1993 PLP 1667 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This appeal by leave to appeal has arisen out of a suit filed on 16th March, 1980, by respondents Nos. 1 and 2, against the appellants, to pre‑empt the sale of land measuring 11 Marlas situate in village Kotla Band Ali, Tehsil Alipur, District Muzaffargarh, purchased by them from one Allah Bakhsh. Respondent No.1 rested his superior right of pre‑emption on being son of the vendor and respondent No.2 claimed to be his brother. The learned trial Court by judgment dated 21‑11‑1987 passed first decree in favour of respondent No.1 and maintained that on his failure to deposit the decretal amount his suit would stand dismissed. The second decree was passed in favour of respondent No.2. The appellants applied for the copies of the judgment and decree of the trial Court on 6‑11‑1988, and after obtaining the same preferred two separate appeals. They attributed the delay in filing the appeals to the wrong advice of their counsel and sought condonation of delay. But, the First Appellate Court did not accept this explanation, and as no plausible reason was given to account for such a long delay extending over a period of one year in filing the appeals, it dismissed the appeals in limine as barred by time.

2. The appellants assailed this dismissal through revision and urged that the trial Court's decree having been passed after the target date of 31‑7‑1986 laid down in Said Kamal's case (PLD 1986 SC 360) was a nullity in the eye of law and limitation was not a bar for removal of such a void decree. The High Court, however, found that the appellants did not apply for the certified copies of the judgment and decree of the trial Court for about a year; in the meanwhile withdrew the pre‑emption money from the Court and passed on the possession to the decree‑holder. Keeping in view these aspects of the case, the High Court dismissed the revision, on the authority of Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139) which inter alia provides that a petitioner by his own conduct may be disentitled to the grant of relief under revisional jurisdiction, which is essentially discretionary. As regards the removal of the judgment and decree of the trial Court on the ground that these were a nullity in law, the High Court referred to Sharif Ahmad Hashmi v. Chairman, Screening Committee (1978 SCMR 367) and Muhammad Ismail v. Abdul Rashid and others (1983 SCMR 168) laying down the proposition that void order is only a type of illegal order; merely by describing it a void order, it is not be denuded of the consequences flowing from it unless it is set aside in accordance with law. In view of these findings the High Court declined to intervene and dismissed the revision by judgment 10‑4‑1989, under challenge before us.

3. Leave to appeal was granted to examine the issue that the decrees passed after 31‑7‑1986 were hit by the rule laid down by this Court in Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Aziz Begum v. Federation of Pakistan (PLD 1990 SC 899).

4. In support of this appeal the learned counsel appearing for the appellants has reiterated the arguments advanced by him before the High Court. He argued that no decree could be passed in a pre‑emption suit on the basis of kinship after 31‑7‑1986; the decrees of the trial Court were clearly violative of law enunciated by the Shariat Appellate Bench of this Court and thus were wholly void. He submitted that the limitation was not a bar for setting aside such a decree and relied upon some case‑law, in addition to the one debated in aid of this proposition on behalf of the appellants before the High Court.

5. We need not embark upon the detailed discussion of the precedents referred to by the appellants' learned counsel holding that when an order is a nullity, there will be no period of limitation for setting aside the same, for, the case before us has marked distinguishing features to which these precedents of whatever the weight these are possessed of, are not attracted, the reasons being that for a period of about one year the appellants did not make any application for obtaining the certified copies of the judgment and decree of the trial Court to challenge the same before the First Appellate Court. The obvious inference is that they had no intention to question the validity of decrees through an appeal. It is discernible from the record that during this interregnum they not only withdrew the pre‑emption money from the Court, but also handed over the possession of the land in dispute to the decree‑holder. The decree of the trial Court was thus not only accepted but also deliberately acted upon by them. It is well‑settled that when an inference is to be drawn from a number of facts proved on the record, then each fact should not be weighed singularly but effect is to be given to all the facts accumulatively and a picture of the combination of circumstances drawn as a whole. Viewed from this angle, we are led to the irresistible conclusion that the decree of the trial Court had become a fait accompli. We may observe that a void order is only against a person directly affected by it; if he does not question its validity according to law and rather acts upon the same, practically the order stands legitimised. If a void order is bereaved of its effectiveness only when it has been pronounced upon so by a Court, the delayed action shuts the remedy and by the act of the party itself, the difference between a void and voidable order is reduced to a vanishing point. For all these reasons, we do not feel inclined to differ with the consequences reached by the High Court under the impugned judgment, and finding no merit in this appeal dismiss the same, leaving the parties to bear their own costs. M.BA./MK‑218/S?????????????????????????????????????????????????????????????????? Appeal dismissed.