1990 PLP 2000 (CLC)

(Reliance was placed on 1987 CLC 1156 and 1987 CLC 516.) (vi) Since no proper service of the petitioner was effected, the judgment and the decree passed by the Trial Court on 18‑2‑1982 against the petitioner were manifestly unlawful and illegal. (vii) The petitioner came to know of the ex parte order/decree on 4‑12‑1982. He applied for certified copy of the said order and then riled an application for setting aside the ex parte decree on 1‑1‑1983. (viii) No decision was taken on the said application. In the circumstances the petitioner was left with no other option but to approach the higher forum in appeal for the redress of his grievances and as such the appeals were filed before the Additional Commissioner (Revenue) on 6‑5‑1986. (ix) The Additional Commissioner dismissed the appeals mainly on the point of limitation. (x) The question of limitation in this case did not arise because the judgment and the decree dated 18‑2‑1982, passed by the Assistant Commissioner/ Collector was ex parte and nullity in the eyes of law. Moreover, the appeals were filed in continuation of the application under Order IX, Rules 13, C.P.C. made before the Trial Court well within time. (Reliance was placed on 1980 CLC 1617; 1988 CLC 332; 1985 CLC 25; PLD 1958 SC 104; PLD 1964 SC 97; PLD 1975 Lah. 707; 1986 SCMR 962 and 1987 SCMR 1543). (xi) The status of Respondent No. 1 on the suit land was that of a lessee but he managed to enter himself as "Tenant‑at‑will" Lagan Rs: 400 per Bigha in Kharif 1978 and Rabi, 1979" at the back of the petitioner. However, these entries were got corrected on 13‑6‑1988. (xii) Respondent No. 1 being lessee was not entitled for the right of pre emption as laid down in para 25(3) (d) of Land Reforms Regulation. (Reliance was placed on PLD 1988 Lah. 234; PLD 1988 Pesh 54 and 1986 CLC 1028)

5. The learned counsel for Respondent No. 1 raised the following points in rebuttal :‑ (a) The address of the petitioner as given in the plaints/suits before the Assistant Commissioner/Collector, Sadar Sub‑Division was the same as it was written in the Registered Sale‑deeds as well as in mutations. In the circumstances the address given in the substituted service was correct. (b) The petitioner cannot be allowed to take advantage of his own conduct. (c) The Additional Commissioner (Revenue) had rightly held that it was not believable that the petitioner being the purchaser of the suit land could remain ignorant about the institution of the suits and passing of decrees for 7 years. (d) The status of Respondent No. 1 on the suit land was that of "Tenant‑at- will" and payment of cash rent did not make him a lessee, as has been defined in section 4(3) of the Punjab Tenancy Act, 1887. (e) The alleged correction in the Register Girdawari dated 13‑6‑1988 had come to the notice of Respondent No. 1 for the first time. (f) As per statement of the petitioner he had come to know of the order of the Collector dated 18‑2‑1982 on 4‑12‑1982. Even then he slept over the matter for a long time and filed appeals before the Additional Commissioner (Revenue), Lahore on 6‑5‑1985 without an application for Condonation of daley. I have considered the arguments of the parties and have also examined the record of the cases in question. A perusal of Memo of suit in the Trial Court reveals that Respondent No. 1, in order to achieve wrongful gain had given incomplete address of the petitioner as follows:‑ " Manzoor‑ul‑Haq son of Abdul Rahim caste Kashmiri r/o Lahore Cantt: Lahore." Lahore Cantt. covers a large and wide area and it is not possible to get the service of a person effected unless complete description of his house and the area where he lives is given. The AC/Collector had also taken congnizance of this incomplete address on 13‑7‑1980 and had directed Respondent No. 1 to give complete address of the petitioner so that service may be effected upon him. The record shows that Respondent No. 1 had failed to carry out the direction of the Court. Later on substituted service through proclamation in the Newspaper was ordered by the AC/Collector in the absence of fulfilment of his earlier order A dated 13‑7‑1980. The Collector had no justification to give another direction regarding service of the petitioner through publication, when it had come to his notice that the address of the petitioner was incomplete and he had given direction to Respondent No. 1 to tender his full address. It has been noticed that publication was also not made in a proper manner as it relates to two cases whereas 4 cases were pending before the AC/Collector. Under the circumstances the petitioner was wrongly proceeded against ex parte. It is also noteworthy that the petitioner had applied to the AC/Collector for setting aside the ex parte decree but with no result. It is thus clear that the AC/Collector while deciding these cases did not apply his mind judiciously. The substituted service on an address declared to be incomplete by the Court itself is of no legal value and proceeding ex parte on the basis of the said substituted service is bad in law. As such the impugned order would be deemed to have been passed at the back of the petitioner against the principle of natural justice. I, therefore, feel, no hesitation in holding that the order of the AC/Collector is not sustainable and is hereby set aside. The Additional Commissioner without adverting to this aspect of the case had confined himself to the point of limitation although it is a well‑settled principle that barrier of limitation is immaterial where it is established that the order impugned was void. Since I have held that the order of the Collector was void, any superstructure built on a void order will collapse like a house of cards.' As the order of the AC/Collector has been struck down, the order of the Additional Commissioner dated 6‑6‑1987 deserves the same fate and is set aside accordingly. In consequence thereof all these cases are remanded to the A.D.C./Collector, Lahore Cantt. for fresh decision after hearing the necessary parties. A.A./362/8 Revision allowed.