1990 PLP 1651 (SCMR)

(On appeal from the judgment of the Lahore High Court, Lahore dated 2‑8‑1982 m C.R. 825 of 1982). (a) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 185(3)‑‑‑Appeal was admitted to examine whether in circumstances of case, appellant's suit in the second round of litigation was barred by time. (b) Contract Act (IX of 1872)‑‑ ‑‑‑‑Ss. 19 & 19‑A‑‑‑Limitation Act (IX of 1908), Art. 95‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Suit for possession filed by respondent was decreed against appellant ex parte vide judgment dated 30‑4‑1974‑‑‑Date of knowledge of passing of ex parte decree was admittedly 3‑6‑1974‑‑‑In proceedings pursuant to application for setting aside said decree, parties compromised on 9‑7‑1977; application for setting aside ex parte decree was got dismissed as withdrawn‑‑ Appellant through compromise was thus a party to ex parte decree dated 30‑4‑1974 being permitted to remain intact‑‑‑Appellant was a competent party to consent order of Court whereby her application for setting aside ex parte decree was dismissed‑‑‑Appellant filed suit for avoidance of ex parte decree on the basis of fraud‑‑‑On plaintiffs/appellant's plea that consent order was obtained by fraud, the impugned order would be a voidable order under Ss. 19 and 19‑A Contract Act, 1872 and would remain operative, so long as same was not set aside for fraud etc. by a competent Court, finding of three Courts below that Art. 95‑‑‑Limitation Act, 1908 was applicable was correct‑‑‑Appellant was now challenging ex parte decree dated 30‑4‑1974, which she herself through compromise permitted to remain legally valid and effective by withdrawing her application to have the same set aside, thus blowing hot and cold‑‑‑Appeal being without merit was dismissed in circumstances. Mst. Izzat v. Allah Ditta PLD 1981 SC 165 and Hamida Begum v. Murad Begum PLD 1975 SC 624 ref. JUDGMENT RUSTAM S. SIDHWA, J.‑‑‑This is an appeal filed by Mst. Jamilah Hamid appellant against the judgment of the Lahore High Court dated 2‑8‑1982 dismissing her revision petition. This appeal was admitted by this Court to examine whether in circumstances of this case, appellant's suit in the second round was barred by time.

2. The facts of the case in brief are that the respondent's suit for possession through demolition was decreed by Ch. Salamat Ali, Civil Judge, Lahore, against the appellant x arte vide judgment dated 30‑4‑1974. The date of knowledge of the passing of this ex parte decree is admittedly 3‑6‑1974, as mentioned in application filed under Order 9 Rule 13 C.P.C. for having this ex parte decree set aside. In the proceedings pursuant to application for setting aside the said decree, the parties compromised on 9‑7‑1977 and it was accordingly got dismissed as withdrawn, subject to the condition that the property would be got demarcated by the appellant within one month through the revenue authorities, and in case any excess area was found in the appellant's possession, same would be handed over by her to the respondent, and in case no excess area was found then the ex parte decree obtained by the respondent would be considered nullity in the eye of law. This demarcation could not be got done by the appellant within the agreed time, though an application for the purpose was filed before the revenue authorities. Thereafter the respondent filed an execution petition and the executing Court itself referred the case for demarcation to the Thesildar, who submitted his report alongwith the encroachment plan in the Court on 29‑7‑1978. The appellant's objection petition was rejected and the matter was disposed of on 10‑10‑1978. The executing Court accordingly issued a warrant for possession of the area measuring 3 marlas 81 square feet of land after demolition of construction thereon. The appellant, on feeling aggrieved by the order of the executing Court dated 10‑10‑1978, filed an appeal, which came. up for hearing before Mr. Nusrat Hussain Qureshi, Additional District Judge, Lahore. During the pendency of this appeal, the appellant, who is the judgment‑debtor in the previous case, filed a suit out of which the present proceedings arise. This suit was filed before the learned Civil Judge on 9‑2‑1980, for avoiding, on the basis of fraud, the judgment and decree dated 30‑4‑1974 and the subsequent judgment and decree of the executing Court dated 10‑10‑1978. The appeal, which was pending before Mr. Nusrat Hussain. Qureshi, was dismissed on 2‑11‑1980, whereupon the appellant filed an amended plaint with the leave of the Court challenging even the appellate judgment and decree dated 2‑11‑1980. The suit was contested by the respondent. There were seven issues in all framed. The material issue was, whether the suit was within time. The learned trial Court only gave finding with respect to the issue of limitation. The trial Court was of the view that the suit was clearly barred by virtue of Article 95 of the Schedule to the Limitation Act. The suit was dismissed on 14‑3‑1981. The appellant thereafter filed an appeal, which was dismissed by a learned Additional District Judge vide his judgment dated 11‑2‑1982.' The Appellate Court concurred with the view of the trial Court that the suit to question and to have the judgment and decree dated 30‑4‑1974 set aside on the basis of collusion and fraud was barred by limitation. The plea that the judgment and decree dated 30‑4‑1974 was void and without jurisdiction and, therefore, no question of limitation arose in the case, was abandoned, as it was not pressed, as observed by the learned Additional District Judge. The appellant then moved the High Court by way of revision petition, which was dismissed. Hence this appeal.

3. On behalf of the appellant it is submitted that her suit which was filed in 1980 was not barred by time as the said suit was one basically for declaration, where reference to the fraud was ancillary and that, therefore, Article 95 of the Schedule to Limitation Act, 1908 did not apply to the instant case. It is further submitted that fresh cause of action arose to the appellant on 10‑10‑1978, when the appellant's objection to the Tehsildar's report was rejected and the Civil Court issued warrant for possession of the disputed area to be granted to the respondent. It is contended that the plaint does not disclose fraud as the basis of the claim and, therefore, the case is governed by Article

120. In this connection learned counsel for the appellant relies upon Mst. Izzat v. Allah Ditta P L D 1981 SC 165, where the suit filed by a wife against her husband on 9‑6‑1969 for declaration that she was owner in possession of the suit land and that the registered sale‑deed dated 11‑2‑1958 purporting to be executed by her in favour of her husband was void and unlawful on account of fraud and lack of consideration and thus had no effect on her rights and that mutation dated 19‑5‑1969 which was sanctioned on the basis of the said registered deed was illegal and for further relief of permanent injunction against her husband that he be restrained from claiming himself to be the owner and also from taking possession of the suit land, it was held that the main relief claimed by the plaintiff was with regard to the protection of her possession, for which a permanent injunction was sought against the husband, and that the declaration that the mutation dated 19‑5‑1969 and the registered deed dated 11‑2‑1958 were void and ineffective could be treated as ancillary relief.

4. Ch. M. Rashid, Advocate, appears on behalf of the respondent. On behalf of the respondent it is submitted that the appellant having compromised the matter with the respondent on 9‑7‑1977, by which she permitted her own application for setting aside of the ex parte decree passed in favour of the respondent to be dismissed, the appellant cannot now turn around in the suit and claim that the ex parte decree was obtained by fraud. It is further submitted that the appellant's suit is hit by Article 95 of the Limitation Act, 1908 and the lower Courts were correct in dismissing the appellant's suit as barred by time.

5. We have given our anxious consideration to the arguments submitted by the learned counsel for the appellant and the respondent and have also perused the record. In Hamida Begum v. Murad Begum P L D 1975 SC 624 , this Court held that where a deed was ab initio null and void, it could be treated as nullity without having to be cancelled or set aside, but if an instrument was executed by a person competent to do so and it was alleged that he was forced or pursuaded to execute the same under coercion, fraud, mis‑representation or undue influence, then it was a voidable instrument in accordance with the principles embodied in sections 19 and 19‑A of the Contract Act and the instrument would remain operative as long as it was not set aside by a competent Court. Following this rule, this Court held in Mst. Izzat's case PLD 1981 SC 16,5 that if the plaintiff was not bound by the document, or if she was not claiming under the same, and the substantial relief prayed for by her was not the cancellation or setting aside of the instrument, then the suit was not governed by Article 91 or Article 95 of the Limitation Act.

6. In the above context, let us examine the appellant's suit for declaration and consequential relief, which prays for the following reliefs:‑‑ "It is, therefore, most respectfully prayed that a decree in favour of the plaintiff and against the defendant may kindly be passed to the following effect:‑‑ (a) Declaring that the ex parte judgment and decree dated 30‑4‑1974 passed by Mr. Salamat Ali, Civil Judge, Lahore is without jurisdiction illegal and void, having been obtained by fraud and misrepresentation and as such has no effect on the rights of the plaintiff. (b) Declaring that the order dated 10‑10‑1978, passed by Ch. Ijaz Ahmad Chidhar, Civil Judge, Lahore as well as the order dated 2‑11‑1980, passed by Mr. Nusrat Hussain Qureshi, Additional District Judge, Lahore, upholding the order dated 10‑10‑1978, are without jurisdiction, illegal, void and without authority, with a consequential relief that the defendant be permanently restrained from executing the ex parte decree dated 30 4‑1974 passed by Ch. Salamat Ali, Civil Judge, Lahore. The defendant be further directed to hand over the vacant possession of the portion illegally taken after slicing away portion of the constructed house of the plaintiff shown as red in the plan attached. Any other appropriate relief considered proper in the circumstances of the case may also be awarded with costs of this suit." Can it be said that without the cancellation of the ex parte decree dated 30‑4‑1974 or the‑order of the Civil Judge dated 10‑10‑1978 and that of the Additional District judge, Lahore, dated 2‑11‑1980, the appellant, as plaintiff, can claim the restoration of the area allegedly taken away from her as encroached property? In Mst. Izzat's case (supra) the plaintiff wife had possession of the property and it was held that her main relief was to seek the protection of her possession in which a permanent injunction was prayed against her husband and the declaration that she was the real owner and that being so the mutation and the registered sale‑deed were void and ineffective, were all ancillary to the main relief and that, therefore, Article 91 or 95 was not applicable. In the instant case the appellant, through compromise, was a party to the ex parte decree dated 30‑4‑1974 being permitted to remain intact. She was a competent party to this consent order. If she now alleges that the same was obtained by fraud, which is clear from her plaint and the relief claimed, then it is a voidable order under sections 19 and 19‑A of the Contract Act and would remain operative, so long as it is not set aside for fraud, etc. by a competent Court. In these circumstances, we have no hesitation in holding that the finding of the three Courts below that Article 95 of the Schedule to the Limitation Act was applicable, is correct. Further, the appellant is now challenging the ex parte decree dated 30‑4‑1974 which she herself, through compromise entered on 9‑7‑1977, permitted to remain legally valid and effective by withdrawing her application to have the same set aside. She is now blowing hot and cold. Taking all circumstances into consideration, we see no merit in this appeal, which is hereby dismissed. However, there shall be no order as to costs. AA./J‑79/5 Appeal dismissed.