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Official Citation: 2025 PHC 10
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-02-07
Parties: Rozi Khan & Others vs Fazil & Others
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-02-07, officially reported as 2025 PHC 10. In this matter between Rozi Khan & Others and Fazil & Others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025PHC10
Court Name: Peshawar High Court Judge(s): Qazi Jawad Ehsanullah Title: Rozi Khan & Others vs Fazil & Others Case No.: Civil Revision No. 06-P/2024 Date of Judgment:2025-02-07 Reported As: 2025 PHC 10 Result: Revision Dismissed
JUDGMENT
JUDGMENT QAZI JAWAD EHSANULLAH, J. Instant Revision Petition is arising out of the order and judgement dated 14.11.2023 passed by the learned Additional District Judge-IV, Mardan in Civil Appeal No. 98/13, whereby the appeal filed by the present petitioners against an order and judgment dated 17.09.2021 of the learned Civil Judge-X1, Mardan was dismissed. 2. Facts necessitating the filing of present Civil Revision Petition, as stated, are that Respondent No. 1-9 had, on 28.03.2011, filed a suit for declaration, permanent injunction and possession of suit property (fully described in the plaint) in the Civil Courts at Mardan. This particular case was registered and numbered as Suit No. 80/1 of 2011, and was placed before the learned Civil Judge-V, Mardan, for trial. Besides other defendants in the plaint, petitioners to the instant petition were arrayed as defendant No. 39-41 in the suit, and a specific challenge was made by the contesting Respondents 1-9 (plaintiff before the trial court) to an Inheritance Mutation No. 5691 attested on 11.10.2024 in favour of the present petitioners; it was averred in the suit that plaintiff / respondents were entitled to have been declared the owners of the suit property on the basis of inheritance from the legacy of late Khair Ullah. In the aforesaid suit, the petitioners were proceeded ex parte on 09.03.2013, followed by a decree passed against them and other defendants on 21.06.2014. 3. This judgment and decree was assailed by Respondent No. 10-16 by way of filing Civil Appeal, wherein the present petitioners very much arrayed as Respondent No. 41-43. The latter were, however, proceeded ex parte, on 13.03.2015, in the appeal court as well whereafter the same was decided and dismissed on 29.10.2015 affirming the basic judgment and decree of the civil court.
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4. Subsequently on 16.07.2019, the present petitioners have filed an application in the trial court for setting aside of the ex pane decree passed against them on 21.06.2014 by the learned Civil Judge, and they never chose to file any application for setting aside ex parte decree passed against them by the appellate court. This particular application was decided by the learned Civil Judge-XI, Mardan, on 17.09.2021, by holding that the decree of the Civil Court had been merged into that of the Appellate Court (dated 29.10.2015), which decree too was passed ex parte against the petitioners. Based on that, it was held that the application for setting aside filed before trial court was not maintainable for want of jurisdiction. Thus, the learned Civil Judge has ordered return of original application to the petitioners for presentation before the proper forum. 5. Instead of receiving the original application upon return and filing it before the proper forum, the petitioners have challenged the aforesaid order of the learned Civil Judge through Civil Appeal No. 98/13, which appeal was filed by them on 29.10.2021. The appeal had come up for final hearing before the Additional District Judge-V, Mardan on 14.11.2023, whereby it was dismissed and the order of the Civil Judge was maintained on the same grounds to the effect that the original decree of the Civil Court had been merged into the decree dated 05.01.2015 of the Appellate Court, and so the application for setting aside ex parte decree (dated 21.06.2014) was not maintainable, hence this Revision Petition. 6. Learned counsel for the petitioners has vehemently argued that the two courts below have erred in law while holding that the original ex parte decree rendered in the civil suit has merged into the decree so passed by the appellate court. According to him, the principle of merger had no application in the cases where an application for setting aside ex parte decree of the trial court was to be preferred under the provisions of Order IX Rule 13 CPC. In support of his contentions, the learned counsel has referred to the precedent rendered in the case titled 'Abdul Jalil Bhuiyan and others v Majibar Nessa Bibi and others' reported in PLD 1961 Dacca 90. 7. Conversely, Mr. Tariq Kamal, Advocate appearing on behalf of respondents submitted that both the courts below have correctly applied the law and there was no illegality or defect of jurisdiction in the two concurrent findings of the lower fora. 8. Heard. The question that requires to be decided in this petition is that as to whether the principle of merger of decrees was attracted in cases where an ex parte decree rendered on the original side was affirmed in appeal through another ex parte decree of the appellate court? And that whether it should be the court of first instance or the appellate court where an application for setting aside ex parte decree is to be filed for invoking the provisions of Order IX Rule 13 CPC? 9. For answering the aforenoted moot questions, it is imperative to first understand the basic principle of merger and its concept. As regard the principle of "merger ", the apex court had, in somewhat recent pronouncement made in the case of Shahzadi Maharunisa & another Vs Mst. Ghulam Sughran & another" reported in PLD 2016 Supreme Court 358, authoritatively dealt with the issue of "merger" and had elucidated the law on the subject in quite some detail. For the facility of understanding and reference it is imperative that the relevant paragraphs of the said judgement are reproduced herein below; "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
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(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". 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 C.P.C.). 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 v. 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,Ithe 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: (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 fried 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)
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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 v. 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 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 Qayyu m v. Syed Ali Asghar Shah and 5 others (1992 SCM R 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 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 LA. 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:-
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"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 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 Qayyu m 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 pf, the last Court-in: the series, even if such decree etc. be of affirmation, which has to be executed and should be considered and treated to be the final judgment/decree/order in terms of Section 12(2), C.P.C. 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 sealed 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 v. 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
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Northern Areas 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 u(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 v. M/s Amritlal Bhogilal and Co. (MR 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 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 v. 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 and others v. 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 v. 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:- 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
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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. "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." (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…
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