2000 PLP 900 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

Learned counsel for the petitioner contended that instant petition was preferred by him in view of the judgment reported in PLD 1995 SC 564 wherein it has been held that application under section 12(2), C.P.C. will be competent before the Supreme Court against the final order. But now this Court has clarified in the case Khawaja Muhammad Yousuf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516) wherein it has been observed that if Supreme Court merely reaffirms a judgment or order of a 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, therefore, he contemplates to seek remedy before the appellate Court. He prayed that permission be accorded to him to withdraw the petition with observation that the Court seized with the matter will sympathetically consider condonation of delay if has occurred in approaching the said Court because petitioner has consumed about two years in instant proceedings. No one is present on behalf of respondents but as the petition is being withdrawn, therefore, in our opinion their attendance is not necessary.

2. We have examined the inquest so made by the learned counsel for withdrawal of the petition but we would like to mention that even prior to the judgment reported in PLD 1995 SC 564 it had already been decided by this Court that application under section 12(2), C.P.C. will be competent before the Court, which has passed final order and not the Supreme Court in the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171). Relevant para. is reproduced from his judgment hereinbelow:-- "

4. It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution Petitions filed in the High Court fiction 12(2), C.P.C. being a part of it will be applicable. 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. "

3. It is to be noted that the above view was expressed by three Hon'ble Judges of this Court whereas case of Mubarak Ali v. Fazal Muhammad and another (PLD 1995 SC 564) was heard by two Hon'ble Judges and whereas last-mentioned case was also heard by three Hon'ble Judges including the Hon'ble Chief Justice, Mr. Justice Ajmal Mian (as he then was) who has authored the judgment therefore, the view expressed by the majority of Judges prevailing right from the time when the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) was decided shall prevail. 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. Thus, request made by the learned counsel for petitioner is allowed with the observation that the Court seized with the matter if instituted under section 12(2), C.P.C. shall sympathetically consider request if made for condonation of delay in filing of the application, because petitioner consumed some time in pursuing instant proceedings. Thus, the petition is dismissed as withdrawn. M.B.A./A-7/S Petition dismissed.