' This application, by Bagga/applicant I-A and six others, under section 12(2) of Code of Civil Procedure, seeks grant of following reliefs: "Under the circumstances, it is humbly prayed that the application of the petitioners/applicants may kindly be accepted and the decree obtained by the respondents in respect of inheritance of Wassan may be withdrawn and suit of the plaintiffs/respondents may graciously be dismissed with costs throughout."
2. A few facts, relevant for the disposal of this application, are these. The dispute, in this application relates to agricultural land left behind by one Wassan. He died on 15-3-1918/leaving behind a widow, a daughter and five brothers namely Sultan, Pehlwan, Burhan, Nathoo and Kala. On his demise, the property in dispute was mutated in the name of his widow Mst. Bakhtawar as limited owner according to the custom. Mst. Bakhtawar died on 28-9-1961 and Revenue Authorities attested mutation of inheritance giving I/8th share in property to the heirs of Mst. Bakhtawar, 1/2 share to heirs of Mst. Saran who was the daughter of Wassan, remaining 3/8th share was given to successor of Kala, the brother of deceased. Feeling aggrieved, the legal heirs of Nathoo and Sultan brought a suit seeking declaration of title contending that Sultan and Nathoo were alive at the time of death of Wassan and so they, as their legal heirs, were entitled to inherit the land in dispute to the exclusion of Kala. The suit was contested.' The trial Court found that Nathoo had predeceased Wassan while Sultan was alive at the time of his death. Resultantly, a decree was passed favour of successor-in-interest of Sultan but was dismissed with respect to claim of. Successor of Nathoo.
This decree of the Court was affirmed by the Appellate Court on 11-1-1993. Feeling aggrieved, Baft a and others/applicants herein also filed Civil Petition No,93 of 1993 in supreme Court which too was dismissed on . Merits in following. Terms:- "The above finding by the learned Judge in Charioteers is neither based on misreading of record before him nor it is contrary to the admitted documents on record. The learned counsel attempted to argue before us that according to some other documents obtained by him now, the date of death of Sultan was different. It is, however, conceded by the learned counsel for the petitioners that this document was not produced either before the trial Court or before the 1st or 2nd Appellate Court. h is also admitted by the learned counsel. For the petitioners that this document was not produced either before the trial Court or before the 1st, or 2nd Appellate Court-. It is also admitted by the learned counsel for the petitioners that the respondents' witnesses were not at all confronted with regard to date of death of Sultan which is mentioned in the said certificate, which is now sought to be produced by the petitioners in this regard for the first time. The petitioners cannot be allowed to build case in this Court for the first time on the basis of document which was neither produced nor considered by three Courts below. There is no merit in this petition, which is accordingly, dismissed and leave is refused."
' This happened on 20-10-1993.
3. Still dissatisfied, Bagga and others had moved the instant application. It is contended that from the documents obtained by them now, it was clear that the date of death of Sultan was different; that the other side had obtained the decision of First Court, First Appellate Court, Second Appellate Court and the Supreme Court by practising fraud. The learned counsel relied. Upon Secretary, Ministry of Religious Affairs and Minorities v. Syed Abdul Majid (1993 SCM R 1171) to contend that in this case the final decision was rendered by the High Court as . Leave to appeal had been refused by the apex Court. The learned counsel for other side, however, barked upon Mubarik Ali v. Fazal Muhammad (PLD 1995 SC 564) to argue that the leave to appeal had been refused on merits and after dealing with the contention raised by applicants, that the same objections were being re- agitated before this Court. On the strength of the above circumstances, it was suggested that this Court had no jurisdiction to entertain and decide the C.M. In hand.
4. The only point, falling to consideration, in the application in hand is whether in the facts and circumstances of the case, this Court has jurisdiction under section 12(2) of Civil Procedure Code, to entertain and decide. In this regard two cases are pertinent: Secretary, Ministry of Religious Affairs and Minorities v. Syed Abdul Majid (1993 SCM R 1171) and Mubarik Ali v. Fazal Muhammad (PLD 1995 SC 564). In the first case, a plot of land No,781-Deh Talmo Tapo, Malir Karachi, according to the petitioners, belonged to the Evacuee Trust, Dehdar Bahi Pragji and was not liable to be transferred by Settlement Authorities. The said plot was purchased by one Abdul Rashid from Settlement Authorities in open auction and P.T.O. And P.T.D. Were issued in his favour. The said transferee sold it to Mst. Khair-un-Nisa who in turn sold the same to Sajjad Hussain who ultimately sold it to the respondents. In April, 1983, an application was moved to Chairman Evacuee Trust Property Board, Lahore by Deputy Administrator, Evacuee Trust Property, Karachi under sections 8 and 10(2) of Evacuee Trust Property Management and Disposal Act, 1975. It was prayed therein that P.T.D. And P.T.O., in favour of Abdul Rashid be cancelled and the plot be resumed. The Chairman Evacuee Trust Board accepted the aforesaid application. Feeling aggrieved, Syed Abdul Majid/respondent filed writ petition which was allowed by the High Court. Against this decision the Evacuee Trust Board filed a Civil Petition bearing No,150-K of 1985 which was dismissed as barred by time.
Thereafter, the petitioner filed an application to High Court under section 12(2) of C.P.C. This application was dismissed by the High Court on the premises that under M.L.R. No,57, High Court had no jurisdiction to interfere in the matter. Feeling dissatisfied, leave.To petition was filed which was admitted to regular hearing and so Civil Appeal No,522-K of 1990 was allowed by Apex Court in following terms: "Keeping these broad principles in view, the cases in which evacuee trust properties have been restored to the Board under M.L.R. 57 and have been challenged in the High Court have to be decided. Considering the facts and circumstances as discussed above, we set aside the impugned order of the learned Judges of the Division Bench and remand the case to the High court for decision on merits. We are conscious of the fact that the question of jurisdiction may arise and if the High Court comes to the conclusion that for any reason order under M.L.R. 57 has to be Maintained, it will ultimately result in disposal of the property again.
' At this' stage the learned counsel for the appellants stated that if the respondent is prepared to pay the present market price of the land the same may be transferred to him. It is a fair and bold concession made by the learned counsel for the appellants which we expect to be followed by all the learned counsel for the appellants which we expect to be followed by all the learned Advocates while discharging their duties in Court. Such attitude would help in determining the case in a realistic manner in the shortest possible time. Reference can be made to M/s. Punjab .Engineering Co. v. Muhammad Yaqoob (PLD 1991 SC 799). We, therefore, allow the appeal and remand the case to the High Court to decide it on merits. If the transfer is found to be hit by M.L.R.
57. Then the transferors in occupation may be allowed to retain lease-hold rights and possession, provided they pay the present market price of the land as determined by the High Court.
' From the above, it follows that Supreme Court held that as the petition for leave to appeal had been refused on question of limitation and not on merit, the decision rendered by the High Court was final within the terms of section 12(2), C.P.C.
5. Now I come to Mubarik Ali's case (PLD 1995 SC 564). In this case, two separate applications were filed by the appellant under section 12(2), C.P.C., before the Lahore High Court, Lahore for the -mail of its decisions in R.S.As.Nos.176 and 177 of 1984, both dated 27-3-1985, on the ground that they had been secured by fraud practised by the respondents. It was pleased that the power of attorney given by him authorized the attorney to deal with his property covering only 65 P.I. Unites, .But when he obtained a certified copy of the same he-found that 658 P.I. Units had been recorded therein.
His case was that the figure '8' had been added after figures "65" and that this manipulation came to light after the regular second appeals were decided. Since the appellant had preferred two petitions for leave to appeal against the decisions passed in the second, appeals before the Supreme Court, which were, withdrawn on 24-1-1987, the learned Single Judge of High Court returned the said applications to appellant for filing the same before the Supreme Court as he felt that Court had last dealt with the matter and, therefore, the jurisdiction to deal with such applications lay with -it. Being aggrieved by the said two decisions lay with it. Being aggrieved by the said two orders, the appellants petitioned this Court for leave to appeal, which leave was granted to consider the question whether in view of the fact that the petitions for leave to appeal were not pressed, it could still be said that the final judgments in the two suits had been passed by this Court.
' The Supreme Court dealt with the contentions of the parties and proceeded to explain the meaning/scope of expression ' final judgment' and "the Court which finally decides the matter in following terms:--- "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 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 of 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, with 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 Linder 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."
6. (i) The ratio deducible from the above, is that when a party intends to secure a reversal of any judgment, decree or order of any Court on the grounds of fraud, misrepresentation, or lack of jurisdiction, it is to approach the Court which renders final judgment, decree or order.
(ii) The word "Final" means in the series of judgment, decree or order which is no longer alterable by the Court passing the said judgment, decree or order, The question as to which is that Court, shall depend upon the facts and circumstances of the case. For example, if the Supreme Court dismisses leave to appeal on mere technical ground and without touching the merits of the case, it will not be a final judgment but if leave is refused and the Court renders the decision on merits after assessing the merits and demerits of the case, then that judgment of apex Court, on the basis of doctrine of merger, will be final judgment. This rule also applies to this Court and sub-ordinate Court.
(iii) In Secretary, Ministry of Religious Affairs and Minorities v. Syed Abdul Majid (1993 SCM R 1171), the leave to petition was dismissed on the ground of limitation and merits of the case were not examined. In the above context,' the apex Court held that in that case the decision of High Court was a final judgment under section 12(2), C.P.C.
7. Applying the above rules to the facts and circumstances of the case in hand it is manifest that the suit was decreed in favour of successor-in-interest of Sultan but was dismissed with regard to claim of successor in-interest of Nathoo; this decision was affirmed by First Appellate Court as well as by this Court on 11-1-1993; that Supreme Court dismissed Civil Petition No,93 of 1993 on merits and upheld the decisions of the Court below. In view of the above scenario, it is quite clear that the final decision rendered by this Court was/is that of apex Court, dated 20-10-1993. In view of the above, this Court has no jurisdiction to entertain and decide the application in hand.