1987 PLP 2143 (CLC)

It was the case of Muhammad Umar respondent No.1, that his son Saeed Ahmed purchased a piece of land from respondent No.2 who thereafter gifted the same to him. Since Mitha Khan neither filed any appeal nor has come in revision before this Court hence the decree against him has become final. Furthermore, the record reveals that the decree was executed to the extent of mutation in the revenue record. As the suit was for declaration and permanent injunction, hence, no possession was to be given as a consequence of the decree and it has already been mentioned that a separate suit for possession was filed by the appellant which is sub judice. It is also an admitted position that on 14‑2‑1980 the petitioner/ plaintiff filed an application under Order VI, Rule 17, C.P.C. that since respondent No.2 had sold the property during the proceedings to one Saeed Ahmed son of Muhammad Umar, therefore, it was prayed that he may be impleaded as a party. This application was pending when Saeed Ahmed gifted the piece of land he had purchased measuring 7 poles in Khasra No.185/7/3 to his father Muhammad Umar respondent No.1. All these contentions were raised in the application under Order XLVII, Rule J, C.P.C. praying for review of the ex parte decree which was dismissed by the Civil Judge. Now adverting to the legal position, point raised by Mr. Nazeer Ahmed, Advocate for respondent No.2, may be taken first: According to the counsel this Court while sitting in revisional jurisdiction under section 115, C.P.C. may not interfere in the judgment of the District Judge whereby he has exercised his discretion on certain given facts and condoned the delay. According to the learned counsel discretion if exercised judiciously by a competent Court, is not amenable to. revisional jurisdiction of this Court. There can hardly be any cavil to the proposition that if a forum is competent to exercise discretion, the same may be exercised judiciously and not arbitrarily. But the High Court is not debarred to take into consideration whether such discretion was exercised judiciously or otherwise. The question of limitation is a question which can be taken into account by the High Court suo motu,' even if not taken by the parties. This view finds support from the judgment of Honourable Supreme Court of Pakistan in the following authority. The case of Muhammad Buta and another v. Habib Ahmed and others as reported in P L D 1985 Supreme Court, page 153, and relevant observations being on page 157 are as under:‑ "The waiver by the respondents before the appellate Court and the omission on the part of that Court to decide the question, will, therefore, not deprive the High Court of its power under section 115, C.P.C. to suo motu go into the question of the material already on record was sufficient to establish that the suit was beyond time. This is supported by the dictum of this Court in Manager, Jammu and Kashmir‑State Property v. Khuda Yar P L D 1975 S C

678. 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 or 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 it thinks fit . I am, therefore, inclined to consider whether the learned District Judge has exercised his discretion by condoning delay judiciously or not. The moot question in these complicated set of facts is whether the appeal filed by the respondent No.1 before the District Judge was competent and secondly, whether or not the District Judge exercised his discretion legally by condoning delay? The counsel for the appellant strenuously urged that Article 152 of the Limitation Act prescribes a period of 30 days for filing first appeal under section 96, C.P.C. This appeal was filed after 507 days of passing of the ex parte decree. He made two‑fold‑submissions in this respect, firstly, that the respondent No.1 had no locus standi to file appeal because he was not a party to the suit. Secondly, that even otherwise appeal filed by him was desperately barred by limitation and no reasons were available with the learned District Judge to have condoned such delay. From the perusal of the impugned judgment and decree it transpires that the learned appellate Court dealt with the question of limitation and condonation thereof in para 9 of the judgment. It is mentioned therein that impugned decree is dated 31‑3‑1983 whereas appeal was filed on 27‑6‑1984. As per Article 164 of the Limitation Act, period prescribed for setting aside an ex parte decree is 30 days from the date of passing of the decree or where the summons were not duly served, then from the date of knowledge of the decree. It was concluded by the District Judge that since neither Saeed Ahmed nor his father Muhammad Umar (respondent No.1) were party to the proceeding the limitation period, therefore, starts from the date of knowledge of the decree. To this extent the observations made by the District Judge are correct and sustainable under law. But this is an admitted feature that respondent No.1 who filed appeal before the District Judge (whereas Mitha Khan and Mst. Zubaida did not file any appeal), came to know about the decree on 12‑12‑1983 and soon after that on 15‑12‑1983 he alongwith one Mst. Zubaida daughter of Mitha Khan, instead of filing an appeal, filed review application under Order XLVII, rule 1, C.P.C. The date of knowledge of decree admittedly is 12‑12‑1983 hence appeal apparently was barred by time. On the other hand, Mr. Iftikhar Muhammad, the learned counsel for the respondent No.1 submitted that since the decree was a void decree, therefore, appeal was competent, because according to the learned counsel, no time would run against a void decree. When asked as to how the decree was void, Mr. Iftikhar Muhammad addressed lengthy arguments by inviting my attention to certain facts which according to him, if taken into consideration, would prove that the decree was void. Firstly, it was pointed out that since Muhammad Umar was not a party in this suit, therefore, no decree could be passed against him. In fact no decree has been passed against Muhammad Umar but an ex parte decree is against respondent No.2. It was next contended by Mr. Iftikhar Muhammad that plot which was sold to Saeed Ahmed by respondent No.2 was different. On this score too, it was contended that decree ‑was a nullity. Mr. Iftikhar Muhammad relied on an unreported judgment of this Court decided in Civil Revision Nb.16/86 in the case of Marduman Babar Kahol v. Malik Khawaja Muhammad. In this case since no summons were served upon the defendants and an ex parte order was passed without any evidence whatsoever, the limitation period was condoned and decree set aside. It was further observed that decree was a nullity. But facts of the aforesaid case are quite distinguishable inasmuch as summons were not served upon the defendants and no evidence was recorded by the learned Qazi on the basis of which ex parte decree was passed. But in the instant case the trial Judge has taken into consideration Exh.P/l, a document on the basis of which property in dispute was purchased by the petitioner. In ex parte judgment the Civil Judge categorically stated that he had taken into consideration the evidence on record. Hence in my opinion the observations in the said case are not of any help to the respondent. Controverting the above contention, Mr. Basharat Ullah. the learned counsel for the petitioner invited my attention to the case of "Chairman, District Screening Committee Lahore v. Sharif Ahmed Hashmi : as reported in P L D 1976 Supreme Court page

258. In the aforesaid case inter alia it was observed that "a void order is an order which is a nullity or "absolutely null", that is to say an order which cannot be ratified or confirmed or Which totally of no consequence whatsoever". Mr. Iftikhar Muhammad repeated again that property in dispute and property purchased‑ by Muhammad Umar are two different properties. He tried to substantiate the same by filing "Khatoonies" and other documents of revenue record in this Court. He pointed out that the respondent No.1 purchased a 15iece of land measuring 7 poles is Khasra No.1,85/7/3. Whereas the plot purchased by the petitioner bears no number, or different numbers. It may be pointed out here that usually when transfer is made from some portion of land, the name of Khasra remains the same but only "Tatimall is changed, but this cannot be taken as a conclusive proof that the properties are different. This need however, recording of further evidence which of course can properly be done before Civil Judge and not before this Court in revision‑. Furthermore, it may be observed that this fact can be taken as a plea during the execution proceedings or through a separate civil suit as directed by Civil Judge in this case. Reverting back to the first contention that since decree being void, no limitation would run against the same it is observed that if the proceedings were within the knowledge of a person or he knew well about a decree even if it was a void decree adversely affecting his rights then such person should be vigilant to challenge the same within the prescribed period of limitation. In this respect reliance may be placed on the following cases:‑ 1. "Syed Sajid Ali v. Syed Wajid Ali as reported in P L D 19751 Baghdad‑ul‑Jadid, page

29. The ratio in this case was that question of limitation cannot be overlooked for the reasons that impugned order was a nullity. Time starts running from the date of knowledge of decree, even in case of a void order. 2. "Messrs Conforce Ltd. v. Syed Ali Shah etc." reported in PLD 1977 Supreme Court, page 599, wherein it was held by the Honourable Supreme Court:‑ "that a void order or an order without jurisdiction is only a type of illegal order passed by a Court and the fact that it has been passed and may, therefore, create rights cannot be altered by describing it as void order without jurisdiction." Similarly it was observed in the case of "Muhammad Ayub Khuhro v. Pakistan through the Ministry of Interior, Government of Pakistan and two others, as reported in P L D 1960 Supreme Court of Pakistan page 237: "that a judgment is in Court if it is wrong in law or facts but it is void if it pronounced by an incompetent tribunal." In the instant case the Civil Judge was competent to have passed ex parte decree, therefore, the same cannot be termed as void. I, now advert to the last submission made by the learned counsel for the respondent that since respondent No.1 has been pursuing with due diligence the review application, therefore, the time spent in pursuit of such review application should be excluded, because the same was prosecuted in good faith. This is in fact the import of section 14 of the Limitation Act. It is to be seen whether the respondent No.1 had any valid legal ground and locus standi to have filed review petition? If not then whether the time spent on pursuit of such review petition can be condoned. As far as locus standi is concerned the following authorities are complete answer to the aforesaid question:‑ 1. "Qaim Hussain and 6 others v. Anjuman Islamia, Gujranwala and 7 others as reported in P L D 1974 Lahore page 346, in which it was observed that:‑ "Order passed in writ jurisdiction in which a person was not a party to such proceedings was not competent to seek review of the same. Similarly in case of "Khan Muhammad and 15 others v. Anjuman Islamia etc. as reported in 1987 C L C 1911, it was observed:‑ "that remedy of review can be availed of only by a person who initially was a party to the proceedings and he cannot be permitted to avail of the grounds on which a review petition is competent." The next pertinent question pertains to the fact whether there was valid legal grounds for review, with the respondent No.1. In my opinion, since respondent No.1 was not a party to the proceedings before the Civil Judge and that he filed review petition which was time‑barred as per Article 173 of the Limitation Act which prescribes 90 days time for filing of petition for review, hence, the petition was not competent. The Civil Judge rightly dismissed the petition as being barred by time as well as on the ground that respondent No.1 had no locus standi to have filed such review petition. The time, therefore, so spent could not have been excluded from the limitation period. Reliance if necessary, may be placed on the following authority: ‑ "Abdul Aziz v. Additional Settlement Commissioner the case as reported in S C M R 1984 page 1562, in which Honourable Supreme Court observed inter alia that:‑ "the learned counsel has not been able to satisfy us that the grounds taken were such which could have been urged in review. In this view of the matter, pursuit of review was not bona fide but a clear negligent act and the time spent therein cannot be allowed." Similarly, observation made by the Honourable Supreme Court in the case of Mirza Muhammad Saeed v. Shahabuddin and 8 others" as reported in P L D 1983 Supreme Court, page 385 are relevant, which reads as under:‑ "This, indeed, is a dilemma to which there is no entirely satisfactory answer. The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable and prudent man despite exercising due diligence and caution might have committed. Where however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence and caution before moving the said wrong forum; the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence. If such a remedy is exercised more frequently and counsel made to pay for their carelessness and negligence which results in such grave losses to their clients, some amelioration in the situation is possible." In view of the aforesaid observations there remains no doubt that respondent No.1 was ill‑advised to have gone before the Civil Judge for review. Such act on his part, therefore, amounts to gross negligence which could not have been condoned. Besides this, even otherwise the appeal was barred because order on review application was passed on 19‑5‑1984 whereas appeal before District Judge was filed on 27‑6‑1984 i.e. after 39 days for which the only explanation is that the copy of order on review petition was granted on 6‑6‑1984. The copy of the order on review petition and time spent on obtaining the same was not material for filing of appeal before District Judge because it was ex parte decree which was challenged, and not the order on review application. The upshot of the aforesaid discussions is that the appeal filed by respondent No.1 before the District Judge was not competent as being barred by time. In this view of the matter, remaining contentions need no adjudication. I, therefore, allow this petition, set aside judgment and decree dated 24‑3‑1986 passed by the District Judge Sibi in Civil Appeal No.26/84. and uphold the ex parte decree dated 31‑1‑1983 passed by Civil Judge Sibi. However, respondent No.1 is at liberty to file a separate civil suit for his entitlement if he so wishes. In the circumstances of the case, the parties are to bear their own costs. K.B. A. /280/Q Petition accepted.