2021 PLP 1705 (YLR)

NADEEM AKHTAR, J.

1 &

2. Through this Constitutional Petition, the petitioners have impugned the order passed on 05.05.2010 in Civil Suit No.09/2006 by the 1st Senior Civil Judge, Khairpur, whereby the application filed by the petitioners under section 12(2), C.P.C. for setting aside the ex parte judgment and the decree passed in the said Suit was dismissed.

2. The facts of this case are that respondent No.5 Mst. Pathani filed Civil Suit No.09/2006 against respondents Nos.1 to 4 before the Senior Civil Judge, Gambat, which was transferred to the 1st Senior Civil Judge, Khairpur. In her said Suit, respondent No.5 / the plaintiff had claimed that the Suit property, which was a house, was her ancestral property. It was stated by her that on the East side of the Suit property, the house of one Muhammad Bachal (father of respondent No.2) was situated, and on the North side, the house of respondent No.3 was situated. It was alleged by respondent No.5/ the plaintiff that, in order to usurp the Suit property, respondents Nos.2 and 3 took over the possession thereof and filed Suit No.28/2000 for declaration and permanent injunction claiming to have purchased the same, on the basis of a forged and fabricated sale agreement dated 12.04.1955. Respondent No.5/the plaintiff claimed in her Suit that, as the Suit filed by respondents Nos. 2 and 3 was dismissed and the Appeal and Revision filed by them were also dismissed, her title in respect of the Suit property became absolute. On the basis of the above averments, respondent No.5/ the plaintiff prayed in her Suit for a judgment and decree against respondents Nos. 2 and 3 for declaration, posses-sion, mesne profits and permanent injunction.

3. The aforemntioned Suit was filed by respondent No.5/the plaintiff as the only surviving legal heir of her deceased father, Piyaro. It would not be out of place to mention here that in paragraph 5 of her plaint, respondent No.5/the plaintiff had categorically admitted that the Suit property was jointly owned by Piyaro (her father), and one Dilawar. Despite this admitted position, the other co-owner Dilawar was not made a party by her in her Suit, and the relief was sought by her in respect of the entire property instead of claiming the same only to the extent of 50% share of Piyaro.

4. The Suit filed by respondent No.5/the plaintiff was decreed ex parte vide judgment delivered on 25.05.2007 by the trial Court, which was followed by a decree dated 30.05.2007. The petitioners, who are the legal heirs of the other co-owner Dilawar, came to know about the ex parte decree when execution proceedings were initiated by respondent No.5 / the plaintiff. They immediately filed an application under section 12(2), C.P.C. before the trial Court on the ground that the ex parte decree was obtained by respondent No.5/ the plaintiff through fraud and misrepresentation. Admittedly, the application was within time. It was urged by the petitioners in their application that respondent No.5/the plaintiff had inherited only 50% share of her deceased father (Piyaro) in the Suit property, which was admitted by her in the plaint. The petitioners specifically urged in their application that respondent No.5 / the plaintiff was fully aware that the petitioners were the lawful co-owners of 50% share in the Suit property, but they were deliberately not joined in the Suit so that a decree may be obtained by her behind their back. It was also urged by the petitioners that, in view of the obvious fraud and misrepresentation committed by respondent No. 5/the plaintiff, she succeeded in obtaining the ex parte decree which was liable to be set aside.

5. The application filed by the petitioners under section 12(2), C.P.C., which was contested by respondent No.5/ the plaintiff, was dismissed by the trial Court by the impugned order. It was submitted by the learned counsel for the petitioners that the application under section 12(2), C.P.C. was dismissed mainly on the ground that they had not filed any document therewith to show that they were the lawful co-owners of 50% share inherited by them from their deceased father (Dilawar). The learned counsel argued that the trial court committed a serious and grave error in law by not appreciating that respondent No.5/ the plaintiff herself had specifically admitted in her plaint that she was the owner only to the extent of 50% share in the Suit property, and that the remaining 50% share was owned by the deceased father of the petitioners. It was further argued by the learned counsel that, in view of the express admission by respondent No.5/the plaintiff, the burden was not on them to establish their ownership.

6. It was specifically contended on behalf of the petitioners that they ought to have been joined by respondent No.5 / the plaintiff in her Suit, as the petitioners, admittedly being the co-owners to the extent of 50% share, were necessary parties to the Suit. The learned counsel for the petitioners urged that this is a case of misreading and non-reading of the material on record. He further urged that the ex parte decree obtained by respondent No.5 / the plaintiff is even otherwise void as she had no locus standi to seek any relief in, respect of the 50% share admittedly owned by the petitioners. It was prayed on behalf of the petitioners that their application under section 12(2), C.P.C. be allowed and the impugned order and the ex parte-decree be set aside by this Court.

7. At the very outset, Mr. Abdul Ghaffar Memon, the learned State Counsel, raised a preliminary objection regarding the maintainability of this petition. According to the learned State Counsel, an order passed on an application under section 12(2), C.P.C. is not appealable and only a Revision under section 115, C.P.C. lies against such an order. He further contended that, since the petitioners did not avail the alternate and efficacious remedy, which was available to them in law, the Constitutional jurisdiction of this Court cannot be invoked through this petition. He prayed for dismissal of this petition. No other submission was made by the learned State Counsel.

8. In reply to the objection raised by the learned State Counsel, the learned counsel for the petitioners submitted that the Constitutional jurisdiction of this Court can be invoked if the order impugned is perverse or has been passed in excess of jurisdiction or is without jurisdiction. He submitted that, as the learned trial Court had no jurisdiction in respect of the 50% share admittedly owned by petitioners, the trial court, while passing the ex parte decree in respect thereof, exercised jurisdiction which was not vested in it. In support of his submissions, the learned counsel cited and relied upon the case of Ilahi Bukhsh v. Sheikh Muhammad Sadiq and 2 others 2005 CLC 1704, wherein the Lahore High Court in the exercise of its Constitutional jurisdiction not only allowed the application under section 12(2), C.P.C., but also rejected the plaint straight away without remanding the matter to the trial court. The Constitutional Petition was allowed by the Lahore High Court in the above terms.

9. I may mention here that the aforementioned judgment delivered by the Lahore High Court was upheld by the Hon'ble Supreme Court of Pakistan in the case of Sheikh Muhammad Sadiq v. Elahi Bukhsh and 2 others 2006 SCMR

12. The Hon'ble Supreme Court was pleased to observe that the trial court as well as the revisional court had committed a gross error of misreading of evidence in the above cited case. It was held that the Lahore High Court rightly set aside the decree by dismissing the Suit as no useful purpose would have been served in remanding the case to the trial court. It was further held by the Hon'ble Supreme Court, which is extremely important and relevant for the purpose of this petition, that it is a settled proposition of law that a jurisdictional error committed in the judicial or quasi-judicial proceedings by a court or tribunal can be corrected by the High Court in its Constitutional jurisdiction.

10. The learned counsel for the petitioners also relied upon the cases of Shauq-ur-Rehman v. Taimoor Ahmed Khan and 2 others 2004 CLC 281, and Karim Bakhsh v. Additional District Judge Khanewal and 5 others 1993 MLD 2164. In the first case mentioned above (2004 CLC 281), an application was filed under section 12(2), C.P.C. before the trial court for setting aside of a compromise decree. The application was dismissed, and the Revision Application filed thereafter was also dismissed. The Lahore High Court, exercising its Constitutional jurisdiction, set aside the impugned orders passed by both the courts below on the ground that their approach was callous, and the orders passed by them were without lawful authority. It was further ordered that the application under section 12(2), C.P.C. would be deemed to be pending before the, trial court. Similarly, in the second case mentioned above (1993 MLD 2164), the Lahore High Court, while exercising its Constitutional jurisdiction, allowed the application filed under section 12(2), C.P.C. and set aside the order of the lower court.

11. In view of the cases cited and relied upon by the learned counsel for the petitioners, especially the authority of the Hon'ble Supreme Court (2006 SCMR 12 supra), it is clear that where the trial court and / or the appellate court commit a gross error of misreading of evidence, or where no useful purpose would be served in remanding the case to the trial court, or in cases of jurisdictional errors committed in the judicial or quasi-judicial proceedings by a court or tribunal, the Constitutional jurisdiction of High Courts can be invoked and such jurisdictional defects/errors can be corrected by the High Court in its Constitutional jurisdiction.

12. As per the averments made in the plaint, it was respondent No.5/the plaintiff's own case that she was the owner only to the extent of 50% share in the Suit property, and that the remaining 50% share was/is owned by the deceased father of the petitioners. Despite this admitted position on record, the trial court passed the ex parte decree in respect of the entire Suit property without joining or hearing the petitioners. Prima facie, it appears that the ex parte decree was coram non judice and void, because the 50% share of the petitioners was not the subject matter of the Suit and as such the trial court had no jurisdiction to pass a decree in respect thereof. The impugned order passed on the application filed by the petitioners under section 12(2), C.P.C. also prima facie appears to be void as the same was passed on the basis of a void decree.

13. The well established principles of law in the above context are briefly discussed below with reference to the supporting authorities of the Hon'ble Supreme Court: i. An order or decree either void or without jurisdiction is a nullity in law and the same dobs not require to be set aside formally. (Ali Muhammad v. Hussain Bakhsh and others PLD 1976 Supreme Court 37; and Muhammad Shafi v. Mushtaque Ahmed through legal heirs and others 1996 SCMR 856). ii. The question of limitation would not arise in respect of judgments which are nullity in law, void, without jurisdiction or ultra vires. (Muhammad Shafi v. Mushtaque Ahmed through legal heirs and others 1996 SCMR 856). iii. When the basic Order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls on the ground automatically. (Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 Supreme Court 663 ). If, on the basis of a void order, subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the superstructure of rights and obligations built upon them would fall to the ground. (Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi, 2008 SCMR 611).

14. On the question of whether or not the petitioners could challenge the impugned order through this Constitutional Petition, I refer to the following two authorities of the Hon'ble Supreme Court: i. An impugned order having been passed in excess of -jurisdiction by the authority, was void. The failure of the affected party to go in appeal against such an order within the prescribed time does not preclude such party from challenging its illegality in the High Court. (Ali Muhammad v. Hussain Bakhsh and others PLD 1976 Supreme Court 37 (Full Bench)]. ii. The availability of an alternate remedy would not bar the jurisdiction of the High Court to entertain a Constitutional Petition. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. (Muslimabad Cooperative Housing Society Ltd. v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135).

15. The report submitted in this case by the bailiff shows that respondent No.5/ the plaintiff and respondent No.2 have passed away, whereas respondent No.3 refused to accept the notice issued by this Court. In view of the above, the R & P of Civil Suit No. 09/2006 filed by respondent No.5 / the plaintiff was summoned by me from the trial court, which revealed that respondent No.5 / the plaintiff had filed Execution Application No.07/2007 before the 1st Senior Civil Judge, Gambat, for execution of the ex parte decree. The said Execution Application, which was renumbered as 10/2009 and was transferred to the Court of 1st Senior Civil Judge Khairpur, was allowed on 30.05.2008. The R & P further revealed that, in the list of the legal heirs filed in her Suit by respondent No.5 / the plaintiff, she had named three persons as her legal heirs; namely, Niaz Hussain (son), Mst. Zuhrah (daughter), and Mst. Nazan (daughter). In the aforementioned Execution Application, Niaz Hussain (the son of respondent No.5/the plaintiff) filed an application that respondent No.5 1 the plaintiff died on 17.02.2011 and her daughter Mst. Zuhran had also died on 27.11.2007. In his said application, Niaz Hussain prayed that his name as well as the name of his surviving sister Mst. Nazan should be brought on record as the decree holders in place of the deceased respondent No.5 / the plaintiff. The position, which has emerged after examining the R & P, is that the deceased respondent No.5 / the plaintiff has left behind her only two surviving legal heirs namely, Niaz Hussain (son) and Mst. Nazan (daughter). After examining the R & P, the same was sent back to the trial court.

16. In the facts and circumstances of the instant case, if this Court had found that the ex parte decree was coram non judice or void, appropriate Orders could have been passed, including the conversion of this petition into a Revision Application and then transferring of this matter to the concerned District Judge after condoning the, delay. However, at this stage I am refraining myself from passing any such Order on merits against dead persons and without hearing the other respondents. The views expressed by me in this Order are tentative in nature and the same shall be subject to the final decision in this petition.

17. After hearing the learned counsel for the petitioners and the learned State Counsel, after examining the R & P, and keeping in view the aforementioned authorities of the Hon'ble Supreme Court, I conclude that the contentions raised by the petitioners require consideration. Therefore, it is ordered as under: A. In view of the above discussion, this Constitutional Petition against the impugned order is .maintainable in my humble opinion. The office objection is, therefore, overruled. B. The petition is admitted for regular hearing. C. The official respondents Nos.1 and 4 have been served and they are being represented by the learned State Counsel. The petitioners are directed to bring on record the aforementioned two surviving legal heirs of the deceased respondent No.5 / the plaintiff, and to file the amended title. Thereafter, notices to the legal heirs of the deceased respondent No.5/the plaintiff shall be issued by the office through the bailiff as well as through the concerned S.H.O. The same procedure shall be adopted in respect of the legal heirs of the deceased respondent No.2. D. In order to safeguard the valuable vested rights, title and interest of the petitioners in respect of their admitted 50% share in the Suit property, the operation of the ex parte judgment and decree passed in Civil Suit No. 09 of 2006 shall remain suspended till further Orders. E: The office is directed to summon from the court of the 1st Senior Civil Judge, Khairpur, the R & P of (i) Civil Suit No.09 of 2006, (ii) Execution Application No.10 of 2009 (old No.07/2007), and (iii) Application under section 12(2), C.P.C. filed by the petitioners in Civil Suit No.09 of 2006. The R & P shall remain with this Court till further Orders. Office objection overruled. MH/H-15/Sindh