1996 PLP 235 (MLD)

Courts were required to keep informed themselves about latest laws for proper adjudication of cases in accordance therewith. Saleh Mehmood for Petitioner. Sardar Muhammad Nasim for Respondents. Date of hearing: 28th September, 1995. Predecessor-in-interest of the plaintiff/respondent filed a suit under N: W.F.P. Pre-emption Act 1950 on 1-9-1985 for possession through pre emption of the half house as detailed in the plaint, which was decree on payment of Rs.2,000 subject to the deposit of balance amount of Rs.1,000 within one month failing which the suit would be deemed to be dismissed vide judgment of the Civil Judge 1st, Haripur, dated 27-6-1988. The petitioner herein aggrieved of the same filed an appeal before the Additional District Judge, Haripur who vide his judgment and decree, dated 18-10-1989 dismissed the appeal. After about 9 months review petition was filed by the petitioner on the ground that after the dictum of Supreme Court of Pakistan pronounced in cases of (i) Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 (ii) Sardar Ali and others v. Muhammad Ali (PLD 1988 SC 297) (iii) Suo Moto Shariat Review Petition No. 1-R of 1989 (PLD 1990 SC 865) and (iv) Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445), wherein it has been held that the proceedings in which decree was obtained by the parties from any Court prior to the target date of 31-7-1986, the same were saved but the other proceedings had become infructuous, the suit was liable to dismissal. However, this plea did not find favour with the District Judge who dismissed the review petition being time-barred vide his order, dated 22-5-1991. Hence this revision petition.

2. Learned counsel for the petitioner contended that the very decree was coram non judice and without lawful authority in view of the aforesaid judgments of the Supreme Court of Pakistan, therefore, limitation question would not arise as the decree being without lawful authority is nullity in the eye of law and does not require to be formally set aside and this has no legal effect. The lower Court has erred in not reviewing the judgment/decree in the light of the latest law laid down by the Supreme Court of Pakistan which deserves to be set at naught.

3. Opposing the aforesaid contentions the learned counsel for the respondent submitted that this point was never agitated before any of the Court and thus could not be raised for the first time in the review petition. The petitioner has already received the pre-emption amount and the review petition being time-barred was rightly dismissed by the learned District Judge, which needs no interference by this Court.

4. I have duly considered the submissions of the learned counsel for the parties and have gone through the record of the case.

5. The law laid down in the abovementioned judgments of the August Supreme Court of Pakistan, clearly manifest that if no decree had been passed in a pre-emption case upto 31-7-1986, the suit had to be dismissed. N.-W.F.P. Pre-emption Act, 1950 was repealed vide section 35(1) of the N.-W.F.P. Pre-emption Act, 1987 which came into force on 28th April, 1987. Section 35 of the Act is reproduced hereunder. "

35. Repeal: --(1) The North-West Frontier P4ovince Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950), is hereby repealed. (2) In the case and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act." Subsection (3) of the aforesaid section clearly provide that other cases and appeals not covered under subsection (2) and instituted under the repealed Act, which were pending before the commencement of Act of 1987, shall lapse and suits of pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed after compliance of Talabs. Admittedly this case was pending under the repealed Act on the commencement of Act X of 1987 hence by operation of law suit stood dismissed on 28-4-1987, thus no decree could be passed on 27-6-1988 when there was no lawful lis pending in Court. Even if this fact was not brought to the notice of learned trial/appellate Court, even then there being no estoppel against the statute, the suit was liable to dismissal under section 35(3) of N.-W.F.P. Pre-emption Act, 1987. It was also the duty of the Courts to know and keep informed themselves about the latest laws for proper adjudication of the cases in accordance therewith. The decree being corum non judice and without lawful authority was nullity in the eyes of law and could be set aside by treating the time-barred review petition to be an application under section 151, C.P.C. for the removal of the gross illegality. Even otherwise when any order, judgment or decree has been passed apparently without jurisdiction and without lawful authority, no limitation would run against such an order, judgment or decree and can be set at naught whenever brought to the notice of the Court. Consequently, on acceptance of this revision petition, the review petition is accepted, the impugned order is set aside. As a result of which the judgments/decrees of Civil Judge Haripur, dated 27-6-1988 and that of the Additional District Judge-I, Haripur, dated 18 10-1989 are set aside to be without jurisdiction and the suit of the pre-emptor stand dismissed under section 35(3) of the N.-W.F.P. Pre-emption Act, 1987. Rs.2,000 or whatever amount has been received by the petitioner as sale consideration shall be returned by him to the pre-emptor within a fortnight. AA./1853/Pesh/ Revision accepted.