2016 C L C Note 60
2016 C L C Note 60
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
Mst. BASHIRAN BIBI and 5 others----Petitioners
Versus
NAEEM ASIF MUGHAL and 10 others----Respondents
W.Ps.Nos.3093 to 3102 of 2009, heard on 19th September, 2014.
(a) Punjab Pre-emption Act (I of 1913)---
----Ss. 15 & 35---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Superior right of pre-emption---Ex parte decree, application for setting aside of---Requirements---Trial Court dismissed application for setting aside ex-parte decree which was accepted by the Appellate Court and suits were dismissed---Contention of the respondents-plaintiffs was that subsequent vendees had no locus standi to challenge the validity of decree by filing an application under S.12(2), C.P.C.---Validity---Suits for pre-emption were filed in the year, 1974 which were initially dismissed by the Trial Court---All decrees, judgments or orders dismissing the suits for pre-emption instituted or pending between 1st day of August 1986 and 28th day of March 1990 (both days inclusive) in which right of pre-emption had been claimed would have no legal effect---Only those suits could proceed in which pre-emptor had established that he had made Talb-i-Ishhad in presence of two truthful witnesses which was not the case---All suits and appeals pending adjudication on 31-07-1986 in which a decree for pre-emption had not been passed by the said date would stand abated---All such suits were to terminate, stood annulled and the very existence of such cases would come to an end by operation of law without any recourse to anything else---Only a formal order of the court to eliminate such cases from the cause list and consigning them to the record room was needed---No valid suits on behalf of respondents-plaintiffs could be deemed to be pending before the court---Trial Court seized with the trial of such suits was bound to consign the same to the record room which could not proceed further after target date of 31-07-1986---Said suits did not fall in the category wherein decree had been passed at some prior point of time rather same were dismissed in the year 1980 and subsequently were remanded---Said suits could not be validly decreed, even if vendees had opted not to contest the same---Requirement of law was not that only judgment debtor or the aggrieved person could challenge the validity of judgment under S.12(2), C.P.C.---Said application had to be filed before the court which had finally decided the matter if the same was required to be reversed on the ground of fraud, misrepresentation or want of jurisdiction---Impugned judgments and decrees were passed after the target date of 31-07-1986 which had rightly been annulled by the Appellate Court---Plaintiffs-respondents were left with no cause of action against the vendees after the target date of 31-07-1986---Revisional court was competent to correct the wrong order passed by the Trial Court---Constitutional petition was dismissed, in circumstances. [paras. 6, 7, 8 & 9 of the judgment]
Muhammad Khan and another v. Massan and others 1999 SCMR 2464; Karim Bakhsh and 4 others v. Riaz Hussain and another 1993 SCMR 1667; Manzoor Hussain v. Muhammad Nawaz and 2 others 2009 YLR 695; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Munawar Hussain and others v. Messrs Nisar and Co. and others 1976 SCMR 385; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Babar Shehzad v. Said Akbar and another 1999 SCMR 2518 and Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364 ref.
Muhammad Khan and another v. Massan and others 1999 SCMR 2464; Karim Bakhsh and 4 others v. Riaz Hussain and another 1993 SCMR 1667; Manzoor Hussain v. Muhammad Nawaz and 2 others 2009 YLR 695; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Munawar Hussain and others v. Messrs Nisar and Co. and others 1976 SCMR 385 distinguished.
Government of N.W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others 2006 MLD 12; Mst. Sarwar Jan and 8 others v. District Judge Bagh and other 2005 CLC 1704; Basit Ali v. Additional Chief Secretary 2005 MLD 599; Lahore Cantt. Cooperative Society Limited v. Muhammad Asif 1998 MLD 1850 and Muhammad Shahbaz and others' case 2004 YLR 1180 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2)---Application for setting aside of judgment/decree under S.12(2), C.P.C.---Requirements---Any person could file application under S.12(2), C.P.C.---Requirement of law was not that only judgment debtor or the aggrieved person could challenge the validity of judgment under S.12(2), C.P.C.---Such application had to be filed before the court which had finally decided the matter if same was required to be reversed on the ground of fraud, misrepresentation or want of jurisdiction. [para. 8 of the judgment]
(c) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Revisional court was competent to correct the wrong order passed by the Trial Court. [para. 8 of the judgment]
(d) Constitution of Pakistan---
----Art. 189---Judgment of Supreme Court---Binding effect---Dictum of Supreme Court was binding on all the subordinate courts. [para. 8 of the judgment]
Malik Noor Muhammad Awan for Petitioners (in W.Ps.Nos.3093 to 3097 of 2009 and Malik Abdul Wahid for Petitioners (in W.Ps.Nos.3098 to 3102 of 2009).
Naveed Shehryar Sheikh, Sajid Aman Barki, Humaira Bashir Chaudhry, Fatima Malik and Bashir Ahmad Mirza for Respondents.
Date of hearing: 19th September, 2014.
JUDGMENT
CH. MUHAMMD MASOOD JAHANGIR, J.---This judgment will dispose of W.Ps. Nos. 3093-2009, 3094-2009, 3095-2009, 3096-2009, 3097-2009, 3098-2009, 3099-2009, 3100-2009, 3101-2009 and 3102-2009 as similar questions of facts and law are involved that different suits four possession through pre-emption had been filed under section 15(3) of the Punjab Pre-emption Act, 1913 before the learned Civil Court at Gujranwala in the year 1974, which were decreed vide judgment and decree dated 20.12.2000 passed by the learned Civil Judge, Gujranwala and in view of the dictum laid down by the august Supreme Court of Pakistan in Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) whether the learned Civil Court was justified to decree the said suits after the target date i.e. 31.07.1986 and the same could be annulled while exercising jurisdiction vested under section 12(2), C.P.C. at the instance of the subsequent purchasers of the pre-empted land.
2. Precisely the facts are that the petitioners in each writ petition had filed separate suits for pre-emption under section 15(3) of the Punjab Pre-emption Act, 1913 before the learned Civil Court at Gujranwala against different vendees in the year 1974, which were contested by the vendees/defendants and initially the suits were dismissed in the year 1980. However, the first appellate court accepted the appeals filed by the petitioners in the year 1984 and remanded the cases to the learned trial court for its fresh decision. In post remand proceedings the suits filed by the petitioners were decreed in their favour vide ex parte judgments and decrees dated 20.12.2000 passed by the learned Civil Judge, Gujranwala. In the meantime the vendees/defendants had further transferred the pre-empted properties to the respondents herein, who being aggrieved of the said ex parte decree dated 20.12.2000 filed separate applications under section 12(2), C.P.C. The said applications after full fledged trial were dismissed by the learned court of first instance vide orders dated 22.12.2006. The subsequent vendees/respondents herein assailed these orders by filing revision petitions, which were accepted vide judgment dated 15.11.2008 passed by the learned Additional District Judge, Gujranwala and while allowing the applications under section 12(2), C.P.C. the judgments and decrees dated 20.12.2000 were set aside resulting in dismissal of the main suits for pre-emption filed by the petitioners. Being dissatisfied therewith, the instant writ petitions have been filed before this court.
3. Learned counsel for the petitioners have argued that the subsequent vendees/respondents had no locus standi to challenge the validity of the decree dated 20.12.2000 by filing applications under section 12(2), C.P.C.; that decree of pre-emption suit even after Said Kamal Shah's case (supra) was not void, but the same was protected under section 35 of the Punjab Pre-emption Act, 1991 and merely on that ground the applications under section 12(2), C.P.C. could not be maintained by the subsequent transferees as they had purchased the suit property during the pendency of the suits for possession through pre-emption filed by the petitioners and the transactions for the transfer of the suit land in their favour was hit by the rule of lis pendens, who having no locus standi to file the applications under section 12(2), C.P.C., the same are liable to be dismissed by allowing these writ petitions. Reliance has been placed upon Muhammad Khan and another v. Massan and others (1999 SCMR 2464), Karim Bakhsh and 4 others v. Riaz Hussain and another (1993 SCMR 1667), Manzoor Hussain v. Muhammad Nawaz and 2 others (2009 YLR 695), Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Munawar Hussain etc. v. Messers Nisar and Co. and others (1976 SCMR 385).
4. Conversely learned counsel for the respondents argued that after the pronouncement of Said Kamal Shah's case (supra) wherein august Supreme Court of Pakistan has categorically made it clear that all the suits and appeals pending adjudication on 31.07.1986 in which a decree for pre-emption had not been passed in favour of the pre-emptor at some earlier point of time would be deemed to have been abated meaning thereby that all such cases should have terminated and annulled would come to an end by the operation of the law enunciated in the decisions supra and as such the learned trial court was not within its jurisdiction to decree the suit for pre-emption in the year 2000; that any person can file application under section 12(2), C.P.C. and it is not requirement of law that only judgment-debtor or the aggrieved person can only challenge the validity of judgment, but what is intended by section 12(2), C.P.C. is that a party must go to that Court which has finally decided the matter, if it desires to secure reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction and placed reliance on the judgment reported as Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516). It is further argued that the suits for pre-emption filed by the petitioners in the earlier round of litigation were dismissed in the year 1980 and such dismissal of suits cannot be construed a decree in favour of the plaintiffs/pre-emptors; that if a decree in favour of plaintiff was not passed before the above referred target date, the pending proceedings could not continue in accordance with the repealed Act and reliance has been placed upon Babar Shehzad v. Said Akbar and another (1999 SCMR 2518). Lastly while placing reliance on Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others (PLD 2013 SC 364) prayer has been made for the dismissal of all these writ petitions having no merits.
5. Arguments heard and the documents appended with the writ petitions as well as the case law perused.
6. It is admitted fact that the suits for pre-emption had been filed by the petitioners/pre-emptors in the year 1974, which were initially dismissed by the learned trial court vide judgments and decrees dated 28.09.1980 and it has been specifically provided under subsection (1) of section 35 of the Punjab Pre-emption Act, 1991 that all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect. For facility of reference the said provisions are reproduced hereunder:-
"35. Saving. - (1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad' in the presence of two truthful witnesses."
7. The contention of the learned counsel for the petitioners that the suits filed by the petitioners were protected under the aforesaid provisions is misconceived as it has specifically been laid down therein that only those suits could proceed, if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses, which is not the case in hand. Even otherwise the questions involved in this case have already been authoritatively resolved by the august Supreme Court of Pakistan in Syed Mehmood Ali Shah's case (supra) authored by his lordship Mian Saqib Nisar while declaring that as per the law laid down in Government of N.W.F.P. through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), which has been further elucidated by five Member Bench of this Court in. Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), it has been categorically held and made clear that all the suits, appeals etc. pending adjudication on 31-7-1986 in which a decree for pre-emption had not been passed in favour of the pre-emptor by the said date, stood abated, meaning thereby, that all such cases should terminate, stood annulled and the very existence of the case would come to an end by the operation of the law as enunciated in the decisions supra, which was the command of the law, declared in the afore-mentioned dicta and (such law) had to take effect ipso jure, without any recourse to anything else, except, however, only a formal order of the Court in that context was needed to eliminate the case from the cause list of the Court and consigning them to the record room, otherwise for all intents and purposes it was a dead wood. Therefore, no valid suits on behalf of the petitioner could be deemed in law to be pending before the Court in respect whereof the Court in the light of the above mandate of law could exercise its jurisdiction. Even this could not be done with the consent of the defendant(s) of the pre-emption suit, especially when such consent decision was likely to affect the rights of persons who were not party thereto.
8. In view of the aforesaid dictum rendered by the august Supreme Court of Pakistan, which is binding on all the subordinate courts under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, it was the duty of the court seized with the trial of the suits filed by the petitioners, itself to consign the same to the record room, which could not proceed any further after the target date of 31.7.1986 as the said suits did not fall in the category wherein decree had been passed at some prior point of time rather the same were dismissed in the year 1980 and subsequently were remanded for decision afresh. Hence the suits, which were termed as "dead wood" by the august Supreme Court of Pakistan could not be validly decreed vide ex parte judgments and decrees dated 20.12.2000 even if the vendees had opted not to contest the suits and they did not appear in the court, who had already lost their interest in the property having sold the same to the applicants of petitions filed under section 12(2), C.P.C. The contention of the learned counsel for the petitioners that the vendees had never assailed the aforesaid judgments and decrees and the subsequent purchasers/respondents were not authorized to file applications under section 12(2), C.P.C. against the judgments and decrees dated 20.12.2000 is also not tenable in view of the dictum laid down in Syed Mehmood Ali Shah's case (supra). The relevant portion is reproduced as under:-
"3. As far as the submission, that the respondents had no locus standi to file the application under section 12(2), C.P.C., is concerned, suffice it to say that it is the respondents, who in fact, on account of the dubious conduct of the parties, particularly their predecessor-in-interest Mujeeb Alam, were being deprived from the property which they had purchased on the basis of a decree, therefore, they could validly maintain an action under section 12(2), C.P.C. We are also not convinced if in the facts and circumstances of the case, the law laid down in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Mst. Tabbasum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) is attracted to the matter in hand. It is settled principle of law that fraud vitiates the most solemn proceedings and transactions, besides, the consent decree in this case was void on account of the reasons given above, the fraud in this case is obvious on the face of the record played upon by the petitioner along with Mujeeb Alam etc. and, therefore, the petitioner cannot be allowed to have the premium of their own fraud."
Even the case law cited by learned counsel for the petitioners has been discussed and declared distinguishable, which is also not found applicable to the facts and circumstances of the instant case. I am in full agreement with the contention of learned counsel for the respondents that any person can file application under section 12(2), C.P.C. and it is not requirement of law that only judgment-debtor or the aggrieved person can challenge the validity of judgment, but what is intended by section 12(2), C.P.C. is that a party must go to that Court which has finally decided the matter, if it desires to secure reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction in view of the dicta laid down in Khawaja Muhammad Yousaf's case (supra). The judgments and decrees dated 20.12.2000 had been passed by the learned trial court in the suits filed by the petitioners after the target date of 31.07.1986 and the same have rightly been annulled by the learned revisional court. The contention of the learned counsel for the petitioners at the fag end of the arguments that the learned revisional court was not within the jurisdiction to alter the findings of the learned trial court is misconceived and has no substance. The plaintiffs/petitioners were left with no cause of action against the vendees after the target date of 31.7.1986, who had already sold out the property to the applicants of petitions under section 12(2), C.P.C. and the learned lower revisional court was quite competent to correct the wrong order passed by the learned trial court. Reliance can be placed upon the judgments reported as Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2006 MLD 12), Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2005 CLC 1704), Basit Ali v. Additional Chief Secretary (2005 MLD 599), Lahore Cantt. Cooperative Society Limited v. Muhammad Asif (1998 MLD 1850) and Muhammad v. Shehbaz etc. (2004 YLR 1180).
9. For what has been discussed above, I do not find any merit in all the writ petitions, which are dismissed accordingly.
ZC/B-29/L Petitions dismissed.
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
Mst. BASHIRAN BIBI and 5 others----Petitioners
Versus
NAEEM ASIF MUGHAL and 10 others----Respondents
W.Ps.Nos.3093 to 3102 of 2009, heard on 19th September, 2014.
(a) Punjab Pre-emption Act (I of 1913)---
----Ss. 15 & 35---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Superior right of pre-emption---Ex parte decree, application for setting aside of---Requirements---Trial Court dismissed application for setting aside ex-parte decree which was accepted by the Appellate Court and suits were dismissed---Contention of the respondents-plaintiffs was that subsequent vendees had no locus standi to challenge the validity of decree by filing an application under S.12(2), C.P.C.---Validity---Suits for pre-emption were filed in the year, 1974 which were initially dismissed by the Trial Court---All decrees, judgments or orders dismissing the suits for pre-emption instituted or pending between 1st day of August 1986 and 28th day of March 1990 (both days inclusive) in which right of pre-emption had been claimed would have no legal effect---Only those suits could proceed in which pre-emptor had established that he had made Talb-i-Ishhad in presence of two truthful witnesses which was not the case---All suits and appeals pending adjudication on 31-07-1986 in which a decree for pre-emption had not been passed by the said date would stand abated---All such suits were to terminate, stood annulled and the very existence of such cases would come to an end by operation of law without any recourse to anything else---Only a formal order of the court to eliminate such cases from the cause list and consigning them to the record room was needed---No valid suits on behalf of respondents-plaintiffs could be deemed to be pending before the court---Trial Court seized with the trial of such suits was bound to consign the same to the record room which could not proceed further after target date of 31-07-1986---Said suits did not fall in the category wherein decree had been passed at some prior point of time rather same were dismissed in the year 1980 and subsequently were remanded---Said suits could not be validly decreed, even if vendees had opted not to contest the same---Requirement of law was not that only judgment debtor or the aggrieved person could challenge the validity of judgment under S.12(2), C.P.C.---Said application had to be filed before the court which had finally decided the matter if the same was required to be reversed on the ground of fraud, misrepresentation or want of jurisdiction---Impugned judgments and decrees were passed after the target date of 31-07-1986 which had rightly been annulled by the Appellate Court---Plaintiffs-respondents were left with no cause of action against the vendees after the target date of 31-07-1986---Revisional court was competent to correct the wrong order passed by the Trial Court---Constitutional petition was dismissed, in circumstances. [paras. 6, 7, 8 & 9 of the judgment]
Muhammad Khan and another v. Massan and others 1999 SCMR 2464; Karim Bakhsh and 4 others v. Riaz Hussain and another 1993 SCMR 1667; Manzoor Hussain v. Muhammad Nawaz and 2 others 2009 YLR 695; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Munawar Hussain and others v. Messrs Nisar and Co. and others 1976 SCMR 385; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Babar Shehzad v. Said Akbar and another 1999 SCMR 2518 and Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364 ref.
Muhammad Khan and another v. Massan and others 1999 SCMR 2464; Karim Bakhsh and 4 others v. Riaz Hussain and another 1993 SCMR 1667; Manzoor Hussain v. Muhammad Nawaz and 2 others 2009 YLR 695; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Munawar Hussain and others v. Messrs Nisar and Co. and others 1976 SCMR 385 distinguished.
Government of N.W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others 2006 MLD 12; Mst. Sarwar Jan and 8 others v. District Judge Bagh and other 2005 CLC 1704; Basit Ali v. Additional Chief Secretary 2005 MLD 599; Lahore Cantt. Cooperative Society Limited v. Muhammad Asif 1998 MLD 1850 and Muhammad Shahbaz and others' case 2004 YLR 1180 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2)---Application for setting aside of judgment/decree under S.12(2), C.P.C.---Requirements---Any person could file application under S.12(2), C.P.C.---Requirement of law was not that only judgment debtor or the aggrieved person could challenge the validity of judgment under S.12(2), C.P.C.---Such application had to be filed before the court which had finally decided the matter if same was required to be reversed on the ground of fraud, misrepresentation or want of jurisdiction. [para. 8 of the judgment]
(c) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope---Revisional court was competent to correct the wrong order passed by the Trial Court. [para. 8 of the judgment]
(d) Constitution of Pakistan---
----Art. 189---Judgment of Supreme Court---Binding effect---Dictum of Supreme Court was binding on all the subordinate courts. [para. 8 of the judgment]
Malik Noor Muhammad Awan for Petitioners (in W.Ps.Nos.3093 to 3097 of 2009 and Malik Abdul Wahid for Petitioners (in W.Ps.Nos.3098 to 3102 of 2009).
Naveed Shehryar Sheikh, Sajid Aman Barki, Humaira Bashir Chaudhry, Fatima Malik and Bashir Ahmad Mirza for Respondents.
Date of hearing: 19th September, 2014.
JUDGMENT
CH. MUHAMMD MASOOD JAHANGIR, J.---This judgment will dispose of W.Ps. Nos. 3093-2009, 3094-2009, 3095-2009, 3096-2009, 3097-2009, 3098-2009, 3099-2009, 3100-2009, 3101-2009 and 3102-2009 as similar questions of facts and law are involved that different suits four possession through pre-emption had been filed under section 15(3) of the Punjab Pre-emption Act, 1913 before the learned Civil Court at Gujranwala in the year 1974, which were decreed vide judgment and decree dated 20.12.2000 passed by the learned Civil Judge, Gujranwala and in view of the dictum laid down by the august Supreme Court of Pakistan in Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) whether the learned Civil Court was justified to decree the said suits after the target date i.e. 31.07.1986 and the same could be annulled while exercising jurisdiction vested under section 12(2), C.P.C. at the instance of the subsequent purchasers of the pre-empted land.
2. Precisely the facts are that the petitioners in each writ petition had filed separate suits for pre-emption under section 15(3) of the Punjab Pre-emption Act, 1913 before the learned Civil Court at Gujranwala against different vendees in the year 1974, which were contested by the vendees/defendants and initially the suits were dismissed in the year 1980. However, the first appellate court accepted the appeals filed by the petitioners in the year 1984 and remanded the cases to the learned trial court for its fresh decision. In post remand proceedings the suits filed by the petitioners were decreed in their favour vide ex parte judgments and decrees dated 20.12.2000 passed by the learned Civil Judge, Gujranwala. In the meantime the vendees/defendants had further transferred the pre-empted properties to the respondents herein, who being aggrieved of the said ex parte decree dated 20.12.2000 filed separate applications under section 12(2), C.P.C. The said applications after full fledged trial were dismissed by the learned court of first instance vide orders dated 22.12.2006. The subsequent vendees/respondents herein assailed these orders by filing revision petitions, which were accepted vide judgment dated 15.11.2008 passed by the learned Additional District Judge, Gujranwala and while allowing the applications under section 12(2), C.P.C. the judgments and decrees dated 20.12.2000 were set aside resulting in dismissal of the main suits for pre-emption filed by the petitioners. Being dissatisfied therewith, the instant writ petitions have been filed before this court.
3. Learned counsel for the petitioners have argued that the subsequent vendees/respondents had no locus standi to challenge the validity of the decree dated 20.12.2000 by filing applications under section 12(2), C.P.C.; that decree of pre-emption suit even after Said Kamal Shah's case (supra) was not void, but the same was protected under section 35 of the Punjab Pre-emption Act, 1991 and merely on that ground the applications under section 12(2), C.P.C. could not be maintained by the subsequent transferees as they had purchased the suit property during the pendency of the suits for possession through pre-emption filed by the petitioners and the transactions for the transfer of the suit land in their favour was hit by the rule of lis pendens, who having no locus standi to file the applications under section 12(2), C.P.C., the same are liable to be dismissed by allowing these writ petitions. Reliance has been placed upon Muhammad Khan and another v. Massan and others (1999 SCMR 2464), Karim Bakhsh and 4 others v. Riaz Hussain and another (1993 SCMR 1667), Manzoor Hussain v. Muhammad Nawaz and 2 others (2009 YLR 695), Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Munawar Hussain etc. v. Messers Nisar and Co. and others (1976 SCMR 385).
4. Conversely learned counsel for the respondents argued that after the pronouncement of Said Kamal Shah's case (supra) wherein august Supreme Court of Pakistan has categorically made it clear that all the suits and appeals pending adjudication on 31.07.1986 in which a decree for pre-emption had not been passed in favour of the pre-emptor at some earlier point of time would be deemed to have been abated meaning thereby that all such cases should have terminated and annulled would come to an end by the operation of the law enunciated in the decisions supra and as such the learned trial court was not within its jurisdiction to decree the suit for pre-emption in the year 2000; that any person can file application under section 12(2), C.P.C. and it is not requirement of law that only judgment-debtor or the aggrieved person can only challenge the validity of judgment, but what is intended by section 12(2), C.P.C. is that a party must go to that Court which has finally decided the matter, if it desires to secure reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction and placed reliance on the judgment reported as Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516). It is further argued that the suits for pre-emption filed by the petitioners in the earlier round of litigation were dismissed in the year 1980 and such dismissal of suits cannot be construed a decree in favour of the plaintiffs/pre-emptors; that if a decree in favour of plaintiff was not passed before the above referred target date, the pending proceedings could not continue in accordance with the repealed Act and reliance has been placed upon Babar Shehzad v. Said Akbar and another (1999 SCMR 2518). Lastly while placing reliance on Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others (PLD 2013 SC 364) prayer has been made for the dismissal of all these writ petitions having no merits.
5. Arguments heard and the documents appended with the writ petitions as well as the case law perused.
6. It is admitted fact that the suits for pre-emption had been filed by the petitioners/pre-emptors in the year 1974, which were initially dismissed by the learned trial court vide judgments and decrees dated 28.09.1980 and it has been specifically provided under subsection (1) of section 35 of the Punjab Pre-emption Act, 1991 that all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect. For facility of reference the said provisions are reproduced hereunder:-
"35. Saving. - (1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad' in the presence of two truthful witnesses."
7. The contention of the learned counsel for the petitioners that the suits filed by the petitioners were protected under the aforesaid provisions is misconceived as it has specifically been laid down therein that only those suits could proceed, if the pre-emptor establishes that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses, which is not the case in hand. Even otherwise the questions involved in this case have already been authoritatively resolved by the august Supreme Court of Pakistan in Syed Mehmood Ali Shah's case (supra) authored by his lordship Mian Saqib Nisar while declaring that as per the law laid down in Government of N.W.F.P. through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), which has been further elucidated by five Member Bench of this Court in. Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), it has been categorically held and made clear that all the suits, appeals etc. pending adjudication on 31-7-1986 in which a decree for pre-emption had not been passed in favour of the pre-emptor by the said date, stood abated, meaning thereby, that all such cases should terminate, stood annulled and the very existence of the case would come to an end by the operation of the law as enunciated in the decisions supra, which was the command of the law, declared in the afore-mentioned dicta and (such law) had to take effect ipso jure, without any recourse to anything else, except, however, only a formal order of the Court in that context was needed to eliminate the case from the cause list of the Court and consigning them to the record room, otherwise for all intents and purposes it was a dead wood. Therefore, no valid suits on behalf of the petitioner could be deemed in law to be pending before the Court in respect whereof the Court in the light of the above mandate of law could exercise its jurisdiction. Even this could not be done with the consent of the defendant(s) of the pre-emption suit, especially when such consent decision was likely to affect the rights of persons who were not party thereto.
8. In view of the aforesaid dictum rendered by the august Supreme Court of Pakistan, which is binding on all the subordinate courts under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, it was the duty of the court seized with the trial of the suits filed by the petitioners, itself to consign the same to the record room, which could not proceed any further after the target date of 31.7.1986 as the said suits did not fall in the category wherein decree had been passed at some prior point of time rather the same were dismissed in the year 1980 and subsequently were remanded for decision afresh. Hence the suits, which were termed as "dead wood" by the august Supreme Court of Pakistan could not be validly decreed vide ex parte judgments and decrees dated 20.12.2000 even if the vendees had opted not to contest the suits and they did not appear in the court, who had already lost their interest in the property having sold the same to the applicants of petitions filed under section 12(2), C.P.C. The contention of the learned counsel for the petitioners that the vendees had never assailed the aforesaid judgments and decrees and the subsequent purchasers/respondents were not authorized to file applications under section 12(2), C.P.C. against the judgments and decrees dated 20.12.2000 is also not tenable in view of the dictum laid down in Syed Mehmood Ali Shah's case (supra). The relevant portion is reproduced as under:-
"3. As far as the submission, that the respondents had no locus standi to file the application under section 12(2), C.P.C., is concerned, suffice it to say that it is the respondents, who in fact, on account of the dubious conduct of the parties, particularly their predecessor-in-interest Mujeeb Alam, were being deprived from the property which they had purchased on the basis of a decree, therefore, they could validly maintain an action under section 12(2), C.P.C. We are also not convinced if in the facts and circumstances of the case, the law laid down in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) and Mst. Tabbasum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) is attracted to the matter in hand. It is settled principle of law that fraud vitiates the most solemn proceedings and transactions, besides, the consent decree in this case was void on account of the reasons given above, the fraud in this case is obvious on the face of the record played upon by the petitioner along with Mujeeb Alam etc. and, therefore, the petitioner cannot be allowed to have the premium of their own fraud."
Even the case law cited by learned counsel for the petitioners has been discussed and declared distinguishable, which is also not found applicable to the facts and circumstances of the instant case. I am in full agreement with the contention of learned counsel for the respondents that any person can file application under section 12(2), C.P.C. and it is not requirement of law that only judgment-debtor or the aggrieved person can challenge the validity of judgment, but what is intended by section 12(2), C.P.C. is that a party must go to that Court which has finally decided the matter, if it desires to secure reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction in view of the dicta laid down in Khawaja Muhammad Yousaf's case (supra). The judgments and decrees dated 20.12.2000 had been passed by the learned trial court in the suits filed by the petitioners after the target date of 31.07.1986 and the same have rightly been annulled by the learned revisional court. The contention of the learned counsel for the petitioners at the fag end of the arguments that the learned revisional court was not within the jurisdiction to alter the findings of the learned trial court is misconceived and has no substance. The plaintiffs/petitioners were left with no cause of action against the vendees after the target date of 31.7.1986, who had already sold out the property to the applicants of petitions under section 12(2), C.P.C. and the learned lower revisional court was quite competent to correct the wrong order passed by the learned trial court. Reliance can be placed upon the judgments reported as Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2006 MLD 12), Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2005 CLC 1704), Basit Ali v. Additional Chief Secretary (2005 MLD 599), Lahore Cantt. Cooperative Society Limited v. Muhammad Asif (1998 MLD 1850) and Muhammad v. Shehbaz etc. (2004 YLR 1180).
9. For what has been discussed above, I do not find any merit in all the writ petitions, which are dismissed accordingly.
ZC/B-29/L Petitions dismissed.
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