2007 SCMR 914 (PLP)

SYED JAMSHED ALI, J.

This judgment shall dispose of Civil Petitions Nos.51 and 52 of 2006 as these involve common questions of law and fact. These arise out of the following circumstances.

2. On 21-7-1990, Begum Noshaba Moin and six others successors -in-interest of Mian Muzafaruddin filed a suit for declaration against Mirza Saleem Ullah Baig deceased, respondent No.8, now represented by his legal heirs as respondents Nos.9 to 11, the Member Board of Revenue (S&R Wing) and two others claiming a declaration that plaintiffs Nos.1 to 4 were owners in possession of Kothi No.2-G, comprising an area measuring 9 Kanals, that Kothi No.2-G transferred by Settlement Authorities was built on the land measuring 6 Kanals of Kothi No.2-G and 3 Kanals of Kothi No.3-G, Model Town Lahore and no portion of the said property was available to be transferred under the Settlement Laws, T.O. No.21790 dated 29-6-1974 in respect of Kothi No.3-G (measuring 6 Kanals) was a nullity, a result of fraud, the verification committee could not have verified it and the same be declared as void and forged. A permanent injunction was also claimed against successors of Mirza Saleem Ullah Baig restraining them to enforce the said fake and fraudulent Transfer Order against the plaintiffs and from alienating the suit property in any manner or to become member of the Model Town Cooperative Society. In the suit as instituted, there was one private defendant i.e. Mirza Saleem Ullah Baig, who contested the suit and claimed that Kothi No.2-G was transferred to Mian Muzafaruddin, predecessor-in-interest of the plaintiffs, the area of which was 6 Kanals and the area measuring 3 Kanals out of Kothi No.3-G was available for transfer. It is significant to note that Mirza Saleem Ullah Baig while filing written statement did not place full facts relating to issuance of transfer order in his favour. Respondents Nos.2, 3 and 4 i.e. the Member, Board of Revenue and two other public functionaries filed separate written statement. They supported Mirza Saleem Ullah Baig inasmuch as that it was asserted that Kothi Nos.2-G, 3-G and 4-G, each measuring 6 Kanals, were separate properties.

3. It may also be noted that on 2-6-1990, Mirza Saleem Ullah Baig, purportedly entered into an agreement to sell with one Begum Syed Azra Masood, the petitioner herein, Sardar Hassan Akhtar Moakal and Mst. Akhtar Sajjad, respondents to sell the disputed property measuring 3 Kanals and on the suit filed by the aforesaid vendees for specific performance, it was decreed on 31-7-1991 during the pendency of the suit earlier filed by the plaintiffs-respondents Nos.1 to 7.

4. The suit for declaration filed by respondents Nos.1 to 7 was decreed vide judgment dated 16-11-2000. As far as the decree dated 31-7-1991 is concerned, the plaintiffs-respondents filed an application under section 12(2) of Code of Civil Procedure which was allowed vide a separate order, dated 16-11-2000.

5. Against the decree, dated 16-11-2000, the petitioner filed an appeal before the learned District Court which was dismissed on 8-7-2002 and Revision Petition No.2641 of 2002 was dismissed vide judgment dated 26-10-2005. As far as grant of application under section 12(2) of Code of Civil Procedure is concerned, the petitioner filed Civil Revision No.2230 of 2002 dated 26-10-2005. On the record of Civil Petition No.51 of 2006, the number of civil revision given on the certified copy of impugned order is 2230 of 2002. It is, in fact, 2641 of 2002. Likewise on the record of Civil Petition No.52 of 2006, the number of revision petition given on the certified copy of the impugned order is 2641 of 2002 whereas it is, in fact, 2230 of 2002. As far as Civil Petition No.52 of 2006 is concerned, it pertains to the suit for declaration while Civil Petition No.51 of 2006 relates to the application under section 12(2) of the Code of Civil Procedure filed by the respondents-plaintiffs.

6. The appeal of the petitioner arising out of suit for declaration was dismissed as barred by time. The learned counsel for the petitioner contends that petitioner's counsel namely Mr. R.A. Zafar, Advocate, had died and she had no intimation of the decision of the case. Further, that the judgment of the Civil Court being a nullity, the bar of limitation would not operate. Reliance was placed on Sher Bahadar Khan v. Qazi Islamuddin and another PLD 1984 SC

213. According to him, the Transfer Order issued in favour of Mirza Saleem Ullah could not be questioned before the Civil Court and that Kothi No.2-G measuring 6 Kanals was transferred in favour of Mian Muzafaruddin and Civil Court could not have granted decree for an area measuring 9 Kanals.

7. On the other hand, the learned counsel for the respondents has vehemently opposed the petitions and contended that condonation of delay was within the discretion of learned First Appellate Court and it has been declined for valid reasons. He contends that it was a contested matter but even the copy of the judgment dated 16-11-2000 was applied for on 5-7-2002 long after the expiry of the period of appeal. He also contended that the documents relating to the title of Mirza Saleem Ullah Baig were deliberately withheld. He brought to our notice that in fact, the property in question i.e. 3-G was provisionally earmarked in favour of one Shaukat Ali under the Reservation Scheme on 20-9-1961 while the reservation scheme had already been discontinued on 6-5-1961 vide Press Note dated 24-3-1961. It was through an Agreement of Association between Shaukat Ali aforesaid and Mirza Saleem Ullah Baig that the Transfer Order was purportedly issued in favour of the latter. Further submits that the Transfer Order in favour of Shaukat Ali and Mirza Saleem Ullah Baig was without jurisdiction and that transfer of Kothi No.2-G measuring 9 Kanals having been proved, the Civil Court had the jurisdiction in the matter.

8. We have considered the submissions of the learned counsel for the parties and perused the record. The suit brought by the plaintiffs-respondents was essentially based on PTD. Their case was that the Kothi transferred in their favour comprised an area measuring 9 Kanals. It is not disputed that Kothis Nos.2-G and 3-G measuring 6 Kanals each were owned by one evacuee owner namely R.B. Lala Sant Ram. It has been established on record that the Kothi, the transfer of which was claimed, by respondents-plaintiffs comprised 40920 sq. ft. as borne out by the building plan. (Exh.P.1) of 1940 which clearly shows that it was on Plot No.2-G and portion of Plot No.3-G, Model Town, Lahore. Thus, in fact, house on the aforesaid land became one property owned by one evacuee owner which was transferred to Mian Muzafaruddin. Therefore, the said disputed portion of 3 Kanals being part of the house transferred to plaintiffs' predecessor was not available for transfer to Shoukat Ali or Mirza Saleem Ullah Baig and the Settlement Authorities has no jurisdiction whatsoever to transfer the said portion to Shaukat Ali or Mirza Saleem Ullah Baig. The law is clearly settled that an ouster clause in any statute will only apply when the authorities constituted therein act within the four corners of the statute and if they step out of it, the protection available to the orders passed by a Tribunal of special jurisdiction is no more available and Court of plenary jurisdiction could examine the controversy. Reference may be made to a five members Bench judgment of this Court reported in Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 in which the following observations were made:-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must -unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central Government refusing to effect the respondents which were based on that part of the Deputy Custodian's order which was in excess of his jurisdiction were void and not final within the meaning of section 13-B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law."

9. We will also like to observe that Transfer Order in favour of Mr. Saleem Ullah Baig was issued on 29-6-1974 and on 30-6-1974. Evacuee Laws were repealed by virtue of Displaced Persons and Evacuee Laws (Repeal) Ordinance (No.XV) of 1974 while the suit was filed after repeal of laws when an illegal order of transfer was sought to be enforced against the plaintiffs-respondents. Thus, even on this score the Civil Court had jurisdiction. See Muhammad Rafique v. Abdul Ghafoor 1992 SCMR 1971.

10. The judgment relied upon by the learned counsel for the petitioner is distinguishable. In the said case, the plaintiffs had claimed title to Property No.51/1 on the ground that it was part and parcel of Properties Nos.53/1 and 55/1. The finding of the learned High Court was that there was no evidence worth the name which could show that Shop No.52/1 was part and parcel of Shops Nos.53/1 and 54/1. Further the said suit was filed when the settlement laws were in force. It was in this context that an observation was made by this Court that Civil Court had no jurisdiction to interpret or construe PTD in a manner to erode, modify or destroy any part of the proceedings, order or decision of competent Settlement Authorities.

11. Today, at the time of hearing, the learned counsel for the petitioner placed certain documents on record. One of the documents is letter, dated 20-9-1961 of the Additional Settlement Commissioner, Farid Kot House, according to which Kothi No.3-G, Model Town Lahore, measuring 6 Kanals was provisionally reserved in favour of Shaukat Ali. On the said date, the reservation scheme had already been discontinued. Therefore, the PTO issued in favour of Shaukat Ali and the Transfer Order (through association) issued in favour of Mirza Saleem Ullah Baig were wholly without jurisdiction. Viewed in this context the contention of the learned counsel for the petitioner that the order of the Civil Court was corm non judice has no merit whatsoever and the bar of limitation will apply with full force.

12. Perusal of the record shows that the petitioner was throughout represented before the learned trial Court and the excuse that earlier counsel had died was not available to her. The explanation of the learned counsel was that presence of the counsel before the Civil Court was marked in routine. We are not inclined to believe it that in a contested case pending before the Civil Court, the petitioner would remain unaware of the proceedings and even the ultimate decision. The copy of the impugned judgment having been applied for on 5-7-2002 after more than 1 year and 7 months, the appeal was rightly dismissed as barred by time.

13. As far as the submission of the learned counsel that limitation does not run against a void order is concerned, it has not impressed us. As held above, the judgment and decree of the trial Court could not be said to be void. We may add that a void order is only a type of an illegal order and if it has created certain consequences, an aggrieved person must get rid of it. If the argument of learned counsel for the petitioner is accepted, then there may not be any limitation at all to challenge an illegal order by describing it as a void order after any period say 5 years, 10 years, 20 years and so on. One of the objects of the legal system, particularly to prescribe limitation, is to settle the rights of the parties and provide certainty in human affairs and if the argument which is being put forth is accepted, it will have the effect of unsettling rights and may affect the transactions which may have taken place meanwhile and, thus, prejudice a third party. Reference may be made to Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 in which the following observations were made:-- "However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1) it would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal to enter on the enquiry in question." Reference may also be made to Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 in which it was reiterated that: "It may also be noted that even against a void order an aggrieved person is required to initiate proceedings within reasonable time, instead of invoking the jurisdiction of the Courts after lapse of considerable time when the order/decree under attack in fact had achieved finality as in the instant case the respondent had not only conceded to the decree of the trial Court but had also withdrawn the sale consideration during pendency of the appeal which was filed by the appellant and thereafter he felt satisfied and all of a sudden filed application in the year 1992 after lapse of period of more than 5 years with the prayer that decree passed on 15th April, 1987 be set aside as it has been passed without jurisdiction."

14. It may be noted that the following issues which pertain to merits of the controversy were determinative of the question of jurisdiction:-- Issue No.3 Whether after issuance of P.T.D. dated 26-12-1962 in favour of deceased Mian Muzaffar-ud-Din, no portion of Kothi No.2-G was available for transfer and defendant No.4 had got no authority to transfer any portion of the said property? OPP Issue No.4 Whether Transfer Order No.21790 dated 29-6-1974 allegedly issued in favour of deceased defendant No.1 is outcome of fraud, forgery, fake, void and nullity in the eyes of law and of no legal effect as against plaintiffs Nos.1 to 4? OPP Although a specific objection as to ouster of jurisdiction of the Civil Court was not taken yet issue No.9 whether the suit was barred by the provisions of the Displaced Persons (Compensation and Rehabilitation Act, 1958 indirectly covered the controversy. The learned trial Court after perusing the record answered Issues Nos.3 and 4 against the petitioner. Findings on Issues Nos.3 and 4 of the learned trial Court, which are based on evidence clearly answer the question as to the jurisdiction of the Court in the light of above observations in this judgment.

15. Condonation of delay was within the discretion of the learned First Appellate Court and, therefore, dismissal of appeal of the petitioner as barred by limitation is not open to any exception. As far as Civil Revision No.2230 of 2002 is concerned, it was barred by time and in accordance with rule laid down in Allah Dino and another v. Muhammad Shah and others 2001 SCMR

286. Section 5 of the Limitation Act being inapplicable, the same was, rightly dismissed.

16. For what has been stated above, we find no merit in these petitions which are dismissed and leave refused. M.H./A-4/SC Petition dismissed.