' SAIDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the order of a learned Division Bench of Balochistan High Court dated 11-7-1996 whereby two Constitution Petitions Nos.188 and 189 of 1996 filed by the petitioners were dismissed.
2. The facts relevant for the disposal of the petitions are as follows. The petitioners instituted Civil Suit No,84/1989 against one Habibullah son of Mirza Khan, Malik Sher Muhammad and Tehsildar, Quetta. Seeking declaration of title and permanent injunction against the defendants in suit, in respect of land measuring 26 rods 39 pols, situated in Khasra No,260 Kahtooni No,3463 Mouza Chushma Belleli, Tehsil and District Quetta hereinafter to be referred as 'the suit land'. The trial Court decreed the suit ex pane in favour of petitioners on 17-3-1992 and appeal against the ex parte decree was dismissed as barred by time by an Additional District Judge, Quetta, on 20-8-1992. Civil Revision Application against the judgment of Appellate Court filed before the High Court of Balochistan met the same fate and finally the petition for leave to appeal before this Court against the order of High Court too failed when leave was refused on 3-7-1994.
3. The respondents, who were not party to the suit in or about June 1993, filed two separate applications under section 12(2), C.P.C. Before the trial Court for recalling the ex parte judgment and decree dated 17-3-1992 on the ground that the same was obtained by fraud and misrepresentation. The trial Court dismissed the applications holding that he had no jurisdiction in the matter as the judgment was challenged up to Supreme Court without success by the parties to the suit.
4. The respondents challenged the order of trial Court declining ' to entertain their application under section 12(2), C.P.C. In a Civil Revision Application before District Judge (Ad hoc), Quetta, who by his order dated 5-6-1996 allowed the same and directed the trial Court to proceed with the two applications of respondents under section 12(2), C.P.C. In accordance with the law. The petitioners challenged the order of District Judge (Ad hoc), Quetta, in C.Ps. 188 and 189 of 1996 which have been dismissed by a learned Division Bench of the High Court of Balochistan through the impugned judgment giving rise to the present proceedings.
5. Mr. Basharatullah, the learned ASC for the petitioners contends that the matter having been concluded finally by the order of this Court dated 3-7-1994 refusing leave to appeal, the application under section 12(2), C.P.C. Could either be filed before this Court or the High Court of Balochistan, which had dealt with the case in its revisional jurisdiction. The trial Court, according to learned counsel, in these circumstances, had no jurisdiction to entertain the application under section 12(2), C.P.C. In support of his contention, the learned counsel relied on the following observations of this Court in the case of Mubarik Ali v. Fazal Muhammad PLD 1995 SC 564:--- "What is intended 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 latter 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 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."
6. The grant of leave is opposed by Mr. Shakeel Ahmed, ASC, for respondents 1 to 14. After hearing the learned counsel for the parties, we are of the view that the contention of the petitioners require further examination and we, accordingly, grant leave to appeal to consider the same. .