ABDUL LATIF KHAN, J:- Through instant petition, the petitioners have challenged the order and judgment dated 2.6.2012, passed by learned Additional District Judge-XIII, Peshawar/respondent No.9, whereby revision petition of respondent No.1 was allowed and application of petitioners u/s 12(2) CPC was dismissed.
Arguments heard and record perused.
2. A perusal of record reveals that the petitioner filed an application u/s 12(2) CPC on 8.11.2008 whereby a decree granted on 23.5.2002, in favour of respondent No.1 against respondents No.2 & 3, by learned Family Judge, Peshawar in case No.192/FC has been questioned on the ground of misrepresentation and lack of jurisdiction. During the course of proceedings an application for taking appropriate action against one Munir Butt Attorney of the petitioner was moved by respondent No.3, which was decided on 8.4.2010 by learned Senior Civil Judge, Peshawar on the ground that application is premature and it can be dealt with after conclusion of evidence of the parties. Two Civil Petitions bearing No.10/CR dated 30.4.2010 and 17/CR dated 24.5.2010 were filed against the order dated 8.4.2010, by respondents No.1 and 3 & others respectively. The revisional Court accepted the civil revision filed by respondent No.1 Mst.Saima Tabassum Decree holder and dismissed the application u/s 12(2) CPC moved by petitioner vide impugned judgment dated 2.6.2012, whereas revision petition filed by petitioner was withdrawn by the petitioner. The petitioners in essence, are aggrieved from the impugned order passed in CR No.10 filed by respondent No.1 as the instant petition has been filed only to this effect. The Family Judge has passed partial decree in suit No.192/FC of 2001 in favour of respondent No.1/ wife against respondent No.2/husband and others on 23.5.2002. The petitioners who happen to be the sisters of respondent/husband moved application No.21/6 u/s 12(2) CPC. The original decree was affirmed upto this Court in WP No.1633/2005 decided on 31.1.2006, whereby the concurrent findings of Courts below were upheld against which Civil Petition No.215-P/2006 was filed before the apex Court wherein leave was refused on 26.6.2006 and as such the judgment attained finality.
3. We would refrain from commenting upon the merits of the case as the maintainability of application u/s 12(2) CPC & forum has to be determined first in the instant case. The application has to be filed before the forum which passed the final decree. Admittedly the decree passed by Judge, Family Court was affirmed upto this Court and leave was refused by the apex Court. It is pertinent to mention that the august Supreme Court has refused leave and has not recorded any findings on the question of fact and law contrary to that held by this Court and in such eventuality the final judgment or order would be of this Court and not the Supreme Court. The applicants have wrongly filed the application before the trial Court as it was not maintainable and the proper forum for filing such application was that Court who passed the final decree as the decree of lower forum merge into the decree of higher forum which for all practical purposes was decree in field and cannot be questioned before the original forum and application could only be initiated before Court, which passed the final judgment as the original/ lower forum ceased to have jurisdiction to re-examine the matter already decided by higher forum on question of law of facts by agreeing with the lower forum with endorsement of reasons. Wisdom can be derived from Nasrullah Khan's case reported in PLD 2013 SC 478.
4. It is also pertinent to mention that in case where decree/ order has been realized or reversed by any of appeal or revisional Court, its decree/order shall be taken as final, for the purpose of filing application u/s 12(2) CPC and would be proper forum, as it altered the judgment. Reliance in this regard can also be made on Muhammad Aslam's case reported in 2012 SCM R 147.
5. For the aforesaid reasons, we did not find any merit in the instant petition however the Courts below have erred in law by treating the application u/s 12(2) CPC as maintainable and the revisional Court has decided the lis on merit which is against the mandate of law and as such the findings arrived at are set aside, instant petition being devoid of merit is hereby dismissed and application u/s 12(2) CPC by the petitioners before trial Court/ Senior Civil Judge, being not maintainable is hereby dismissed in above terms.