12(2) CPC SC 2026

 

THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction) 

 

 

 

PRESENT:

Mr. JUSTICE NAEEM AKHTER AFGHAN

Mr. JUSTICE SHAHID BILAL HASSAN

 

 

C.P.L.A.3303/2024, C.P.L.A.3305/2024, C.P.L.A.3306/2024,

C.P.L.A.1239-L/2024, C.P.L.A.3562/2024, C.P.L.A.3770/2024, C.P.L.A.3993/2024, C.M.Appeal.102/2024 IN C.M.A.NIL/2024, C.M.Appeal.103/2024 IN C.M.A.NIL/2024, C.M.Appeal.104/2024 IN C.M.A.NIL/2024, C.M.Appeal.105/2024 IN C.M.A.NIL/2024, C.M.Appeal.106/2024 IN C.M.A.NIL/2024, C.P.L.A.1466-L/2024,

C.M.Appeal.13/2025 IN C.M.A.NIL/2025 IN C.P.L.A.907/2018,

C.M.Appeal.29/2025 IN C.M.A.NIL/2024 IN C.P.L.A.907/2018,

C.P.L.A.3841/2024, C.M.Appeal.3/2026 IN C.M.A.NIL/2026 IN

C.P.L.A.907/2018 AND C.M.Appeal.4/2026 IN C.M.A.NIL/2026 IN

C.P.L.A.907/2018

 

(Civil Petitions for Leave to Appeal against the judgment dated 15.05.2024 passed by the Lahore High Court, Bahawalpur Bench, in C.M. No.11C/2022 in C.R. No.457/D/2010)

&

(Civil Miscellaneous Appeals against the Order dated 07.01.2025 passed by the Registrar, Supreme Court of Pakistan, Islamabad.)

 

 

C.P.L.A.3303/2024	Ghulam Muhammad (deceased) through is Legal heirs and others v. Mian Ahmed Bakhsh (deceased) through legal heirs and others
C.P.L.A.3305/2024	Riaz Ahmad deceased through legal heirs and others v. Mian Ahmad Bakhsh deceased through his legal heirs and others
C.P.L.A.3306/2024	Zaib un Nisa Ishfaq and another v. Mian Ahmad Bakhsh deceased through his legal heirs and others
C.P.L.A.1239-L/2024	Malik Abdul Karim (deceased) v. Mian Ahmed Bakhsh (deceased) through his L.Rs. & others
C.P.L.A.3562/2024	Muhammad Saleem and others v. Mian Ahmed Bakhsh (deceased) through legal heirs and others
C.P.L.A.3770/2024	Muhammad Abdul Ghaffar and others v. Mian Aman Ullah and others
C.P.L.A.3993/2024	Muhammad Sadique and others v. Mian Aman Ullah and others
C.M.Appeal.102/2024 IN C.M.A.NIL/2024	Muhammad Saleem and others v. Mian Ahmed Bakhsh (decd) thr. LRs & others
C.M.Appeal.103/2024 IN C.M.A.NIL/2024	Muhammad Saleem and others v. Mian Ahmed Bakhsh (decd) thr. LRs & others
C.M.Appeal.104/2024 IN C.M.A.NIL/2024	Muhammad Abdul Ghaffar and others v. Registrar Supreme Court of Pakistan, Islamabad & others
C.M.Appeal.105/2024 IN C.M.A.NIL/2024	Muhammad Akhtar & others v. Registrar Supreme Court of Pakistan, Islamabad
C.M.Appeal.106/2024 IN C.M.A.NIL/2024	Ghulam Muhammad (deceased) through his LRs & others v. Registrar Supreme Court of Pakistan, Islamabad
C.P.L.A.1466-L/2024	Mazhar Elahi v. Mian Ahmad Bakhsh (deceased) through his L.Rs. etc.
C.M.Appeal.13/2025 IN C.M.A.NIL/2025 IN C.P.L.A.907/2018	Muhammad Sadique and others v. Mian Ahmed Bakhsh (decd) thr. LRs & others
C.M.Appeal.29/2025 IN C.M.A.NIL/2024 IN C.P.L.A.907/2018	Mian Aman Ullah & others v. Mian Ahmed Bakhsh (decd) thr. LRs & others
C.P.L.A.3841/2024	Muhammad Akhtar and others v. Mian Aman Ullah and others
C.M.Appeal.3/2026 IN C.M.A.NIL/2026 IN C.P.L.A.907/2018	Muhammad Shahzad and others v. The Registrar Supreme Court of Pakistan, Islamabad
C.M.Appeal.4/2026 IN C.M.A.NIL/2026 IN C.P.L.A.907/2018	Mst. Noor Khatoon and others v. The Registrar Supreme Court of Pakistan, Islamabad

  

 

For the Petitioner(s)	: Mr. Aslam Khan Dhukkar, ASC Mr. Iqbal Ahmed Khan Dhengal, ASC. Mr. Amir Aqeel Ansari, ASC. Mr. Jehangir Wains, ASC. Mr. Malik Muhammad Hafeez, ASC. Mr. Aslam Khan, ASC. Mr. Pir Masood Chishti, ASC.
For the Respondent(s)	: Mr. Ashraf Jalal, ASC. Mr. Riaz Ahmed, ASC. Mr. Mian Naseer Ahmed, ASC. Irfan, Ajmal Abbasi, Shoaib, Nazam, Adnan, Muhammad Ajmal (In Person)
Date of Hearing	: 16.07      .2026

 

J U D G E M E N T

SHAHID BILAL HASSAN, J- Through this common judgment, we propose to decide two sets of connected matters arising out of a common controversy.

·     The first set comprises Civil Petitions for Leave to Appeal filed against the judgment dated 15.05.2024 passed by the learned Lahore High Court, Bahawalpur Bench, whereby various applications instituted under Section 12(2) of the Code of Civil Procedure, 1908 ("CPC") were held to be not maintainable before the High Court for want of jurisdiction. 

·     The second set comprises Civil Miscellaneous Appeals preferred against the administrative orders of the Registrar of this Court whereby the applications filed under Section 12(2), CPC seeking recall of this Court's order dated 23.01.2023, passed in Civil Petition Nos.907 and 965 of 2018, were returned as not entertainable before this Court. As both sets of matters raise an identical question regarding the proper forum competent to entertain proceedings under Section 12(2), CPC in the circumstances of the present case, they are being disposed of through this single judgment.

2.          The instant controversy has its genesis in a civil suit concerning the validity of Mutation No.60.

·     The suit was dismissed by the learned Trial Court, which upheld the validity of the mutation. * *

·     Upon appeal, the learned Appellate Court reversed the judgment of the Trial Court and declared the mutation to be void and without legal effect.

·     The judgment of the Appellate Court was thereafter affirmed by the learned Lahore High Court in exercise of its revisional jurisdiction through judgment dated 18.01.2018 passed in Civil Revision No.457-D of 2010.

3.          Aggrieved by the judgment dated 18.01.2018 passed by the learned High Court, the parties to the original litigation preferred Civil Petition Nos.907 and 965 of 2018 before this Court seeking leave to appeal. The said petitions were disposed of vide leave-refusing order dated

23.01.2023, the operative portion whereof reads as under:

“We have heard the learned counsel for the petitioners and gone through the record. We have carefully examined the judgments of the appellate Court as well as the High Court which are assailed in these petitions. On hearing the learned counsel for the parties and going through the entire record, We find that the judgments of the appellate Court and the High Court are well reasoned, based upon the evidence and record conclusions with which, we have found ourselves in agreement. We do not find any reason, basis or justification to take a view different from the one taken by the High Court.

Consequently, we do not find any merit in these petitions. The same are accordingly dismissed. Leave to appeal is refused."

4. Review Petitions bearing C.R.P. Nos.384 and 385 of 2023, filed against the aforesaid order, were likewise dismissed vide order dated

22.11.2023, which reads as follows:

"We have heard the learned counsel for the petitioners and gone through the judgments sought to be reviewed as well as the judgment of the High Court. No ground for review is made out. Both review petitions are dismissed.”

Thereafter, the present applicants, who assert an independent interest in the suit property but were admittedly not impleaded as parties to the suit, appeal, revision or the proceedings before this Court,

·     instituted separate applications under Section 12(2), CPC before the learned High Court seeking recall of the revisional judgment dated 18.01.2018 principally on the ground

·     that the judgment had been rendered without their impleadment despite their alleged interest in the property.

·     The learned High Court, by the impugned judgment dated 15.05.2024, declined to entertain the applications, holding that in view of the reasoned order of this Court refusing leave to appeal on 23.01.2023, the applications, if any, lay before this Court and not before the High Court.

5.          Pursuant to the said view, certain applicants invoked the jurisdiction of this Court by filing applications under Section 12(2), CPC seeking recall of the order dated 23.01.2023.

·     However, the Registrar, by communications dated 07.01.2025, returned those applications as not entertainable before this Court with reference to the dictum laid down in Sahabzadi Maharunnisa v. Mst. Ghulam Sughran (PLD 2016 SC 358).

·     Consequently, the applicants have challenged the High Court's judgment through Civil Petitions for Leave to Appeal, while the applicants whose proceedings were returned by the Registrar have preferred Civil Miscellaneous Appeals against the Registrar's orders. Since both sets of matters give rise to the common question as to the forum competent to entertain the applications under Section 12(2), CPC, they are being decided together.

6.           

·     The short but important question arising in these connected matters is

·     whether, after this Court has declined leave to appeal against a judgment of the High Court, an application under Section 12(2) of the CPC, seeking recall of the High Court's judgment, lies before the High Court or this Court?

·     Resolution of this controversy necessarily requires an examination of

·     the statutory scheme of Section 12(2), CPC,

·     the doctrine of merger and

·     the jurisprudence developed by this Court on the subject over the past three decades.

7.          Section 12(2), CPC empowers "the Court which passed the judgment, decree or order" to recall the same where it is alleged to have been obtained by fraud, misrepresentation or want of jurisdiction. The expression "the Court which passed the judgment, decree or order" has repeatedly engaged the attention of this Court where proceedings before the High Court have culminated in a petition for leave to appeal before this Court.

·     The consistent endeavour of this Court has been to identify which forum has rendered the operative and final adjudication for the purposes of Section 12(2), CPC.

8.          The language employed by Section 12(2), CPC itself furnishes an important indication. The jurisdiction is conferred upon "the Court which passed the judgment, decree or order."

·     The emphasis is thus upon the court whose adjudication is sought to be impeached on the grounds enumerated therein. The provision does not contemplate that the mere refusal of leave by a superior court, without substitution or reversal of the impugned adjudication, would by itself alter the identity of

·      the court competent to entertain proceedings under Section 12(2), CPC. Whether such consequence follows in a given case is, therefore, a matter governed by the doctrine of merger as developed through judicial precedent rather than by the bare fact that further proceedings were carried to a superior forum.

9.          The first authoritative pronouncement directly dealing with the question is Secretary, Ministry of Religious Affairs and Minorities v. Syed Abdul Majid (1993 SCMR 1171). In that case,

* a constitutional petition had been decided by the High Court and the

• subsequent petition for leave to appeal was dismissed by this Court.

•¶√Thereafter, an application under Section 12(2), CPC was instituted before the High Court.

• Repelling the objection regarding jurisdiction, this Court unequivocally held:

"In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad (PLD 1991 SC 197), such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and, therefore, the application filed by the appellants there was competent."

This judgment clearly established that where this Court merely refuses leave against a judgment of the High Court, the final order for purposes of Section 12(2), CPC continues to be that of the High Court.

10.       The same matter again came before this Court in Khawaja Muhammad Yousaf v. Federation of Pakistan (1999 SCMR 1516). The argument advanced therein was that once this Court had declined leave, the order of this Court became the final order for purposes of Section 12(2), CPC. After considering the earlier authorities, including Mubarak Ali and Syed Abdul Majid, this Court expressly preferred the latter view and held:

"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 a 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 a 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..."

This exposition drew a clear distinction between affirmance by refusal of leave and exercise of appellate jurisdiction resulting in reversal or substitution of findings.

11.       The same principle was reiterated in Abid Kamal v. Muddassar Mustafa (2000 SCMR 900). While permitting withdrawal of proceedings instituted before this Court under Section 12(2), CPC, it was reaffirmed that where leave has merely been refused, the competent forum remains the Court which finally decided the matter before refusal of leave. It observed:

"In both the cases i.e. 1993 SCMR 1171 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of section 12(2), C.P.C. will be of the High Court and not of the Supreme Court..."

12.       The above principle attained further affirmation in Muhammad Yousuf through Legal Heirs v. Noor Din (PLD 2002 SC 391), wherein, after applying the settled rule to the facts before it, the Court held:

"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."

The expression "vests exclusively in the Lahore High Court" leaves no room for ambiguity. Until that stage, the jurisprudence of this Court consistently recognized that refusal of leave did not divest the High Court of jurisdiction under Section 12(2), CPC.

13.       We are also mindful that the matter is now governed by the later decisions of this Court in Nasrullah Khan v. Mukhtar-ul-Hassan (PLD 2013 SC 478) and Sahabzadi Maharunnisa (supra). It was argued that since this Court, while declining leave to appeal, recorded reasons affirming the judgments of the Courts below, the applications under Section 12(2), CPC could only be maintained before this Court. The learned High Court accepted the said contention and held that it lacked jurisdiction to entertain the applications. The correctness of this approach falls for our examination.

14.       There can be little cavil with the proposition that the doctrine of merger is a well-established principle of our jurisprudence. As explained in Nasrullah Khan (supra) and elaborately reaffirmed in Sahabzadi Maharunnisa (supra),

·     where a superior forum, in exercise of appellate, revisional or constitutional jurisdiction, adjudicates upon the questions of law and fact arising before it, the judgment of the subordinate forum ordinarily merges into that of the superior forum,

·     irrespective of whether it reverses, modifies or affirms the decision under challenge.

·     The doctrine serves an important institutional purpose by ensuring that questions finally determined by a superior court are not reopened before a subordinate forum. 

15.       Equally, however,

¶√ Sahabzadi Maharunnisa (supra) itself recognized that the doctrine of merger is not of universal application and that different considerations arise where this Court merely declines leave to appeal. After surveying the earlier authorities, the Court summarized the legal position applicable to petitions for leave to appeal in paragraph 9(iv) in the following terms:

"In the cases where leave is declined by this Court, the judgment etc. of the lower fora will remain intact and final and will not merge into the leave refusing order, for the purposes of an application under Section 12(2) of the C.P.C. which can only be filed before the last forum i.e. the learned High Court(s) if the matter has been decided in the appellate/revisional/writ jurisdiction by the said court..." 

The above declaration leaves little room for ambiguity. It expressly reiterates the principle consistently recognized since Syed Abdul Majid, namely that a leave-refusing order does not result in merger and that, ordinarily, an application under Section 12(2), CPC lies before the High Court. The controversy arises because paragraph 9(iv) does not end there.

It further provides:

"...However where the petition for leave to appeal has been dismissed with detailed reasons and a thorough decision of the questions of law and fact has been made, the judgment of the High Court(s)/Tribunal will though not merge into the order of the Supreme Court yet in order to avoid a ludicrous situation... an application in the nature of Section 12(2) of the C.P.C. can be filed before this Court, leaving it to the absolute discretion of this Court to either decide such application itself or send the matter to the lower fora for the decision." 

16.       The true import of this qualification is the central issue before us. In our considered view, the observations contained in the latter part of paragraph 9(iv) cannot be read in isolation from its opening declaration. The paragraph first unequivocally affirms that,

•√where leave is declined, the judgment of the lower forum remains intact, does not merge into the leave-refusing order and

·     that an application under Section 12(2), CPC is to be filed before the last forum, namely the High Court.

·     Read as a whole, the subsequent qualification is more naturally construed as addressing those exceptional situations where a detailed leave-refusing order has itself exhaustively dealt with the questions sought to be reopened under Section 12(2), CPC, thereby rendering it institutionally inappropriate for the subordinate court to comment upon or effectively revisit the reasoning adopted by this Court.

17.       Significantly, the Court did not

•hold that in every such case the High Court ceases to possess jurisdiction. On the contrary, the judgment advisedly employs the expression that an application in the nature of Section 12(2), CPC "can be filed before this Court", while immediately adding that it shall remain "the absolute discretion of this Court to either decide such application itself or send the matter to the lower fora for the decision." Had the intention been to create an exclusive forum before this Court or to denude the High Court of the jurisdiction expressly conferred upon it by Section 12(2), CPC, the judgment would have said so in clear and unmistakable terms, which it does not.

18.       Accordingly, we are persuaded that paragraph 9(iv) of Sahabzadi Maharunnisa is more appropriately construed as preserving a limited discretion in this Court to entertain an application in the nature of Section 12(2), CPC in an exceptional case involving a detailed leave-refusing order. We are unable to read the judgment as creating an exclusive forum before this Court or as impliedly divesting the High Court of the jurisdiction expressly conferred upon it by Section 12(2), CPC. The discretion recognised therein is that of this Court, which may, in an appropriate case, either decide such proceedings itself or remit them to the court below.

19.       This construction also harmonizes Sahabzadi Maharunnisa with the long and consistent line of authorities commencing with Secretary, Ministry of Religious Affairs and Minorities (1993 SCMR 1171), reaffirmed in Khawaja Muhammad Yousaf (1999 SCMR 1516), Abid Kamal (2000 SCMR 900) and Muhammad Yousuf (PLD 2002 SC 391), each of which unequivocally held that

•where this Court merely refuses leave against a judgment of the High Court, the final judgment for the purposes of Section 12(2), CPC remains that of the High Court. We find nothing in Sahabzadi Maharunnisa suggesting an intention to overrule or depart from those binding precedents. Rather, the judgment expressly reiterates the general rule while recognizing a limited discretionary exception in favour of this Court. 

20.       Now adverting to the instant case, when tested against the above principles,

·     the learned High Court, with utmost respect, fell into error in treating the latter part of paragraph 9(iv) of Sahabzadi Maharunnisa as creating an exclusive jurisdiction in favour of this Court.

·     The discretion recognized therein belongs to this Court and it is not a jurisdictional bar operating against the High Court. The High Court, therefore, ought not to have declined to entertain the applications solely on the premise that the leave petitions against its earlier judgment had been dismissed by this Court through a speaking order. That circumstance, by itself, did not divest the High Court of the jurisdiction vested in it by Section 12(2), CPC.  

21.       For the foregoing reasons, the Civil Petitions for Leave to Appeal are converted into appeals and are allowed. The judgment dated 15.05.2024 passed by the learned Lahore High Court, Bahawalpur Bench, is set aside. The applications instituted by the petitioners under Section 12(2), CPC shall stand restored to the file of the learned High Court for decision afresh in accordance with law.

22.       As regards the connected Civil Miscellaneous Appeals directed against the orders of the Registrar of this Court, returning the applications presented before this Court under Section 12(2), CPC, we find no legal infirmity warranting interference. Consequently, the objections raised by the Registrar are maintained and the Civil Miscellaneous Appeals are dismissed. 

23.       We clarify that the remand ordered herein shall not be construed as an expression of opinion on the merits of the controversy. All questions, including but not limited to the petitioners' locus standi, limitation, maintainability,     the existence     of fraud, misrepresentation     or concealment, or any other jurisdictional or substantive requirement envisaged by Section 12(2), CPC, shall remain open and shall be independently examined and determined by the learned High Court uninfluenced by any observations contained in this judgment except on the question of forum. 

24.       We also deem it appropriate to

• reiterate that the observations made in paragraph 9(iv) of Sahabzadi Maharunnisa preserve the discretion of this Court to entertain an application in the nature of Section 12(2), CPC

·     in an exceptional case where a speaking leave-refusing order has itself comprehensively dealt with the questions sought to be reopened.

·     They do not create an exclusive forum nor operate to divest the High Court of the jurisdiction otherwise vested in it under Section 12(2), CPC. Where this Court does not assume such jurisdiction, the High Court remains competent to examine an application under Section 12(2), CPC in accordance with law.

25.       Before parting, we are constrained to observe that the resolution of the present controversy required an examination of a long and consistent line of precedents of this Court spanning more than three decades.

Unfortunately, these authorities were neither comprehensively cited nor adequately addressed by the learned counsel appearing for the parties. The Court was, therefore, constrained to undertake an independent examination of the relevant jurisprudence to determine the correct legal position. We also reiterate that the Bar occupies an indispensable place in the administration of justice and the quality of judicial decision-making is inevitably enriched when the Court receives comprehensive assistance founded upon the complete and relevant body of precedent, thereby strengthening the sound and orderly development of the law. It is in that spirit that the above observations have been made.

 

 

                           JUDGE

                                     JUDGE

   

 

Announced in open Court at Lahore on 04/08/2026. 

 

                                                                  JUDGE

“Approved for Reporting”             

M.A.Hassan