2016 PLP 1 (YLRN)

AMIN-UD-DIN KHAN, J: Through this appeal appellants have challenged the judgment and decree dated 17.6.2002 passed by learned District Judge, Sahiwal whereby appeal filed by the respondents-plaintiffs was accepted and the judgment and decree dated 14.6.1982 passed by learned trial Court dismissing the suit for pre-emption was set aside.

2. This appeal has an interesting and chequered history. Brief facts of the case are that suit for pre-emption was filed on 27.4.1977 to pre-empt the sale of land in favour of Sajawal Khan, the predecessor of the appellants, by Wali Muhammad etc. the predecessor of the respondents. In the original plaint the value of the suit for the purposes of court fee and jurisdiction was fixed as Rs:39,000/-. Subsequently, through amended plaint filed on 30.10.1977 same was fixed as Rs.61,951.20 and deficiency in the court fee was made good. The suit was dismissed vide judgment and decree dated 14.6.1982. Appeal was preferred by the plaintiffs/pre-emptors before the learned District Judge, Sahiwal, which was allowed by the learned Additional District Judge-III, Sahiwal vide judgment and decree dated 23.12.1982.

3. Learned counsel states that an application under section 12(2) of C.P.C. was filed against the above said judgment and decree on the ground that same are without jurisdiction as the pecuniary value of the suit for the purposes of court fee and jurisdiction was Rs:61,951.20 and the learned District Judge at that time was having pecuniary jurisdiction fixed under section 18 of the Law Reforms Ordinance, 1962(sic) as Rs:50,000/- and states that simultaneously the judgment and decree was challenged before this Court through R.S.A. No. 21 of 1983, which was accepted vide judgment and decree dated 19.10.1991 and the plea of the appellant was accepted that the learned District Judge/learned Additional District Judge was having no pecuniary jurisdiction to entertain and try the appeal. Concluding paragraph No. 10 of the judgment is reproduced for ready reference:-- For the foregoing reasons, this appeal is accepted, the judgment and decree dated 23.12.1982 passed by learned lower appellate Court is set aside. The learned lower appellate court shall pass an order for the return of memo of appeal to the respondents for presentation to proper Court. There will be no order as to costs." Against the above said order passed by this Court the plaintiffs/pre-emptors opted to file CPLA.No. 1071-L of 1991 and as per learned counsel leave was refused. Paragraph Nos. 4, 5 and 6 of the leave refusing order are reproduced:-- "

4. We have heard the learned counsel for the petitioners on other grounds. His contention was that under section 11 of the Suits Valuation Act, no objection had been taken to the decision of the appeal by the first appellate court. The same could not be made a ground for attack in second appeal. Besides, the learned counsel has by reference to section 3 of the Suits Valuation Act and the Rules framed thereunder contended that the valuation for the purposes of jurisdiction both in suit as well as in appeal was incorrectly worked out and it had to be less than Rs:50,000/-.

5. Section 11 of the Suits Valuation Act is not directly applicable because the petitioners themselves had committed the mistake and there is no question of anybody else raising an objection to it. The recourse to section 3 of the Suits Valuation Act would be impermissible as the same party which has committed the mistake wants to avoid it.

6. We find that there is no merit in this petition but the learned counsel states that the order of returning the appeal for presentating now to the same court would appear to be somewhat contradictory. There is no contradiction because technically that has to be done though return of the first appeal would be by the Officer who will receive it again if presented to him. That is the option of the petitioners and could not be a direction from the Court. " Further facts are that under the orders of this Court the learned Additional District Judge returned the memo of appeal to the appellant on 20.1.1992 and the same was re-filed on 25.1.1992 before the learned District Judge as the pecuniary jurisdiction of the learned District Judge was enhanced in the meanwhile from Rs:50,000/- to Rs:2,00,000/- and the learned District Judge accepted the appeal vide judgment and decree dated 17.6.2002. Hence, this Second Appeal.

4. So far as filing of appeal before the wrong forum is concerned and the fact that the value of the suit for the purposes of Court Fee and jurisdiction was Rs:61,951.20 and further that the learned District Judge/Additional District Judge was having no pecuniary jurisdiction at the time of filing of appeal as well as deciding the same, these facts are admitted between the parties.

5. Learned counsel for the respondents has further admitted that the findings recorded by this Court while deciding R.S.A. No. 21 of 1983 that the learned District Judge/Additional District Judge was having no pecuniary jurisdiction to entertain the appeal and decide the same.

6. Now the only question determinable by this Court is that whether the judgment and decree passed by learned Additional District Judge on 23.12.1982 whereby first time the pre-emption suit was decreed, when admittedly he was having no pecuniary jurisdiction to entertain and try the appeal can be considered a decree of pre-emption suit before 31.7.1986 to proceed with the pre-emption suit in the light of Said Kamal Shah's case reported as PLD 1986 Supreme Court

360. While relying upon "Bahadur Khan v. Muhammad Yousaf and another" (1992 SCMR 2117), "Ali Muhammad Khan v. Kalu through Legal Representatives" (2002 CLC 624), "Ali Muhammad and another v. Muhammad Tufail and 3 others" (2002 CLC 1900), "Ghulam Rasool v. Jan Muhammad and others" (2006 SCMR 897) and "Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240) learned counsel for the appellants argues that the decree granted by the learned Additional District Judge on 23.12.1982 when admittedly he was having no pecuniary jurisdiction to entertain and decide the appeal being nullity was not a decree in the eye of law, considerable in favour of the plaintiffs, therefore, suit filed by the plaintiff-respondent was never decreed before 31.7.1986, therefore, it cannot proceed and the judgment and decree passed by the learned first appellate court i.e. learned District Judge dated 17.6.2002 is not sustainable under the law. Prays for acceptance of the appeal.

7. On the other hand, learned counsel for the respondents also relies upon "Bahadur Khan v. Muhammad Yousaf and another" (1992 SCMR 2117) to state that decree even passed without jurisdiction is a decree in favour of the plaintiffs/pre-emptors passed before 31.7.1986, therefore, the judgment and decree passed by the learned first appellate court whereby the suit has been decreed vide judgment and decree dated 17.6.2002 impugned herein and the instant appeal is not competent on this ground.

8. I have heard learned counsel for the parties at length on this point, gone through the judgments and decrees passed by both the courts below and case law referred by learned counsel for the parties.

9. When it is admitted that first time the suit was decreed by the learned Additional District Judge vide judgment and decree dated 23.12.1982 and the learned Additional District Judge was having no pecuniary jurisdiction to entertain and try the appeal. This fact is not in issue between the parties. I have gone through all the judgments referred by learned counsel for the parties. The judgment referred as "Ali Muhammad Khan v. Kalu through Legal Representatives" (2002 CLC 624) is by the learned Single Judge of the Peshawar High Court whereas the judgment relied by learned counsel for the appellant 2002 CLC 1900 titled "Ali Muhammad and another v. Muhammad Tufail and 3 others" which is by learned Single Judge of this Court, therefore, the judgment of this Court has more persuasive value for this case. For taking light I quote relevant portion of the judgment:- "

8. According to the ratio of Sardar Ali's case, the decree-holder on account of a pre-emption decree, passed before the target date, acquires the property rights, under the decree, which could be assigned, transferred or inherited as any other property rights. Thus, protection, was made available to those decrees, which were even illegal or passed in erroneous exercise of jurisdiction, subject to modification, etc. by the higher forum under the old law. However, to my mind, a decree passed without jurisdiction does not fall within the above category and cannot be equated to the erroneous or illegal decree.

9. According to the judgment cited by learned counsel for the petitioner and also in view of the cases reported as Province of the Punjab and others and Abdul Majeed 1983 PSC 394; Chief Engineer, Building Department v. Messrs Pakistan National Construction 1988 SCMR 723 and Sultan Khan alias Sultan Ahmed and others v. Mst. Sardar Bibi and others 1986 CLC 74, the decrees, which have been passed, without jurisdiction, would be nullity in the eyes of law. Besides, in the present case in F.A.O No. 81 of 1986, this Court has declared that the decree in favour of the respondent, dated 10.2.1985, was passed by the learned Civil Judge, lacking inherent jurisdiction. In view of the above such decree, which has been declared to have been passed by the learned Civil Judge, having no jurisdiction, would not create any right in the decree-holder to sustain any action under the previous law for the reason that the decree without jurisdiction, since its inception would be non-existence altogether and would merely be a simple piece of paper. This view is strengthened from the settled law that an executing Court cannot go behind a decree, but if a decree is void, on account of lack of inherent jurisdiction, the Court shall refuse to execute the same.

10. In the above circumstances, I am constrained to hold that as the decree dated 10.2.1985, was void ab initio, therefore, it would not be deemed to have ever passed before 31.7.1986." With regard to jurisdiction I take light from "Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others" (2008 SCMR 240), relevant portion is reproduced:-- "This is an established law that jurisdiction cannot be assumed with the consent of the parties and notwithstanding the raising of such an objection by the parties, the forum taking cognizance of the matter must at the first instance decide the question of its jurisdiction. There can be no exception to the principle that an order passed or an act done by a Court or a tribunal not competent to entertain the proceedings is without jurisdiction and that it is mandatory for the Court or tribunal as the case may be to attend the question of jurisdiction at the commencement of the proceedings because the jurisdictional defect is not removed by mere conclusion of trial or inquiry and objection to the jurisdiction can be raised at any subsequent stage." In this view of the matter, under sub section (2) of section 34 of Punjab Pre-emption Act, 1991 which is saving clause of repealed Act, 1913, the suit filed under the repealed Act i.e. Punjab Pre-emption Act, 1913 (I of 1913) can continue if a decree has been passed before 31.7.1986 in the light of the judgment of the august Supreme Court of Pakistan reported as PLD 1986 Supreme Court 360 (Said Kamal Shah's case).

10. In view of above discussion it is clear that in a pre-emption suit filed on 27.4.1977 a decree was passed first time by learned Additional District Judge on 23.12.1982, who was having no pecuniary jurisdiction to entertain and decide the appeal, therefore, that decree which was subsequently set aside by this Court vide order dated 19.10.1991 passed in R.S.A.No. 21 of 1983 where-against CPLA No.1071 of 1991 was also dismissed by the august Supreme Court of Pakistan while refusing to grant leave vide order dated 2.12.1992 is not a decree in favour of plaintiff/pre-emptor to make his case in the ambit of sub-section (2) of section 34 of the Punjab Pre-emption Act, 1991 to continue in accordance with the provisions of repealed Act.

11. In this view, the decree granted by the learned Additional District Judge dated 23.12.1982 cannot help the respondents/pre-emptors being void, ab-initio, therefore, it would not be deemed to have ever passed before 1.8.1986, therefore, judgment and decree passed by the learned first appellate court dated 17.6.2002 whereby through the impugned judgment and decree while accepting the appeal the suit has been decreed is not sustainable under the law, same is set aside. The result is that suit for pre-emption filed by the plaintiffs-respondents stands dismissed. MH/M-24/L Appeal allowed.