2015 M L D 57

2015 M L D 57

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

BARKAT SHAH and 2 others---Petitioners

Versus

SHAMS UR REHMAN and 38 others---Respondents

Writ Petition No.1194 of 2011, decided on 16th April, 2013.

(a) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration---Maintainability---Plaintiffs-petitioners brought suit for declaration of title on the principle of prescription on the ground that the defendants-respondents had failed to get the suit land re-deemed within the prescribed period of 60 years---Trial Court decreed the suit ex parte and that decree was challenged through an application filed under S. 12(2), C.P.C. by the defendants-respondents---Trial Court accepted the said application without recording evidence of the parties, set aside the decree and suit was dismissed concurrently being against law---Validity---Cases where decree was challenged on the basis of misrepresentation, fraud or any order without jurisdiction, the court had firstly to see whether the suit was maintainable under the law and then to see whether any fraud or misrepresentation was made out from available record---Suit was brought on the principle of prescription on the date when the said provision did not exist on the statute book---When the suit itself was against the provisions of law, same should not have been entertained by the Trial Court and so being the decree passed would have been of no sanctity in the eye of law.

            Maqbool Ahmad's case 1991 SCMR 2063; Durranai and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480; Munawar Shah's case 2007 SCMR 597 and Muhammad Hussain's case 2004 SCMR 1137 rel.

(b) Administration of Justice---

----Court was obliged to kill frivolous lis in its very inception and same should not be allowed for a single breath, so that confidence of the public in the system should strengthen.

(c) Constitution of Pakistan---

----Arts.199, 189 & 201---Specific Relief Act (I of 1877), S. 42---Constitutional petition---Subordinate courts were obliged to show respect to the judgments of superior courts and to give true and full effect to the judgments of Supreme Court as well as of the High Court while deciding the matters before them---Petitioners-plaintiffs had not come to the High Court with clean hands to invoke extraordinary constitutional jurisdiction---Judgments of both the courts below were in accordance with law and no misreading, non-reading of material evidence which required the interference of the High Court in its constitutional jurisdiction had been pointed out by the counsel for the petitioners-plaintiffs---Constitutional petition was dismissed.

            S.M. Attiqe Shah for Petitioners.

            Imdad Anjum Durrani and Muhammad Hashim for Respondents.

            Date of hearing: 16th April, 2013.

JUDGMENT

            MALIK MANZOOR HUSSAIN, J.---Through the instant constitutional petition, the petitioners impugned herein the judgment/order dated 15-5-2010 passed by the learned Civil Judge as well as that of learned Additional District Judge/Revisional Court dated 7-2-2011.

2.         Brief facts of the instant matter are that the petitioners/ mortgagees sought declaration of title over the suit land on the ground that mortgagors/respondents had failed to get the suit land redeemed within the prescribed period of 60 years, thus they became owners of the property on the ground of principle of prescription, The learned trial Court decreed the suit through ex parte decree dated 9-4-1996. The present respondents Nos.1 to 5 challenged the decree through an application under section 12(2) C.P.C., which was contested by the present petitioners and vide order dated 15-5-2010 accepted the application and set aside the decree and also dismissed the suit being against law. Feeling aggrieved, the present petitioners preferred revision petition and through impugned judgment/order dated 7-2-2011 the same was dismissed, hence the present constitutional petition.

3.         The learned counsel for the petitioners mainly strike the impugned judgment on the sole ground that the decree was set aside without recording evidence pro and contra, in a slipshod manner which was not maintainable and the learned revisional Court also escaped to consider this vital question of law.

4.         It is by now well settled that with regard to the cases where the decree is challenged on the basis of misrepresentation, fraud or any order without jurisdiction, the Court has firstly to see whether the suit was maintainable under the law and then to see whether any fraud or misrepresentation is made out from the available record.

5.         Suit No.15/1 was filed on 16-10-1994 on the sole ground of principle of prescription and relief was sought as to declaration of ownership of the suit property. So the question is whether the suit was maintainable and decree can be passed on such a ground.

6.         It is by now settled law that suit for prescription of title could be fruitful only if the mortgagees have obtained a valid decree before the target date i.e. 31-8-1991 and in this regard attention of the learned counsel for the petitioner was drawn by this Court to famous judgment delivered by Shariat Appellate Bench of apex Court in Maqbool Ahmad's case reported in (1991 SCMR 2063), wherein section 28 of the Limitation Act, has been declared repugnant to the injunctions of Islam, so far as same provided for extinguishment of right in the property at the determination of period prescribed for suit for possession. Which decision took effect from 31st August, 1991 and on that date section 28 of Limitation Act, 1908 seized to have its effect and it was further declared that possession without ownership or legal right cannot create title in the property how long it may be. This matter as earlier decided by the apex Court in elaborated judgment passed in Durranai and 35 others v. Hamidullah Khan and 15 others reported in (2007 SCMR 480) and Munawar Shah's case reported in (2007 SCMR 597), the relevant para of reported judgment of 2007 SCMR 480 is reproduced as under:--

            "A suit for prescription of the title could be fruitful only if mortgagee is fortunate to obtain a decree before 31-8-1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31-8-1991. A similar view has been taken, by this Court in Muhammad Hussain's case 2004 SCMR 1137."

7.         The suit was brought on the doctrine of principle of prescription on the date when the said provision was not existed on the statute book. When the suit itself was against the provisions of law, it should not have been entertained by the learned trial Court and so being decree passed would have been of no sanctity in the eye of law.

8.         It is foremost obligation of the Courts to kill frivolous lis in its very inception and same shall not be allowed for a single breath, so that confidence of the public in the system should strengthen. At the same time it is the obligation of the subordinate courts to show greatest respect to the judgments of superior Courts and to give true and full effect to the judgments of apex Court as well as of this Court while deciding the matter before them.

9.         Thus when the matter was brought to the notice of the Court through section 12(2), C.P.C., there left no option but to set aside the ex parte decree and dismiss the suit without further proceedings. It seems that this was the reason which prevailed upon the learned trial Court as well as the learned Revisional Court who did not deem it fit to record pro and contra evidence, before passing the impugned order.

10.       We have further noticed that the present respondents who filed the application under section 12(2) were not arrayed as party in the original suit though their names were apparent on the revenue record annexed with file, further the suit was brought against the defendants majority of whom, before the institution of suit were dead, as reported by the process server in his report available on record. At the last leg of his arguments, the learned counsel for the petitioners draw our attention to Mutation No.234 attested on 22-6-1998 on the basis of ex parte decree, and as per his contention it created a title in favour of petitioners. This fact also establishes fraud and misrepresentation on behalf of present petitioners, as neither the respondents Nos.1 to 5 were party to the suit nor a decree has been passed against them, how their property was transferred through Mutation No.234 mentioned above, which carries no value in the eye of law and that too when the decree has been set aside by the Court of competent jurisdiction and has attained finality.,

11.       The petitioner has not come to Court with clean hands to invoke extra ordinary constitutional jurisdiction. The judgment of both the learned Courts below are in accordance with law and no misreading, non-reading of material evidence which require interference of this Court in its constitutional jurisdiction has been pointed by the learned counsel for the petitioners.

            Under the circumstances, this petition is devoid of any force and is hereby dismissed.

AG/229/P                                                                                            Petition dismissed.