1999 PLP 2464 (SCMR)

ABDUR REHMAN KHAN, J.

This judgment will dispose of the above two appeals as they been filed from the same judgment dated 14-2-1993 of a learned Judge of the High Court and they proceed on similar facts and present common question of law for determination.

2. Leave was granted to consider the following contentions of the learned counsel appearing for the petitioners at the time of hearing of the petition: "The learned counsel for the petitioners submitted that the vendees did riot contest the suit. He had accepted the decree by withdrawing the pre-emption suit and delivering the possession of the suit land to the petitioners. The decree was not challenged by way of appeal, therefore, it became final after the delivery of possession. It was past and closed transaction and could not be re-opened under section 12(2), C.P.C., as no fraud or misrepresentation had been committed by the petitioners. "

3. Factual aspect of dispute between the parties is that by registered sale deed dated 9-9-1981 the respondents/vendees purchased the suit land. This transaction was pre-empted by the two appellants as rival pre-emptors by two separate suits which were consolidated on 26-7-1984 and were tried together. Muhammad Khan plaintiff claimed superior right of pre-emption as collateral of the vendor and as Khewatdar' in the Mauza while Aurangzeb based his superior right of pre-emption being a collateral of the seller and also on co-sharership in the Khata. It is to be noted- that the vendees/defendants did not contest the suit as both were placed ex parte on 10-7-1984. However, the rival pre-emptors submitted written statement and contested the suit which led to the framing of so many issues including issue No. 2 relating to superior right of pre-emption of the parties. The finding of the trial Judge on issue No. 2 is reproduced below:

"Both the pre-emptors claimed that they are collateral of vendor Riaz Bibi. The plaintiff produced on record copy of Shajra Nasab Exh.P2 and rival pre-emptor produced on record copy of Shajra Nasab Exh. Dl. Both the documents show that both the pre-emptors are cousin of the vendor. As there is no evidence from the side of vendees/defendants, therefore, both the pre-emptors ' have got superior right of equal degree. Issue decided accordingly in favour of the pre emptors. "

4. Consequently, the learned trial Judge by judgment, dated 20-10-1987, ex-part decreed the suit of both the pre-emptors/appellants to the extent of half of the disputed land in favour of each of them. It is apparent from the record that the vendees/defendants were satisfied with this ex parte decision as they neither appealed against it nor applied for its cancellation. It is also not disputed that possession of the disputed property was delivered to the decree-holder in execution proceedings. However, an application under section 12(2) of the C.P.C. was filed by the vendees/defendants on 30-1-1989 (this is the date on which the application was written or may be some days thereafter, as the actual date of submitting the application in Court is not available in the paper book). It was alleged in this application that the decree was obtained by misrepresentation, fraud and that the Court lacked jurisdiction to pass pre-emption decree on the ground of having superior right being the descendant from the same ancestor, after the target date of 31-7-1986, as was held in Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360). This application was dismissed by the learned original Court on 5-5-1969 but the revisional Court of the learned Additional District Judge by judgment passed on 13-9-1992 while accepting the revision petition set aside the order of original Court and accepted the application under section 12(2), C.P.C. and resultantly the pre-emption decree was declared as null and void. High Court was approached in writ petition which was dismissed through the impugned order dated 14-2-1993.

5. We heard the learned counsel for both sides and went through the available record.

6. The ex parte decree was passed on 20-10-1987, the application under section 12(2), C.P.C. was written on 31-1-1989 as is shown on it, therefore, even. if it is taken as the date of filing the application then its submission was delayed by one year, 3 months and 10 days. It is conceded that neither any application for setting aside the ex parte decree was made nor any appeal was instituted to impugn its legality. It is admitted position that the pre-emption money was withdrawn by the vendees/respondents and they also delivered possession of the suit land to the petitioners/appellants in execution proceedings. It is also to be noted that the suit remained pending in the-trial Court for years in which the vendees/defendants were proceeded against ex parte on 11-7-1984 and the suit was decreed more than three years thereafter on 22-10-1987. But it is strange to note that the vendees in their applications under section 12(2), I C.P.C. have not uttered a single word to show that they either did not know about the pendency of the suit or they were not having the knowledge of the ex parte proceedings against them. It is , therefore, obvious that for all practical purposes the ex parte decree had become past and closed transaction and the vendees had accepted this position and had consciously acted upon it by their positive act of withdrawing the sale price of the land which was deposited in. Court and by delivering possession of the disputed land to'the decree-holder in execution proceedings. They were, therefore, estopped by their conduct and acquiescence to challenge the validity of the ex parte decree in proceedings under section 12(2), C.P.C. instead of applying for setting aside this parte decree by filing application against it. They could also not be permitted to avoid and by pass the period 'of limitation and the hurdle of the ex parte decree against them by resorting to collateral proceedings under section 12(2), C.P.C. It is not a principle of universal application that a void order must invariable be struck down irrespective of taking into consideration the surrounding circumstances under which it was passed. It would be entirely unjust and unfair to set at naught an order at the behest of the party who not only contributed in passing such an order but also consented to it anal acted upon it. This legal position was elaborately dealt with in the. following observation in the case of S. Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore and another (1978 SCMR 367) at page 368; "Held, the assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And order which has been passed car create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. A void order is not always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided 'there is no statute or principle of law which would make it unjust or inequitable to streak down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches." The same principle was reiterated in Karim Bakhsh and 4 others v. Riaz Hussain and another (1993 SCMR 1667 at 1670). It was held: "We need not embark upon the detailed discussion of the precedents, referred to by the appellants' learned counsel holding that when an order is a nullity, there will be no period of limitation for setting aside the same, for, the case before us has marked distinguishing features to which these precedents whatever the weight these are possessed of are not attracted, the reasons being that for a period of about one year the appellants did not make any application for obtaining the certified copies of the judgment and decree of the trial Court to challenge the same before the First Appellate Court. The obvious inference is that they had no intention to question the validity of decrees through an appeal. It is discernable from the record that during this interregnum they not only withdrew the pre-emption money from the Court, but also handed over the possession of the land in dispute to the decree-holder The decree of the trial Court' was thus not only accepted but also deliberately acted upon by them. It is well-settled that when an inference is to be drawn from a number of facts proved on tire record, then each fact should not be weighed singularly but effect is to be given to all the facts accumulatively and a picture of the combination of circumstances drawn as a whole. Viewed from this angle we are led to the irresistible conclusion that the decree of the trial Court had become a faith accomplish. We may observe that a void order is only against a person directly affected by it; if he does not question its validity according to law and rather acts upon the same, practically the order stands legitimised. If a void order is bereaved of its effectiveness only when it has been pronounced upon so by a Court, the delayed action shuts the remedy and by the act of the party itself, the difference between a void and voidable order is reduced to a vanishing point. " A similar view that it is not inflexible rule that a void order must necessarily be set aside was also taken in "Muhammad Ismail v. Abdul Rashid and 2 others (1983 SCMR 168) when it was observed therein:

"Even if the transfer order be void, the assumption that a Court must always strike it down regardless of the consequences of such decision. is, as held in Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 SCMR 367), a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provisions of a statute of limitation or if he was estopped by his conduct from challenging the order or if he had been guilty of laches." As has been stated above in this judgment the vendees never averred/asserted in the application under section 12(2), C.P.C. that they had no knowledge of the pendency of the pre-emption suit or the ex parte proceedings against them and they also could not refute the factum of withdrawal of the pre-emption amount or delivery of possession. The learned Additional District Judge while exercising the revisional jurisdiction which is discretionary in nature should have taken the above facts into consideration. The prayer in the revision should have been refused because of the above indicated conduct etc. of the vendees and not because the decree of pre-emption as prayed for could not be passed in the circumstances of this case after the target date of 31-7-1986. This Court while dealing with a matter in somewhat similar circumstances in a case reported in Ghulam Mohy-ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore (PLD 1964 SC 829) observed as follows:

"In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from review in his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent that commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even through the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. " There appeals are, therefore, allowed, the impugned judgment and decrees of the High Court and Additional District Judge are set aside while that of the trial Court are restored. Parties would bear their own costs of litigation. H.B.T./303/S Appeals allowed.