1989 PLP 776 (CLC)

3. On the other hand, the learned counsel for the respondent has argued that since the petitioners agreed to the confirmation of the decree of the trial Court by the learned District Judge, therefore, they are now estopped by their own conduct to object to the same. In this behalf, he has relied upon the case of Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139.

4. Secondly, with reference to the scope of the revision, it was argued that although to maintain a revision is right of the party yet relief is in the discretion of this Court. The petitioners are disentitled, on account of their conduct, to any discretionary relief. The learned counsel, in this behalf, has referred to the cases of Karamat Hussain and others v. Muhammad Zaman and others P L D 1987 S C 139, Mst. Ghulam Fatima v. Muhammad Hussain and 5 others P L D 1976 SC 729, Noor Ahmad v. Chief Settlement and Rehabilitation Commissioner and others 1975 S C M R 529, Saqlain v. Mst. Hazra Begum and 2 others 1981 S C M R 645 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97.

5. Thirdly, it was argued that since the procedure adopted by the learned District Judge was in accordance with the consent of the parties, the petitioners having paid their share of costs paid to the Advocate, called for fixation of the price and once the objection was given up, the same could not have been agitated; and

6. Lastly, it was argued that even if an order is void, illegal and without jurisdiction, still no relief should be granted to the petitioner, who has made conception in favour of the other side. It is added that if this course is not followed, then it will open a flood‑gate of petitions even in the cases, where the execution has taken place.

7. The learned counsel for the petitioners, in reply to the arguments of the learned counsel for the respondent, has argued that the arrangement entered into between the parties being illegal, therefore, the learned District Judge should not have given his blessings to the same. In this behalf the learned counsel for the petitioners has referred to Order XXIII, Rule 3, C.P.C. 8. 1 have given my anxious considerations to the arguments of the learned counsel for the petitioners and counter‑arguments of the learned counsel for the respondent and gone through the precedent cases. Before proceeding any further, I would like to refer to the provisions of section 115 and Order XXIII, Rule 3, C.P.C. and to the judgments of the Hon'ble Supreme Court in pre‑emption matters in order to discover the scope of decree in pre‑emption suits after 31st of July, 1986. Section 115, C.P.C., reads as under:‑‑ "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) * * * * * * * * * * * * * (c) * * * * * * * * * Rule 3 of Order XXIII, C.P.C., reads as follows:‑‑ "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject‑matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." Now, I refer to the relevant judgments of the Hon'ble Supreme Court. The first in the series is Sardar Ali and others v. Muhammad Ali and others P L D 1988 S C

287. The question No.l incorporated in para. 5 thereof deals with the situation as in the present case. The same is reproduced as under:‑‑ "(1) Whether a pre‑emption suit not decided by the trial Court before 31st July, 1986, could be decreed after the said date." The reply to this question was in negative. The other relevant portion of the judgment by Nasim Hasan Shah J. , at page 352 reads as follows: ‑‑ "I also agree with the finding of my learned brother that where no decree has been passed by the trial Court or any higher forum before 31‑7‑1986, no such decree can be passed thereafter by any Court or forum on the ground that the matter was instituted and pending in the Court before 31‑7‑1986." Now, I would take up the case of Muhammad Shoib and others v. Member (Revenue) and others P L D 1988 S C

355. The relevant portion of the judgment is as under:‑‑ "***That being so, as held in this Court's judgment in the case of Sardar Ali and others v. Muhammad Ali and others (C.A. 208/80 and other matters decided on 2‑5‑1988, P L D 1988 S C 287) no decree can be passed now after the said date in favour of the pre‑emptors on any ground‑‑co‑ownership contiguity ‑etc. 'While in the case of Ghulam Qadir v . Nawab Din P L D 1988 S C 701, the relevant portion reads as under:‑‑ "*****It is reported as in Shoib and others v. Member, Board of Revenue and others P L D 1988 S C

355. It was clearly held that no decree can be passed now after the said date in favour of the pre‑emptor on any ground ...co‑ownership, contiguity etc." *****When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then existing pre‑emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have been made due to the peculiarities and strictness of the relevant law in this behalf. Said order of the Supreme Court is: Sher Muhammad v. Allah Ditta P L D 1988 S C

412. The following observations therein fully demonstrate how we felt about the frivolous claims regarding Islamic Talabs: It is admitted that so far no decree has been passed in their favour. It is not claimed that the requirement o 'Talabs' as in Islam was fulfilled in these cases. In C.P.S.L.A. No.747 of 1983, learned counsel for the petitioners had not even heard o the expression 'Talabs'. That being so, no decree can now be passed in their our in view off` the judgment Cof the court in Sar ar A i v. Muhammad Ali (C.A. No.208 of 1980, decided on 2‑5‑1988; P L D 1988 S C 87). These petitions are accordingly dismissed." It is clear from the portions quoted above from the latest judgments of the Hon'ble Supreme Court in the cases of Sardar Ali, Muhammad Shoib and Ghulam Qadir that no decree legally could have been passed in the pending pre‑emption suit after 31st of July, A 1986. The present suit was admittedly instituted on 4th of November, 1975, and the decree was passed for the first time on 28th of March, 1988, therefore, the decree is absolutely void and nullity in the eye, of law. hence question arises whether in the peculiar circumstances of the case, I should give my blessing to this void and without jurisdiction decree. The learned counsel, in this behalf has referred to the case of Muhammad Husain Munir. The same is quite distinguishable because in that case, the dispute was not as to the lack of jurisdiction of the Consolidation Authorities. Similarly, in the case of Karamat Hussain, the question was whether the High Court was justified in refusing to treat second appeals as revisions. However, I will refer to this case in other context at the relevant place of this judgment. The case of Mst. Ghulam Fatima is not relevant at all for the decision of the present revision, while in the case of Saqlain, the petitioner failed to raise the objection as to the jurisdiction, whereas in the present case, this situation did not arise, as the petitioners have challenged the decree on legal and factual planes. The case of Noor Ahmad is again not relevant, because the petitioner has not objected to the jurisdiction of the learned District Judge. But he has challenged that the District Judge has failed to exercise the jurisdiction in accordance with the law. The last case in the series is of Muhammad Swaleh. It will also not help the respondent because it was held that mere irregularity or illegality in exercise of jurisdiction will not render the subordinate Court's order void or without jurisdiction, whereas in the present case, it is total lack of jurisdiction on the part of the Civil Court to decree the suit. Now, I proceed with the pleas, which are sort of preliminary objections raised by the learned counsel for the respondent. It was clearly held by the Hon'ble Supreme Court in the case of Karamat Hussain that the exercise of revisional jurisdiction is discretionary but it does not mean that the revision is not competent as a matter of right but only as privilege. Now, it is well‑settled law that it is for the Court to administer justice in accordance with the law. In this behalf, I may refer to the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C

690. It was observed by the Hon'ble Supreme Court as under:‑‑ "that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, law has to be given effect to whether or not it has been relied upon by a party. " The scope of Section 115, C.P.C., is elaborated in the following passage by the Hon'ble Supreme Court in the case of Muhammad Swaleh : ‑‑ "The only Article which could be. applicable was the residuary Article 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu. At the same time it should be remembered that the respondents had themselves approached the High Court in the exercise of its revisional jurisdiction and once the High Court is seized of the case in the exercise of such jurisd on it can in accordance with section 115, C. P. C "make such order in the case as it thinks it." The Hon'ble Supreme Court has thrashed out the legality of the pre‑emption law vis‑a‑vis Constitution and Principles of Islam and struck down the same. It was clearly held in the case of Sardar Ali that no decree can be passed in pending pre‑emption suits after 31st of July, 1986. The same principle was reiterated for of the Courts and the litigant public Civil Judge in this case did not proceed in accordance with the law declared by the Hon'ble Supreme Court. Such type of void orders are covered by clause (a) of Section 115, C.P.C as reproduced above.

10. Now, I take the objection that since the 'petitioners have agreed to confirmation of the decree of the Civil Court, therefore, they are estopped now to impugned the same. The argument is without any merit for the reasons: firstly, that there is no estoppel against statute; secondly, a concession made in ignorance of the right will not create estoppel; and thirdly, the District Judge has not decided the case in accordance with the alleged compromise. The gist of the argument of the learned counsel for the respondent is one and the same but he very intelligently has put forward the same in different phraseology. The question of discretion and its exercise in the revisional jurisdiction has been dealt by me elaborately in the foregoing paras of this judgment.

11. It is bounden duty of all Courts to decide causes in accordance with law. The lower Courts are under Constitutional obligation to follow the decision of Hon'ble Supreme Court and this Court on~ questions of law as per Articles 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973.

12. Now I take up the most crucial point whether the scrawled compromise is lawful? Because until and unless a compromise is legal it cannot be given blessing or effect by any Court otherwise litigants will assume functions of legislature and judiciary. The causes are to be decided in accordance with law of the realm and not as per desire of litigants. When adjudged from this angle specially with reference to the provisions of rule 3 of Order XXIII, C.P.C. then the so‑called compromise recorded by the lower appellate Court fails to qualify the test. It is not only formality to judge that a compromise is lawful or not but it is a condition precedent for any compromise sought to be made basis of a decree of Court. The finding of the District Judge that the compromise is legal cannot be maintained, the same having been made in utter disregard of the law declared by the Hon'ble Supreme Court in pre‑emption matters, which the learned District Judge was bound to follow as per Article 189 of the Constitution of F Islamic Republic of Pakistan 1973. how the litigants can bestow jurisdiction on a civil Court to pass a decree in a pending pre‑emption suit after 31st of July, 1986? This is in fact a pivotal point around which the whole structure of this case turns. If the answer is in positive then any law can be set at naught and decision of superior Courts can be conveniently bypassed by the lower Courts. This not only offends against the Constitution but, also provisions of C.P.C. and Contract Act.

13. The learned trial Court decreed the suit illegally and without jurisdiction while the learned appellate Court failed to take notice of this total lack of jurisdiction and confirmed the same. Neither the decree of the trial Court nor so‑called compromise recorded by lower appellate Court were legal. This fact alone is sufficient to exercise revisional jurisdiction. The reference in this behalf can be made to latest decision of Hon'ble Supreme Court in case of Sheikh Muhammad v. Mst. Hashmat Sultana 1989 S C M R

34. The relevant portion of judgment reads as under: "It is true that the controversy, whether a transaction of alienation is 'sale' or 'exchange', primarily involves a question of fact. All the same, every finding of fact is not immune from interference in revisional jurisdiction. The precedent relied upon by the learned counsel for the appellant itself makes it clear that in exercising the jurisdiction possessed, the Courts would not commit jurisdictional illegality This concept of jurisdiction and illegality had been considered by this Court in the case of Kanwal Nain P L D 1983 S C 53, to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that rave injustice would result there from. Applying this test, the reasons advanced by the High Court are correct on the legal plane as they are found to be. then the two Courts deciding the controverted question of fact, cannot be said to have acted with Jurisdiction, because evidence has been misread at more places than one, conclusions

14. The result is that this petition succeeds. the judgments and decrees of the Courts below are set aside and the suit of thief respondent is dismissed. There is, however, no order as to costs. A.A./M‑1132/L Revision accepted.