MUHAMMAD AMIR MALIK, J.-A to Major Nasim Ahmad, respondent/plaintiff, on 31.7.1982 by a Civil Judge, Lahore, was maintained in appeal preferred by Habib Bank Ltd., the petitioner/ defendant by learned Addl. Distt. Judge, Lahore, on 4.1.1983. Civil Revision against the same (C.R. No. 115/1983) on behalf of the Bank was dismissed in limine by the High Court on 18.1.1983.
2. On this, application under Section l2 (2) C.P.C, was moved by the Bank in the Court of learned Civil Judge on 3.9.1983. It was withdrawn on 4.1.1986 in view of Muhammad Yaqoob Vs. Mst. Nooran reported as 1983 C.L.C. 1948. In this case the plaintiff's suit had been decreed by the trial Court. Defendant's both first and Regular Second Appeals were dismissed and so was the petition for Special Leave to Appeal by the Supreme Court.
It was concluded by a learned Single Judge of this Court that the application under Section l2 (2)
C.P.C, was not competent before the Civil Judge and could only be filed in the Supreme Court. This very principle was reiterated in Mrs. Rakha Rafiq Chaudhry and another Vs. Major Malik Muhammad Ishaq and 7 others (1986 C.L.C. 1211) with the further observation that the trial Court's judgment, decree or order merges into the judgment, decree or order of the Appellate Court which is to be treated as final. The principle of merger came up for consideration in Muhammad Iqbal Khan Vs. Musa Khan and three others (1992 C.L.C. 400) before a Division Bench of the Peshawar High Court.
The case reported as A.I.R. 1932 Pat. 238 was followed. This report from the Indian jurisdiction lays down the law that in case of appeal, summarily dismissed, application for rectification of decree would lie before the Lower Court and not the Appellate Court as it is only after hearing the parties that the Appellate Court affirms, varies, or reverses the decree appealed from and only in that eventuality the decree of the Lower Court merges into the decree of the Appellate Court. Thus to attract the merger of the relevant decision in appeal or revision, the appeal or revision must have been decided on merits and after notice to the opposite party with opportunity of hearing. In Mian Akhtar Islam Vs. Ch. Zulfiqar Ali and another (PLD 1965 Lah. 394) though the question of merger was not directly in point, the point in issue was that of res-judicata under Section 11 C.P.C, but the observation is very relevant that where a revision petition is dismissed in limine, it could not be said that the question had been "heard and finally decided."
3. To appreciate the principle and the distinction made by the Peshawar High Court, provisions of Section 12(2) C.P.C, may be reproduced with advantage.
It reads:- "12(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."
To attract the application of the provision of Sub-Section (2) of Section l2, it is only the Court passing the final judgment, decree or order in which application under Section 12(2) C.P.C, is to be filed. The question seems to be settled by the Supreme Court as reported in Secretary, Ministry of Religious Affairs and Minorities and 2 others Vs. Syed Abdul Majid (1993 SCMR 1171). In this case a constitutional petition in the High Court succeeded, the same was challenged in a petition for leave to appeal in the Supreme Court and the same was dismissed as time barred. Thereafter application under Section 12(2) C.P.C, claiming that the High Court had no jurisdiction was filed in the High Court and it was finally concluded by the Supreme Court that the provisions of the Code of Civil Procedure including Section 12(2) applied to constitutional petitions as well and that the Supreme Court having declined the petition for leave to appeal, the final judgment/order would be that of the High Court and the application under Section 12(2) would be competent in the High Court and not the Supreme Court.
4. Appreciating all the reported cases on the subject, the principle of merger can be well stated as under: The decree of the subordinate Court merges into that of the appellate Court and that of the Appellate Court in that of the Court of revisional jurisdiction. The application under Section 12(2)
C.P.C., therefore, lies to the Court which passes the Final judgment, decree or order, however, with the distinction that the matter should have been heard and finally decided on merits after notice to the other party.
5. The upshot is that in the present case, the final decree being that of the Addl. District Judge (dated 4.1.1987) and Civil Revision No. 115 of 1983 having been dismissed in limine by the High Court, the application under Section 12(2) would lie to the Court of Addl. Distt. Judge, Lahore. The application presented in this Court is, therefore, returned to the petitioner to be filed in the Court of learned Addl. District Judge, if so desired.