' CH. MUHAMMAD IBRAHIM ZIA, J.--- Through these applications filed under section 12(2) of Civil Procedure Code, the applicants want annulment of the judgment of this Court dated 11.3.2006 and the Courts below. Having involved common question, both applications are proposed to be disposed of through single judgment.
2. The facts necessary for disposal of these applications are that the applicants have alleged that they are legal heirs of Muhammad Alam, deceased. The non-applicants started litigation without impleading the present applicants as party for the purpose to deprive them of precious property.
After protracted litigation, the controversy was resolved by this Court vide judgment dated 11.3.2006, whereby the appeal filed by non-applicants Nos.4, 5 and 6 was dismissed. The applicants filed these applications under section 12(2) of Civil Procedure Code, for setting aside the judgment of this Court as well as Courts below.
3. Ch. Jehandad Khan Advocate, the learned counsel for the applicants, after narrating necessary facts submitted that newly amended section 12 of C.P.C., has been adapted in the Azad Jammu and Kashmir which is fully applicable to the case in hand. Under the statutory provision i.e. Section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, this Court has got jurisdiction to entertain such applications. The statutory provision of Civil Procedure Code i.e. 12(2), clearly provides that if a person wants to challenge the decree, judgment or order, on the basis of fraud or misrepresentation, he will have to approach the Court, which has finally passed such decree, judgment or order, therefore, in the light of peculiar facts of this case, the applications are maintainable and this Court has got jurisdiction to entertain the same. He further submitted that the respondents deliberately, while practicing fraud have deprived the applicants of their legal right by not arraying them as party to the proceedings, therefore, they have got no other efficacious remedy except to file application under section 12(2) of Civil Procedure Code. He also submitted that section 42-A of the Interim Constitution Act, 1974, and the other enabling provisions of Supreme Court Rules, 1978 also empowers this Court to entertain these applications. He submitted that for the ends of justice, while accepting these applications, the judgment and decree passed by this Court may kindly be set-aside and the case be remanded to the trial Court for proceedings afresh according to law. He also placed reliance upon the cases reported as Rang Baz Khan v. Raja Muhammad Azam Khan and others, [1995 SCR 189], Faisalabad Development Authority' and others v. Raja Jehangir Nasir and others, 2004 SCMR 1247, Muhammad Yousaf Siddiqui v. Haji Sharif Khan through L.Rs. And others, [PLD 2005 SC 705] and Mst. Ghausia Hussain awl others v. Mst. Munawar Jahan and others, [PLJ 2007 SC 395], and submitted that the apex Court of Pakistan has also observed that under the provision of section 12, C.P.C., applications are competent.
4. Conversely, Raja Hassan Akhter Advocate, the learned course! For the non-applicants, strongly opposed the applications and raised preliminary objection that the application of Civil Procedure Code has expressly been barred in the proceedings before this Court, therefore, argument of learned counsel for the applicants that the applications under section 12(2), C.P.C. Are competent, is against law and fallacious. He further submitted that the powers vested in this Court under section 42-A of the Interim Constitution Act, are only exercisable in the pending cases. Under the constitutional provision, no independent petition can be entertained for reopening the matter finally disposed off, and the transactions which have become past and closed. He also submitted that the applications have been filed with mala-fide intention only to drag the non-applicants into an unnecessary litigation for ulterior motives. He referred to the cases reported as Khawja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others, [1999 SCMR 1516] and Mubarik Ali v. Fazal Muhammad and another, [PLD 1995 SC '64], in support of his version.
5. We have paid our utmost attention to the respective arguments of the learned counsel for the parties. As both the applications are going to be disposed of purely on legal question of maintainability, thus, it hardly needs discussion on merits and facts of the case, The arguments of learned counsel for the applicants appear to be result of over-sighting of the 'statutory provisions of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Rule 5 of Order I of these rules speaks as under:- "None of the provisions of the Code shall apply to any proceedings in the Court unless expressly made applicable by these Rules."
' The word "Code" has been defined in Rule 2(1) of Order I of Supreme Court Rules, where it is provided that the "Code" means the Code of Civil Procedure, 1908, (Act V of 1908).
Thus, it is clear that the application of C.P.C. Has been expressly barred in relation to any proceedings before this Court. We can safely observe that as the C.P.C. Is not applicable to the proceedings before this Court, therefore, the application under section 12(2), C.P.C. For setting aside the decree or judgment of this Court is not maintainable.
6. Even otherwise, the judgments referred to from the jurisdiction of apex Court of Pakistan are also not helpful to the applicants. In these judgments, the apex Court has enunciated the principle of law that application under section 12(2) of C.P.C., shall be filed in the Court which has passed the final judgment, order or decree.
' The apex Court of Pakistan in the case reported as Mubarik Ali v. Fazal Muhammad and another, [PLD 1995 SC 564], while dealing with the legal proposition and scope of application under section 12(2), C.P.C, has observed as under:- "4. The main question that arises is whether the two orders passed by this Court on 24.1.1987 dismissing the two petitions filed by the appellant seeking special leave to appeal amount to final judgments, decrees or orders, within the meaning of section 12(2), C.P.C. Section 12(2) of the said Code reads as follows:-- "Bar to further suit--- (1) ......................................................................................
(2) Where a person challenges 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."
' What is intended is that a party must go to that Court 'Which has finally decided the matter, if it desires to secure a reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word "final" can mean the last in a series of judgments, decrees or orders which may have been passed. It can also mean that which is no longer further alterable and which has acquired finality. It is in the later sense that the word "final" appears to have been used in section 12(2). A decision can only be treated as final if it is unalterable, except by any of the means provided by the Code of Civil Procedure or by any special procedure applicable to the given case. Thus, a final judgment, decree or order would mean a judgment, decree or order, so far as the Court rendering it is concerned, is unalterable, if it is not sought to be modified, reversed or amended by preferring an appeal, revision or review application. The appellant desires the reversal of the two decrees passed by the High Court in R.S.As. Nos.176 and 177 of 1984. The appellant at one stage did file two petitions to this Court seeking leave to appeal, which he withdrew on 24.1.1987 as he had earlier filed two applications before the High Court on 18.1.1987 for setting aside the two decrees on the ground that they had been obtained by fraud. This Court, by its two orders, dated 24.1.1987, permitted the appellant to withdraw the two petitions for leave and dismissed the same accordingly as withdrawn. These two orders cannot be treated as final disposal of the case. They neither finally decided any matter directly in issue in the case in respect of the rights of the parties, nor did they decide any issue which went to the foundation of the case which could never, whilst the decision stood, be questioned. The test whether the two orders disposed of the proceedings completely before this Court and the cases were never kept alive for being dealt with further, is not met. Rather, the two orders opened up scope for the decrees in the two regular second appeals being challenged before the High Court under section 12(2) of the Code of Civil Procedure. The two orders of this Court passed on 24.1.1987 were therefore, not final judgments, decrees or orders within the meaning of section 12(2) of the Code. Had the appellant not withdrawn the two petitions seeking leave, the answer may have been different. Had leave been granted, the decision in the two appeals would have definitely led to final judgments or decrees. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere, whilst the decisions lasted. It is a different matter whether this Court would take up petitions filed under section 12(2), C.P.C. For disposal, considering that under Rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the Rules. Whether it would act in review under Order XXVI of the Rules, or under Rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case PLD 1982 SC 146 that a party who desires to show that a decision was obtained by fraud, need not do so by separate suit, but may do so by moving the same Court, would depend upon each case separately. However, we are not confronted with this situation and notwithstanding the views expressed, we would leave the matter open."
' The apex Court of Pakistan, in the case reported as Khawala Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas, [1999 SCMR 1516], while dealing with the proposition of competency of application under section 12(2) C.P.C, has laid down the following principle of law:- "11. It may be pointed out that the judgment in the case of Mubarak Ali (supra), quoted hereinabove, does not lay down a broad proposition that simpliciter refusal of leave by the Supreme Court would constitute a final order for the purpose of section 12(2), C.P.C., but it is qualified with the condition "that this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere, whilst the decisions lasted". It was also clarified that this Court has discreption to take up or not to take up petitions filed under section 12(2) C.P.C, for disposal, considering that under Rule 5, Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the rules or whether it would act in review under Order XXVI of the Rules. The above question was also left open. It may also be observed that even otherwise the above observations relied upon by Mr. Gul Zarin Kiani cannot negate what has been clearly held in the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) (supra). In our view, the law enunciated in the above case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid, (supra) reflects the correct legal position. If this Court merely reaffirms a judgment or order of High Court by refusing leave, the final judgment in terms of subsection (2) of section 12, C.P.C. Will be of the High Court and not of the Supreme Court. However, if the Supreme Court, reverses a judgment of a High Court and records finding 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 the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded by the forums provided under the Settlement Law."
In the above referred case, the apex Court of Pakistan also held that the application under section 12(2), C.P.C. Shall be filed in the Court or Tribunal, to which the proceedings of C.P.C. Are applicable.
The observation of the apex Court is in the following words:- "We are in respectful agreement with the view taken in the above judgment. If a person is adversely affected by an order or judgment of a Court or Tribunal rendered in a proceeding to which he is not a party and to which proceeding C.P.C. Is applicable, he can file an application under section 12(2), C.P.C. For the reason that the word "person" and not judgment debtor or his successor-in-interest or the words party to the suit, have been used as highlighted in the above report."
' The same view has also been once again reiterated in the case reported as Faisalabad Development Authority v. Raja Jahangir Nasir and others, [2004 SCMR 1247]. In view of the laid, down principle of law in the referred judgments, we hardly deem any necessity to discuss the other case-law referred by the learned counsel for the parties.
7. According to the tier of appellate forums, hardly in rare cases, eventuality may arise in which final decree is passed by this final appellate Court. There is also a lot of difference between the jurisdiction vested in apex Court of Pakistan and this Court. Under Article 184 of the Constitution of Islamic Republic of Pakistan, 1973, the apex Court of Pakistan, is vested with the original jurisdiction of enforcement fundamental rights relating to the matters of public importance whereas no such jurisdiction is conferred upon this Court under the Azad Jammu and Kashmir Interim Constitution Act, 1974. Thus, an application under section 12(2), C.P.C. Is competent only before the Court which passed C the final decree and judgment, and not before this Court which have affirmed the judgments and decrees of subordinate Courts.
8. In this case, appeals have been dismissed while upholding the judgments and decrees of the Courts below thus, the principle of law enunciated by the apex Court of Pakistan in the peculiar facts of this case is not applicable, therefore, these applications are not maintainable. The same should have been filed before the Court which passed the final judgment and decree.
9. The contention of the learned counsel for the applicants that these applications are otherwise maintainable under section 42-A of the Interim Constitution Act, 1974, read with other enabling provisions of the Supreme Court Rules, 1978, appears to be misconceived. This Court has already in a recent judgment, after detailed deliberation of survey of law held that these powers are only exercisable in the pending cases and not independently for entertaining the applications to reopen the final settled cases or call into question the past and closed transactions. In this regard suffice to refer the case reported as Khawar Abbas Sikander v. State through Advocate General Mirpur (AJ&K), 2012 PCr.LJ 1650 wherein it has been observed as following:- "The Pakistan Supreme Court has followed this principle in a case reported as PLD 2005 SC 842. The above reports leave no room for any other interpretation in relation to exercise the powers enumerated in Section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, that such powers can only be exercised in the case or matter pending and which is brought competently before the Court. Therefore, after final determination of matter by this Court in an appeal or review, no independent application for rehearing or review of such past and closed case is entertainable."
Thus, finding no force, these applications, being incompetently IF filed, stand dismissed with costs.