VOID AND VOIDABLE

VOID AND VOIDABLE VOID AND VOIDABLE By Mr. Taqi Ahmad Khan, Barrister-at-Law, Lahore 1. A void order is so categorized because the legislature or rather Courts deny its legitimacy. Law refuses to lend it any help to become effective. 2. Section 2(9) of the Contract Act, 1872 defines a void contract as one not enforceable by law. Void order manifests itself in many ways but our Supreme Court has cautioned in the use of this "over worked" expression which has become subject to divergent judicial interpretation (1978 SCMR 367). 3. If the order was passed without hearing and notice to a party whose presence was otherwise necessary before authorities concerned such order would be a nullity in the eye of law (1986 SCMR 962). 4. Where the parties to an agreement agreed to transfer property owned, by a third party without the latter's knowledge,. the agreement is fraudulent and void. (1994 SCMR 782). 5. Minor executing sale deed which was registered but the contract with the minor is a nullity, (Section 11 of the Contract Act, 1872) and does not confer any right or title on the purchaser. (PLD 2003 SC 849). 6. In Chapter II of the Contract Act different contracts have been declared as void. They include contracts for unlawful objects and considerations, without consideration, restraint of marriage, and legal proceedings, wagering contracts, and those contacts, which suffer from uncertainty. 7. Article 8 of the Constitution of Pakistan (1973) (which is a substantive reproduction of Article 4 of the Constitution of 1962) declares laws inconsistent with or in derogation of fundamental rights to be void. The fundamental rights are enumerated in Chapter I of the Constitution and include security of person, safeguard against illegal arrest and detention, prohibition of slavery, protection against retrospective punishment, protection against double punishment, freedom of movement, speech, trade, assembly and association, freedom to profess religion and to manage religious institutions, protection of property rights, equality of citizens and safeguard against discrimination. 8. Some marital contacts are void. Prohibitions against such marriages are absolute. Marriage with a woman is void on the ground of consanguity (sister, aunt, daughter etc.). Affinity (Wife's mother, wife's daughter, wife of son etc.) or Fosterage (Sister's foster mother, foster son's sister, foster brother's sister). 9. If the Court or Tribunal lacks jurisdiction or exceeds its jurisdiction in passing an order or judgment, the lawyers point out its worthlessness in the Courts by calling it void or void ab initio. It is synonymous with without effect or consequences, null, not binding and without legal force. 10. Section 2(i) of Contract Act 1872 defines a voidable contract as an agreement which is enforceable by law at the option of one or more of the parties thereto but not at-the option of the other or others is a voidable contact. The concept of voidability has been explained in section 19 of the Contract Act 1872. Section 19. Voidability of agreement without free consent.--When consent of an agreement is caused by coercion, fraud, misrepresentation, the agreement is a contract voidable at the option of the parties whose consent was so caused. A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that a contract shall be performed and that he shall be put in the position in which he would have been if the representations made had been true. Explanation.--If the consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless is not voidable, if the parties whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation.--A fraud or misrepresentation, which did not cause the consent to a contract of the party on whom such fraud was practised or to whom such misrepresentation was made, does not render a contract voidable. 11. Wharton's Law Lexican 14th Edition at page 1049 draws the distinction between void and voidable by defining void as an instrument or transaction so nugatory and ineffectual that nothing can cure it whereas voidable means an imperfection or defect which can be cured by the act or confirmation of him who could take advantage of it. Thus while acceptance of rent will make good a voidable lease, it will not affirm a void lease. 12. Marital unions which have been declared void by morality and religion are void absolutely and in perpetuity. Neither the passage of time nor the consent of contracting individuals can change their void character. Voidness of an act or transaction otherwise is a matter of grade and degree. There are degrees of invalidity which may vary with the gravity of the infirmity as to whether it is fundamental or otherwise. 13. An instance wherein the Supreme Court had to interpret Article 4 of the 1956 Constitution (Article 8 of the 1973 Constitution is its replalica) to determine what was meant by legislature in enacting. "No existing law or any custom or usage having the force of law insofar as it is inconsistent with the provisions of this part, shall to the extent of such inconsistency be void." 14. The Supreme Court held the law described to be void by Article 4 by reason of its conflict with the fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extent and in respect of such territories and persons the law had full operation but because it was void only in the sense that in the decision of a particular case which brought it into conflict with a fundamental right it bad to be ignored or disregarded (PLD 1959 SC 387). This judgment killed the concept that any act declared void by the Constitution was totally without any effect a mere cipher. 15. In the case of Muhammad Hussain and another v. Muhammad Shafi and others (2004 SCMR 1947) the Civil Judge II Class had no jurisdiction- to hear suits of the value of Rs.30,000 at the time of institution of the suit. However, the learned Civil judge heard the suit and decreed the same. The defendant's appeal was dismissed by the appellate Court. The High Court set-aside both the judgments of the Courts below and remanded the case to the District Judge with a direction to entrust the case to a Court of competent jurisdiction for decision. The Supreme Court while interpreting section 11 of the Suit Valuation Act 1887 held that: "When a Court suffers from want of inherent jurisdiction, no amount of consent of acquiescence in the proceedings can invest such Court with such jurisdiction. Question of waiver or estoppel in that case would not arise and where a Gourt does not lack in its inherent jurisdiction but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection of such defect or irregularity touching upon jurisdiction, later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it. In the first place, order or the Court will be nullity in the eye of law but not so in the second case. " ??????????? 16. Inherent want of jurisdiction manifests itself when the Court is not constituted or Judge is not appointed under the law or the law under which the Court is created is an invalid laws. Here the gravity of the infirmity in the exercise of the juristic power is fundamental and the order made or judgment delivered by the Court would be nugatory and ineffectual. 17. Both the void and voidable acts have to be adjudicated by the Courts to render them ineffectual. If a party effected by a void order chooses not to challenge it before a law Court, the void order will create consequences which may prejudice his rights in perpetuity (2003 CLC 936). 18. Where the decree of gravity of the void act was so offensive that to keep it alive would amounts to perpetuating an injustice. It was set-aside with the observation that the decree passed being a nullity, no bar of limitation could be pleaded against setting aside a decree (1994 SCMR 782). Where however, the decree of the voidness was of a lesser scale it was held that "even if order in question was assumed to be void still bar of limitation could not be avoided in the case of a civil servant for lack of satisfactory explanation for delay and equities were also against it. (1994 SCMR 1033). 19. Where order passed by the executing Court was a nullity and against the terms of the decree passed by the appellate Court, the delay in filing the appeal was condoned and the impugned order set-aside (2002 SCMR 122). 20. A Division Bench of Sindh High Court has recently held that void order cannot be regarded as ineffectual and should be challenged as soon as the party affected comes to know of it in order to avoid its consequences. The Court held:-‑ "Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom the adverse order exists would be unfettered ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him; or same should be regulated by judicious norms we earnestly feel that unless some constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create complication leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumbers. Therefore, according to our considered opinion facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whims choices or sweet-will of affected party. Thus order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same . " (PLD 2004 Karachi 143). 21. It is submitted that prayer for condonation of delay in the case of void order should not be strictly judged but should be allowed liberally to remove the injustice introduced by an order, which is null and worth-less. 22. The distinction between void and voidable orders is a question of fact and degree but both have to be taken to Court of law to be adjudged as illegal. 23. It is many a time difficult to distinguish between void and voidable orders which are both in the nature of illegal orders. It is better that some such expression as orders without any legal effect be replaced for words void and voidable.