2002 PLP 624 (CLC)

It was submitted that where a decree against the minor is void ab initio and is not executable nor enforceable, therefore, it would not be covered by section 35(2) of the N.‑W.F.P. Pre‑emption Act, 1987 as it was neither a judgment nor a decree. Learned counsel submits that although the august Supreme Court of Pakistan has repeatedly held that when there is a decree in field before the target date, i.e. 31‑7‑1986, all subsequent proceedings concerning such decree in a pre‑emption case should be under the old law of Pre‑emption, i.e. N.‑W.F.P. Pre‑emption Act, 1950, but because never a case of the instant nature was taken to the august Supreme Court of Pakistan, therefore, though there is no judgment but through the judgment in case of Bahadur Khan v. Muhammad Younus and another 1992 SCMR p.2117(c), it was held that there is no difference between a decree passed after contest and the decree passed ex parte, because both are decrees as defined in subsection (2) of section 2, C.P.C.' and were executable (underlining is done by me for emphasis) (sic).

6. Learned counsel for the petitioner vehemently argued that the acceptance of application under section 12(2), C.P.C. of the petitioner filed through his father where relief was claimed had attained finality as it was never further challenged.

7. Reference is made to Mst. Rukh Afza v. Sher Aman Khan anti others PLD 1983 Pesh. p.49 where it was held that minor‑J defendant or minor‑respondent could not be placed ex parte even if the proposed guardian had failed to turn up in spite of service. It was further held that a minor could not be considered to be party to the suit unless he was properly represented by a duly qualified guardian. A minor, would become a party to a suit only when he is duly represented by a qualified guardian after adopting the procedure under Order 32, rule

3. C. P. C. Reliance is also placed on Ghulam Hussain and others v. Ghaus Bakhsh and others 1986 SCMR p.491, where it has been ruled that a suit against minor without appointment of guardian ad litem and where ex parte decree was passed was nullity. In case of Muhammad Din v. Sarfraz 1988 CLC 768, it was held that under Order 32, rule 1, C.P.C. every suit by a minor must be instituted in his name but by a person called his next friend and such next friend would continue as such throughout the proceedings arising out of the suit including the proceedings at appellate or revisional stage.

8. The contention of the learned counsel for the petitioner is that in view of the case‑law and the provisions of Order 32, rules 1, 2 and 3 which prescribe the mode and manner of defence are mandatory because any decree passed against a minor is not enforceable nor is executable. It was argued that because procedure of Order 32, rule 3, C.P.C. was not followed before assuming jurisdiction, the trial held by the trial Court would be void, ab initio.

9. Contention of the learned counsel for respondent is that suit was filed well within time because the period of limitation would start from the date of consent decree, dated 14‑3‑1984 and because plaint was filed on 11‑3‑1985, it was within one year and because law applicable to the case to the plaintiff/respondent was N.‑W.F.P. Pre‑emption Act, 1950, therefore, no exception can be taken. It is also argued that the claim of the petitioner/defendant was that he took the possession of the suit‑land much before the consent decree somewhere in January, 1984 but such assertion does not find support from any oral or documentary evidence, because not only that vendor was not produced but also that according to Khasra Girdawari for the year 1984‑1985, one Allah Wasaya is shown in possession as tenant who has also not appeared in the witness‑box to state that possession stand delivered by him in favour of petitioner. Learned counsel argued that where possession is claimed by the vendee, the burden was on him to prove the delivery of possession. In this behalf they have referred to 1976 SCMR p.90.

10. Learned counsel while replying to the arguments of the learned counsel for petitioner in respect of existence of ex parte decree in favour of the respondent granted on 10‑7‑1986 argued that such decree was a decree in existence and it was, therefore, that application under section 12(2), C.P.C. was felt necessitated. It is submitted that under section 35 of the N.W.F.P. Pre‑emption Act, 1987, it has been envisaged that where a decree stands passed by a Court, further proceedings, if any, arising in such case and appeal shall, notwithstanding the repeal of N.‑W.F.P. Pre‑emption Act, 1950 be governed and conducted in accordance with the old law. It was argued that as under the old law there was no such requirement of making of Talbs as is now required under section 13 of the present Pre‑emption Act, therefore, plaint was not liable to dismissal.

11. Learned counsel for petitioner had argued. that ex parte decree dated 10‑7‑1986 was obtained against a minor and such decree was nullity in the eyes of law, therefore, non‑existent and would not be protected under section 35 of the present Pre‑emption Act to which the learned counsel for respondent states that the consent decree obtained by the petitioner/defendant, dated 14‑3‑1984 is totally silent as to status of petitioner who was plaintiff therein and he has concealed if he was minor because the suit was not filed by him through next‑friend or guardian, but under his own name. Not only that the plaint was signed by him and also the power of attorney, but when application under section 12(2), C.P.C. was being filed, it was for the first time when the petitioner came out with the plea that at the time of grant of ex parte decree against him, he was a minor because such application is filed on his behalf by his father. Learned counsel has also referred to Mst. Sardari Begum v. Atta‑ur-Rehman 1997 CLC p.1500 and states that no party could take advantage of its own fraud.

12. On point of limitation, learned counsel for respondent has referred to PLD 1985 SC p.677, where it was held that the starting point of limitation would be the date on which the possession of land was taken and not the date of attestation of mutation but when there was 00 sufficient evidence led regarding acquisition of possession, the time was reckoned from the date of attestation of mutation.

13. After hearing the detailed arguments of learned counsel for the parties in the first instance and after having reheard 'on point of certain clarification, needless to go further into the details of facts because both the parties have primarily relied not on merits of the case on the factual side, but they have argued and contra argued the two legal points, namely, if in the instant case N.W.F.P. Pre‑emption Act, 1950 or the latter, i.e. N.W.F.P. Pre‑emption Act, 1987 shall be applicable and the point of limitation.

14. The contention of the petitioner's counsel is that ex parte decree dated 10‑7‑1986 was against a minor obtained through fraud, therefore, it was not a decree in the eyes of law. It was nullity and void decree and, therefore, the same was set aside on the application of the petitioner under section 12(2), C.P.C. Section 2(2); C.P.C. defines the decree which means "the, formal expression of an adjudication which so far as regards the Court expressing it, conclusively determined the right of the parties with regard to all or any of the matter in controversy in the suit and may be either preliminary or final". This definition does not exclude an, ex parte decree nor does it make reference that the decree against minor or a decree which is ab initio void would not be decree. In Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC p.287, it was held inter alia that where the rights of the parties have been judicially determined, with reference to the terms of law enforced 'at the time of adjudication, the finality of such a judgment will not be affected merely because the law on the basis of which that decision was reckoned has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment. The target date as laid by the august Supreme Court of Pakistan being 31‑7‑1986 and. in this case ex parte decree was obtained on 10‑7‑1986, therefore. the law applicable to the case of respondent/plaintiff has been rightly held to be N.‑W.F.P. Pre‑emption Act of 1950.

15. In support of my conclusion, I may add that section 35 of the N.W.F.P. Pre‑emption Act, 1987 does not qualify nature of the decree/judgment already in existence. It only says if there is a decree. Such decree should be, however, a decree granted by Court of competent jurisdiction be it a decree on merits or ex parte or any other decree but which falls within the definition as given in section 2(2), C.P.C. Be it a void or invalid decree, its validity or viodness cannot be challenged in the air but is bound to be challenged before a higher Court and it becomes void after the higher Court so declare it, but before such declaration such decree remains. A case like the instant one, it could not have been left to the trial Court while seized of the pre‑emption case to determine if the decree is in existence, whether obtained against a minor or through fraud was in existence but in cases such finding could only be given by the Court which has granted such decree if approached under section 12(2), C.P.C., or by a higher Court either in appellate jurisdiction or original jurisdiction.

16. The judgment of august Supreme Court of Pakistan in Sardar Ali's case (supra) clearly protects all decrees which were passed before the target date, i.e. 31‑7‑1986, and so appears to be the object of section 35 of the N.‑W.F.P. Pre‑emption Act, 1987. The Legislature is always deem to possess all wisdom and knowledge and when any bill is passed and enacted, it is presumed that all previous enactments on the subject were in the sight of the Legislature and were considered. The object of section 35 of the N.‑W.F.P. Pre‑emption Act, 1987 obviously is to remove doubts and ambiguities as regards pending proceedings and proceedings that have attained finality. This section has been inserted to protect the rights of the parties already acquired. The provisions as contained in section 35 are basically embodied and have been borrowed from section 6 of the General Clauses Act of 1897 and section 4 of General Clauses Act, 1956, whereunder where an existing Act is repealed by an enactment, then unless a different intention appears, the repeal shall not affect any legal right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

17. In case of Bahadur Khan v. Muhammad Yousuf and another 1992 SCMR p.2117 and with reference to section 2(2), C.P.C., the word "decree" stands interpreted and it was held that decree either ex parte or passed after contest are both decrees as both were executable. The word executable" was in the context of their legal force, i.e. even an ex parte decree if not set aside by the same Court or Court of appeal or revision is equally executable against the judgment‑debtor as would be a decree obtained after contest. A decree against a minor if obtained without adopting procedure as laid down in Order 32, C.P.C. though would be nullity and void decree but this nullity or being void is to be taken up when such decree is put to execution and would become nullity and void when so declared. For the purposes of section 35 of the N.W.F.P. Pre‑emption Act, 1987 it will be sufficient if there is a decree passed by Court of competent jurisdiction irrespective of the fact such decree was void or otherwise.

18. To state that ex parte decree, dated 10‑7‑1986 was void or nullity in the eyes of law become, so only on 2‑6‑1990 when the same was set aside on the application of petitioner pursuant to his application under section 12(2), C.P.C. It means that there was a decree in existence and it remained so until it was set aside on any ground whatsoever.

19. Coming to the question of limitation, the stand of the petitioner is that no sooner the sale was completed they took the possession and mutation could not be attested because of ban on attestation of mutations by the Provincial Government in respect of lands falling under the C.R.B.C. Scheme. The petitioner/defendant if had taken the plea of acquiring physical possession, it was his duty to discharge such burden but he failed to produce even a single witness other than himself to substantiate his claim. Reference has been made by the lower forum that sale‑deed which is relied by the petitioner does not even carry his signature. As submitted by the counsel for respondent, in the Khasra Girdawari of the year 1984‑85, one Allah Wasaya is recorded as tenant with possession would mean that possession was never taken by the vendee. In this case decree obtained by the vendee was a consent decree, dated 14‑3‑1984, therefore, the limitation period under the general law of limitation would have been under Article 120 of the Limitation Act, i.e. six years but even when one applies special law of N.W.F.P. Pre‑emption Act, 1950, the period of limitation was one year and because consent decree was obtained on 14‑3‑1984 while suit was instituted on 11‑3‑1985, that was before the expiry of one year, hence well in time. In view of my finding given above, it is held that there was a decree passed though ex parte in favour of the respondent against the petitioner before the target date, i.e. 31‑7‑1986, therefore, law applicable to the case of the plaintiff/respondent has rightly been applied by both the forums below.

20. With regard to Civil Revision No.32 of 2000, both the Courts below with reference to the evidence of Patwari and in absence of Aks‑Shajira Kishtwar of the suit property have held that the pre‑emptor is contiguous owner to Khasra No.840, but he is not so as far as the two remaining Khasra numbers are concerned. As far prayer in the petition regarding refixation of sale price is concerned, the same has been properly dealt with and determined by the trial Court and the Appellate Court, nor it was seriously pressed before this Court. As such finding is recorded on proper appraisal of evidence, both oral and documentary and does not require any interference, therefore, both these revision petitions are dismissed. H.B.T./431/P Revision petitions dismissed.