2006 PLP 1199 (CLC)

MUHAMMAD JEHANGIR ARSHAD, J.

The facts briefly relevant for the disposal of this application are that Mst. Noor Sain predecessor-in-interest of respondents Nos.1(A) to 1(F) filed a suit for specific performance of agreement to sell dated 28-12-1982 against Muhammad Sharif predecessor-in-interest of the petitioners, on 27-2-1984. The said suit was decreed on 27-3-1989 by Mr. Shoukat Hussain Khan, learned Senior Civil Judge, Bahawalpur with a direction to Mst. Noor Sain to deposit a sum of Rs.20,000 in Government treasury in favour of respondent/defendant uptil 27-4-1989, failing which the suit shall be deemed to have been dismissed with costs. Muhammad Sharif A predecessor-in-interest of the petitioners filed appeal against the above-mentioned judgment and decree of the learned Senior Civil Judge, but the same was dismissed by the learned Additional District Judge, Bahawalpur on 21-6-1990, as such the judgment and decree of the learned Senior Civil Judge was maintained. Thereafter, said Muhammad Sharif filed R.S.A. No.29 of 1990 before this Court which was also dismissed by this Court on 15-2-2002. Through this C.M. the legality/ validity of the above-said judgments and decrees of all the three Courts have been challenged under section 12(2), C.P.C.

3. The contention of the learned counsel for the petitioner is that as the very agreement, dated 28-12-1982 on the basis of which suit for specific performance of agreement to sell was filed by Mst. Noor Sain, was in violation of paras.2(12), 24(3)(5) of Martial Law Regulation 115 (hereinafter to be referred as MLR 115), hence, the same being a void agreement no suit for specific performance was maintainable, so all the three judgments and decrees were liable to be declared as without jurisdiction.

4. Heard. Record perused.

5. I am not persuaded to agree with the contentions of the learned counsel for the petitioner that all the three judgments and decrees are liable to be declared as without jurisdiction having been passed against the provisions of para.24 of MLR 115 for the following reasons: (a) The question whether a particular transaction offended the provisions of MLR 115 and whether Civil Court is competent to determine the validity of such a transaction on the touchstone of MLR 115 came under consideration before the Honourable Supreme Court of Pakistan in the case of Nasir Ahmed Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667 and the Honourable Supreme Court after considering the issue in the light of its earlier decision reported in Mst. Hujani v. West Pakistan Land Commissioner PLD 1966 SC 114 and 340 held asunder:-- "It was pointed out in these cases that power of final decision in respect of every disputed matter is vested in the Commission and it is subject to that power of final decision that the action of the Commission in permitting the matter to be litigated before a Court should be interpreted. The Commission in such cases really gets assistance from the Civil Court to decide a dispute. The provisions of the Regulation would, however, make the Commission the final Judge of any such dispute despite reference of a matter to the Civil Court as it is clear that no decree of a Civil Court, as such, would be binding on it, unless it is accepted by the Commission i.e. Land Commissioner under M.L.R." The said principle was also followed by the Honourable Supreme Court in the case Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935. (b) Secondly the agreement to sell was not prohibited under MLR 115 and it is only the transaction i.e. final transfer of property B under agreement which was covered by the said provisions of MLR

115. The same view was expressed by the Honourable Supreme Court of Pakistan in the case Muhammad Ismail and others v. Mst. Mussarrat Zamani and others PLD 1985 SC

86. Hence, when the final judgment of this Court in R.S.A. No.29 of 1990 was passed on 12-2-2002 the said provision of MLR 115 had seized to have its effect in view of pronouncement of Federal Shariat Court in the case Sajwara and others v. Federal Government of Pakistan and others PLD 1984 FSC 80 w.e.f. 1-1-1990, meaning thereby that at present the said provision of MLR are no more in the field nor any transaction under said 'provision or any decree relating to such matters can be struck down and declared to be invalid on the touchstone of MLR 115 after the above-mentioned date fixed by the Federal Shariat Court. (c) Thirdly such plea was never taken in the said suit at any stage and the decree passed by the trial Court was challenged before the District Judge as well as before this Court on other grounds, which did not find favour either, with the Additional District Judge or this Court and judgment and decree of the trial Court was confirmed. (d) Fourthly, the question. requiring determination is as to whether after decision of the Federal Shariat Court in the case of Sajwara and others v. Federal Government of Pakistan and Allah Wasaya and others PLD 1989 FSC 80 declaring the provisions of para.24 of MLR 115 as repugnant to the Injunctions of Islam w.e.f. 1-1-1990, wherefrom para.24 of Land Reforms Regulation, 1972 ceased to have effect, this Court has jurisdiction to declare all the afore-said three decrees as without jurisdiction, having been passed on the basis of alleged void agreement as claimed by the petitioner. The answer is definitely, no, for the simple reason that as till the above-mentioned date i.e. 1-1-1990 prescribed by the Honourable Federal Shariat Court in the above judgment, no competent authority had declared the said transaction as violative of the provisions of para.24 of MLR 115, hence after enforcement of the judgment of Federal Shariat Court which is binding on this Court also, in terms of Article 203GG of the Constitution of Islamic Republic of Pakistan, 1973, striking down the above-mentioned provisions of MLR 115 being against the Injunctions of Islam as laid down in Holy Qur'an and Sunnah, even the Land Commission is no more competent to declare such transaction as void being violative of MLR

115. The said judgment or decrees of the three Courts, in whichever form may be, have now become a past and c closed transaction and after expiry of above-mentioned date, it would be deemed as if para.24 of the MLR 115 was never in the field. Hence, no transaction can be examined on the touchstone of being violative of para.24 of MLR 115. (e) Furthermore, the judgment of this Court in R.S.A. was delivered on 15-2-2002 and no body challenged the findings of three Courts. The said agreement was executed on 28-12-1982, the suit on the basis of said agreement was filed on 24-11-1983, the trial Court passed the decree on the basis of said agreement on 3-11-1986 which was confirmed by the learned Additional District Judge on 21-6-1990 and finally by this Court on 15-2-2002. It is now too late for the petitioners to challenge the said concurrent judgments and decrees of the three Courts on the said ground, after having remained unsuccessful and keeping silent for such a considerable period of almost two decades. (f) Lastly, this C.M. is also barred by time having been filed after expiry of three years in case if Article 181 of the Limitation Act is applied to this C.M. from the date of passing of the judgment of this Court in R.S.A. on 15-2-2002. Although an application under section 5 of the Limitation Act seeking condonation of delay has been filed, but I am not satisfied that there is any justification to condone delay. As such C.M. No.839 of 2005 is dismissed.

6. For what has been discussed above, C.M. No.838 of 2005 is hereby dismissed in limine being not maintainable. However, there will be no order as to costs. H.B.T./88/L Application dismissed.