P L D 1988 Peshawar 162 (PLP)

Muhammad Ishaq Khan Kundi and Muhammad Iqbal Khan Kundi for Respondents. Date of hearing: 21st June, 1988. Begu Khan plaintiff‑petitioner on 24‑7‑1975 instituted a suit in the Court of Civil Judge, Lakki Marwat against Sajjad Ahmad and others for declaration that the mortgage Mutation No.5940 attested on 26‑7‑1974 by Ghulam Sarwar defendant No.8 in favour of defendants 6 and 7 is fictitious and fraudulent and that in fact the land in suit vide Mutation No. 5941 attested on 26‑7‑1974 had been sold to defendants 1 to 5 but in order to defeat the pre‑emptive rights of the plaintiff the land in suit had been shown to be mortgaged for a consideration of Rs.10,000 and that the said mortgage mutation being ineffective and void is not binding on the plaintiff and secondly he prayed for possession through pre‑emption of the suit land against defendants 1 to 5 on payment of Rs.506.50 on the ground of co‑sharership and participation in immunities ' appendages. One Ghulam Muhammad son of Hawaldar had also instituted a civil suit for pre‑emption claiming superior right of the basis of tenancy, which was registered as Civil Suit No. 358/1 of 1975, prior to the institution of the instant suit by Begu Khan. While the two suits were pending adjudication Ordinance, XX of 1976, was promulgated, which on amendment of paragraph 23 of the Land Reforms Regulation, 1972 provided the enforcing of the right of pre‑emption in respect of land comprised in A tenancy to be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land with respect to which pre‑emption was claimed was situated and all the suits pending in any Court immediately before the commencement of the said Ordinance stood transferred to the Collector concerned. Accordingly the suit of Ghulam Muhammad son of Hawaldar who claimed pre‑emptive rights on the basis of tenancy was transferred to the Court of tqllector Lakki and the suit of Begu Khan plaintiff‑petitioner was stayed pending final disposal of the suit of Ghulam Muhammad son of Hawaldar by the Collector. Lakki because sub‑paragraph (3)(d) of paragraph 25 of MLR‑115 declared a tenant to have the first right of pre‑emption in respect of the land comprised in his tenancy. While the suit of Ghulam Muhammad son of Hawaldar continued in the Court of Collector Lakki, Begu Khan plaintiff applied to that Court that he may also be impleaded as party to the suit but, by his order dated 4‑9‑1976 the Collector Lakki on the basis of the compromise reached at between Ghulam Muhammad plaintiff and defendants 1 to 7 decreed the suit of said Ghulam Muhammad son of Hawaldar and by his same order rejected the application of Begu Khan regarding his impleadment as party to the suit, Against the said order of Collector Lakki Begu Khan preferred an appeal in the Court of the Commissioner, D.I. Khan Division which was dismissed on 4‑6‑1977. His revision in the Board of Revenue also failed whereafter on 20‑7‑1977, Begu Khan plaintiff applied to the Court of Civil Judge Lakki to restore the proceedings of the suit filed by him and which had been stayed pending adjudication of the suit filed by Ghulam Muhammad son of Hawaldar by the Court of Collector Lakki. This application of Begu Khan was dismissed by the Civil Judge, Lakki by his order dated 15‑1‑1978 on the ground that since the Collector Lakki had decreed the suit of Ghulam Muhammad, therefore, the restoration of the suit filed by Begu Khan and further proceedings therein would be an effort futile which obliged Begu Khan to file revision petition in the Court of the Additional District Judge, Bannu at Lakki who by his order dated 4‑7‑1978 accepted the revision and remanded the case to the trial Court to decide it on merits but after impleading Ghulam Muhammad as party to the suit as applied for by Begu Khan plaintiff. The learned Civil Judge after remand and giving full opportunity to the parties to adduce evidence by his judgment and decree dated 30‑6‑1981 decreed the suit of the plaintiff Begu Khan on payment of Rs.7,405.03 paisas. Ghulam Muhammad son of Hawaldar feeling aggrieved by the said judgment and decree went in appeal in the Court of the Additional District Judge, Lakki at Bannu who by his order dated 25‑1‑1983 observing that since Shabbir Ahmad, Faridullah and Saleemullah defendants 3 to 5 were minors and no guardian‑ad‑litem had been appointed to safeguard their interest all the forums below had acted illegally and, therefore, remanded the case to the trial Court with the direction to the plaintiff to submit amended plaint by appointing guardian‑ad‑litem of the minor respondents, After the second remand the learned Civil Judge by his judgment and decree dated 20‑5‑1985~ed the suit of Begu Khan plaintiff on payment of Rs.7,

600. A grieved by the said judgment and decree Ghulam Muhammad defendant went in appeal in the Court of the Additional District Judge, Lakki who by his order dated 16‑7‑1986 accepted the appeal, set aside the decree of the trial Court and dismissed the suit of Begu Khan. Hence the instant civil revision petition.

2. Arguments of Mr. Ejaz Muhammad Khan, Advocate on behalf of the plaintiff‑petitioner and M/s. Muhammad Ishaq Khan Kundi and Muhammad lqbal Khan Kundit Advocates on behalf of the defendants respondents have been heard and record of the case has been thoroughly examined.

3. It is not disputed that Begu Khan plaintiff‑petitioner had applied to the Court of Collector Lakki for his impleadment as a party to the suit filed by Ghulam Muhammad son of Hawaldar claiming his first right of pre‑emption on the basis of tenancy. It is also not denied that the suit of Ghulam Muhammad son of Hawaldar was decided by the Collector Lakki not on the merits of the case but on the basis of the compromise reached between the parties to that suit. It is also an admitted fact that defendants 3 to 5 namely Shabbir Ahmad, Faridullah and Saleemullah were minors. Order XXXII, Rule 7, C.P.C. provides that no next‑friend or guardian for the suit, shall, without the leave of the Court expressly, recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next‑friend or guardian.

4. The record on the file of the Court of Collector, Lakki nowhere suggests the appointment of guardian‑ad‑litem of the aforesaid minor defendants. On the other hand prior to the transfer of the suit to the Court of Collector, Lakki, Ghulam Muhammad plaintiff applied for appointment of the Reader of the Court as Guardian‑ad‑litem of the said minor defendants but before the proper appointment of the guardian the suit was transferred to the Court of Collector where without observing the legal formalities one Dilawar Khan entered into compromise with Ghulam Muhammad plaintiff on behalf of the three minors. It is the consistent view of the superior Courts that under Order XXXII, Rule 7, C.P.C. there should first be an application for leave of the' Court to enter into compromise on behalf of the minors and the leave of the Court should be expressly recorded conveying therein that the compromise is beneficial for the minors. No doubt an application to enter into compromise was made to the Collector Lakki but there is nothing on the record to suggest that A the Collector had applied his mind to the bona fides of the compromise in the interest of minors. It is well‑established that where leave is not granted the mere application to enter into compromise can imply that the Court has passed a decree on the basis of the compromise. In Gobinda Chandra Pal (a lunatic) and others appellants v. Kailash Chandra Pal (deceased) and others respondents reported as A I R 1922 P C 186, it has been laid down that:‑ "In all cases where it is desired to bind persons under disability by a compromise which is proposed to be entered into in an appeal pending before the Judicial Committee, it is of the utmost importance that there should be a clear expression of opinion by the proper Court in India that such compromise is a beneficial one for these persons. All such questions are essentially and necessarily the proper subject for consideration of the Courts in India who are in a position to institute the inquiries, to ask the questions and to obtain the information which must always be required before sanctioning proceedings on behalf of persons who are unable to assent for themselves. The Judicial Committee may in rare cases desiring to avoid the multiplication or prolongation of proceedings entertain in the first instance an application to sanction a compromise in such a case." It would not be out of place to mention here that the extract from Khasra Girdawaris appended to the plaint by Ghulam Muhammad plaintiff while in the ownership column Ghulam Muhammad son of Ghulam Sarwar Khan is recorded in the column of tenancy only Ghulam Muhammad is recorded. Since, no evidence was recorded in the Court of Collector to ascertain the "particulars of Ghulam Muhammad, I would like to seek assistance in this respect from the statement of the Patwari Abdul Ghaffar Khan who appeared as D.W.1 in the suit filed by the plaintiff‑petitioner and from his statement nowhere it has been established that the tenancy was recorded in the name of Ghulam Muhammad son of Hawaldar. On the other hand Amin Khan D.W.2 B Moharrir of the Irrigation Department has confirmed that in Khasrjss Nos.73 and 74 the tenancy is recorded in the name of Ghulam Muhammad son of Ghulam Sarwar while in the rest of the columns only Ghulam Muhammad is recorded without his parentage etc. and that over-writings have been committed in column No.8 on the name of Ghulam Muhammad. Thus, plaintiff Ghulam Muhammad son of Hawaldar miserably failed to establish his title as tenant from the revenue record and it appears to be for these reasons that to deprive Begu Khan plaintiff of his superior right of pre‑emption the rival parties entered into a compromise even on behalf of the minors in an illegal and un-procedural manner and in such a situation the decree obtained from the Court of Collector can well be called to be a decree obtained through fraud played upon the Court. Rather it may be observed that even the Court of Collector did not apply its rind to the legal intricacy involved in the case with reference to the interest of the minors. The question that next comes for determination is the impact or effect of a decree obtained through fraud. In this connection it .may be remarked that fraud taints and vitiates every thing it touches. Whatever form it may assume, the law furnishes a remedy there for when it is exposed. In the Chief Settlement Commissioner Lahore v. Raja Fezil Khan and others P L D 1975 S C 331, it was held that:‑ "Order made by a Court, Tribunal or authority acting without jurisdiction as regards the subject‑mattes, peculiar value or territorial limits was void and the order obtained by fraud was, however, not void but only void-able at the instance of any party adversely affected by it." Begu Khan plaintiff‑petitioner, as observed earlier, did apply to the Court of the Collector for his impleadment as party, and being a rival pre‑emptor refusal by the Court of the Collector, impleading him as party, was definitely an abuse of power because in the first instance both Ghulam Muhammad son of Hawaldar and Begu Khan plaintiff‑petitioner had instituted suits for, pre‑emption of the land in 'suit and thus both were necessary parties in their respective suits but as I have remarked above with a view to implement a fraudulent compromise Begu Khan was refused the right to contest. Thus, the order of the Court of the Collector had adversely affected Begu Khan who in his amended plaint pursuant to the order of the Additional District Judge did challenge the validity of the said order of the Court of the Collector. Under section 9 of the Civil Procedure Code the Civil Courts are invested with general powers and have jurisdiction to try all suits of the civil nature excepting suits of which their cognizance is either expressly or impliedly barred. No doubt the suit for pre‑emption on the basis of tenancy did not fall within the jurisdiction of the Civil Court but at the same time the Civil Court is, not barred to go into the bona fides of the decree obtained if the same is challenged on the ground of having been obtained by fraud. The august Supreme Court in its judgment referred to above has held that:‑ "The validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside, reversed or modified; or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In. such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party or the other. Direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it; or, lastly, action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order. There can be no difficulty in the way of the adoption of the first course when the same is permitted by the law applicable to the subject -matter of the dispute and the parties thereto; nor can there be any controversy regarding the maintainability of a civil suit, for the same is clearly permitted under section 9 of the Code of Civil Procedure, which confers a general jurisdiction on civil Courts created and recognised by the Code." The learned counsel for the respondents, however, vehemently contended that under section 12(2), C.P.C. where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by, making an application to the Court which passed the final judgment, decree or order and not by a separate suit. In this connection it may well be elaborated that the Court of Collector cannot be called stricto senso to be a Civil Court and, therefore, the provisions of the C.P.C. are not applicable in that Court. No doubt under sub‑paragraph (8) of paragraph 6 of Act XLVIII of 1976 the Collector, the Commissioner and the Board of Revenue are to be deemed to be Civil Courts and have all the powers of a Civil Court under any law for the time being in force and the final orders passed in such suits are to be deemed to be a decree of the Civil Court but at the same time it cannot be doubted that the creation of this legislation has not invested these Courts with powers of general jurisdiction. 'Although subsection (2) to section 12 was inserted vide Ordinance X of 1980 but the august Supreme Court in the aforesaid judgment had much before it given its verdict in a similar way. It may be reproduced for convenience:‑ "However, in the matter of collateral impeachment of such an order, the position appears to be different. Whereas, a superior Court or a Court of general jurisdiction has the power to disregard, as a nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or authority making it, such a power is not available to a tribunal which either acts in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere." Borrowing the words of the august Supreme Court I must say that the Court of Collector has been given the powers to 'hear the suits for pre‑emption only where the question of tenancy is involved and in that sense the said Court acts in an administrative capacity and, enjoys only a special or limited jurisdiction in a defined sphere. For the sake of arguments, however, even if it is presumed that the jurisdiction of Civil Court is excluded under the provisions of the land Reforms Regulation; referred to above, the Civil Courts still have the jurisdiction to examine into case where the provisions of the statute have not been complied with or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure or of natural justice. The non‑compliance with the provisions of the Code requiring appointment of guardian ‑ad‑litem of the minor defendants and deciding the case on the basis of a compromise rendered by an invalid guardian‑ad‑litem on behalf of the minor defendants is a clear example of the Collector having failed to comply with the provisions of the statute and thus he has acted not in conformity with the fundamental principle of judicial procedure and accordingly in such a situation the Courts of general jurisdiction have all the powers to go into the proprieties and legality of such an order. Accordingly hold that the learned Civil Judge was quite within his jurisdiction to go into the validity of the order of the Collector.

5. On factual side, however, the learned counsel for the respondents miserably failed to establish from record that Ghulam Muhammad son of Hawaldar defendant respondent established himself to be the tenant at will of the land in suit and thus, having the first right of pre‑emption. For academic interest it may be pointed out that Ghulam Muhammad son of Hawaldar the defendant‑petitioner being the maternal uncle of the vendee‑defendants, the record .so suggests, brought the instant suit with a view to defeat the pre‑emption rights of the prospective pre‑emptor and when Begu Khan plaintiff-petitioner also instituted a suit for pre‑emption, as discussed above, in an un-procedural manner, regard having not to the interest of the minors, the vendees and the pre‑emptor being closely inter se related entered into a compromise and got a decree , from the Court of the Collector. In these circumstances the learned Civil Judge quite correctly decreed the suit of the plaintiff‑petitioner,

6. Nothing else was agitated at the Bar. Consequently this Civil Revision Petition is accepted, the judgment and decree of the learned Additional District Judge are set aside and those of the trial Judge are restored with the, result that the plaintiff‑petitioner's suit is decreed in terms of the judgment of the trial Court. Keeping in view the peculiar circumstances of the case parties are left to bear their own costs. A.A./644/P Revision accepted.