1993 PLP 1020 (CLC)

‑‑‑‑Neither consent nor estoppel could confer jurisdiction, where it did not exist.‑‑‑[Estoppel]. (d) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Arts. 189 & 203‑GG ‑‑‑Binding effect of judgments of Supreme Court and Federal Shariat Court‑‑‑Judgments of Supreme Court, its Appellate Shariat Bench and Federal Shariat Court are binding on other Courts by force of Constitutional mandate.‑‑‑[Precedent]. (e) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Constitutional jurisdiction was intended to foster the cause of justice and not to subvert it. Munir Ahmad Bhatti for Petitioner. By a deed of sale registered on 9‑9‑1981, respondents Nos.1 to 10 purchased some land at Mauza Banoray in Tehsil Chiniot for a consideration of Rs.2,75.000 from respondents Nos.11 to

13. The sale was subjected to two separate pre‑emption suits by Aurangzeb son of Ahmad Khan and Muhammad Khan. Both claimed superior right of pre‑emption on the grounds of being collaterals of the vendors and co‑owners with them in the joint land. Their suits were consolidated for a joint trial. On 20‑10‑1987, the trial Court at Chiniot decreed both the pre‑emption suits in favour of respective pre‑emptors and divided the pre‑emptive land equally between them subject to each paying or depositing a sum of Rs.1,35,500 till 30‑11‑1987. In default of deposit by any of the pre‑emptors by the due date, the other was required to pay or deposit his share of pre‑emption money till 30‑12‑1987 to earn a decree for whole of the land sold. Petitioner‑Aurangzeb deposited his share of pre‑emption money and is stated to have executed the pre‑emption decree. Pre‑emption suit was decreed in his favour on proof of sole ground of collateral ship with the vendors. Plea of co‑ownership was not established. On 1‑2‑1989, respondents Nos.1 to 12 presented a petition under section 12 (2) of Civil P.C. to the trial Court of setting aside of the pre emption decree on the ground that it could not have been passed against them on or after 31‑7‑1986; the target date fixed in the case of Malik Said Kamal Shah reported as PLD 1986 Supreme Court

360. It may be noted that the vendees of the land‑in‑dispute were ex parte at the trial of the pre‑emption suit. Petitioner resisted the application. It was submitted that the respondents who were petitioners before the trial Court had no locus standi to file the application; they were estopped by their words and conduct to institute the application; that since the respondents had withdrawn the pre‑emption money from the Court, the application for setting aside of the pre‑emption decree was not maintainable. On 5‑01989, the trial Court dismissed the application. His sum up is contained in para. 3 of his order. It reads:‑‑ "Arguments heard. Record examined. While passing decree dated 20‑10‑1987 neither any fraud nor any misrepresentation was made, Decree dated 20‑10‑1987 was not challenged in appeal before any Appellate Court. Sale price deposited by the respondents/pre‑ejnptors was withdrawn by the vendees. Decree dated 20‑10‑1987 has been executed and the pre‑emptors have taken possession of the suit land. I see no force in the application and the same is dismissed." Respondents preferred a revision from this decision of the trial Court before the District Court at Chiniot. Revision was placed on the cause‑list of learned Additional District Judge. for its hearing. By order dated 13‑9‑1992, revision was allowed and the impugned judgment and decree of the trial Court passed in pre‑emption suit on 20‑10‑1987 was set aside. This judgment of the lower Court was sought to be set aside in judicial review at the instance of Aurangzeb petitioner. It was urged that since the pre‑emption decree was executed and the vendees had withdrawn the decretal money from the trial Court, application under section 12 (2) of Civil P.C. for rescission of the pre‑emption decree could not successfully lie. I am unable to accept the contention. It is not denied that no decree in the pre‑emption suit could have been passed on or after 31‑7‑1986 on the ground of mere relationship to the vendors. The judgment in the case of Malik Said Kamal Shah reported as PLD 1986 Supreme Court 360 took effect from the aforesaid target date. The Courts are consistent on the view that a fresh decree on the basis of aforesaid preference was wholly invalid. Jurisdiction conferred on the Court lies in its competence to decide a dispute in accordance with prevailing law. Judgments of the Supreme Court, its Shariat Appellate Bench and Federal Shariat Court were binding on other Courts, by force of a Constitutional mandate. The act of a Court m disregard of the judgments of the above Courts was denuded of legal authority and was clearly equivalent to an act without lawful authority and jurisdiction. Neither consent nor estoppel could confer jurisdiction, where it did not exist. The pre‑emption decree after 31‑7‑1986 was a nullity and passed without jurisdiction. Therefore, under section 12 (2) of CLC., the Court could competently recall it to prevent misapplication of law as well as miscarriage of justice. Mere withdrawal of pre‑emption money by the vendees would not estopal them from claiming rescission of an invalid decree passed ex parte in the pre‑emption suit against them. Upon setting aside of the pre‑emption decree on the ground of its invalidity, restitution was required to be brought about for restoration of the legitimate rights to the parties including refund of pre emption money by the vendees and restoration of possession of the land by the pre‑emptor‑petitioner. The Court was possessed of enough jurisdiction in its inherent powers as well as section 144, C.P.C. to order restitution for adjustment of rights flowing out of the reversal of pre‑emption decree. However, an invalid act for passing of a decree in the pre‑emption suit after the target date could not be sanctified in law. Writ jurisdiction is intended to foster the cause of justice and not subvert it. In view of aforesaid, there is no scope for interference in judicial review by this Court. Writ petition is accordingly, dismissed in limine. A.A/A‑352/L Petition dismissed.