1999SCMR900 (PLP)

CH. MUHAMMAD ARIF, J.

This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the. judgment dated 5-3-1997 passed by the Lahore High Court, Multan Bench, Multan in Constitution Petition bearing W. P. No, 1325 of 1997 dismissing the same in limine with the result that the judgments and/or orders of the learned trial Court and the revisional forum, respectively dated 13-1-1993 and 15-2-1997, held the field.

2. The background in which the instant petition has arisen is that the petitioner filed a suit for a declaration to the effect that the was sole owner of House No.1537/2, Ward No.8, Muslim, Multan City and that preliminary decree dated 20-5-1984 and final decree dated 6-10-1987 in respondent No.3's partition-suit of the said property were void and ineffective qua his rights. The issuance of perpetual injunction restraining the defendants/respondents Nos.3 to 20 from interfering in the rights of the petitioner, was also prayed for as a consequential relief. The title of this suit reads thus. This suit bears Civil Suit No.336/1 of 1987 and was instituted on 10-11-1987. Petitioner/plaintiff-Rehmat Ali claimed that the suit property was owned and possessed by his paternal aunt-Mst. Sultana Begum who had purchased the same through registered sale-deed on 28-1-1929. She was issueless and gifted the disputed house in his favour vide registered deed dated 22-3-1976. She expired on 1-7-1977, respondent-Haji Ameer Hamza instituted a suit for partition of the suit-house on 28-4-1978 but, as the petitioner could not produce the gift deed in the Court on account of his having been proceeded against ex parte, the suit of respondent-Haji Ameer Hamza was decreed without framing of issues. Preliminary decree in the partition suit was passed on 20-5-1.984 and final decree was made on 6-10-1987. Both the decrees were challenged in the present suit alleging the same to be void, illegal and ineffective on the grounds: (i) that neither issues were framed nor evidence was invited and (ii) that grant of decree on account of non-production of the gift deed is illegal and unjust. The respondents/defendants contested the suit by filing written statements taking several preliminary objections and the parties went on trial, on the following issues: (1) Whether the suit is not maintainable in view of section 12(2), C.P.C.? OPD (2) Whether the suit is hit under Order 7, rule 11 of C.P.C.? OPD (3) Whether the suit is bad for lack of court-fee and jurisdiction? OPD (4) Whether description of the suit property is incorrect? OPD (5) Whether the suit is not maintainable and has been filed with male fide intention, as the deceased persons have been impleaded in the suit? OPD . (6) Whether the plaintiff is estopped by his word and conduct to this suit? OPD (7) Whether the suit is bad for misjoinder and non joinder of necessary party? OPD (8) Whether the suit is hit under section 11 of C.P.C.? OPD (9) Whether the suit is time-barred? OPD (10) Whether the suit is false and vexatious and hence, the defendant is entitled to get the special cost under section 37-A of C.P.C.? OPD (11) Whether the plaintiff is owner in possession of suit property and the defendants have no concern with it, as such the preliminary decree dated 20-5-1984 and the final decree dated 6-10-1987 in the suit titled Haji Ameer Bakhsh v. Amir Hamaz is illegal and ineffective on the rights of the plaintiff? OPP (12) Whether the defendants are co-sharer as the legal heirs of Mst. Sultana Begum in suit property, if so, its effect? OPD (13) If issue No. 11 is proved whether the plaintiff is entitled to a decree for declaration and permanent injunction as prayed for? OPP (14) Relief."

3. After recording the evidence of the parties in support of their respective claims and after treating this Declaratory Suit as an application under section 12(2), C.P.C. on the request of the learned counsel of the petitioner vide order dated 14-11-1992, the learned Trial Judge dismissed the latter (Application under section 12(2), C.P.C.) through order dated 13-1-1993, The petitioner, remaining unsuccessful in his revising petition under section 115, C.P.C., against order dated 13-1-1993 before a learned Additional District Judge, Multan through his order dated 15-2-1997, made the Constitution Petition before the Lahore High Court, Multan Bench which was dismissed in limine through the impugned judgment dated 5-3-1997. Last two paragraphs of the impugned judgment read thus: "I have considered the contentions and have gone through the documents appended with this petition. I have noticed that respondent No.3 Haji Amir Hamza instituted a suit for possession through partition on 20-5-1978 respecting this very property claiming his share therein. It was the case of respondent No.3 that the present petitioner was claiming to have got that property transferred in his name through "Tamleek" dated 22-3-1976 which according to him was never executed by Mst. Sultana Begum in his favour. It was further averred that Mst. Sultana Begurn never appeared before sub-Registrar nor executed the alleged gift deed. The petitioner who was defendant No.5 in that suit did not appear in spite of service and, as such, was proceeded ex parte. Thereafter, an application was made for setting aside the ex parte proceedings which was accordingly accepted. The petitioner thereafter submitted written statement. The issues were framed. However, the petitioner again absented and accordingly a preliminary decree was passed on 20-5-1984. A Local Commissioner was also appointed so as to suggest the mode of the partition of the property. It is also reflected from the partition decree that in spite of the fact that the petitioner was represented throughout by a counsel, no objection whatsoever was filed by him to the report of the Local Commissioner. Accordingly, the learned Trial Judge passed a final decree on 6-10-1987. "The aforesaid resume demonstrates that it cannot be stated that the decree in the suit for partition was secured by the respondents through fraud or misrepresentation. The Courts below, in these circumstances, have rightly taken up the fact that the suit/application was filed beyond limitation as the petitioner was completely' in know of the proceedings so started as far back as in February, 1978 and a preliminary decree was passed on 20-5-1984. Secondly, in the suit for partition, the petitioner did not produce the gift deed and took up the plea that the same had been lost. In these circumstance, it cannot be said that the preliminary decree was passed without jurisdiction by the learned Court. No illegality has been brought on surface by learned counsel for the petitioner warranting interference in this matter in the exercise of Constitutional jurisdiction. Resultantly, the writ petition is dismissed in limine. "

4. Hence, this petition

5. Mr. Islam Ali Qureshi, learned counsel appearing for the petitioner, criticized the impugned judgment with the argument that his client's plaint to this suit could not be converted into an application under section 12(2), C.P.C as the suit was competent for making challenge to the preliminary and final decrees passed in the partition-suit of respondent/Haji Ameer Hamm, respectively on 20-5-1984 and 6-10-1987. According to him, the ingredients of subsection (2) of section 12, C.P.C. were not present and, therefore, the above treatment meted out to the case of the petitioner could not be countenanced by the learned Judge in Chambers.

6. The plea being raised is totally off the mark, when considered in juxtaposition with the material on the record, for more than one reasons. There is no cavil with the proposition that civil suits can be resorted to by a litigant whenever a cause of action in that regard accrues in his favour. The findings against the petitioner are that the law of the land itself precluded him from filing this suit for declaration and injunction, in terms of sub section (2) of section 1 22 C.P.C. which reads thus: "(2) Where a person challenges the validity of a judgment, decree or order' on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the h final judgment, decree or order and not by a separate suit." These findings take good care of the first part of the argument to the effect that the plaint in the suit for declaration and injunction was in order. As regards the plea that the decrees dated 20-5-1984 and 6-10-1987 could be challenged in the instant suit, we find that the petitioner has been non-suited on the ground that he did not challenge the said decrees in appeal/s before the competent forum i.e. the District Judge concerned. A perusal of the memo. of revision petition of the petitioner dated 4-5-1986 (pages 99 to 102 of the Paper Book) shows that the said preliminary decree was challenged by him under section 115, C.P.C. alleging, inter alia, that the same is violative of Rule 18 of Order XX, C.P.C. and that the spirit of Rule 6 of Order IX, C.P.C. was not kept in view by the learned trial Court. This revision was dismissed by a learned Additional District Judge, Multan on 10-5-1986, with the following observations: `'' "This is a revision petition against the decree dated 20-5-1984, passed against the present petitioner by Mr. Mujahid Mustaqeem, Civil Judge 3rd Class, Multan. (2) This decree is clearly appealable. The present revision petition is not maintainable. The same is dismissed." It is not the case of the petitioner that after the above-quoted order dated 10-5-1986, he made any appeal against the preliminary decree, dated 20-5-1984 or even against the final decree dated 6-10-1987.

7. Same is the position with regard to the plea that the conversion of the plaint in the suit for declaration and consequential relief into an application under section 12(2), C.P.C. could not be gone ahead. Copy of order dated 14-11-1992, directing such conversion, is available at pages 53 to 55 of the Paper Book. The following excerpt therefrom is to the point:

"

As to the maintainability of the suit, when confronted with this contention of the learned counsel for the defendant, the learned counsel for the plaintiff then referred to Noorul Amin and others v. Muhammad Hashim X1992 SCMR page 1744) and submitted that the present suit mar be converted into application under section 12(2). C.P.C." Looked at from this angle as well, the findings to the effect that the application under section 12(2), C.P.C. was maintainable with a view to challenging the decrees in the partition suit in line with this Court's judgment in the case of Noorul Amin (supra), were rightly not interfered with by the High Court.

8. It was next contended that the present suit was within time and that the decisions to the contrary by the learned Civil Judge and the learned Additional District Judge, Multan should have been reversed by the learned Judge in Chambers of the Lahore High Court, Multan Bench. In this behalf reliance was placed on Shabbit Ahmad v. Mst. Kabir-un-Nisa and others (PLD 1975 SC 58) We are afraid this plea is of little help to the petitioner for the simple reason that the facts of the precedent case were totally different from those of the present list. The precedent case related to ejectment for non-payment of rental without notice to the occupant in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) and it was held that such notice was essential and in its absence, the authorities concerned could not proceed in the matter, Here, the petitioner obtained the conversion of his suit into an application under section 12(2), C.P.C. vide order dated 14-11-1992 and after failing to prove that either preliminary decree dated 20-5-1984 or even the final decree dated 6-10-1987 suffered from any of the taints referred to sub section (2) of section 12, C.P.C., he can ill-afford to press the same here.

9. Moreover, the findings of the learned trial Court, which were upheld by the revisional forum, were that the application under section 12(2), C.P.C. was beyond time, as Article 181 of the Limitation Act, 1908 provides three years' period, which was not availed of by the petitioner within 3 years from 20-5-1984. The date to filing of the suit i.e. 10-11-1987 was equated with the making of application under section 12(2), C.P.C., and it was rightly held that the same was barred by time.

10. Before parting with this judgment, we may observe that learned counsel was allowed time on 19-8-1998 to argue the question regarding legal efficacy of the judgment passed under rule 6 of Order IX, C.P.C., and whether in the presence of the said judgment, another suit between the parties is maintainable and other allied question which arises is whether a judgment passed under rule 6 of Order IX, C.P.C. can be avoided on grounds other than those mentioned in section l2(2), C.P.C. by filing a suit. Learned counsel on the adjourned date of hearing did not advert to any of these aspects. He, however, reiterated the submissions which have been dealt with in the paras. above. In order to answer these questions, it appears appropriate to quote the relevant 'part of Order IX, Rule 6, C.P.C. and also to reiterate the facts relevant to these questions: "(a) if it is proved that the summons was duly served, the Court may proceed ex parte (and pass decree without recording evidence)." We find that the suit filed by Ameer Hamza for possession through partition of his 1/4th share was sought to be resisted by Rehmat Ali, the present petitioner on the basis of gift of the house statedly made in his favour by Sultana Begum, the owner through a deed dated 22-3-1976. The issues were framed in the suit on 29th of July, 1980. On 30th of February, 1984 counsel for Rehmat Ali, present petitioner made a statement that original 'Tamleek-Nama' has been produced in some other case and that the said document will be produced in the Court. The Court adjourned the hearing for production of the original 'Tamdeek Nama' to 31st of March, 1984, Despite taking of permission for production of the original 'Tamleeknama', the same was not produced. The present petitioner absented from the proceedings with the result that on 20th of May, 1984, he (defendant in the suit) was proceeded ex parte and a preliminary decree was passed without recording evidence. The revision filed to challenge the said preliminary decree contains the admission regarding non-production of the alleged registered "Tamleeknama" before the learned trial Court. This revision was dismissed as not maintainable as the appeal was available under law against the decree but admittedly, no appeal was filed, Rehmat Ali, present petitioner then joined the proceedings held for passing the final decree. He was also given opportunity to file objections against the report of the Local Commissioner appointed for suggesting mode of partition. The objections were not filed and after grant of final opportunity, the right to make objections was closed on 31st May, 1987. Rehmat Ali, defendant/present petitioner again absented from the proceedings and a final decree was passed on 6-10-1987.

11. The suit was then filed on 10-11-1987 to challenge the preliminary decree, dated 20th May, 1984 and the final decree dated 6-10-1987 on the ground that the said decree was against law and facts and also unjust as neither issues were framed nor evidence was invited. The factual position is that in the said suit, issues were framed and Rehmat Ali, the present petitioner had obtained time from the Court to produce the original "Tamleeknama" and thereafter, again sought permission to place on record the said Tamleeknama but instead of producing the same as evidence in support of his plea that he was exclusive owner of the house of virtue of Tamleek-nama, he absented himself with the result that he was proceeded ex parte and, in these circumstances, the decree was passed without recording evidence. It appears that the suit was being resisted on the basis of the alleged Tamleek made through Tamleenama dated 22-3-1976 but the same was not produced despite grant of opportunities. It is in these circumstances that the validity of the action of the Court in proceeding ex parte and passing the decree without recording evidence is to be determined.

12. The words "the Court may proceed ex parte and pass decree without recording evidence" in rule 6(1)(a) as instead by Law Reforms Ordinance, 1972 came' up for interpretation before this Court in the case of Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89) and Mr. Justice Dorab Patel observed as under:

"The wards 'and pass decree without recording evidence' were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this Amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which. were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature now would we be justified in doing so because the amended rule now reads: '

the Court may proceed ex parte and pass decree without recording evidence ....' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially'." It may pertinently be noted that Courts can pass ex part decree even without recording evidence as the pleadings are to be filed on oath on solemn affirmation. Nevertheless, the Superior Courts had always looked with disfavour, decrees granted against absentees, without consideration of available record or application of mind as amended Order IX, Rule 6, C.P.C. does not provide any arbitrary authority or blatant discretion toward decrees by closed eyes. It is for these reasons that our brother, Munawar Ahmed Mirza, as Acting C.J. of Balochistan High Court Government of Balochistan through Secretary, Revenues v. Ghulam Muhammad (1991 CLC 2033) observed that Spirit of law demanded that whenever trial Court did not find it necessary to examine evidence, reasons must be recorded for showing justification for deciding the claim without taking further proceedings and without recording evidence. Reference may also be made to a judgment of Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan (PLD 1991 SC 363), as in this case Order IX, rule 1 (a), C.P.C. again came up for consideration. In this precedent, the view taken was that where summons had been duly served upon the defendant but the did not appear when the suit was called for hearing and decree was passed against defendant without recording evidence, all the ingredients of Order IX, rule 6(1)(a), C.P.C. stood satisfied and that proceedings taken against the defendant on the said date, thus, were in fact ex parte and in so far as a decree was passed against the defendant on that date it could legitimately be treated as an ex parte decree filing within the purview of Order IX, rule 6(1)(a), C.P.C. and was not a judgment, falling under Order X, rule 4(2), C.P.C., so the application under Order IX, Rule 13, C.P.C for setting aside the decree on showing good cause was correct and proper The principle which is deducible is that against the judgment passed under Order IX. rule 6(1)(a), C.P.C., an application under Order IX, Rule 13, C.P.C, would be competent in addition to the appeal which is available under law against decree. To same effect is the judgment of this Court in case of Messrs Landhi Industrial Trading Estates Ltd.. Karachi v. Government of West Pakistan through Excise and Taxation Officer. "N" Division, Karachi (1970 SCMR 251).

13. Now the question whether on the ground taken in the suit which was treated an application under section 12(2), C.P.C., a case for setting aside the decrees was made out or not, may be taken up. The grounds taken were that neither issues were framed nor evidence was recorded before passing the decree and that decree passed on account of mere absence of the defendant (the present petitioner) is against law and facts and unjust. The factual pleas that issues were not framed and evidence was not recorded are factually incorrect as the trial Court did frame issues and did provide opportunity to the petitioner to produce evidence in the suit but he absented in the proceedings and as the very document/Tamleeeknama, on account of which the suit was being contested, was not produced, the learned trial Court proceeded to pass ex parte decree which decree was then challenged in revision and despite the fact that it was pointed out while dismissing the revision petition that appeal is available under law, no appeal was filed. He then participated in the proceedings held thereafter for passing the final decree but again he absented and allowed the Court to pass the final decree as well. He then challenged the preliminary decree by filing the suit after expiry of more than three years and by that time, his remedy had become barred by time. In these circumstances, he is to blame himself for his acquiescence and indolent conduct in taking appropriate proceedings at appropriate time.

14. The grounds taken at best fall in the category of erroneous exercise of jurisdiction and not within the term "want or lack of jurisdiction". There is a distinction between "want of jurisdiction" and "Irregular exercise of jurisdiction". The word 'Jurisdiction signifies' the power and authority of the Court to decide issues in exercise of its judicial functions. The Jurisdiction of the Court has reference to (1) subject-matter, (2) territorial extent, (3) pecuniary value of the claim involved, (4) nature of dispute and (5) amenability of the parties to the process of the Court. The jurisdictional defect may arise with reference to absence of any of the afore-noted defects or there may be legal bar itself by a Statute or something else having the force of law. On account of existence of any jurisdictional defect. The judgment passed can be said to have been passed "without lawful authority" and illegally and can be set aside on the ground of want of jurisdiction. In the case reported as The Chief Settlement Commissioner, Lahore v Raja Muhammad Fazil Khawand others (PLD 1975 SC 331), it was held that an order is to be treated void only when it is made by a Court, Tribunal or other authority which has no jurisdiction either as regards that subject-matter, the pecuniary value or the territorial limits when a dispute arose. Such an order would amount to usurpation of power unwarranted by law and accordingly it would be a nullity. In Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139), this Court while dealing with the Expression "Without lawful authority" and of no legal effect pointed out that the expression refers to jurisdictional defects as in distinguished from a mere erroneous decision whether on a question of fact or even of law. So, the distinction has to be made in the judgment which stands vitiated on account of "jurisdictional defect" and a judgment which is tainted with resulting from irregular and improper exercise of jurisdiction for correcting the later kind of deficiencies, the remedy available under law would be different and not to have resort to section 12(2), C.P.C. by invoking the ground of want of jurisdiction. In the instant case, the grounds of misrepresentation or fraud, the other two grounds available under section 12(2), C.P.C. were admittedly riot invoked. In the circumstances, it is the petitioner who has to blame himself for failing to defend the proceedings at the appropriate time and then for failure to resort to the remedy provided by law.

15. For the foregoing reasons, the petition fails and is dismissed. Leave is refused. H.B.T./R-36/S Petition dismissed.