2002 PLP 1391 (YLR)

"It is an admitted fact that section 35(2) of the Punjab‑Pre emption Act, 1991 has already been declared against the Injunction of Qur'an and Sunnah. In the absence of section 35(2), section 35(1) of the said Act has also become inoperative. In the absence of saving as provided in the Pre‑emption Act, 1991 there is no law which is applicable to those suits which were instituted or pending between the period from 1‑8‑1986 to 28‑3‑1990." Petitioners gave a review application against the afore‑referred order which was dismissed by the learned trial Court on 3‑9‑1992 by observing that there was no valid ground to warrant review. Petitioners went in appeal before the learned Additional District Judge, Mandi Bahau‑ud‑Din and the learned Additional District Judge, Mandi Bahauddin vide the impugned judgment dated 4‑7‑1995 dismissed the same mainly on the ground of limitation.

3. Learned counsel for the petitioners in support of this petition has made the following submissions:‑‑ (i) That the petitioners suit stood revived vide order dated 21‑2‑1991. The revision against the said order was dismissed on 4‑11‑1991 and the learned trial Court had no jurisdiction to pass the order dated 1‑4‑1992 and the review was wrongly dismissed by the same Court on 3‑9‑1992. He added that even if the civil revision is dismissed the findings given are conclusive and it was not open for the learned trial Court to sit over the findings given. In support of the submissions made learned counsel relied on Ch. Zulfiqar Ali v. Mian Akhtar Islam and others PLD 1967 SC 418. (ii) That the learned Additional District Judge has wrongly held that the period to tile pre‑emption suit during the interregnum is four months. The period of limitation in the suits which are filed in interregnum is one year in view of the law laid down by the august Supreme Court in Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1 and Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 and Bashir Ahmad v. Nazir Ahmad Khan 2000 SCMR 1850. (iii) That the declaration to the effect that section 35(2) of the Punjab Pre -Emption Act, 1991 is un‑Islamic was to take effect from 31st December, 1993 in view of the law laid down by the august Supreme Court in Muhammad Shabbir Ahmad Khan v. Government of the Punjab Province PLD 1994 SC 1 and the suit could not have been dismissed on this ground. (iv) That the suit could not have been dismissed on the ground of limitation alone as it is always a mixed question of law and facts. He refers to Alam, Din and others v. Muhammad Ali and others 1999 MLD 2146 in support of this ground. (v) That although petitioner's appeal before the learned Additional District Judge was time‑barred but a void order can be challenged in a revision and this 'Court may in suo motu exercise of the revisional jurisdiction interfere with the order passed by the learned Additional District Judge, Mandi Baha‑ud‑Din as it is violative of the law laid down by the august Supreme Court to which reference has been made above. The parameters of the suo mote revisional jurisdiction of this Court according to the learned counsel have been laid down in a judgment of the august Supreme Court reported in Muhammad Yousaf and 3 others v. Khan Bahadai through Legal Heirs 1992 SCMR 2334.

4. Learned counsel for the respondent, on the other hand, defended the impugned judgment as according to him, the admitted position is that section 35(2) of the Punjab Pre‑emption Act, 1991 was declared un -Islamic and this declaration was in the field when the impugned judgment and decree was passed, that the impugned judgment is in consonance with the law declared in Muhammad Ismail Qureshi v. Government of the Punjab PLD 1991 FSC 80 and to take effect from 31st December, 1991. He further added that even if the order of the learned trial Court was void the same had to he challenged within limitation. In support of the submission made he relied on Abdul Ghani v. Ghulam Sarwar AD 1977 SC 102 and Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore 1978 SCMR

367. He lastly submitted that since the appeal was time‑barred it was rightly dismissed and there being no jurisdictional defect in the impugned judgment to warrant interference, in revisional jurisdiction of this Court.

5. Heard.

6. Admittedly, the petitioners filed a suit for Pre‑emption during the interregnum period i.e. between 1st of August, 1986 and 28th of March, 1990. Section 35(2) of the Punjab Pre‑emption Act, 1991 stipulated limitation of one year for filing a suit and for requiring Talb‑i‑Ishhad to be established by two truthful witnesses. This provision alongwith some other provisions of the afore -referred Act were declared repugnant to the Injunctions of Islam in Muhammad Ismail Qureshi v. Government of the Punjab PLD 1991 FSC

80. This judgment was affirmed in PLD 1994 SC 1 but it has held that the declaration with regard to repugnancy was to tak5 effect from 31st of December, 1993. In the said case it was held as under:‑‑ "This decision shall take effect on 31st of December, 1993 whereby the provisions of Punjab Pre‑emption Act, 1991 declared to be repugnant to the Injunctions of Islam shall cease to have effect to the extent of their repugnancy." The afore‑referred judgment is prospective in effect i.e. from date given in the judgment itself rather than retrospective. The order of the learned trial Court dated 1‑4‑1992 holding that section 35(2) of the Punjab Pre‑emption Act, 1991 had been declared against the Injunctions of Islam and there being no saving clause the suit filed during the interregnum had no backing of law cannot be sustained as the repugnancy was to operate w.e.f. 31st of December, 1993. The judgment, therefore, could not be used to non‑suit the petitioners. The order passed by the learned trial Court dismissing 'suit was patently illegal, against law declared and therefore, void. This order was challenged in appeal which was dismissed as time -barred.

7. Having held the order of the learned trial Court to be void but the appeal against the order of the learned trial Court having been dismissed on ground of limitation can revisional jurisdiction be invoked in the afore‑referred circumstances to correct a patent illegality? The question whether this Court in revisional jurisdiction can interfere to correct jurisdictional error and upset void orders notwithstanding the bar of limitation has come up for, consideration in" several cases. In Messrs" United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCMR 82 at page 85 it was held asunder:‑‑ "Having regard to all the circumstances of this case we feel that in this case the High Court ought to have entertained the revision application and set aside the order impugned before it whereby the plaintiffs were non‑suited for a trivial formality. In the last mentioned case this Court had emphasised the proposition that the principal object behind all legal formalities is to safeguard the paramount interest of justice. Mere formalities or technicality cannot, therefore, be allowed to prevail to the detriment of the interest of justice. " In Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 commenting on the extent of revisional jurisdiction and whether the Court can exercise the same suo motu the august Supreme Court held at page 2339 as under:‑‑ "It is by now well‑settled that the exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right to bring to their notice the jurisdiction/legal errors as envisages in section 115 of the C.P.C., itself. No period of limitation is, consequently, prescribed, therefore, under the law. No doubt, there are authorities on the point that the persons applying for exercise of revisional jurisdiction before the High Court have to submit their application within a certain time but that is not sacrosanct and the High Court can, in certain circumstances, ignore or either may condone the delay or exercise their jurisdiction suo motu. "

8. Respectfully following the ratio of the afore‑referred precedent case‑law I am inclined to allow this petition. For the reasons given in paras. Nos. 6 and 7 the impugned judgments and decrees dated 1‑4‑1992 passed by the learned trial Court as also the learned Appellate Court dated 4‑7‑1995 are arbitrary, void, against the law declared and merit to be interfered with in exercise of revisional jurisdiction of this Court. Those are set aside. The suit of the petitioners/plaintiffs shall be deemed to be pending. Both the parties are directed to appear before the learned District Judge, Mandi Bahau‑ud‑Din on 25‑3‑2002 who shall entrust the same to an appropriate Court within his jurisdiction for trial. There shall be no order as to cost. Q.M.H./M.A.K./M‑109/L Revision allowed.