, heard Mr. A.M. Mobeen Khan, learned counsel for the applicants in Revision Applications Nos.13/2006 and 14/2006, and Mr. Noor Hassan Malik, learned counsel for the applicants in Revision Applications No,15/2006 and have perused the record available before me.
6. ' Mr. A.M Mobeen Khan, learned counsel for the applicants Shankar and Revo has vehemently contended that the suit filed by the applicants was initially decreed by the IInd Senior Civil Judge, Kandiaro, and the said judgment and decree was upheld by the Additional District Judge Kandiaro, and after considerable time from the date of judgment and decree affirmed by the appellant Court, the respondents Chandoo and others filed belated application under section 12(2) C.P.C.
7. Which erroneously was allowed by the Ist. Civil Judge, Kandiaro, thereby stetting aside the judgment and decree affirmed by the appellate. Court without even framing the issues and recording of evidence of the parties, as such the judgment and decree passed by the learned Civil Judge, Kandiaro, was patently illegal and the learned appellate Court also did not consider the legal proposition involved in the present case and dismissed the appeals.
8. ' According to him, the judgment and decree passed by the Courts below suffer from legal infirmity and is liable to be set aside. In support of his contention he was relied upon the case reported in 2004 SCM R 1247, 2006 SCM R 595 and 2005 CLC 1511.
9. ' Mr. Noor Hassan Malik, learned counsel for the applicant in R.A No,15/2006 adopted the arguments advanced by Mr. A.M. Mobeen Khan Advocate and has further contended that the judgment and decree passed by the Courts below is not speaking one and is liable to be set aside.
10. ' I have considered thee arguments advanced on behalf of the parties and have gone through the material available before me.
11. ' The applicant Shankar claimed to have purchased the property in question on 18-10-1987 from the predecessor-in-interest of Chandoo and others after payment of full price of the said land vide receipt available on the record and the same was leased out to respondent Ranjho and others and when they failed to pay the lease money, he filed suit for possession, mesne profits and perpetual injunction which suit was contested by the respondents Nos. 1 to 3 and after evaluation of evidence brought on record, the suit was finally decreed by the learned Senior Civil Judge, Kandiaro, vide judgment and decree dated 30-11-1993, and the decree was affirmed by the learned Additional District Judge, Kandiaro, in Civil Appeal No,75/1993 vide judgment and decree dated 19-9-1995. It is, therefore, evident that the judgment and decree passed by the Senior Civil Judge, Kandiaro, was affirmed by the Additional District Judge, Kandiaro, as such the judgment and decree passed by the Senior Civil Judge, Kandiaro, was merged in the judgment and decree passed by the appellate Court. Admittedly the respondent Chandoo and others filed application under section 12(2), C.P.C, before the Ist. Civil Judge, Khandiaro, as by the time the matter was transferred to Ist. Civil Judge, Kandiaro, where the respondent Chandoo and others filed the application as stated above. The learned 1st. Civil Judge, Kandiaro, after hearing the parties, counsel allowed the application thereby setting aside the judgment and decree passed by the Senior Civil Judge duly merged in the judgment and decree passed by the learned appellate Court. The operative part of the order passed on application under section 12(2), C.P.C., by the Ist. Civil Judge, Kandiaro, dated 2-12-2003 is usefully quoted herein below for the sake of convenience: "In the light of discussions and reasons mentioned above, it has revealed that the applicants have made out their present application in their favour hence judgment and decree passed this/ relevant is hereby set aside and the applicants are joined as defendants so also the applicants were required to file their WS within prescribed time. The present suit is old one therefore, all parties are directed to complete their evidence, if any, within 3 months order as to costs."
12. ' After passing the aforestated order, the learned Civil Judge seems to be in haste hurry, recorded the statement of Munawar and Teku for plaintiff and Jalal s/o Punhoon, one of the applicants of application under section 12(2) C.P.C, on 30-3-2004, and on the following day viz. 31-3-2004, decided both the consolidated suits whereby Suit No,31/2000 was dismissed and Suit No,42/2000 was decreed. The attitude and conduct of the learned Ist. Civil Judge, Kandiaro, shows that he without properly examining the allegations contained in the application under section 12(2), C.P.C.
13. By framing the issues and leading the evidence by the parties, allowed the same thereby setting aside the judgment and decree passed by the Senior Civil Judge, Kandiaro, duly merged in the judgment and decree passed by the appellate Court and thereafter on 30-3-2004, recorded the statement of Munawwar and Teeku for plaintiffs and statement of Jalal s/o Punhoon and on the following day of recording of his statement, the judgment and decree was passed. The appellate Court also did not consider the said legal proposition involved in the case to the extent that the application under section 12(2), C.P.C., was not only entertained illegally but was also disposed of in cursory manner without considering the fact that the judgment and decree was affirmed by the appellate Court. In my humble opinion, the application under section 12(2), C.P.C, is only maintainable before the Court who finally passed the judgment and decree and the judgment and decree passed by learned trial Court finally merged in the judgment and decree passed by appellate Court and the application under section 12(2), C.P.C, could only be filed before the Court who finally decided the matter. If any authority is needed, the reference may be had to the case of Shabbir Hussain v. Mst. Anwar Sultan through 3 Legal Heirs reported in 1986 CLC 903, wherein this Court while examining the same proposition involved in the present case was pleased to observe that the application under section 12(2), C.P.C, is competent before the Court who finally passed the judgment and decree. In that case the judgment of the Rent Controller was challenged by filing of the application under section 12(2), C.P.C, though the judgment of the Rent Controller was upheld by the Honourable Supreme Court and this Court observed that the application is maintainable before the Court who finally passed the order. The same point also came for consideration in the case of Muhammad Yaqub v. Mst. Nooran, reported in 1983 CLC 1948, wherein similarly observation has been made by the learned Lahore High Court. In the afore-stated case of Muhammad Yaqoob the appeal was finally dismissed by Honourable Supreme Court, as such it was observed that the application under section 12(2), C.P.C, under those circumstances was maintainable before Honourable Supreme Court. In the case of Muhammad Shafi v. Falak Sher, reported in 1999 CLC 361, the Lahore High Court while again dealing with the same proposition was pleased to observe that the application under section 12(2), C.P.C, filed before the High Court in revision application, by one of the vendee to challenge pre-emption decree, would be maintainable and the trial Court cannot be given authority to enquire into the allegation of fraud, Misrepresentation or lack of jurisdiction under section 12(2), C.P.C, with respect to the dispute which stood the test of correctness in higher forum as the finality attached to the appellate or revisional judgment shall stand eroded. In the case of Land Acquisition Collector v. Said Muhammad, reported in 1997 CLC 1839, while dealing with the same proposition involved in the present case, the Lahore High Court was pleased to examine the doctrine of merger of the judgment and further pleased to observe that according to the theory of merger when a Court passes a judgment, decree or order in an appeal, the appellate Court affirms, reverse, varies or modifies the said judgment, decree or order, the said judgment, or order of the lower Court mergers into judgment, decree or order of appellate Court. Under this theory, judgment of the High Court passed in appeal would stand merged into the judgment of the Supreme Court where Supreme Court on appeal to it modifies the judgment of the High Court. In such case, it would be Supreme Court which passed the final judgment and not the High Court to entertain the application under section 12(2), C.P.C. The case law, as discussed above, without any iota of doubt shows that application under section 12(2), C.P.C, is only maintainable before the Court who finally passed the judgment and decree as the judgment and decree passed by lower forum stands merged in the judgment and decree passed by higher forum who affirmed or modified the judgment and decree. In the present case, as discussed above, the judgment and decree was finally passed by the Additional District Judge, Kandiaro, as such the judgment and decree passed by Senior Civil Judge, Kandiaro, was merged in the judgment and decree passed by the appellate Court; therefore, Civil Judge, Kandiaro, was wholly incompetent to entertain and adjudicate upon the application under section 12(2), C.P.C, and to set aside the judgment and decree passed by appellate Court. The order dated 2-12-2003 passed by the 1st. Civil Judge, Kandiaro, therefore, was an order, which was passed beyond the jurisdiction vested in him.
14. Consequent upon the subsequent judgment and decree passed by the same Court on the basis of order dated 2-12-2003 is also erroneous judgment and decree. The judgment and decree passed by both the lower Courts; therefore, in my humble opinion, suffer from legal infirmity, as A discussed above, and could be not be sustained. The revision applications are; therefore, allowed and the judgment and decree passed by learned Courts below are set aside.