PLJ 2006
[
Present: Maulvi Anwar-ul-Haq, J.
Mian MUHAMMAD SHAFI and
another--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, MIANCHANNU
DISTRICT KHANEWAL and 14 others--Respondents
W.P. No. 5945 & 5943 of 2004, heard on
6.4.2006.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 11 & 12(2)--Punjab
Pre-emption Act, 1991, S. 15--Constitution of
[Pp.
1228 & 1230] A, C & D
1999 SCJ 178.
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Res-judicata--S. 11 completely
debars the Court from trying any suit or "issue" which has been heard
and finally decided by a Court in an earlier inter parties suit. [P. 1229] B
Mr. Akhtar Mehmood Khan, Advocate for
Petitioners.
Mr. Ali Hussain Syed, Advocate for
Respondents.
Date of hearing: 6.4.2006.
Judgment
This judgment shall decide W.P. No.
5945/2004 & W.P. No. 5943/2004, as common questions are involved and these
proceed against a common judgment of a learned Additional District Judge.
2.
Vide two registered sale-deeds dated 17.5.1999 Abdul Ghafoor the
predecessor-in-interest of the private respondents purchased respectively land
measuring 6 Marlas and 4 Marlas as described in the two plaints (Annex-A). On
11.12.1979, the petitioners filed suits for possession by pre-emption. They
claimed to be co-sharers in the suit lands. The said Abdul Ghafoor was duly
served; he put in appearance and filed written-statement in both the cases. An
objection was raised that the suit land is an urban immovable property located
within the municipal limits of Mian Channu and that Section 15 of the Punjab
Pre-emption Act is not applicable as no right of pre-emption exists in the said
area. Inter alia following issues was framed:
(W.P. No. 5945/2004)
4. whether
the suit land is urban immovable property. If so, its effect? OPD
(W.P. No. 5943/2004)
4. Whether
the suit is not maintainable in view of preliminary Objection No. 1 OPD
In the matter of W.P. No. 5945/2004 the
evidence of the plaintiff was recorded on 27.10.1987. The case was adjourned to
16.2.1985 for evidence of the deceased defendant, evidence was not present and the
case was adjourned to 8.5.1985. On this date again the evidence was absent and
one last opportunity was granted to the defendant to produce his evidence on
21.7.1985 subject to payment of Rs. 20/- as costs. The evidence was absent, the
prayer for adjournment made by the learned counsel was refused and the evidence
was closed. On the same day the suit was decreed.
3.
Now in the matter of W.P. No. 5943/2004 the evidence of the plaintiff
was recorded on 6.2.1985. The case was adjourned to 25.3.1985 for recording
evidence of the deceased defendant. On this date the learned Presiding Officer
was on leave and same was the position on 4.5.1985. On 2.6.1985 the evidence
was absent and the case was adjourned on request to 10.7.1985. On this date had
been approaching him to enter into a compromise. Ultimately he agreed and a
compromise was arrived at in a Punchait. A sum of Rs. 2000/- in each of the
cases was paid to the plaintiffs towards the litigation expenses and the
defendant was assured that the suit shall be withdrawn. He was satisfied and he
left for
1. whether
these consolidated petitions are not maintainable in their present form? OPR
2. whether
petitioners have no cause of action and locus standi to file these petitions?
OPR
3. whether
petitions are false, frivolous and based on malafide and respondents are
entitled to special cost in case of their dismissal? OPR
4. whether
judgments & decrees dated 21.7.1985 and 30.11.1985 have been obtained
through fraud, misrepresentation and the Court lacked jurisdiction to pass
these judgments & decrees? OPA
5. Whether
judgments & decrees 21.7.1985 and 30.11.1985 are liable to be set aside
under Section 12(2) C.P.C.? OPA
6. Relief.
Evidence of the parties was recorded. The
learned trial Court dismissed the applications on 3.10.2001. The respondents
filed revision petitions, these were heard together by a learned Additional
District Judge, Mian Channu, who accepted the same vide his consolidated
judgment dated 12.10.2004. The applications were allowed and both the judgments
were set aside and the suits were dismissed. The parties are duly represented
and both the learned counsel are ready with their arguments. These cases are
accordingly being decided as pacca cases.
5.
Learned counsel for the petitioner contends that in view of the position
emerging on the face of the record no case of fraud, misrepresentation or lack
of jurisdiction stood made out. According to him both the parties joined
issues. His clients lead evidence to discharge the onus of the issues placed
upon them while the respondents failed to produce any evidence in support of
the plea that the suit land was urban immovable property and that it was
located within the municipal limits of Mian Channu. The evidence was closed and
the suits were decreed accordingly. He particularly points out that the learned
counsel for the defendants had through out been putting in appearance in the
suits right from their inception to the date of passing of the decrees and that
it was specifically stated in the applications that the learned counsel had
been informed of the alleged compromise, however not a single allegation is
there against the learned counsel who had been continuously appearing in the
case and there is also no denial that the counsel had not been so appearing.
6.
Learned counsel for the respondents, on the other hand, cites the case
of Mrs. Amina Bibi through General Attorney v. Nasarullah & others (2000
S.C.M.R. 296), Muhammad Qasim v. Abdul Karim & 8 others (1993 MLD 1617)
& Subedar Muhammad Hussain v. Mst. Shah Begum & others (1990 M.L.D.
2100) to urge that the decree was without jurisdiction inasmuch as there was no
right of pre-emption available to the plaintiffs as the suit property was urban
immovable property.
7.
I have examined the copies of the record appended with both the WPs with
the assistance of the learned counsel for the parties. Now I have already
referred above the entire proceedings that took place in the two suits. I have
already referred to the contents of the application filed by the deceased
defendant. Now a reading of the two impugned judgments would show that whereas
the learned trial Court categorically held upon an examination of the original
records of the two suits that the judgments & decrees have not been
obtained through any fraud or misrepresentation. The learned Additional
District Judge has opted to remain silent on the question of alleged fraud and
misrepresentation. He has however held that since according to him the suit
land is an urban immovable property within the municipal limits of Mian Channu no
right of pre-emption existed and as such the decrees are without jurisdiction.
8.
Now it is a matter of record that the plea was specifically raised by
the deceased defendant in his written-statement. An issue was framed and he was
called upon to lead evidence to establish his plea that the suit land is urban
immovable property and is located within the municipal limits of Mian Channu.
He was given sufficient opportunities on the repeated requests made by his
learned counsel but he failed to lead any evidence and the learned trial Court
closed his evidence. There being no evidence in support of the said plea, the
issue was answered against him. To my mind the said finding became res judicata
between the parties to the said suits and could not have been challenged and
then set aside in collateral proceedings i.e. u/S. 12(2) C.P.C. In my humble
opinion if this course is allowed to be followed then there will be no end of
any proceedings. All that would be required is that a defendant would be
raising plea attacking the jurisdiction of the Court by making some factual
allegations, he will leave the matter unattended and thereafter file an
application u/S. 12(2) C.P.C. Even if such an application is rejected even the
same order can be challenged on and on under the said provision. Section 11
C.P.C. completely debars the Court from trying any suit or "issue"
which has been heard and finally decided by a Court in an earlier inter parties
suit. There is no manner of doubt in my mind that the issues could be finally
decided by a Court of competent jurisdiction. Needless to state that the Court
which decided the suit was fully competent to decide the question as to whether
or not it had the jurisdiction which was dependent upon existence and the proof
of the facts pleaded by the deceased defendant in his written-statement. The
said judgments being relied upon by the learned counsel pertain to judgments
& decrees passed exparte and are not at all attracted to the admitted facts
and circumstances of the present case. In the case of Muhammad Khan v. Massan
& 13 others (1999 S.C.J. 178) a Bench comprising three Hon'ble Judges of
the Supreme Court of Pakistan proceeded to set aside the judgment of this Court
when an exparte pre-emption decree passed after cut out date i.e. 31.7.1986 was
sought to be set aside u/S. 12(2) C.P.C. The learned trial Court dismissed the
application. A learned Additional District Judge allowed the revision and set
aside the decree. This Court dismissed the writ petition. The civil appeal was
allowed by their lordships holding that collateral proceedings u/S. 12(2)
C.P.C. cannot be allowed to be resorted and bypass the period of limitation. In
the present case it is a matter of record that the decree was passed in the
presence of learned counsel for the defendant, no appeal was filed and as such
resort to Section 12(2) C.P.C. could not have been allowed.
9.
Now since evidence on the said question had been recorded, I deem it
appropriate to refer to the same. Now I may note here that the description of
the suit land given in the plaint has not at all been questioned at any stage
i.e. either during the pendency of suit or in the course of proceedings u/S.
12(2) C.P.C. The suit lands in both the cases are located in Square No. 94
(Killa Nos. 21 & 25 in the matter of W.P. No. 5945/2004 and Killa Nos. 24
& 25 in the matter of W.P. 5943/2004) located in Chak No. 130/15-L Tehsil
Mian Channu with reference to Jamabandi of the year 1962-63. Now it has been
found as a fact by the learned trial Court that the notification declaring the
limits of the municipality does not mention Square No. 94 of Chak No. 130/15-L.
The learned Additional District Judge has also referred to the document Ex.A1
which is said notification but in complete ignorance of the said established
fact on record that Square No. 94 is not included. He has stated that since
Mian Channu was established in the year 1919 so there is no question of
existence of any custom. Thereafter the learned
Additional District Judge has proceeded as if he was hearing a
first appeal against original decrees, he has observed that the learned trial
Court should have fixed the suit for affirmative evidence of the plaintiff so
as to ascertain that whether the suit properties are not situated within the
municipal limits of Mian Channu. To my mind, the impugned judgment of the
learned Additional District Judge borders on perverse.
10.
Both the WPs accordingly are allowed and the impugned judgment dated
12.10.2004 passed by learned Additional District Judge, Mian Channu, is
declared to be without lawful authority and is set aside. The judgment passed
by the learned trial Court dismissing the application obviously stands
restored. No orders as to costs.
(M. Ajmal Rana) Petitions allowed.