IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE IQBAL HAMEEDUR RAHMAN 
 
 
MR. JUSTICE TARIQ PARVEZ 
 
 
CIVIL APPEALS NO.1176 AND 1177 OF 2015 
AND CIVIL PETITION NO.1428-L OF 2015 
(Against the order dated 11.6.2015 of the Lahore High 
Court, 
Bahawalpur 
Bench 
passed 
in 
C.M.Nos.385, 
388/2009 & 2051/2015) 
 
 
Sahabzadi Maharunisa  
…in C.As.1176 & 1177/2015 
Sahibzadi Madhia Abbasi 
…in C.P.1428-L/2015 
 
…Appellant(s)/Petitioner(s) 
VERSUS 
 
Mst. Ghulam Sughran and another 
…in C.As.1176 & 1177/2015 
Sahibzadi Faroq Kamal Abbasi, etc. 
…in C.P.1428-L/2015 
 
…Respondent(s) 
 
For the appellant(s): 
(in C.As.1176 & 1177/2015) 
Mr. Nadeem Iqbal Chaudhry, ASC 
Qazi Zia Zahid, ASC 
 
 
For the petitioner(s): 
(in C.P.1428-L/2015) 
Mr. M. Ozair Chughtai, ASC/AOR 
 
 
For respondents 8 & 12: 
(in C.As.1176 & 1177/2015) 
Mr. M. Ozair Chughtai, ASC/AOR 
 
 
For respondents 2(xviii) & 4: 
(in C.As.1176 & 1177/2015) 
Mr. Ejaz Ahmed Chaudhry, ASC 
 
 
For respondents 15 & 22: 
(in C.P.1428-L/2015) 
Mr. Ejaz Ahmed Chaudhry, ASC 
 
 
Amicus curiae: 
Malik Muhammad Qayyum, Sr. ASC 
Ch. Mushtaq Ahmed Khan, Sr. ASC 
Syed Najam-ul-Hassan Kazmi, Sr. ASC 
 
 
Date of hearing: 
19.01.2016 
… 
JUDGMENT 
 
 
MIAN SAQIB NISAR, J.- 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. 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 2 :-
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 
abovementioned 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 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 3 :-
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.” 
 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 4 :-
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 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 5 :-
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 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 6 :-
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”. It is relevant to mention here that 
according to settled law, an appeal (in particular) is a continuation of 
the original proceedings and when an appeal is filed the entire case is 
reopened for examination both on the question(s) of fact and the 
points of law involved in any lis (Note: a second appeal, however, is subject to the 
conditions laid down in Sections 100 and 102 CPC). Be that as it may, the legal 
position and the concept of merger in relation to an appeal has been 
considered and authoritatively resolved in the judgment reported as 
F.A. Khan Vs. The Government of Pakistan (PLD 1964 SC 520). 
The facts of the case were:- that an employee of the Land Customs 
Department was dismissed from service vide order dated 15.8.1950 
passed by the Collector of Land Customs. He filed an appeal before 
the Central Board of Revenue (in the departmental hierarchy) which was 
dismissed on 7.5.1952. On 25.6.1958 he filed a suit for declaration 
challenging the order of his dismissal and the one passed in appeal. 
The defendant (customs department) took up the preliminary objection 
that such suit was barred as per Article 120 of the Limitation Act, 
1908 (Limitation Act) because the dismissal order dated 15.8.1950 was 
being challenged beyond the period of six years. Considering the 
above legal point, the learned Bench of this Court found:- 
“…in respect of the nature of an appeal the following 
propositions may be regarded as established:  
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 7 :-
(i) 
when an appeal is filed the matter becomes sub-
judice and is reheard by the appellate Court which does not 
Act merely as a Court of error; 
(ii)  
after there has been an appeal even though an 
appellate Court simply affirms the order of the original 
Court the only decree or order in existence is the order of 
the appellate Court; 
(iii) 
 the original and appellate proceedings are steps in 
one proceedings. 
…the passing of an order subject to appeal will not 
necessitate the filing of a suit for it is only a step in a 
proceeding and not a final order. In any case once an 
appeal is filed the matter becomes sub-judice and 
when the appellate authority passes an order the order 
of the original authority disappears and merges in the 
order of the appellate authority so that there remains 
in existence only the appellate order and this order can 
be made the basis of a suit.” 
(Emphasis supplied by us) 
 
Thus while taking into account the date of dismissal of the appeal as 
the relevant date for the purposes of limitation in F. A. Khan (supra) 
the suit was held to be within time, meaning thereby that the rule of 
merger was settled and applied in the context of limitation (Note: It may 
be relevant to mention that in this judgment considerable case law was considered while 
enunciating the law that the rule of merger shall be attracted). However this Court in 
the judgment reported as Joydeb Agarwala Vs. Baitulmal Karkhana 
Ltd. (PLD 1965 SC 37) took a different view that:- 
 
“Certain contentions raised by Mr. T. H. Khan may be very 
briefly disposed of. He contended that the trial Court lacked 
jurisdiction to interfere with the decree because it had 
become final through being upheld in appeal in the High 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 8 :-
Court and not having been appealed against further, and 
secondly, that only the High Court could alter the decree 
which had become merged in the decree of the High Court. 
The mere fact of the decree having become immune to 
further appeal by the dismissal of the appeal in the High 
Court and the lack of further appeal does not render the 
decree a decree of any other Court except that of first 
instance. No modification was made in the decree by the 
High Court, and the argument of merger is rendered of no 
weight by the consideration that in fact the High Court 
rejected the appeal”.  
 
The facts of the case were:- that a decree for specific performance in 
favour of the plaintiff passed by the Trial Court attained finality at the 
level of the High Court in appeal because the defendant’s appeal was 
dismissed subsequent to which the plaintiff filed an application for 
amendment of the decree, which (matter) finally came before this Court 
wherein it was held as quoted above, that the rule of merger shall not 
apply. It is very important to note that the earlier judgment in F. A. 
Khan (supra) for whatever reason eluded the attention of this Court 
while rendering the opinion in Joydeb Agarwala (Note: the Court also 
hardly took into account any previous case law on the subject, which was referred to in F.A. 
Khan’s case). In the case reported as Maluvi Abdul Qayyum Vs. Syed 
Ali Asghar Shah and 5 others (1992 SCMR 241) wherein the Court 
was called upon to resolve the proposition about the application of 
the rule of merger in relation to appeals and also to the revisional 
jurisdiction, the two verdicts of the Court (supra), F.A. Khan and 
Joydeb Agarwala, came up for examination and further case law on 
the subject was exhaustively considered and this Court came to a 
definite and authoritative conclusion that the rule of merger shall be 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 9 :-
attracted to the case(s) of affirmation of decisions in appeal/revision; 
the view of the Court was expressed in the following words:- 
 
“It appears that in holding that the period of limitation for 
execution of the decree commenced from the date of the 
decision by the Appellate Court, the rule that the decree of 
the Court of first instance, merged into the decree of 
Appellate Court, which alone can be executed, was not 
present to the mind of the learned Judge. It is to be 
remembered that till such time, an appeal or revision from a 
decree is not filed, or such proceedings are pending but no 
stay order has been issued, such decree remains capable of 
execution but when the Court of last instance passes the 
decree only that decree can be executed, irrespective of the 
fact, that the decree of the lower Court is affirmed, reversed 
or modified.” 
 
Additionally:- 
 
“In Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (37 
I.A. 70) the Privy Council has taken the view that the trial 
Court ceases to have the jurisdiction to amend decree, when 
it has been affirmed by the Appellate Court. This would also 
strengthen the rule that after affirmation of the decree of the 
trial Court, the decree in existence is only that of the 
Appellate Court. This view has generally been followed in 
the sub-continent…” 
 
As regards the revisional jurisdiction it was opined:- 
 
“The same object is achieved when a revision from the 
decree of the lower Court is accepted. Thus in a way 
revisional 
jurisdiction 
partakes 
of 
appellate 
jurisdiction. A case on this point is the one decided by a 
Full Bench of Madras High Court in Chappan v. Moidin 
Kutti (ILR 1899 Madras 68) where Subramania, J expressed 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 10 :-
the view that appellate jurisdiction includes revisional 
powers.” 
(Emphasis supplied by us) 
 
Furthermore:-  
 
“9. 
These judicial announcements leave no room for 
doubt that for the purpose of execution the rule of merger 
equally applies to the decree passed in exercise of revisional 
jurisdiction. This issue may also be examined from another 
angle. Take the case of a suit, which is dismissed by the trial 
Court and with this dismissal the First Appellate Court does 
not interfere, but it is decreed by the revisional Court. There 
should be no doubt that the decree of the Court of revision 
can well be executed. So far as executability of a final decree 
is concerned, does it make any difference, if the decree of the 
First Appellate Court is affirmed by the revisional Court?” 
 
It is clear from the ratio of the noted judgment that an exception was 
taken to the law laid down in Joydeb Agarwala and the law laid 
down in on F.A. Khan’s case was endorsed; rightly so, because in the 
Joydeb Agarwala case the earlier verdict i.e. F.A. Khan and the 
settled law on the rule of merger (note:- referred to and relied upon in F.A. 
Khan) was not taken into consideration and therefore the said decision 
(Joydeb Agarwala case) with due deference, is per incuriam. We have not 
come across better decisions in our jurisdiction explaining the rule of 
merger than F.A. Khan and Maulvi Abdul Qayyum cases. This rule 
has also been reiterated in Nasrullah Khan’s case (supra), wherein it 
has been specified as under:- 
“From the above it is clear that for all legal purposes, 
it is the final decree/order of the last Court in the 
series, even if such decree etc. be of affirmation, which 
has to be executed and should be considered and 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 11 :-
treated to be the final judgment/decree/order in terms 
of Section 12(2) CPC for approaching the forum. Thus, 
notwithstanding the reversal or modification of the 
decree/order, if the decree/order of a forum below, which 
has been affirmed by the higher forum on merits, both on 
the points of the facts and the law involved therein, it shall 
be that decree/order, which attains the status of the final 
decree/order etc. within the purview of section 12(2), 
C.P.C. It is so because the higher forum has not only-
endorsed the point(s) of fact and law and has agreed with 
the reasoning and conclusion of the lower forum, but may 
be, has upheld the decision(s) challenged before it, by 
substituting and supplying its own reasons and by 
substantially doing away with the reasoning of the 
decision(s) challenged before it. Thus, it would be 
ludicrous to conceive and hold that the questions of facts 
and law which have been finally approved, endorsed, 
affirmed and settled by the higher forum should be allowed 
to be examined, annulled and obliterated by a forum below, 
whose decision stands affirmed in the above manner. 
Therefore, we are of the considered view that the impugned 
judgment in this case has been rightly founded on the 
principle of merger; however before parting it may be 
observed that in the case Khawaja Muhammad Yousaf 
(supra), an exception has been taken to the rule of merger 
in relation to the apex Court, particularly in respect of 
those judgments/orders which are affirmed by this Court in 
the sense that leave has been refused.” 
(Emphasis supplied by us) 
 
In the verdict of this Court reported as Muhammad Yousaf through 
Legal Heirs and others Vs. Noor Din and others (PLD 2002 SC 
391) it has been held as under:- 
“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 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 12 :-
and others 1999 SCMR 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 SCMR 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.” 
(Emphasis supplied by us) 
 
We may now consider the important case law from the Indian 
jurisdiction, wherein the concept and the rule of merger has been 
elucidated and applied i.e. in Commissioner of Income-Tax, 
Bombay Vs. M/s Amritlal Bhogilal and Co. (AIR 1958 SC 868) it 
was held that:- 
“There can be no doubt that, if an appeal is provided 
against an order passed by a tribunal, the decision of the 
appellate authority is the operative decision in law. If the 
appellate authority modifies or reverses the decision of the 
tribunal, it is obvious that it is the appellate decision that is 
effective and can be enforced. In law the position would be 
just the same even if the appellate decision merely confirms 
the decision of the tribunal. As a result of the confirmation 
or affirmance of the decision of the tribunal by the 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 13 :-
appellate authority the original decision merges in the 
appellate decision and it is the appellate decision alone 
which 
subsists and is operative and capable of 
enforcement…” 
 
In Collector of Customs, Calcutta Vs. East India Commercial Co. 
Ltd., Calcutta and others (AIR 1963 SC 1124), the rule was laid 
down that:- 
“…though it may be that the appellate authority has merely 
confirmed the order of the original authority and dismissed 
the appeal. It is this principle, viz., that the appellate order is 
the operative order after the appeal is disposed of, which is 
in our opinion the basis of the rule that the decree of the 
lower court merges in the decree of the appellate court, and 
on the same principle it would not be incorrect to say that the 
order of the original authority is merged in the order of the 
appellate authority whatsoever its decision-whether of 
reversal or modification or mere confirmation.” 
 
In Lakshminarayan Guin & Ors Vs. Niranjan Modak [(1985) 1 SCC 
270] the court concluded:- 
 
“It is well settled that when a trial court decrees a suit and 
the decree is challenged by a competent appeal, the appeal 
is considered as a continuation of the suit, and when the 
appellate decree affirms, modifies or reverses the decree on 
the merits, the trial court decree is said in law to merge in 
the appellate decree, and it is the appellate decree which 
rules.” 
 
In Kunhayammed and others Vs. State of Kerala and another 
(AIR 2000 SC 2587) the Court has lucidly set out the concept of 
merger, its logic, scope and application and concluded as under:- 
 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 14 :-
“To sum up our conclusions are :-  
(i) 
Where an appeal or revision is provided against an 
order passed by a court, tribunal or any other authority 
before superior forum and such superior forum modifies, 
reverses or affirms the decision put in issue before it, the 
decision by the sub-ordinate forum merges in the decision 
by the superior forum and it is the latter which subsists, 
remains operative and is capable of enforcement in the 
eye of law.” 
 
But considering whether the rule of merger shall be applicable where 
leave has been refused by the Supreme Court it was held:- 
 
“(iii)     Doctrine of merger is not a doctrine of universal 
or unlimited application. It will depend on the nature of 
jurisdiction exercised by the superior forum and the 
content or subject-matter of challenge laid or capable of 
being laid shall be determinative of the applicability of 
merger. The superior jurisdiction should be capable of 
reversing, modifying or affirming the order put in issue 
before it. Under Article 136 of the Constitution the 
Supreme Court may reverse, modify or affirm the 
judgment-decree or order appealed against while 
exercising its appellate jurisdiction and not while 
exercising the discretionary jurisdiction disposing of 
petition for special leave to appeal. The doctrine of 
merger can therefore be applied to the former and 
not to the latter. 
(Emphasis supplied by us)  
 
(iv) 
An order refusing special leave to appeal may be a 
non-speaking order or a speaking one. In either case it 
does not attract the doctrine of merger. An order refusing 
special leave to appeal does not stand substituted in place 
of the order under challenge. All that it means is that the 
Court was not inclined to exercise its discretion so as to 
allow the appeal being filed. 
 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 15 :-
(v) 
If the order refusing leave to appeal is a speaking 
order, i.e. gives reasons for refusing the grant of leave, 
then the order has two implications. Firstly, the statement 
of law contained in the order is a declaration of law by 
the Supreme Court within the meaning of Article 141 of 
the Constitution. Secondly, other than the declaration of 
law, whatever is stated in the order are the findings 
recorded by the Supreme Court which would bind the 
parties thereto and also the Court, tribunal or authority in 
any proceedings subsequent thereto by way of judicial 
discipline, the Supreme Court being the Apex Court of the 
country. But, this does not amount to saying that the order 
of the Court, tribunal or authority below has stood 
merged in the order of the Supreme Court rejecting 
special leave petition or that the order of the Supreme 
Court is the only order binding as res judicata in 
subsequent proceedings between the parties. 
 
(vi) 
Once leave to appeal has been granted and 
appellate jurisdiction of Supreme Court has been invoked 
the order passed in appeal would attract the doctrine of 
merger; the order may be of reversal, modification or 
merely affirmation.” 
 
This judgment has been affirmed and the view set out therein has 
been fully endorsed and acknowledged in a later judgment from the 
Indian jurisdiction reported as Bakshi Dev Raj and Anr. Vs. 
Sudheer Kumar (AIR 2011 SC 3137). 
5. 
 
From the ratio of the case law cited above (from both 
jurisdictions), it is clear that the doctrine of merger has been duly 
applied to the reversal and modification cases and also to all those 
cases in which the judgment etc. of a lower forum has been affirmed 
in appeal or revision by a higher forum(s) (Note: though there are certain 
exceptions to this rule which shall be specified in the concluding part of this opinion). We 
may like to add here that the rule of merger shall also extend to the 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 16 :-
writ jurisdiction of the learned High Court(s) where the decisions of 
the lower fora, such as Tribunals and Special Courts etc. when 
challenged have been affirmed by the court in exercise of its 
constitutional jurisdiction. 
6. 
 
The learned counsel(s) for the appellants in support of 
their contentions, cited certain judgments of this Court, which (case 
law) according to them are directly on the subject of 12(2) qua the 
forum where such application should be filed. The learned counsel 
for the respondents and the learned amicus countered that such 
dicta do not impinge upon the rule of merger which is unequivocally 
attracted to the decisions of the higher forum affirming the 
judgments of the lower fora and that those cases are distinguishable 
or fall within the exception(s) to the rule of merger. The first judgment 
cited is Government of Sindh and another Vs. Ch. Fazal 
Muhammad and another (PLD 1991 SC 197). The facts of the case 
were:- that the respondent of the case (Ch. Fazal Muhammad) filed an 
application under Section 14 of the Arbitration Act, 1940 against the 
appellant (Government of Sindh) and after notice to the appellant and 
upon hearing it, the award was made rule of the court; appeal of the 
appellant was dismissed for non-prosecution; the restoration 
application also was not pursued and thus dismissed. Thereafter an 
application under Section 12(2) of the CPC was filed perhaps before 
the appellate court (Note: as this is not quite clear from the facts narrated in the 
judgment) which was dismissed throughout, and when the matter came 
to this Court the focal point was whether in such circumstances the 
application was maintainable, but there was no such issue about the 
forum where such application should be filed. The Court held:- 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 17 :-
“10. 
It will be seen from the above that the appellants 
had opportunity to take all the objections to the award and 
if they did not plead all the facts and raised all the 
objections to the award which were available to them for 
an application under sections 30 and 33 of the Arbitration 
Act they have to blame themselves. Under Section 12(2), 
C.P.C. a party can question the validity of a judgment, 
decree or order on the plea of fraud etc. In this case the 
challenge is not to judgment, decree or order but to the 
award itself. This could be done only under section 30 or 
33 of the Arbitration Act. Even a review of the judgment, 
decree or order could not be sought because if new or 
important matter was discovered the appellant had to 
satisfy, in order to succeed, that they had exercised due 
diligence and in spite of that the facts pleaded in the 
application under Section 12(2) were not within their 
knowledge. 
 
12. 
Accordingly, an application under section 12(2), 
C.P.C. also was not maintainable.” 
 
It is thus noticed that the legal point involved herein was neither in 
issue nor was dilated upon and resolved by this Court in the 
judgment supra. In Secretary, Ministry of Religious Affairs and 
Minorities and 2 others Vs. Syed Abdul Majid (1993 SCMR 1171) 
the factual backdrop was:- that the transfer of the property (in question) 
as evacuee in favour of the respondent (of the case namely Abdul Majid) by 
the Settlement Department was annulled by the Chairman Evacuee 
Trust Property (CETP) declaring it to be Evacuee Trust Property. This 
order was challenged by the respondent in the constitutional 
jurisdiction of the High Court and he succeeded. The leave 
application before this Court by Secretary Ministry of Religious 
Affairs (the Secretary) was dismissed as being barred by time. Thereafter 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 18 :-
the Secretary moved an application under Section 12(2) of the CPC 
before the High Court which was disallowed; the moot points before 
this Court in the case were two fold, one about the forum having 
jurisdiction in the matter and another a legal issue about the 
application of MLR 57. The Court on the first point, which is relevant 
for this judgment categorically 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”. 
(Emphasis supplied by us) 
 
In Khawaja Muhammad Yousaf Vs. Federal Government through 
Secretary, Ministry of Kashmir Affairs and Northern Areas and 
others (1999 SCMR 1516) the allotment of the land in favour of the 
appellant of the case (Khawaja Muhammad Yousaf) as a displaced person 
from the State of Jammu and Kashmir which was mutated in his 
name by the Tehsildar was set aside by the Collector in appeal; this 
order was reversed by the Additional Commissioner on appeal of Kh. 
Yousaf. Against the order of the Additional Commissioner, the 
Federal Government went in revision before the Member, Board of 
Revenue which was rejected on 25.2.1988; the constitutional petition 
of the Government was dismissed by the learned High Court vide 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 19 :-
judgment dated 15.8.1989. This judgment was challenged by some 
private person(s) by filing applications under Section 12(2) of the CPC 
before the High Court on the ground(s) that the allotment of Kh. 
Yousaf is the result of fraud etc. and, therefore, the said judgment be 
set aside. The applications were allowed and the judgment dated 
15.8.1989 was set aside; leave was granted by this Court inter alia to 
“examine the legal question as to, whether an application under section 12(2), 
C.P.C. could have been filed by the private respondents before the High Court”. In 
order to answer the above question, the Court was required to 
determine “which of the judgments/orders can be treated as a final 
judgment/order in terms of subsection (2) of section 12 C.P.C.” The Court 
however on examination of the two earlier judgments of Government 
of Sindh and Secretary, Ministry of Religious Affairs approved the 
latter dictum while concluding:- 
“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 for the 
purpose of subsection (2) of section 12, C.P.C. In this view 
of the matter, the final judgment in the case in hand was of 
High Court as it reversed the findings recorded by the 
forums provided under the Settlement Law”.  
 
In Abid Kamal Vs. Muddassar Mustafa and others (2000 SCMR 
900) the petitioner who had approached this Court directly under 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 20 :-
Section 12(2) during the course of hearing of the matter, while 
accepting Secretary, Ministry of Religious Affairs (supra) as the valid 
law laid down by this Court sought the permission of the Court to 
withdraw his petition with the observation that the court seized of the 
matter (which he would approach) should sympathetically consider the 
condonation of delay with regard to the time spent pursuing his 
remedy before this Court, the Court held:- 
“…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, and if, 
however, 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 
for the purposes of section 12(2), C. P. C..  
4. 
In the case in hand as well this Court had 
refused to grant leave to respondent Muddassar 
Mustafa and others, therefore, keeping in view these 
facts we are of the opinion that application under 
section 12(2), C.P.C. subject to all just exceptions will 
be competent before the Court which had finally 
decided the appeal.” 
(Emphasis supplied by us) 
 
In Bakhtiar Ahmed Vs. Mst. Shamim Akhtar and others (2013 
SCMR 5) while the question of limitation in the context of Section 48 
of the CPC was under consideration and the rule of merger was taken 
into account; it was held that mere filing of leave petition before this 
Court and the decision thereupon shall not attract the rule of merger 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 21 :-
and extend the period of limitation. In this regard the relevant portion 
reads as:- 
“There being no, statutory remedy of appeal or revision 
available against said decree and the only remedy 
available was filing a petition for leave to appeal before 
this Court, which is a constitutional court, therefore, unless 
the operation of the impugned decree is suspended or the 
petition is converted in to an appeal the petitioner cannot 
presume that the period of limitation has been clogged. 
Mere filing of petition before this court would not 
automatically enlarge the time of filing the execution 
application. Needless  to  mention  here  that  in  case  
relief  is  granted  by this Court  after  allowing  the 
appeal  with  leave  of  the  Court  then  in  the  said  
eventuality  the  order  of this  Court  would  merge  
into order of the lower forums as such the period of 
limitation would start from the order of this Court”. 
(Emphasis supplied by us) 
 
7. 
 
From the analysis of the above case law, it transpires 
that in none of these judgments has the rule of merger been taken 
into consideration (Note: exception in Bakhtiar Ahmed case, but that too in a 
different context) in the context of the provisions of Section 12(2) of the 
CPC. Rather such principle was conceived and applied in clear terms 
in Nasrullah Khan’s case (supra)  for the first time which enunciation 
of law is in line with the rule of merger as defined, perceived and 
applied in our jurisprudence and also the Indian jurisprudence (Note: 
all the definitions/dicta have been cited in paragraphs No.4 to 6 of this opinion). 
Moreover in none of the judgments that we have considered has it 
been held that the rule of merger shall not apply to the decisions 
passed 
in 
affirmation 
in 
appeal/revision/writ. 
All 
the 
later 
judgments, subject to their own peculiar features as highlighted 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 22 :-
above, have followed the ratio of the judgment reported as Secretary, 
Ministry of Religious Affairs (supra). The distinguishing feature of 
the law laid down therein is that the Court is inclined to apply the 
rule of merger to the affirmation decision in appeal when the same is 
on merits with the proviso that the said doctrine shall not be 
attracted where the decision of the lower forum has been simply 
upheld in the manner that this Court had declined to interfere with 
such decision, through the refusal of leave to appeal. It is thus clear 
that where a matter has been heard and decided by this Court in 
appeal and the verdict of the lower forum has been affirmed on merits 
the rule of merger shall duly apply, and thus the application under 
Section 12(2) of the CPC subject to the exceptions mentioned in the 
concluding part of this judgment can be competently filed before this 
Court. For the plea raised by the appellants’ side that in view of 
Order I Rule 5 of the Supreme Court Rules, 1980 (Rules) the 
provisions of CPC are not applicable to the proceedings before the 
Supreme Court, suffice it to say that there is no bar upon the Court 
to apply and resort to the principles of CPC and thus it is within the 
absolute prerogative and discretion of this Court to entertain and 
decide such an application (under Section 12(2) CPC). 
8. 
 
In order to sum up the discussion on the subject, we find 
that the following are the situations (with certain exceptions) which would 
be relevant to the determination of the final court within the purview 
of Section 12(2) of the CPC:- 
 
(i) 
Where an appeal/revision/writ is accepted, the 
judgment etc. is reversed, varied, modified or affirmed;  
(ii) 
Where an appeal/revision/writ is not disposed of on 
merits but on some other grounds; 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 23 :-
(iii) 
Where direct appeals or those after the grant of leave 
are allowed or dismissed and the judgment etc. of the 
learned High Court(s)/Tribunals or special forums 
below has been varied, altered, reversed or affirmed by 
this Court; 
(iv) 
Where the petition(s) for leave to appeal under the 
Constitution is declined; 
 
9. 
 
With respect to these four situations, our conclusion is 
as under:- 
(i) 
In the cases where the remedy of appeal/revision is 
provided against a judgment etc. or a remedy of writ is 
availed, the appellate/revisional/constitutional forum 
records reasons on the consideration of the issues of 
law and/or fact the judgment etc. of the subordinate 
court/forum will merge into the decision of the 
appellate court etc. irrespective of the fact that such 
judgment reverses, varies or affirms the decision of the 
subordinate court/forum and its decision will be 
operative and capable of enforcement on the principle 
of merger, the application under Section 12(2) of the 
CPC 
will 
be 
maintainable 
before 
the 
appellate/revisional/constitutional forum (High Court, 
District Court, Tribunal or Special Court as the case may be); 
(ii) 
In the situation mentioned at serial No.(ii) above, there 
are certain exceptions to the rule of merger which (rule) 
shall not apply, where an appeal etc. has been 
dismissed:- (i) for non-prosecution; (ii) for lack of 
jurisdiction; 
(iii) 
for 
lack 
of 
competence/maintainability; (iv) as barred by law; (v) 
as barred by time; (vi) withdrawal of the matter by the 
party; (vii) for lack of locus standi; (viii) decided on the 
basis of a compromise, if the very basis of the 
compromise by the party to the lis or even a stranger 
showing prejudice to his rights is not under challenge 
on the ground of fraud; (ix) is rendered infructuous or 
disposed of as having borne fruit; (x) abatement; (xi) 
where the writ is dismissed on the ground of 
availability of alternate remedy; (xii) where the writ is 
dismissed on the point of laches. It may be mentioned 
that such exceptions shall also be attracted to the 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 24 :-
decision(s) of the Supreme Court, where applicable. 
However where the case falls within the noted 
exceptions the forum for an application under Section 
12(2) of the CPC is the one against whose decision the 
matter has come and been disposed of in the above 
manner by the higher forum; 
(iii) 
In the cases of reversal or modification of the judgment 
of the High Court(s), Tribunal(s) or Special Courts 
before this Court, or those affirmed in appeal (where the 
matter does not fall within the exceptions) the judgment of the 
Supreme Court shall be deemed to be final for moving 
an appropriate application on the plea of lack of 
jurisdiction, misrepresentation and fraud; 
(iv) 
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 CPC 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, or if the matter has come 
to this Court directly for leave from a Tribunal/Special 
Court (see Article 212 of the Constitution). 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 that once a question of law 
and fact has been elaborately and explicitly dealt with 
by this Court in the leave refusing order and the court 
below may not be in a position to adjudicate upon 
those points without commenting on the order/reasons 
of the Supreme Court and to reopen the matter, an 
application in the nature of Section 12(2) of the CPC 
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; 
 
9. 
 
The above are the detailed reasons for the short order of 
even date whereby these cases were dismissed, which reads as:- 
Civil Appeals No.1176 and 1177 of 2015 
and Civil Petition No.1428-L of 2015 
-: 25 :-
“For the reasons to be recorded later, we do not find any 
merit in these cases which are hereby dismissed.” 
 
However before parting we may express our appreciation for the 
valuable input and assistance provided by all the three amicus. 
 
 
 
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
19th January, 2016 
Approved For Reporting 
Waqas Naseer/* 
