1980 PLP 789 (CLC)

The learned counsel for the appellants failed to make out a ease of partial pre-emption meriting dismissal of the suit of respondents (rival pre-emptors). No such law was brought to our notice which could attract the rule of partial pre-emption in this case, nor any such law, in our knowledge, is in existence. However, in the light of the above-mentioned circumstances, to do substaintial justice between the parties, in exercise of the powers vested in the Supreme Court, under section 42-A of the Interim 'Constitution Act, 1974, we felt advised to issue notice to Abdul Aziz respondent to show cause as to why consent decree, which prima facie, was hit by the doctrine of partial pre-emption and also offended the provisions oft' section 27 of the Right of Prior Purchase Act in not impleading Ghulam Hussain and another (respondents) rival pre-emptors, in his suit, may not be vacated. He did not however appear in answer to the notice. However, the learned counsel for the appellants was asked to address the Court as to why the consent decree, in favour of the appellants, to the extent of 18 marlas, which was passed in the absence of rival pre-emptors, may not be vacated as it violates the provisions of sec tion 27 of the Right of Prior Purchase Act. On behalf of the appellants, it has been contended that even if the consent decree for non-impleading the respondents (rival pre-emptors) may not be valid, they are estopped to take advantage of it as it had attained finality for its having not been impeached by way of an appeal, suit or cross objections. As against this, it has been urged on behalf of the respondents, that the consent decree being violative of the provisions of section 27 of the Right of Prior Purchase Act, is entirely without jurisdiction and a nullity. Such a void decree, according to him need not be set aside and , is necessarily to be recalled and treated as void. We have given due consideration to the arguments addressed at the bar. The question that arises for determination is, whether a decree in violation of section 27 of the Right of Prior Purchase Act is not impleading rival pre-emptors, is a void decree or voidable against the rival pre-emptors and whether such decree can be set aside without any appeal or cross objection. Let, first question, be taken first. Section 27 reads :- "

27. When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right." "The plain reading of the section shows that in the case of several pre-emption suits arising out of the same sale, under section 27 of the Right of Prior .Purchase Act, the name of each plaintiff (pre-emptor) must be added as a party (defendant) in the suit of every other pre emptor. The wisdom behind it is that such a course is necessary to enable the Court to adjudicate upon the contending claims. This section enacts a convenient procedure and its provisions being mandatory, their strict compliance is necessary. In such cases a duty is cast upon the Court to implead each rival pre-emptor as a defendant in the other suit. Besides in deciding the suit the Court shall in each decree state the order in which each claimant is entitled to exercise his right. This is a mandatory provision of law and in this case as one of the suits (Abdul Aziz's suit) is decided in the absence of the rival pre-emptors, that decision being in violation of the 'provisions of section 27 of the Right of Prior Purchase Act is void and cannot be binding on them. We may now referto some of the relevant authorities. In P L D 1952 Lah. 489 (a Division Bench case) which had somewhat identical question, it was. held by Mr. Justice S. A. Rehman, J. (as he then was) "The decree passed in his favour was in violation of the terms of section 28 of the Act which prescribes that when more suits than one, arising out of the same sale or foreclosure, are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits, the Court shall, in each decree, state the order in which each claimant is entitled to exercise his right. There can be no doubt that if the procedure laid down to this section had been followed, section 17 of the Act would have been at once attracted to the case and, the appellant as well as Amir Baz Khan would each have been granted a decree for half the property. In my opinion, the decree obtained by Amir Baz Khan in these circumstances is of no avail to him as against the right of the appellant whose suit was pending at the same time." (The underlining is ours). To the same effect is Ghulam Tayyib v. Shahro Khan and others (P L D 1962 B J 1) it has been held in that case :-- "Although personally I am doubtful whether Mool Chand's case was correctly decided, it has been followed in a number of other cases and the question does not arise for-decision in the present case where two separate suits had been filed under section 28 of the Pre-emption Act, which lays down that `when more suits than one arising out of the same sale or fore closure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which (Here in italics) each claimant is entitled to exercise his right'. The effect of the imperative provisions of this section is that if one of these suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff." 1979 C L C 889 is a direct authority on the point. In that case, a suit for possession by pre-emption was brought by Jaffran Eibi appel lant without impleading Saleh Muhammad rival pre-emptor. Saleh Muhammad had brought another suit for possession by pre-emption in which he impleaded Mst. Jaffran Bibi as a party. Mst. Jaffran Bibi appellant secured a consent decree which was held as not binding on Saleh Muhammad rival pre-emptor and the suit of Saleh Muhammad was decreed in respect of whole property ignoring the decree obtained by the appellant. The finding returned by the learned Judge was :-- "As the,apptllant did not implead Saleh Muhammad as party to her suit, the decree obtained by her is not binding upon Saleh Muhammad." We therefore, hold that the consent decree of 12 marlas of land in favour of Abdul Aziz, being in violation of the provision contained in 18 section 27 of the Right of Prior Purchase Act is a nullity. The most important question which still requires to be answered is whether the rival pre-emptors (Ghulam Hussain and others) who have failed to file an appeal, cross objections against the consent decree, are entitled to ignore it and have for them a decree of the total land measuring 1 kanal and 10 marlas. In this respect, firstly it has been contended by the learned counsel for the appellant that a subordinate Court does not act illegally or with material irregularity if it decides wrongly a matter within its competence. According to him, the learned Sub-Judge had jurisdic tion to decide a case wrongly as well as rightly and the consent decree as such having remained unchallenged shall stand. We are not impressed with this argument and are of the view that the decree is passed without jurisdiction. No doubt the difference between a total lack of jurisdiction and an irregularity is sometimes one of decree and a matter of difficulty. Every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction. By merely, showing, therefore, that an order passed, was in violation of some provisions of law of procedure, the conclusion that the order is nullity, would not follow. It should further be shown that there was such a violation of some statutory provisions of principle of natural justice, which rendered proceedings coram non judice. It is correct that an error in a decision of subordinate Court does not, by itself involve that the subordinate Court has acted illegally or with a material irregularity so as to justify interference, nevertheless if erroneous decision results in the subordinate Court exercising a jurisdiction, not vested in it by law, o failing to exercise a jurisdiction so vested, decision in such a case is to ignored as to have never been given. It is elementary that if a mandatory condition for the exercise of jurisdiction by a Court is not fulfilled, the entire proceedings which allow, become illegal and suffer from inherent defect of jurisdiction. Any order, passed in continuation of these proceedings, in appeal or revision equally suffers from illegality and is without jurisdiction. In the case before us, the consent decree, passed by the learned Sub-Judge in violation of the strict provisions of section 27 of the Right of Prior Purchase Act, is ab initio illegal. The proceedings based on such pro cedure culminating in the consent decree are therefore, without juris diction. There can also be no doubt that in such circumstances it could never be too late to admit and give effect to the plea that the decree was nullity'. Therefore, the contention of the learned counsel, that the consent decree having remained unchallenged by way of an appeal or regular suit, remains valid and cannot be set aside, is without force and when this Court is seized with the case in appeal, is under the provisions of Order XLI, rule 33 which reads :- "

33. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may' require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respon dents or parties may not have filed any appeal or objection Provided that the Appellate Court shall not make any order under section 53-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order is clothed with the power to pass -any decree and make any order which ought to have been passed or made by the subordinate Court and failure of any party to impeach the decree by way of appeal cross objections, does not create a bar, In S. M. S. Subramonian Chettiar arid another v. Sinnammal and others (A I R 1930 Mad. 801). It was observed :- "Where a plaintiff, being dissatisfied with a decree passed in his favour, prefers an appeal, the Appellate Court, in a proper case, has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiffs case in toto, though the respondent did not prefer a cross-appeal or memorandum of objections challenging the decree passed by the first Court. (Underlining* is ours). In this case A I R 1921 All. 367, A 1 R 1927 P C 252, A I R 1923 Mad. 392, A I R 1927 Mad. 620 and A I R 1925 Mad. 266 were relied upon. Similarly in a case entitled 'Messrs S. M. Yousaf do Bros. v. Mirza Muhammad Mehdi Pooya and another (P L D 1965 S C 15) the law on the point is enunciated to the effect :- "The terms of rule 33, O. XLI, C. P. C. are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that 'no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The on obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's here the whole decree was before the appellate Court but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal again it the failure of the trial Court to grant a decree against a defendant would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle that `in the observe of a counter appeal being filed a decree against another defen dant cannot be given' not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule. General propositions extracted from precedent cases to the effect that the power given by .the rule is widely expressed and must be applied with discretion, where interference is required "to adjust the right of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power "would lead to impossible, contradictory and unworkable orders" undoubtedly are considerations which would justify the exercise of the discretion conferred by the rule, but it is right to say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule

33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts." In view of the above we hold that in the event a decree is nullity, absence of an appeal, suit or cross objections to avoid such decree is no bar for holding that such decree is inoperative and ineffective qua the rights of other rival contestants. It is also now well-recognised principle of law if a decree is a nullity, it would be ignored wherever it is 'presence in service. The simple reason is that such a decree or order is considered as to have never been passed. In a case entitled Muhammad Swaleh and others v. Messrs United Grain di Fodder Agencies (PL D 1964 S C 97), the learned Court observed :- "It should be remembered that of an order be a nullity then every Court before whom It is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day with out proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to that a judgment or decree was passed without jurisdiction." (Underlining* is ours). In view of the aforementioned state of law, with which we respectfully, against there is no escape but to hold that the consent decree obtained by Abdul Aziz and Maula Bakhsh (deceased vendee) is of no avail to them as against other plaintiff-pre-emptors whose suit was pending at that time and that they in the circumstances are entitled to a decree of the total land sought to be pre-empted. In view of the above, we ignore the consent decree of the learned Sub-Judge partly passed in favour of the appellant-vender and partly in favour of Abdul Aziz and setting aside the judgments and decrees of all them Courts below, pass a decree in favour of respondents (rival pre-emptors) of the total land measuring 1 kanal and 10 marlas. The rival pre-emptors (respondents) had already deposited a sum of Rs. 250 as sale consideration of 18 marlas of land for which a decree was passed by the learned Sub-Judge. But as now a decree for the total land of 1 kunal and 10 rnarlas is passed in their favour, they will further d6posit. a sum of Rs. 550 'alongwith the amount spent on the registration of the sale deed within two months from the date this judg ment is notified to them. In view of the complex legal questions involved, we pass no order as to costs. Appeal accepted.