2000 PLP 638 (CLC)

Malik Raees Khan v. Abdul Mannan and others 1992 SCMR 1822 ref. (c) Void order‑‑‑ ‑‑‑‑Void order being ‑a type of. illegal order, entailed consequence if not challenged or set aside within limitation‑‑‑Such orders could not be ignored simply because same were alleged to be void. Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 ref. M.A.K. Dogar for Appellant. Ch. Muhammad Ashraf Walah for Respondents. Date of hearing: 4th November, 1999. SYED NAJAM‑UL‑HASSAN KAZMI, J.‑‑‑ This judgment will decide I.‑C.A. 47 of 1999 which calls in question order, dated 8‑12‑1998 of !he learned Single Judge of this Court in Writ Petition No.20370 of 1996.

2. Appellant, on 4‑11‑1990, moved an application before Collector, for redemption of land measuring 24 Kanals and 9 Marlas claiming that the land was mortgaged on 9‑3‑1931 in favour of predecessor of respondent No.4, a petition for redemption before the Collector Gujrat was moved by the predecessor of appellants which was allowed on 23‑3‑1944, respondent No.4 filed an appeal before the Commissioner to assail the order, which was dismissed on 7‑2‑1946. Civil Suit was filed in which a consent decree was passed to the effect that on payment of Rs.350 as mortgaged money the land would be redeemed and if the amount would not be paid within the stipulated time the suit would be deemed to have been decreed, an extension in time to deposit decretal amount was granted by the Civil Court but the order was set aside in appeal on 29‑10‑1949. In the application, before the Collector.' which was second of its own nature, the appellant claimed redemption of the mortgage under section 10 of West Pakistan Redemption and Restitution of Mortgaged Land Act. The application was allowed on 16‑2‑1991. Appeal filed there against was also dismissed by the Additional Commissioner (Revenue), Guaranwala on 5‑5‑1991 but in revision the orders were set aside by the Member Board of Revenue. Against the order passed in revision, a review petition was filed which was dismissed on 16‑6‑1996. In the Constitutional petition (Writ Petition No.20370 of 1996) appellant challenged orders, dated 6‑11‑1995 and 16‑6‑1996 of Member Board of Revenue, which petition was dismissed by the learned Single Judge vide impugned order, dated 8‑12‑1998.

3. Learned counsel for the appellants argued that no appeal was competent against the order of redemption passed by the Collector, therefore, Intra Court Appeal would not be barred by proviso to section 3(2) of Law Reforms Ordinance, 1972. It was contended that revision before Member Board of Revenue was not maintainable, therefore, the order passed to revision could not sustain. Regarding decree of the Civil Court, learned counsel submitted that the decree was never put to execution and that the same would not operate adversely against the rights to seek redemption within 60 years. 1t was added that in the Revenue Record, appellants were shown to be owners and that the alleged mutation attested on the basis of decree could not extinguish or terminate ownership of appellant or right to redeem the mortgaged land. It was further submitted that in any case, the decree, visualizing termination of right of redemption before 60 years should be deemed to be void and be ignored and that the appellant could successfully move second application for redemption. Lastly it was argued that some misreading of record was made in the impugned order.

4. On the other side, learned counsel for the respondent strenuously argued that Infra‑Court appeal would not be competent and that the appellant having himself filed review petition against order passed by the Member Board of Revenue, could not be possibly heard to urge that no remedy of revision/appeal or review was competent or that Infra‑Court appeal in the given circumstances could be entertained. It was added that the decree of the Civil Court became final on account of non‑deposit of the mortgaged money within the stipulated time, the suit being deemed to have been decreed, the respondents would be deemed to have become absolute owners and resultantly, neither second application under section 10 of West Pakistan Redemption and Restitution of Mortgaged Land Act, was competent nor the Collector could pass any order in disregard to the decree of the Civil Court.

5. View taken in the impugned order is that the second application moved by the appellant before Collector was not maintainable as on account of decree passed by the Civil Court on 24‑6‑1947, respondent No.4 had become full‑fledge owner. It was also observed that the land stood redeemed, far back in 1947, there was no question of Restitution of mortgage and resultantly, the proceedings under section 10 of West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964 were incompetent. It was further observed that in the later Revenue Record the property was no longer shown to be under any mortgage, and therefore, the whole exercise, on second occasion, by way of proceedings under the Act, ibid, were effort in‑futility.

6. As a first step, the objection pertaining to the maintainability of Infra‑Court appeal needs to be attended. From the application filed by appellants before the Collector it is discernible that the same was instituted under section 10 of West Pakistan Redemption and Restitution of Mortgaged Land Act, which provision deals with the Restitution of mortgage. Section 14 of the Act provides that the appeal shall lie from original order of the Collector to the Commissioner. Similarly section 15 of Act XIX of 1964, provides for revisional jurisdiction of Board of Revenue. This section contemplates that the Board of Revenue may at any time call for record of any case pending before or disposed of by any Revenue Officer subordinate to it and pass an order as it deems fit after hearing the parties likely to be affected by the order. It is, thus, obvious, that the Act provides for an appeal against the original order passed by the Collector and for revision to the Board of Revenue against any order passed by the subordinate Revenue Officer. Proviso to section 3(2) of Law Reforms Ordinance bars the maintainability of Infra‑Court Appeal against the order passed on a petition A under Article 199 of the Constitution, arising out of proceedings under a Statute proceedings for the remedy of appeal, revision or review. Reference can be made to Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 where it was ruled that no Infra‑Court Appeal would lie from an order on Constitutional petition arising from proceedings under a statute, which provides for the remedy of appeal, revision or review. In Muhammad Abdullah v. Deputy Settlement Commissioner Centre‑I, Lahore PLD 1985 SC 107 it was ruled that the expression "original order" occurring in. section 3(2), proviso, means order with which proceedings under relevant statute commenced and if the relevant law provides for an appeal against original order Infra‑Court appeal would not be competent. In this case, as noted supra, the original order passed by the Collector is appealable and remedy of revision is also available under section 15 of the Act (ibid) and, $ therefore, the Infra‑Court Appeal, against the order passed in Constitutional petition will not be maintainable. Learned counsel for the appellant relying on Malik Raees Khan. v. Abdul Mannan and others 1992 SCMR 1822, tried to argue that the order passed by the Collector under section 7 of the Act was final and could not be challenged by way of appeal or revision. The arguments are devoid of substance. As a matter of fact, it has been observed in the said case, that the orders of the Collector are opened to appeal and revision before hierarchy of forum constituted under the Act but subject to their decision the order of Restitution is final and the jurisdiction of Civil Court is barred to entertain any claim or to enforce any right under a mortgage, declared extinguished, under the said Chapter or to question the validity of any proceedings thereunder. In the present case, as noted supra the petition was filed under section 10 of the Act XIX of 1964 and the original order on such petition was appealable and also subject to revision before the hierarchy of forum. Not only this, the appellants challenged the order of Member Board of .Revenue in review which petition was dismissed on 16‑9‑1996. In the Constitutional petition, orders, dated 6‑11‑1995 and. 16‑9‑1996 passed in revision and on review applications were called in question. Having themselves filed review petition, the appellants could not be possibly allowed to plead that no remedy of revision or review was competent or that the Intra‑Court Appeal would be maintainable against the order passed on Constitutional petition. In view of the admitted fact, that the original order was challenged in appeal, revision and review and in the C Constitutional petition, the original order, subject‑matter of challenge had crossed the stage of appeal, revision and review. Infra‑Court Appeal will be barred by proviso to section 3(2) of the Law Reforms Ordinance, 1972.

7. Even on merit, we do not find any substance in the contention raised by the learned counsel for the appellants. It is not denied that terms of the consent decree passed by the Civil Court on 24‑6‑1947 were that if the amount of Rs.350 would be paid within three months, the suit would be deemed to have been dismissed and in the alternative, if the amount would not be paid, the suit would be deemed to have been decreed. Suit was for declaration to the effect that the respondents had become exclusive owners of the land in issue and that the orders passed by the Commissioner for redemption of land was illegal and inoperative as against the rights and title of respondent No.4. Admittedly, the amount of Rs.350 was not paid, extension in time to deposit the amount was granted by the Civil Court but the order was set aside in appeal on 29‑10‑1949 which order is final and is in field. In this view of the circumstances, the suit of respondent No.4 would be deemed to have been decreed as prayed for and resultantly, he would be deemed to be owner in possession of land. Arguments of learned counsel for the appellants are that the decree was just a contract and that there could not be a concept of premature determination of right of redemption and that the decree should be ignored on assumption that the same was void The contention is devoid of merits, inasmuch as the decree was a consent decree, it was never challenged in the hierarchy of jurisdiction, the decree would obviously operate against the future claim. Even otherwise, in law, the void orders being a type of illegal orders. do entail consequences if not challenged or set aside within limitation and the same cannot he ignored simply because the appellants allege the same to be void. Reference can be made to Messrs Conforcc Ltd. v. Syed Ali Shah etc. PLD 1977 SC 599 and S. Sharif Ahmad Hashmi: v. Chairman, Screening Committee Lahore and another 1978 SCAR

367. It is also important to note that the decree could not be possibly ignored by the Collector in the proceedings initiated by the appellant through the second application under section 10 of Act 19 of 1964. In the presence of decree, the appellant could not possibly be allowed to reopen the issue on any flimsy ground. The view taken by the learned Single Judge, therefore, is not open to any exception.