2023 PLP 511 (MLD)

SAFDAR SALEEM SHAHID, J.

Through instant constitutional petition, petitioners have assailed the judgment dated 21.02.2019 passed by learned Additional District Judge, Rahim Yar Khan whereby order dated 24.01.2017 passed by learned trial Court was set aside resulting into acceptance of application under Order IX, Rule 13, C.P.C. filed by respondent No.2 and setting aside the impugned judgment and decree dated 04.05.1987.

2. Brief facts necessary for decision of instant writ petition are that ancestors of the petitioners namely Abdul Nawaz Khan and Tajamal Hussain Khan filed a suit for declaration and permanent injunction against respondent No.2 regarding agricultural land in the Civil Court, Rahim Yar Khan. The suit remained pending till 04.05.1987 when learned trial Court decreed the same against respondent No. 2 ex-parte. The decree was implemented in the revenue record by attestation of mutation No. 1216 dated 26.12.1987 in the name of decree holders and afterwards further partly transferred in the name of subsequent purchasers. Respondent No.2 did not challenge the decree for a long time and after 25 years filed a civil suit against the petitioners before Senior Civil Judge, Rahim Yar Khan on 13.06.2012 through which he challenged the ex-parte decree dated 04.05.1987 and mutations attested thereafter and claimed ownership of the said land and in the said suit respondent No. 2 mentioned his address as Mouza Bhong Tehsil Sadiqabad. The said suit was dismissed on 25.10.2012 for non-deposit of process fee by respondent No. 2 for service of defendants/petitioners. It was asserted by respondent No.2 in the suit that he came to know regarding the ex-parte decree three years prior to filing of the suit. The respondent No.2 did not challenge the order dated 25.10.2012 before any forum whereby suit filed by him was dismissed. After almost one month of dismissal of the above suit, on 21.11.2012 respondent No. 2 filed an application under Order IX, Rule 13, C.P.C. in Civil Court Rahim Yar Khan to get decree dated 04.05.1987 set aside on the ground of lack of knowledge, non-service of summons, violation of Order X, C.P.C. Learned trial Court dismissed said application filed by respondent No.2 vide order dated 24.01.2017. Respondent No.2 kept silent for 48 days after the dismissal of his application despite the fact that he got copy of the judgment and instead of filing of appeal as provided under Order XLIII, C.P.C. filed a revision petition under section 115, C.P.C. before learned Additional District Judge assailing the order of the learned trial Court. Learned Additional District Judge, entertained the revision petition, summoned the petitioners and after hearing the parties, accepted the same and set aside the ex-parte decree dated 04.05.1987 vide judgment dated 21.02.2019 which has been assailed through instant writ petition.

3. Learned counsel for the petitioners contended that order dated 24.01.2017 passed by learned trial Court was appealable under Order 43, Rule 1(d), C.P.C. but respondent No. 2 did not file appeal knowingly as it was time barred and filed revision petition under section 115, of C.P.C which was not maintainable; necessary parties were not joined in the application filed by respondent No.2 under Order IX, Rule 13, C.P.C. although they were made party in the civil suit filed by respondent No. 2, therefore, it was a case of non-joinder of necessary parties and it is settled principle that nobody should be condemned unheard; the limitation provided under section 164 of Limitation Act, is 30 days whereas the Court has ignored this fact that the application was filed by respondent No. 2 after 25 years of passing the decree without mentioning any justification for that; the Court has exceeded from the jurisdiction vested in it and legal aspect of the proposition has not been properly appreciated, therefore, impugned judgment is not sustainable in the eyes of law. Reliance is placed on the cases of Mansab Ali v. Amir and 3 others (PLD 1971 Supreme Court 124), Rashid Ahmad v. The State (PLD 1972 Supreme Court 271), Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (2012 AC 180), Hazratullah and others v. Rahim Gul and others (PLD 2014 Supreme Court 380) and Subeh Sadiq v. Mst. Rajan through Legal Heirs (PLD 2006 Lahore 585).

4. Learned counsel for respondent No.2 on the other hand argued that impugned judgment dated 21.02.2019 has been passed by learned Additional District Judge quite in accordance with law and discussing the facts of the case; this is duty of the Court to apply correct law if any provision of law has been wrongly mentioned or quoted and it will not make any difference; application filed by respondent No.2 may be considered under section 12(2), C.P.C. as contents of the application clearly mentioned the same. Reliance in this regard is placed on the case of Fateh Muhammad Naeem v. Mst. Imam Sain and 10 others (2006 YLR 1126) and Ghulam Qasim Khan v. Abdul Saleem and others (2011 YLR 2859), ancestors of the petitioners had deliberately concealed the correct address of respondent No.2, therefore, proposition falls within the ambit of section 12(2), C.P.C. and the decree was passed on the basis of concealment of facts and against the spirit of law; when the decree has been passed under the wrong interpretation of law, no time limitation will run against the such proposition. Reliance is placed on the case of Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR 1543); any decree which has been passed in violation of law, against that no time period runs and specifically limitation against such decree will start from the date of knowledge and not from the date of passing that order/decree. Reliance is placed on the case of Messrs National Highway Authority v. The Province of Punjab and others (2014 CLC 1578); original suit was filed by the petitioners for declaration and declaration was sought on the basis of oral agreement where no ingredient of any agreement were mentioned, established and proved by the petitioners; suit for oral agreement does not give any title or right to a person unless the same is not complied with under the law. Reliance is placed on the case of Muhammad Siddique v. Abdul Rauf and 10 others (2012 CLC 1734); ex-parte decree was not passed in accordance with law as proper evidence was not discussed rather it was passed in violation of Order XX, C.P.C., therefore, such order cannot be considered valid, legal and on the basis of limitation effectee party cannot be de-suited. Reliance is placed on the case of Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and others (2006 CLC 92); a suit for declaration cannot be decreed on the basis of agreement specially where agreement is oral one and sale cannot be considered valid unless conditions of sale are mentioned and those are found legal and executable. Reliance is placed on the case of Mst. Farhat Begum and others v. Said Ahmad Shah and others (2002 CLC 1956), Bashir Ahmad and 21 others v. Shah Muhammad and others (2010 CLC 734). Further argued that void and illegal order do not create any right or title and that order can be challenged in accordance with law within time when it comes into the knowledge of the effectee; suit for declaration on the basis of oral agreement where no condition, no detail for the settlement of the agreement for the payment of consideration amount has been mentioned, such suit cannot be decreed specially when same has been passed ex-parte; against such a decree which has been obtained by way of fraud no limitation runs specially when there is specific allegation of fraud or misrepresentation and precious rights of the effectee are involved on the score of limitation, the effectee cannot be non-suited and limitation under such circumstances will be considered three years for filing such application under Order IX, Rule 13, C.P.C. and 151, C.P.C.; record shows that service of the summons in the original suit was not effected properly and knowingly as the correct address of the respondent No. 2 was not mentioned by the petitioners; substitute service was also not ordered by the Court, therefore, on the basis of such ex-parte proceedings no suit can be decreed ex-parte. Reliance is placed on the case of Farid Khan v. Muhammad Khurshid and others (2018 CLJ 368), Nouroz Khan v. Haji Qadoor (2005 SCMR 1877) and Muhammad Shafiq and another v. Maqsood Ahmad and 2 others (2002 CLC 1372); revision may be converted into appeal and there is no bar in this regard; the purpose of the Court is to resolve the controversy between the parties and mere on the basis of technicality a person who has right in the property should not be non-suited, therefore, learned Additional District Judge, has rightly decided the proposition and writ petition is not maintainable which be dismissed.

5. Arguments heard. Record perused.

6. There are many legal questions involved in this proposition such as regarding maintainability of the suit that whether suit for declaration where the prayer for oral agreement to sell is claimed is maintainable. This is primary duty of the Court that when suit is instituted and entrusted to the court, the court should examine the suit, its form and make its opinion regarding maintainability of the same. The suit for declaration where oral agreement to sell is claimed cannot be entertained as an ordinary suit. All the requirements of settlement of agreement to sell, the payment of consideration amount must be mentioned in the suit. The possession if claimed, also be mentioned in detail that how, when and in whose presence it was given and why it was not incorporated in revenue record, if the same is not mentioned there. The suit for agreement to sell without prayer of possession, is not maintainable under the law. Both the relevant points were not considered by the Courts below. The 'form' of the suit and 'prayer' of the suit respectively are reproduced as under:- Before going to that merits of the case, I would like to mention here that petitioners have filed this writ petition while assailing the judgment dated 21.02.2019 passed by learned Additional District Judge and the grounds taken in order to assail the said judgment the relevant documents i.e. copy of proceedings of the Court/order sheet with instant petition are based on the basic proceedings of the trial Court but the petitioners have not annexed the relevant documents. These documents were necessary to be examined to see the nature of the original suit, how it proceeded and specially to see the point of limitation regarding the petition filed by respondent No.

2. The objection of the respondent was that the ex-parte proceedings against him were initiated without observing and fulfilling the legal formalities. This could have been observed only after perusal of the record of trial Court but same has not been annexed. Copy of ex parte evidence has been produced before the Court on the basis of which the suit for declaration for specific performance was decreed by the trial court. The trial Court ignored the basic principle that even if ex-parte is proceeded against the respondent, the Court was bound to see about the maintainability of the suit and that whether the claim of the plaintiff is proved. Only on the basis of ex-parte proceedings, a suit cannot be decreed when it does not fulfill the other legal requirements. The petitioners were claiming that they had the possession of the property under the sale agreement but no revenue record was tendered in the Court regarding the same.

7. Another aspect of the proposition in hand is that judgment of learned Additional District Judge is very much clear on the point that on filing of the suit, summons were first issued which were not returned to the Court and without awaiting the first summons, fresh summons were ordered to be issued and according to the record those summons were also not returned in the Court. Then affixation of summons was ordered and on the report of affixation of summons ex-parte proceedings were initiated. Learned trial Court has not recorded the statement of process server qua the affixation of summons. The procedures required for proceeding ex-parte against any person has not been carefully adopted by the learned trial Court. The version of the petitioners that respondent No. 2 himself has mentioned his address which was given by the petitioners in the suit is no ground to consider that respondent No.2 was served. Respondent No.2 has clearly mentioned that he had shifted his residence a long time prior to the institution of the suit in Islamabad. This matter requires evidence but the learned trial court has not considered this point. The provisions of Order X of C.P.C. were not carefully examined by the learned Civil Judge. The case of respondent No. 2 certainly attracts provisions of Order X, Rules 17, 19 and 20 of C.P.C. The learned Additional District Judge, categorically answered all those objections raised by the petitioners through the judgment. It is for the Court to apply the proper law and to see whether summons issued by the Court have been properly, correctly and legally effected upon the person to whom those have been sent. Learned trial Court has not observed that defendant/respondent No. 2 or his agent has ever refused to accept the summons. It was also not got satisfied by the Court that summonses were affixed at the house of the respondent No.2. This was the duty of the court to make effort to effect service of defendant/ respondent No. 2 through registered post A.D. as required under the law. The Court has not made any observations that such efforts have not been made as no such service was available in the village where defendant/respondent No. 2 resides. So, in such situation, respondent No. 2 was seriously prejudiced by the act of the court and court should have considered this fact while dealing with the application filed under Order IX, rule 13 of C.P.C. There is a legal proposition that matters should be decided on merits and no one should be condemned unheard. It is also settled principle that technicalities should not be hurdle in the way of justice. In this regard I would rely on the case of Muhammad Hanif and others v. Muhammad and others (PLD 1990 Supreme Court 859) wherein it has been held as under:- "

Office of the Court represents the Court, no party should be allowed to suffer because of its wrong act/objection so long as the harm can be prevented." It has been further held in the aforesaid esteemed case law as follows: "

O. XLI, R.1 [as amended by Lahore High Court] Conversion of revision into appeal

Effect

Relevant date on which the second appeal should be deemed to have been filed would be the date on which misconceived revision petition is instituted or the date the request is made for its conversion or the date the request is allowed

As to what further conditions were to be satisfied after conversion would depend upon the circumstances of each case and ordinarily, subject to such conditions, conversion had to be from the date the revision was initially instituted." Now I will seek guidance from the case of Muhammad Ramzan v. Fatima and 30 others (PLD 2004 Lahore 17), that revision can be converted into appeal and likewise appeal can be converted into revision in the better interest of justice. So, there is no other view that a revision petition can be converted into appeal and appeal can be converted into revision. As it has been observed that this was the duty of the Court to apply proper law as nobody should be prejudiced from the wrong application of law by the Court, therefore, application under Order IX, Rule 13, C.P.C. as per law can be converted into application under section 12(2), C.P.C. and under Constitutional jurisdiction of this Court, application under Order IX, Rule 13, C.P.C. filed by the petitioner is converted into application under section 12(2), C.P.C. As discussed above, application under section 12(2), C.P.C. filed by respondent No.2 was well within time especially keeping in view the fact that suit filed by ancestors of the petitioners required strict scrutiny.

8. So-far-as, matter of limitation is concerned, there are chain of authorities that against illegal order there is no limitation and time does not run against a void order. Reliance in this regard is placed on the case of Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others (2017 CLC 1426) wherein it has been held that when order was illegal and had been passed in violation of law then High Court had powers to rectify the same while exercising its constitutional jurisdiction. When initial order was void and against the mandatory provision of law, then subsequent superstructure could not stand. High Court had power to rectify such jurisdictional error. Impugned orders passed by the Courts below were declared illegal and void as well as without jurisdiction and were set aside. The suit for declaration was filed on the basis of oral agreement without disclosing the detail of the said agreement and it was for the learned trial Court to see all the matter keeping in view the fact that precious rights of respondent No.2 are attached with the proposition and there was sufficient material to consider that the original suit was ex parte decreed without appreciating the concerned law and said ex parte decree is not sustainable in the eyes of law. Learned Additional District Judge, has rightly appreciated the record and concerned law while passing the impugned judgment. There was no question of jurisdictional error and misapplication of law by the said court. Learned counsel for the petitioners remained unable to point out any illegality or irregularity in the impugned judgment passed by learned Additional District Judge calling for interference by this Court.

9. In view of what has been discussed above, instant writ petition being without merits stands dismissed. ZH/R-10/L Petition dismissed.