2006 PLP 1438 (CLC)

MAULVI ANWARUL HAQ, J.

This judgment shall decide Writ Petition No.5945 of 2004 and Writ Petition No.5943 of 2004, as common questions are involved and these proceed against a common judgment of a learned Additional District Judge.

2. Vide two registered sale-deeds dated 17-5-1999 Abdul Ghafoor the predecessor-in-interest of the private respondents purchased respectively land measuring 6 Marlas and 4 Marlas as described in the two plaints (Annexure "A"). On 11-12-1979, the petitioners filed suits for possession by pre-emption. They claimed to be co-sharers in the suit-lands. The said Abdul Ghafoor was duly served; he put in appearance and filed written statement in both the cases. An objection was raised that the suit-land is an urban immovable property located within .the municipal limits of Mian Channu and that section 15 of the Punjab Pre-emption Act is not applicable as no right of pre-emption exists in the said area. Inter alia following issues were framed: Writ Petition No.5945 of 2004 (4) Whether the suit-land is urban immovable property. If so, its effect? OPD Writ Petition No.5943 of 2004 (4) Whether the suit is not maintainable in view of preliminary objection No.1? OPD In the matter of Writ Petition No.5945 of 2004 the evidence of the plaintiff was recorded on 27-10-1987. The case was adjourned to 16-2-1985 for evidence of the deceased defendant, evidence was not present and the case was adjourned to 8-5-1985. On this date again the evidence was absent and one last opportunity was granted to the defendant to produce his evidence on 21-7-1985 subject to payment of Rs.20 as costs. The evidence was absent, the prayer for adjournment was made by the learned counsel was refused and the evidence was closed. On the same day the suit was decreed.

3. Now in the matter of Writ Petition No.5943 of 2004 the evidence of the plaintiff was recorded on 6-2-1985. The case was adjourned to 25-3-1985 for recording evidence of the deceased defendant. On this date the learned Presiding Officer was on leave and same was the position on 4-5-1985. On 2-6-1985 the evidence was absent and the case was adjourned on request to 10-7-1985. On this date again the evidence was absent and the case was adjourned to 6-10-1985 by way of last opportunity subject to payment of Rs.100 as costs. On 6-10-1985 the case was put up before a learned duty Judge, who adjourned the case for 9-11-1985 by way of last opportunity. 9-11-1985 was a public holiday. The file came up on 10-11-1985 in presence of the counsel for the parties. Evidence was again absent and one final opportunity was given to the defendant to produce his evidence on 30-11-1985. On this date again the evidence was absent, prayer for adjournment made by his learned counsel was refused and evidence was closed. The suit was decreed on the same day. It is an admitted position that no appeals were filed against the said decrees which, of course, were appealable under section 96, C.P.C.

4. On 14-4-1987, the said Abdul Ghafoor filed applications under section 12(2), C.P.C. in both these cases. These applications were verbatim copies of each other. It was stated in these applications that the defendant had raised an objection in the written statement as to the maintainability of the suit as the land was located within the municipal limits of Mian Channu and the plaintiffs in the case themselves considered the suit to be not maintainable and had been approaching him to enter into a compromise. Ultimately he agreed and a compromise was arrived at in a Punchait. A sum of Rs.2,000 in each of the cases was paid to the plaintiffs towards the litigation expenses and the defendant was assured that the suit shall be withdrawn. He was satisfied and he left for Karachi and never pursued the matter. It was specifically stated in this application that he had informed his learned counsel of the said facts. Two weeks ago, the plaintiffs made it publicly known that the suits have been decreed. The records were checked and to his utter shock and surprise he found that the suits had in fact been decreed. It was accordingly asserted that the decrees afe the result of fraud and misrepresentation and without jurisdiction. The applications were contested by the private respondents, who denied any compromise/ Punchait or receipt of money and asserted that upon the face of the judicial records the application is false. Both the applications were consolidated. Following issues were framed on 27-9-2001:

(1) Whether these consolidated petitions are not maintainable in their present form? OPR (2) Whether petitioners have no cause of action and locus standi to file these petitions? OPR (3) Whether petitions are false, frivolous and based on mala fide and respondents are entitled to special cost in case of their dismissal? OPR (4) Whether judgments and decrees dated 21-7-1985 and 30-11-1985 have been obtained through fraud, misrepresentation and the Court lacked jurisdiction to pass these judgments and decrees? OPA (5) Whether judgments and decrees 21-7-1985 and 30-11-1985 are liable to be set aside under section 12(2), C.P.C.? OPA (6) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the applications on 3-10-2001. The respondents filed revision petitions, these were heard together by a learned Additional District Judge, Mian Channu, who accepted the same vide his consolidated judgment, dated 12-10-2004. The applications were allowed and both the judgments were set aside and the suits were dismissed. The parties are duly represented and both the learned counsel are ready with their arguments. These cases are accordingly being decided as Pacca Cases.

5. Learned counsel for the petitioner contends that in view of the position emerging on the face of the record no case of fraud, misrepresentation or lack of jurisdiction stood made out. According to him both the parties joined issues. His clients lead evidence to discharge the onus of the issues placed upon them while the respondents failed to produce any evidence in support of the plea that the suit-land was urban immovable property and that it was located within the municipal limits of Mian Channu. The evidence was closed and the suits were decreed accordingly. He particularly points out that the learned counsel for the defendants had through out been putting in appearance in the suit right from their inception to the date of passing of the decrees and that it was specifically stated in the applications that the learned counsel had been informed of the alleged compromise, however, not a single allegation is thereagainst the learned counsel who had been continuously appearing in the case and there is also no denial that the counsel had not been so appearing.

6. Learned counsel for the respondents, on the other hand, cites the case of Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Muhammad Qasim v. Abdul Karim and 8 others 1993 MLD 1617 and Subedar Muhammad Hussain v. Mst. Shah Begum and others 1990 MLD 2100 to urge that the decree was without jurisdiction inasmuch as there was no right of pre-emption available to the plaintiffs as the suit property was urban immovable property.

7. I have examined the copies of the record appended with both the writ petitions with the assistance of the learned counsel for the parties. Now I have already referred above the entire proceedings that took place in the two suits. I have already referred to the contents of the application filed by the deceased defendant. Now a reading of the two impugned judgments would show that whereas the learned trial Court categorically held upon an examination of the original records of the two suits that the judgments and decrees have not been obtained through any fraud or misrepresentation. The learned Additional District Judge has opted to remain silent on the question of alleged fraud and misrepresentation. He has however, held that since according to him the suit-land is an urban immovable property within the municipal limits of Mian Channu no right of pre-emption existed and as such the decrees are without jurisdiction.

8. Now it is a matter of record that the plea was specifically raised by the deceased defendant in his written statement. An issue was framed and he was called upon to lead evidence to establish his plea that the suit-land is urban immovable property and is located within the municipal limits of Mian Channu. He was given sufficient opportunities on the repeated requests made by his learned counsel but he failed to lead any evidence and the learned trial Court closed his evidence. There being no evidence in support of the said plea, the issue was answered against him. To my mind the said finding became res judicata between the parties to the said suits and could not have been challenged and then set aside in collateral proceedings i.e. under section 12(2), C.P.C. In my humble opinion if this course is allowed to be followed then there will be no end of any proceedings. All that would be required is that a defendant would be raising plea attacking the jurisdiction of the Court by making some factual allegations, he will leave the matter unattended and thereafter file an application under section 12(2), C.P.C. Even if such an application is rejected even the same order can be challenged on and on under the said provision. Section 11, C.P.C. completely debars the Court from trying any suit or "issue" which has been heard and finally decided by a Court in an earlier inter parties suit. There is no manner of doubt in my mind that the issues could be finally decided by a Court of competent jurisdiction. Needless to" state that the Court "which decided the suit was fully competent to decide the question as to whether or not it had the jurisdiction which was dependent upon existence and the proof of the facts pleaded by the deceased defendant in his written statement. The said judgments being relied upon by the learned counsel pertain to judgments and decrees passed ex parte and are not at all attracted to the admitted facts and circumstances of the present case. In the case of Muhammad Khan v. Massan and 13 others 1999 SCMR 2464. Bench comprising three Honourable Judges of the Supreme Court of Pakistan proceeded to set aside the judgment of this Court when an ex parte pre-emption decree passed after cut out date i.e. 31-7-1986 was sought to be set aside under section 12(2), C.P.C. The learned trial Court dismissed the application. A learned Additional District Judge allowed the revision and set aside the decree. This Court dismissed the writ petition. The civil appeal was allowed by their Lordships holding that lateral proceedings under section 12(2), C.P.C. cannot be allowed to be resorted and bypass the period of limitation. In the present case it is a matter of record that the decree was passed in the presence of learned counsel for the defendant, no appeal was filed and as such resort to section 12(2), C.P.C. could not have been allowed.

9. Now since evidence on the said question had been recorded, I deem it appropriate to refer to the same. Now I may note here that the description of the suit-land given in the plaint has, not at all been questioned at any stage i.e. either during the pendency of suit or in the course of proceedings under section 12(2), C.P.C. the suit-lands in both the cases are located in Square No.94 (Killas Nos.21 and 25 in the matter of Writ Petition No.5945 of 2004 and Killas Nos.24 and 25 in the matter of Writ Petition No.5943 of 2004) located in Chak No.130/15-L Tehsil Mian Channu with reference to Jamabandi of the year 1962-63. Now it has been found as a fact by the learned trial Court that the notification declaring the limits of the municipality does not mention Square No.94 of Chak No.130/15-L. The learned Additional District Judge has also referred to the document Exh.A.l which is said notification but incomplete ignorance of the said established fact on record that Square No.94 is not included. He has stated that since Mian Channu was established in the year 1919 so there is no question of existence of any custom. Thereafter the learned Additional District Judge has proceeded as if he was hearing a first appeal against original decrees, he has observed that the learned trial Court should have fixed the suit for affirmative evidence of the plaintiff so as to ascertain that whether the suit properties are not situated within the municipal limits of Mian Chaim. To my mind, the impugned judgment of the learned Additional District Judge borders on perverse.

10. Both the P.Ws. accordingly are allowed and the impugned judgment, dated 12-10-2004 passed by learned Additional District Judge, Mian Channu, is declared to be without lawful authority and is set aside. The judgment passed by the learned trial Court dismissing the application obviously stands restored. No orders to costs. F.B./M-214/L????????????????????????????????????????????????????????????????????????????????????? Petition allowed.