P L D 1988 Supreme Court (AJ&K) 31 (PLP)

RAJA MUHAMMAD KHURSHID KHAN, C.J.‑‑Through this appeal the appellants three in number seek reversal of the judgment and decree passed by a learned Single Judge of the High Court on 10th of July, 1986. By this order the learned Judge, while disallowing the appeal moved by the appellants, declined to disturb the findings of the District Judge recorded on 27th February, 1986, whereby the learned Judge disallowed the appeal of the appellants and approved the findings of the learned Additional Sub‑Judge, Kotli, to the effect that a compromise decree of the suit land, based on adverse possession in favour of the appellants against Sakhi Muhammad, is void and inoperative qua the rights of Sher Muhammad, deceased: the father of Muhammad Afzal, respondent herein.

2. To understand the controversial issue facts in brief may be stated. Sher Muhammad, deceased, by way of a declaratory suit, moved in the Court of Additional Sub‑Judge, Kotli, sought avoidance of the consent decree passed on the basis of adverse possession in favour of Safdar Ali, appellant, against Sakhi Muhammad on 20‑5‑1969, with regard to the suit land measuring 150 Kanals and 6 Marlas, comprising survey No.13, on the principal ground that without his impleadment as a party in the suit, no decree of adverse possession on the basis of compromise could be passed.

3. It was concurrently found by all the Courts that without impleading Sher Muhammad the compromise decree of adverse possession could not be recorded in favour of the appellants and so the decree being void qua the rights of Sher Muhammad, was to be recalled to that extent. The appellants now seek reversal of the unanimous verdict returned by the Courts below.

4. All the Courts below concurrently found that Sher Muhammad, who is now represented by Muhammad Afzal, respondent, being an owner in the estate held the share in the 'Shamlat‑Deh' land which is the subject of controversy and the consent decree of this land passed in favour of the appellants on the basis of the statement of Sakhi Muhammad on 20‑5‑1969, without impleading Sher Muhammad, cannot operate against Sher Muhammad in the land. This finding, as held by the High Court, gets stamp of truth from the entries of the copies of 'Jamabandi' for the years 1966‑67, wherein Sher Muhammad recorded as 'ﺾﺑﺎﺗ ﮑﻠﺎﻣ'. The record examined by the learned Judge in the High Court showed that Sher Muhammad was originally an occupancy tenant of the aforesaid land and after the enforcement of the Land Reforms Act he became proprietor of the said land; and he was recorded as such in the record of rights pertaining to the year 1970‑

71. Thus, it becomes abundantly clear that Sher Muhammad, after the acquisition of the proprietary rights under the Land Reforms Act, had assumed the character of an owner and was entitled to 'Shamlat Deh' according to his share; and his share could not be affected by any compromise decree passed in absentia. The finding of the High Court to that effect has no infirmity to be questioned.

5. However, the trouble here is that the question of limitation having been argued in the High Court remained undecided. Para. of the judgment of the High. Court shows that this point was specifically raised. The learned Single Judge in the High Court in para. 6 says. 'It was also urged that the suit to challenge the decree was not filed within the period of limitation'. It would, thus, appear that the point, though specifically raised, escaped the attention of the learned Single Judge to be resolved.

6. The learned counsel for the appellants maintains that Article 91 of the Limitation Act, which reads:‑ "To cancel or Three years. When the facts entitling set aside an the plaintiff to instrument not have the instrument otherwise cancelled or set aside provided for. become known to him." bars the remedy to the appellants and thus the suit on this very score is to be defeated and the case may be remanded back to the High Court for deciding the issue of limitation.

7. Raja Muhammad Siddique, the learned counsel for the respondent, maintained that without impleading Sher Muhammad, the decree is a nullity and, therefore, the law of limitation cannot be attracted in such cases. In his view the order being a nullity every Court before whom it is brought is not only entitled but bound to ignore it. In his view a civil Court is bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction.

8. We have considered the arguments. Whether there should be a remand in a matter is always a judicious discretion of the Courts which is to be exercised in accordance with the dictates of justice. Nature of the error, magnitude of miscarriage of justice and extent of prejudice to the person affected are all important factors to be duly weighed for a remand. As a general rule an order for a remand would be desirable where the hearing in the lower Court has been illegal, irregular or otherwise defective; for instance when some vital point or points arising out of the controversy have not been decided at all or have been decided without application of mind.

9. Since the important point of limitation, specifically raised in the High Court, has not been decided, remand of the case to the High Court to decide the issue seems to be proper.

10. We believe that the lapse on the part of the High Court to decide the vital point of limitation is a substantial error. It also shows misapplication of the mind on the part of the Judge in the High Court. In Gouranga Mohan Sikdar v. The Controller of Import) and Export 1970 S C M R 323, Mr. Justice Hamoodur Rahman, Chief Justice (as he then was), considered the omission where the impugned order passed by the High Court did not disclose the application of the mind to the merits of the case that was before it and relying on Adamjee Jute Mills Ltd. v. The Province of East Pakistan P L D 1959 S C ‑(Pak.) 272, remanded the case with the observation:‑ "In view of the fact that a substantial question was raised by the applicant invoking the writ jurisdiction of the High Court it was, as observed by Munir, C .J. 'the undoubted duty of the High Court to state what the precise point raised by the applicant was and grounds on which it was rejected."

11. Since the omission is a substantial one, it would be said that it had prejudiced the appellant's case inasmuch as the possibility cannot be excluded that in case the learned Judge had considered and decided the point, it may have favoured the appellants. The impugned judgment in ignoring to decide the point of limitation has flouted the principle to be followed in deciding the matter. The litigants who bring their disputes to the law Courts with the incidental hardships and expense do expect judicious treatment of their cases in deciding all the important matters arising out of the lis; which, of course, has bearing on the controversy. For the view we have taken in the matter, we set aside the judgment of the High Court dated 10‑7‑1986 and remand the case back to the High Court to decide all the questions raised here including the question of limitation after hearing the parties. No order as to costs. M.B.A. /205/S.C.A Case remanded.