MUHAMMAD YOUSUF through Legal Heirs and others vs NOOR DIN and others

QAZI MUHAMMAD FAROOQ, J.---The petitioners seek leave to appeal against the judgment of a learned Judge in Chambers of the Lahore High Court dated 13-4-1999 whereby their application under section 12(2) of the Code of Civil Procedure was not entertained and decided on merits on the ground of lack of jurisdiction.

2. The prayer made in the application was to the effect that the decree obtained by the respondent in respect of the inheritance of one Wassan, upheld up to this Court, being the outcome of misrepresentation may be set aside and as a corollary thereto the suit be dismissed.

3. The application was filed in the High Court in view of the observations made in Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCM R 1171 that an application under section 12(2), C.P.C. Is to be filed in the Court which passed the final order.

However, it was disposed of, on the strength of the law laid down in Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 that an application under section 12(2), C.P.C. Will be competent before the Supreme Court against the final order, with the following observations:-- "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."

4. The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCM R 1516 that if the Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of section 12(2), C.P.C. Will be of the High Court and not of the Supreme Court and if the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purpose of section 12(2), C.P.C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others 2000 SCM R 900.

5. Adverting to the case in hand we find that by dismissing the petition for leave to appeal this Court had affirmed and not reversed the judgment of the Lahore High Court. The final judgment in terms of section 12(2), C.P.C. Is, therefore, of the High Court and as such there can be no dispute with the proposition that jurisdiction to entertain and decide the application under section 12(2), C.P.C. Moved by the petitioners vests exclusively in the Lahore High Court.

6. The petition is barred by one day. The delay is, however, condoned on account of plausibility of the explanation made in the application for condonation of delay.

7. Accordingly, this petition for leave to appeal is converted into appeal and by allowing the same the impugned judgment is set aside. The case is remanded to the Lahore High Court for decision on merits.