1. In the instant matters we are called upon to resolve the proposition as to which is to be considered the “Court which passed the final judgment, decree or order” within the meaning of Section 12(2) of the Code of Civil Procedure, 1908 (CPC) where an aggrieved person shall file such an application.
In the context of the above the facts of the instant appeals (along with the CPLA) are:- respondents No.1 to 4 (plaintiffs) filed a suit for possession against respondents No.5 to 11 (defendants) assailing therein the validity of a gift mutation No.162 attested on 25.9.1944 by virtue whereof Muhammad Yar, the predecessor-in-interest of the plaintiffs, gifted his property (suit property) in favour of Ahmad Yar, his brother. The suit was initiated on 18.10.1965 and was partly decreed on 11.6.1968. Both the parties being aggrieved of the above decree, challenged the same through appeals, the plaintiffs filed RFA No.11/1968, while the defendants instituted RFA No.27/1968. The appeal filed by the plaintiff was partly allowed by the learned High Court vide judgment dated 24.3.1986, but that of defendants was dismissed through the same judgment. The defendants filed CA No.193/1986 and CP No.73/1986, whereas the plaintiffs filed CP No.473/1986, before this Court, all challenging the judgment dated 24.3.1986, while one Murad Bibi and Surriya Begum also filed applications to be impleaded as parties before this Court in the above mentioned appeal and/or petitions but were turned down with the observation that they may avail the remedy before the appropriate forum in appropriate proceedings. Thereafter, the appeal and petitions were dismissed by this Court vide judgment dated 26.6.1991.
2. Aggrieved of the said judgments and claiming those to have been procured by the respondents through fraud and misrepresentation, the appellant (in CAs No.1176 and 1177/2015) filed applications under Section 12(2) of the CPC vide CMs No. 385 and 388/2009 in RFAs No.11 and 27/1968 respectively, and the petitioner (in CP No.1428-L/2015) filed a similar application through CM No.2051/2015 in RFA No.11/1968. These applications have been dismissed vide the impugned judgment dated 11.6.2015 holding that the application before the High Court is not competently filed, rather in the light of the law laid down by this Court in Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) the appellate forum is the Supreme Court of Pakistan. Leave was granted on 6.11.2015 to consider whether the applications under Section 12(2) of the CPC were rightly dismissed on the grounds that they were only competent before this Court and also to consider the true import of the case of Nasrullah Khan (supra); the order is reproduced below:
“Learned counsel for the petitioner states that the final judgment in the instant matter had been passed by the learned High Court in its appellate jurisdiction, and when such judgment and decree was assailed before this Court, it was kept intact. Therefore, the view set out by the learned High Court while dismissing the application of the petitioner under Section 12(2) CPC being not maintainable in light of the law laid down in Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) is not correct as the rule of merger is not attracted to cases where judgments of the learned High Court have simply been kept intact and no modification or reversal has taken place. In such an eventuality the final judgment and order shall be that of the learned High Court. Leave is granted to consider the above. As a short point is involved, let this matter be listed for hearing within six weeks. We also appoint M/s Malik Muhammad Qayyum, Syed Najam-ul-Hassan Kazmi and Ch. Mushtaq Ahmed Khan, learned Sr. ASCs as amicus curiae to assist the court on the points raised; and notice be issued to them accordingly.”
3. In order to make this opinion concise we are not stating in detail the arguments/pleas raised by the learned counsel for the parties and learned amicus, which (pleas) are reflected in the reasons assigned herein. However it may be stated that, in brief, the argument of the learned counsel(s) for the appellants is that the principle of merger is applicable to such application [under Section 12(2) of the CPC] but only where a judgment, decree or order passed by a court when appealed against or challenged in the revisional jurisdiction has been set aside, reversed, modified etc.; however where it (judgment etc.) has simply been affirmed by the higher forum, the rule of merger is not attracted and the final judgment, decree or order shall remain that of the court which passed the judgment etc. before its affirmation. This according to the learned counsel shall be the rule applicable at all the levels of adjudication including the Supreme Court. On the contrary, the learned counsel for the respondents have pressed for the application of the rule of merger even to the judgments etc. which have been affirmed in appeal/revision though subject to certain exceptions which shall be highlighted in the course of this opinion. This is also the position of all the three amicus, who have forcefully added that the rule of merger should also be extended and made applicable to the decisions of affirmation passed by this Court but with the exception that when it (this Court) decides a matter on merits after grant of leave or while deciding an appeal directly filed before the Supreme Court under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), certain exceptions to the rule of merger will apply.
4. Heard. Before proceeding to examine the proposition and provide an answer thereto, we find it expedient to explain the concept of merger by referring to the definition of the words ‘merge’ and ‘merger’. According to Chambers English Dictionary (7th Edition), ‘merge’ means “to dip or plunge; to cause to be swallowed up or absorbed in something greater or superior: to cause to coalesce, combine, or amalgamate – to be swallowed up or lost: to coalesce: to lose identity in something else”. ‘Merger’ has been assigned the meaning “a sinking of an estate, title, etc., in one of larger extent or of higher value: a combine, an absorption; or an act or process of margining”. The Oxford English Dictionary (1933) defines ‘merge’ as “to dip, plunge; to sink or extinguish (a lesser estate, title, etc.) in one which is greater or superior. Hence gen., to cause (something) to be absorbed into something else, so as to lose its own character or identity; to sink or make to disappear” and ‘merger’ as “extinguishment of a right, estate, contract, action, etc, by absorption in another”. The definition of ‘merge’ provided in Corpus Juris Secundum (1936) is “to sink or disappear in something else; to be lost to view or absorbed into something else; to become absorbed or extinguished; to be combined or be swallowed up; to lose identity or individuality; to sink the identity or individuality of; to cause to disappear; to make to disappear in something else; to cause to be absorbed or engrossed” and ‘merger’ is “absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality; in merger there is a carrying on of the substance of the thing, except that the substance is merged into, and becomes a part of, a separate thing with a new identity”. The word ‘merge’ has been explained in The Constitution of India by Prof. S. R. Bhansali as “to sink or disappear in something else; to become absorbed or extinguished, to be combined or be swallowed up”, and ‘merger’ as “the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality”. On account of the definitions above, it is obvious that ‘to merge’ or ‘merger’ is where something is absorbed into another and/or has coalesced into another identity by losing its own original character. In the Nasrullah Khan case (supra) we have held that merger of a judgment/decree means “that it is integrated, implanted, inculcated, infixed and instilled into the decree of the higher forum and becomes the decree/order of the later forum for all legal intents and implications”.
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