P L D 2013 Supreme Court 364 (PLP)

MIAN SAQIB NISAR, J.

The suit land owned by Suba Sadiq was sold by him to one Jameel vide sale-deed dated 26-8-1980. Two pre-emption suits were filed against the above transaction; one by Mujeeb Alam and the other by the present petitioner. These two suits were not consolidated as per the provisions of Section 28 of the Punjab Pre-emption Act, 1913 (Act, 1913), but the fact remains that the suit of Mujeeb Alam was decreed on 20-10-1981 on account of consent of the vendee. Having acquired ownership of the suit property on the basis of the said decree, Mujeeb Alam further sold the same (may be in parts thereof) in favour of Zulfiqar, Yar Muhammad, Haq Nawaz, Sardar and Muhammad Iqbal, respondents side, and these transactions were made within the period from 1984 to 1986. Be that as it may, the petitioner in his suit for pre-emption after seeking amendment of the plaint also challenged the aforementioned decree in favour of Mujeeb Alam. The matter was yet pending, when the dictum in Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) was pronounced, declaring Act 1913 as ultra vires and repugnant to the injunctions of Islam and holding that all pending pre-emption cases including suits, appeals, revisions etc. in which decree for pre-emption in favour of the pre-emptor has not been passed by 31st July, 1986 shall stand abated. It is strange that the noted command of law eluded the attention of the learned trial court and instead of dismissing the suit as having abated, the Court kept the matter pending, when Jameel, the vendee, and Mujeeb Alam, the decree holder of the other suit, conceded the petitioner's claim, and therefore, such suit was decreed on 15-9-1987. Aggrieved of the above, the respondents (the subsequent purchasers from Mujeeb Alam) filed application(s) under section 12(2), C.P.C. avowing that the decree is without jurisdiction and has been procured through fraud and misrepresentation; respondents asserted that they in fact were the owners of the property being the purchasers from Mujeeb Alam, who was a decree holder (of the decree dated 20-10-1981) and thus Mujeeb Alam or Jameel had no right to give consent in favour of the petitioner's decree. This application has been accepted by the learned trial court. The revision of the petitioner failed and he could not even succeed before the learned High Court, in the constitutional jurisdiction invoked by him. It is argued by the learned counsel for the petitioner that when a consent decree had been passed in favour of the petitioner on the basis of the conceding statements of the vendee (Jameel) and the rival preemptor (Mujeeb Alam, the decree holder), even if after 31st July, 1986, such decree cannot be held to have been passed without jurisdiction as per the law laid down in Muhammad Khan v. Massan and 13 others (1999 SCMR 2464). It is also argued that the law laid down in Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287, and Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others 2010 SCMR 780) was/is inapplicable to the instant case because of the reason that in the matter in hand the parties to the suit (defendants) had given a consent. Learned counsel has also submitted that in the instant case the doctrine of lis pendens was squarely applicable because the respondents are the subsequent purchasers of the suit land, whose purchases are in between 1984 to 1986, when the suit was admittedly pending, therefore, on account of the law enunciated in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Mst. Tabbasum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) the respondents had to swim and sink with their predecessor-in-interest, Mujeeb Alam, from whom they have acquired right in the property.

2. Heard. As per the law laid down in Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) which has been further elucidated by five Member Bench of this Court in Sardar Muhammad's case supra, it has been categorically held and made clear that all the suits, appeals etc. pending adjudication on 31-7-1986 in which a decree for pre-emption has not been passed in favour of the pre-emptor by the said date, stood abated, meaning thereby, that all such cases shall terminate, stand annulled and the very existence of the case shall come to an end by the operation of the law as enunciated in the decisions supra. This was the command of the law, declared in the afore-mentioned dicta and (such law) had to take effect ipso jure, without any recourse to anything else, except, however, only a formal order of the Court in that context was needed to eliminate the case from the cause list of the Court and consigning them to the record room, otherwise for all intents and purposes it was a dead wood. Therefore, no valid suit on behalf of the petitioner could be deemed in law to be pending before the Court in respect of which the Court in the light of the above mandate of law could exercise its jurisdiction. Even this could not be done with the consent of the defendant(s) of the pre-emption suit, especially when such consent decision was likely to affect the rights of persons who were not party thereto. Therefore, even if it was a consent decree, the same was void. In support of the above, reliance can be placed upon the judgment of this Court reported as Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others (2010 SCMR 780) in which qua almost similar facts, it has been held "Original trial Court had erred in law to assume jurisdiction and passed consent decree after 31-7-1986, therefore, consent decree cannot be bestowed the jurisdiction by the trial Court. The learned revisional Court had accepted the revision petition and rightly observed that the circumstances of the case-law referred in Abdul Hamid's case (supra) are different from the facts of the case in hand". There is another aspect of the matter that, Mujeeb Alam admittedly had sold the property in favour of the present respondents and he was left with no right or interest in such property, therefore, he could not give a consent to deprive the respondents of their lawful right to the property which they have purchased on the basis of a decree for pre-emption in favour of Mujeeb Alam for valuable consideration and thus their rights could not be obliterated through a consent of the person who denuded himself of his rights etc. in the property in favour of the respondents. So is the position of Jameel, the vendee, who consented for the decree in favour of Mujeeb Alam. Be that as it may, the judgment relied upon by the petitioner's learned counsel, namely, Muhammad Khan's case supra, is distinguishable on its own facts, as they (the applicants) of that cases, who filed application(s) under section 12(2), C.P.C., qua a consent decree, were primarily non-suited on the principle of estoppel.

3. As far as the submission, that the respondents had no locus standi to file the application under section 12(2), C.P.C., is concerned, suffice it to say that it is the respondents, who in fact, on account of the dubious conduct of the parties, particularly their predecessor-in-interest Mujeeb Alam, were being deprived from the property which they had purchased on the basis of a decree, therefore, they could validly maintain an action under section 12(2), C.P.C. We are also not convinced if in the facts and circumstances of the case, the law laid down in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Mst. Tabbasum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) is attracted to the matter in hand. It is settled principle of law that fraud vitiates the most solemn proceedings and transactions, besides, the consent decree in this case was void on account of the reasons given above, the fraud in this case is obvious on the face of the record played upon by the petitioner along with Mujeeb Alam etc. and, therefore, the petitioner cannot be allowed to have the premium of their own fraud.

4. In the light of what has been mentioned above, these petitions have no merit and are hereby dismissed. Leave refused. MWA/M-10/S Petition dismissed.