1999 PLP 1060 (SCMR)

WAJIHUDDIN AHMED, J.

Leave to appeal was granted in this case on 6-7-1994 to consider whether the issue of limitation raised and decided by the trial Court could be upturned by the High Court in revision on the ground that such having been determined illegally, the decree based thereupon was void. The appellant had instituted Suit No. 1013 of 1984 for declaration and permanent injunction against (1) the Province of Balochistan through the Deputy Commissioner, Loralai and (2) the Secretary Education, Government of Balochistan, on 2-2-1984 before the Senior Civil Judge, 1st Class, Quetta, which came to be dealt with and decreed by the learned Civil Judge, 1st Class, Loralai, on 10-12-1990. The facts as reproduced in the judgment are these:--. "(1) What in Tehsil Loralai, towards East of the Loralai City, on Loralai/Dera Ghazi Khan Road is situate Mouza Saggar. Boundaries of Mouza Asghar Loon adjoin the same. The water of a Viala known as Saggar Viala, irrigates the land of the Mouza. This Viala passed though the Loralai City, enters the limits of Mouza Asghar Loon and then it goes to Mouza Saggar. (2) That at one place, the land of Mouza Asghar Loon fall on Northern side of this Viala Saggar and those of Mouza on its Southern side. It is at this place that a water mill (Jandar) is located which has been in existence from 100-150 years; and has been belonging to persons of Utmankhale sub-tribe, who are the permanent residents of the area. Towards the southern side of the Viala, at the place, mentioned hereinabove, adjacent to the back on that side is situate a hillock and on it is located the house belonging to the plaintiff which has been and is in his possession. The distance between the said house and the bank of the Viala on its southern side may be 20-25 ft. (3) That the said house consisting of 10 rooms is enclosed by a boundary wall, has been in existence for a period of more than 60-80 years; and the adjoining area has been in the use of the occupant-owners from the time of the construction of the house. The adjoining area on all the four sides of the house is Ghair Mumkin, and has been used by the owner occupants of the house, both as passage, as also for grazing and tethering the cattle and for storing the fodder etc. It is further contended that when the house was constructed, occupied and used thereafter, settlement in the area had not been prepared and further that on tribal basis, the tribe of the plaintiff has been enjoying the right of grazing in the area. Tribal responsibility is that of Utmankhale Tribe in the area in question. (4) It is further mentioned in the plaint that the first/settlement in the area was prepared in the year 1966-67. As ascertained now, in the initial phase of the preparation of the said settlement, Khasra No.407 (Ghair Mumkin Ghundi) alongwith other places of land was entered to belong to 16 tribes of the area in equal shares. However, at a later stage of time, this area to the ignorance of all the concerned, was entered to belong to the Government. The land underneath the house of the plaintiff and the area adjoining thereto was as well entered to belong to the Government and no entry in respect of the house or the fact that the area in question is in long undisturbed possession of the plaintiff, was recorded in the revenue record. The plaintiff continued to remain in possession and use of the area as before. (5) The plaintiff in para. 5 mentions that in December, 1983, V plaintiff came to learn that an area, including the area in occupation and use of the plaintiff measuring 3 acres, 3 rods was being earmarked for the construction of a Model School whereupon plaintiff submitted and application to the Deputy Commissioner-cum-Collector, Loralai on 24-12-1983. The same was referred to the lower Revenue Official and after the receipt of the reports, it was found that the land in question has been mutated in favour of the defendant No.2 on the grant of sanction by the Province of Balochistan, through the Member, Board of Revenue, Balochistan on 11-1-1984 by mutation attested on 26-1-1984. (6) That the plaintiff has been and continues to be in possession of the area of land measuring 3 rods, 3 poles, which is part of Khasra No.407 of Mahal and Mouza Shehr Loralai, Tappa Saddar, Tehsil Bori and the entries in the Revenue Record, in respect of the area, are recorded in the Revenue Record, incorrectly. The plaintiff, as such, is aggrieved in respect of the entries made in the record of rights to the extent of 3 acres 3 rods of Khasra No.407. The defendants contested the suit mentioning that the same was entered in the name of Government in the settlement of 1966. They prayed for the dismissal of the suit." The trial Court framed the following issues:-- "Issue No. l Whether the suit is within time? Issue No.2 Whether the suit has properly been valued for court-fee and jurisdiction? Issue No.3 Whether the suit is time-barred in view of the preliminary objection III of the written statement? Issue No.4 Whether the plaintiff has been and continues to be in possession of the area of land measuring 3 rods, 3 poles which is part of Khasra No.407? Issue No.5 Whether the entries in the Revenue Record in respect of the disputed area have been incorrectly made? Issue No.6 Whether the plaintiff is entitled for the relief claimed? Issue No.7. Relief? On the issue of limitation, this is what the learned Civil Judge recorded:-- "Burden of proof of this issue was on defendants but they did not adduce any evidence on this issue, therefore, this issue is decided in favour of plaintiff and against the defendants. In contradistinction to the averments in the plant, while discussing Issue No.4, the learned Civil Judge opined as under:-- "The burden of proof of this issue was on plaintiff who produced evidence. P. W.1 Muhammad Khan a Zamindar of Saggar whose age is 70 years has deposed that he has seen the rooms from the very beginning. The possession is with Malik Rehm Dil. P.W.2 Muhammad Saleem aged 45 years has deposed that he has seen the land in dispute. Previously, this land belonged to Sarfaraz from whom he took the mill on contract basis. Later on, Rehim Dil (plaintiff) purchased this mill which is still in the possession of Haji Rehim Dil. Noor Muhammad P.W.3 has deposed that he has seen the land in question. Plaintiff purchased it from Malik Sarfraz. About 15 years ago plaintiff purchased this land, house and mill from Sarfraz. No one has got any concern with this land. This is still in the possession of Rehim Dil (plaintiff). P.W.6 Naseeb Khan has deposed that some twenty-six years ago the water mill belong to Neik Muhammad and Sarfraz. By the water mill there was laid one Sarai. My father used to work in it. We used to live in the house of this water mill. This house land and water mill are situated on Dera Ghazi Khan Road at a distance of 2-1/2 miles. We lived in this house for two three years. My mother Bakhtawar was murdered in this house and a criminal case was registered. After Court proceedings accused Gul Agha was convicted to undergo 7 years' imprisonment. After this murder we shifted from there to Loralai Bazar. After some time Neik Muhammad and Haji Sarfraz sold this water mill land and house to Haji Rehim Dil (plaintiff) which are still in his possession. P.W.4 Salah Muhammad Patwari produced File No.18-F of 1964 which is in connection with murder of Mst. Bukhtawar in the house by water mill. The documents of murder were exhibited as Exhs.P.4/E and F, which show that there was a house in which Mst. Bukhtawar wife of Essa Khan was murdered. P.W.5 Sardar Muhammad Usman produced agreement P.5/1 in the Court which show that water mill, land and house belong to Haji Neik Muhammad and Malik Sarfaraz who sold them. The plaintiff also examined himself in support of suit. The above statements of witnesses clearly show that Malik Rehim Dil has been and continues to be in possession of the land. The murder case proved that there was a house in which murder of Bukhtawar took place. Therefore, this issue is decided in positive i.e. in favour of plaintiff." The foregoing discussion, which seems, in essence, to spot-light the so called long-standing claim or entitlement of the plaintiff to a house on the hill top, makes it relevant to have recourse to the agreement, Exh.P.5/1. Such, which is styled as Dastawez-e-Iqrarnama and which is transcribed on two non judicial stamp papers of Rs.2 each, executed on 2-4-1976, between Haji Neik Muhammad son of Madad and Baloch Khan son of Malik Sarfraz Khan, ostensibly figuring as sellers and Haji Qamar Din, Haji Fazal Din, Haji Rehim Dil (plaintiff), Muhammad Din and Amir Ahmed sons of Mustafa, as purchasers, does not disclose any survey number or other official markings of the property. The subject-matter is vaguely and even indistinctly described as: Be that as it may, against the decree, thus, granted by the Civil Judge to the plaintiff, a belated appeal was preferred by the Province of Balochistan, through the Deputy Commissioner Loralai, before the District Judge, Loralai, which was numbered as Civil Appeal No.3 of 1991 and dismissed on 29-2-1992, as barred by time. Condonation of delay, sought on the ground that there was a change of the District Attorney and the incoming District Attorney was only apprised of the suit as still pending and that being so the appeal could only be preferred beyond time, was disallowed. As against these concurrent decrees, Civil Revision No. 151 of 1992 was taken by the Deputy Commissioner as well as the Secretary Education, Balochistan, but that, also, was lodged after a substantial delay and in disregard of the, lately inserted, second proviso, figuring in section 115(1), C.P.C., which prescribes a limitation of 90 days from the date of decision of the subordinate Court concerned. The Civil Revision, apart from merit, was resisted on two-fold preliminary objections viz. that the Secretary Education not having preferred an appeal, could not competently file the revision and that, at any event, the revision was barred by time. The High Court, through an elaborate order, passed on 23-11-1992, allowed the revision, giving rise to a leave petition at the behest of the plaintiff, which, as observed, resulted in the grant of leave, above referred. The High Court found that the impugned decree of the Civil Court was void inasmuch as the questions of limitation and want of title were not duly approached as incumbent on the Court. The remaining pleas, having been found either to be too technical or not applicable, such as bar of limitation for the appeal and revision in view of the decree being void, were also rejected. As regards lack of title and limitation, from which the suit was found to suffer, the under-noted discussion is found to occur in the High Court order:-- "

11. The admitted position on the factual side of the case is that the mutation of disputed land was affected by the Revenue Department in Tehsil Loralai as back as in the year 1968. At that time, respondent was not owner of the property because allegedly he purchased the same subsequently through an agreement executed on 2-4-1976, on the basis of an instrument which was executed on the non judicial paper of four rupees between Haji Neik Muhammad son of Madad, Baloch Khan son of Malik Sarfraz Khan, caste Utmankhel, resident of Tehsil Bori and Haji Qamar Din, Haji Fazal Din, Haji Rehm Dil (respondent) Muhammad Din and Amir Muhammad sons of Mustafa, caste Utamankhel. This document has been titled as an agreement and in the trial Court was produced as Exh.5/1. It would be important to examine that how transaction in respect of a property which does not vest in seller can take place particularly when the settlement operation had been carried out earlier to the execution of the same. However, if for the sake of arguments it is presumed that Malik Neik Muhammad and others were in possession of the property and due to misconception the property was recorded on the name of Government then in that case too, it was incumbent upon them to have transferred the land on the name of respondent or his brother after having cleared their tile in the Revenue Record, after adopting proper procedure. Surprisingly, a property is being purchased by the respondent form those persons who themselves are not recorded owner, secondly, it was also obligatory upon the respondent to have enquired from the Revenue Department, whether the property stands mutated on the name of those persons from whom he has purchased the same or not. Even if it is presumed that respondent came into the possession of the land in 1976, he could have filed the suit for correction of the entries, at the best, within a period of six years up to 1982. It is equally important to observe here that the instrument referred to hereinabove on the basis of which, the property was purchased was neither registered nor stamped in accordance to law. During arguments, learned counsel for respondent was confronted with this situation and he was called upon to satisfy that whether on the basis of defective instrument proprietary rights in the disputed property, can be transferred on the name of respondent. But he could not answer satisfactorily except saying that on the basis of unregistered document, the respondent can protect his possession under section 53 of the Transfer of Property Act. There is another important aspect of the case. i.e. in the memo. of plaint, contents whereof have been reproduced hereinabove, the plea taken by the respondent was that he is exclusive owner of the property with possession. since last so many years and because in the year of 1983 the disputed land was earmarked on the name of Secretary Education, therefore, he came to know about the adverse entries in the Revenue Record. However, when evidence was produced altogether a different plea was raised and it was contended that property was purchased from Neik Muhammad and others through an instrument executed on 2-4-1976, in respect of which, it has already been observed above that the document is neither registered nor duly stamped. So much so, in the suit those persons from whom respondent purchased the property and his own brothers with whom he has joined share in the property were not joined as party. Thus, in such view of 'he matter there was no occasion for granting the decree in favour of respondent and the trial Court as well as Appellate Court altogether had ignored these aspects of the case and in a most illegal and irregular as well as in a haphazard manner, decreed the suit. " In coming to the above conclusion, the High Court, inter alia, has placed reliance on Muhammad Buta v. Habib Ahmad, PLD 1985 SC 153, from where the following passage was culled:-- "It follows that where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated This Court had in Ahsan Ali v. District Judge (PLD 1969 SC 167) clearly laid down that it was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by special or local law." The terms "void" and "voidable" have frequently come up for consideration, the first of which signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever. The "viodable" concept, on the other hand, is attracted to an act, transaction or proceeding capable of being avoided or ratified, thus, providing alternative choices to an affectee and implying something other than absolutely void. See: Chairman, District Screening Committee v. Sharif Ahmed Hashmi, PLD 1976 SC 258; Hussain v. Allah Bux, 1984 SCMR

118. While a private or public act or transaction, on the one hand, and aft executive, quasi-judicial or judicial order of a functionary, on the other, may be found to be void in an appropriate judicial proceeding superior Courts, traditionally, have been extremely slow in determining purely judicial orders of inferior Courts to be void ab initio. Indeed, in the context of such category of orders, even the corrective remedy of Article 199 is also not, ordinarily, allowed to be resorted to. The rule has two distinct facets: one, where statutory jurisdiction of the High Court itself is available and has not been resorted to, making its invocation preferable and the other, where that jurisdiction already stands exhausted. The first of these is illustrated by Yasmeen Lari v. Registrar, Income Tax Appellate Tribunal, 1990 PTD 967, whereas the second is exemplified by Shankar v. Krishna, AIR 1990 SC

1. The reason is not far to be found namely, that such judicial orders are usually capable of correction in the hierarchy of the same Courts, of which usually the High Court is one, and besides Courts of competent jurisdiction exercise plenary powers. Further, even if there was some room to find such category of orders to be void, that, to a very large extent (covering Civil Courts), now stands curtailed by the creation of a specific, exclusive and alternative remedy of due application to the Court concerned, as lately enacted in the form of section 12(2) of the Code of Civil Procedure, which runs thus:-- "

12. Bar to further suit.

(I).... (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 final judgment, decree or order and not by a separate suit. " In this view of the matter, the High Court does not seem to have been justified in reopening the issue, banking solely, on the ground that the impugned decree of the Civil Court was discovered to be void. The above, however, does not mean that the High Court was bereft of powers to remedy the situation which it encountered. The High Court correctly found that the appeal taken by the official functionaries was inexplicably barred by time and so also the revision brought to itself. Now, section 115(1), C.P.C. confers two distinct kinds of jurisdictions: one, the normal, where the revisional powers are invoked by an aggrieved party, and the other, where the Court may act suo motu. These jurisdictions, distinct and independent, were, inter alia, recognized in Manager, Jammu and Kashmir, State Property v. Khuda Yar, PLD 1975 SC

678. Relevantly, the following was observed:-- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court 'may make such order in the case if it thinks fit'. In Rangrao v. Pandurang and another (AIR 1924 Naq. 154), it was held that under section 115 of the C.P.C., the High Court could and might deal with a case under that section without there being any application by any of the parties and may in the special circumstances pass such orders as it thinks fit. In this case the Small Causes Court passed a decree against defendant No.2 and exonerated defendant No.l and on revision the High Court exonerated defendant No.2. It was held that despite the fact that the plaintiff had not appeared in revision, he could still be given a decree against defendant No.

1. In M.H. Saya & Co. v. Wazir Ali Industries Ltd. the view taken by this Court was that it was competent for a stranger to a suit or proceedings to file an appeal, if he was adversely affected by the order passed in such suit or proceeding." It seems to us that in cases, involving patent abuse of jurisdiction and injustice, the Court, exercising powers under section 115, C.P.C. even where the revision petition, brought by an aggrieved party, is bared by time, still has a discretion to invoke its own suo motu revisional authority to advance justice and to suppress mischief, albeit only when a jurisdictional error, in contemplation of the section, is encountered. It need hardly be reiterated that technicalities, unless resorted to in aid of justice and fair play, have little room in the wide field occupied by judicial dispensations. Deviating from the earlier rule that where jurisdiction vests in a Tribunal to decide, the Tribunal can decide rightly as well as wrongly, the current view of this Court, as, inter alia, reflected in U.S. Corporation of Pakistan Ltd. v. L.A.T., PLD 1987 SC 447, is that where jurisdiction vests to decide a controversy, such can only be decided rightly and not otherwise. Further, where a Tribunal goes wrong in law, it also goes outside the jurisdiction conferred on it by law. In this view of the matter, quite plainly, the Civil Court, in passing the decree it did, bypassed the question of limitation illegally and erroneously, thus, traveling beyond jurisdiction. It is not for the defendant in a suit, as wrongly held, to show that the suit is barred by time but for the plaintiff to establish that he is in time, not to mention the obligation of the Court to independently advert to limitation, as enjoined by section 3 of the Limitation Act, 1908. There was nothing in Ghulam Muhammad v. Malik Abdul Qadir Khan, PLD 1983 SC 68', which could preclude the High Court from examining such a patent error of law. What is more, the trial Court proceeded to decree the suit in respect of property which, as seen, was not even identified, muchless belonging to the plaintiff, who has sued for the decree. However, in this state of jurisdictional errors, the High Court may have been better advised to invoke its own suo motu revisional powers rather than opening a broad vista for interference, on a finding that the decree was void. This is not to say that the decree was not void. It may have been so but there remained other avenues of redress than on that plane alone. Coming to the question that it was the Province of Balochistan through the Deputy Commissioner, Loralai only which had appealed against the decree and a revision by the Province through the Secretary Education was not competent, we may, observe that the objection did not carry force for the simple reason that the revision-had been taken both by the Deputy Commissioner and the Secretary Education. Besides, if one of the several parties to a suit, not all that relevant here because the Province of Balochistan was the real party, prefers an appeal, anther such party, already impleaded in the appeal, can go to a higher forum and no rule has been cited before us that such cannot be done. On the contrary, Rule 33 of Order XLI, C.P.C. empowers an Appellate Court, specifically, to grant relief even to non-appealing respondent(s). At any event, having found the suo motu revisional powers of the High Court being available, we do not think that such objection, as aforesaid, remains of any significance. Coming to relief, the High Court, accepting the revision, proceeded to dismiss the suit. On our part, while we agree that the decrees of the trial and Appellate Courts, warranted to be recalled in exercise of revisional powers, the result need not have been dismissal of the suit. This was a case where the trial Court had not applied limitation in its proper perspective. Besides, the question of title remained to be duly considered. Better course for the High Court would, in the circumstances, have been to remand the suit for re-examination, with parties being left to lead further evidence in support of the claim or defence, as the case may be. We, therefore, modify the High Court order, remanding the suit in terms. Upon remand, the trial Court shall proceed to decide the suit afresh, uninfluenced by anything said, at any stage, by any Court, including ourselves, in the present set of proceedings. The appeal is accepted to this extent, but with no order as to costs. M.B.A./R-41/S Appeal accepted.