Judgment Sheet
IN THE HIGH COURT OF SINDHKARACHI
Constitutional Petition No. D – 277 of 2012
____________________________________________________________
Date Order with signature of Judge .
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
1. For Katcha Peshi :
2. For hearing of Misc. No.1623/2012 :
Petitioner : Muhammad Iqbal through
Mr. Fazal-ur-Rehman, Advocate.
Respondent No.1 : Muhammad Ahmed Ramzani, through
Mr. Muhammad Arshad Tariq, Advocate.
Date of hearing : 07.05.2013.
J U D G M E N T
Nadeem Akhtar, J. – Through this Constitutional Petition, the petitioner has challenged the judgment delivered on 04.01.2012 by the Vth Additional District Judge, Karachi East, in Civil Revision Application No.120/2010 filed by him, and the order dated 23.10.2010 passed by the Ist Senior Civil Judge, Karachi East, in the petitioner’s Suit No.235/2002. By the impugned order dated 23.10.2010 passed in Suit No.235/2002, the application filed by the petitioner under Section 12(2) CPC was dismissed, and vide impugned judgment dated 04.01.2012 passed by the Revisional Court, the Revision Application filed against the said order by the petitioner, was also dismissed.
2. The relevant facts of this case are that the petitioner filed a Suit against the respondent for possession, declaration and permanent injunction, which was registered as Suit No.235/2002 in the Court of Ist Senior Civil Judge, Karachi East. The case of the petitioner was that he was the owner of Quarter No.841, Sector 32-B, Korangi Karachi, measuring 120 sq. yds. (the entire property), which was divided into three portions of 64 sq. yds., 32 sq. yds., and 32 sq. yds. ; the respondent, who was his cousin and was shelter- less, was given one portion of 32 sq. yds. (the suit property)by the petitioner on humanitarian ground only for occupation ; after about 5/6 years, the petitioner requested the respondent to vacate the suit property, but the respondent failed to do so and he ultimately refused to hand over the possession to the petitioner ; and, the respondent was also trying to sell the suit property. On the basis of the above averments, it was prayed by the petitioner that he may be declared as the lawful owner of the entire property, including the suit property ; the respondent be directed to hand over the possession of the suit property to him ; and, the respondent be restrained from selling, transferring or alienating the suit property.
3. The service on the respondent was held good in the Suit, and a counsel filed power on his behalf and also an application for grant of time to file written statement. The application was allowed by the trial court, but since no written statement was filed on behalf of the respondent within the stipulated period, he was declared ex parte by the trial court vide order dated 23.10.2002. Thereafter, the respondent filed an application under Order IX Rule 13 CPC on 26.10.2002 for recalling the order dated 23.10.2002, which was granted by the trial court vide order dated 17.03.2003, and the respondent was directed to file written statement within a week. Despite this concession, the respondent did not file his written statement, and as such the proceedings were declared exparte against him by the trial court for the second time vide order dated 31.03.2003. The petitioner filed his affidavit in ex parte proof, and produced the evidence in support of his ownership and claim. After examining the record and hearing the petitioner, his Suit was decreed by the trial court vide judgment delivered and decree prepared on 16.09.2003, whereby the respondent was directed to hand over the vacant and peaceful possession of the suit property to the petitioner within 120 days.
4. Against the aforementioned decree passed in favour of the petitioner, the respondent filed an appeal on 26.04.2004, which was registered as Civil Appeal No.84/2004 in the Court of IIIrd Additional District Judge, Karachi East. The appeal was hopelessly barred by time, therefore, the respondent filed therein an application under Section 5 of the Limitation Act, 1908, for condonation of the delay, admitting that the appeal was barred by 6 months and 10 days. The only explanation given by the respondent in his said application for the delay in filing the appeal was that the parties had arrived at a family settlement and the petitioner had executed an Iqrarnama that he will withdraw the Suit and will not contest the matter. It was stated by the respondent that due to the above reason he did not file his written statement in the petitioner’s Suit and did not contest the same. It is pertinent to note that for about three years, that is, from 26.04.2004 till March 2007, no order was passed by the lower appellate court on the above application filed by the respondent for condonation of delay in filing the appeal, nor was the appeal proceeded with.
5. After about three years from the filing of the appeal along with the application for condonation of delay, a compromise application was filed on 24.03.2007 before the lower appellate court which was signed by the respondent, his counsel, the petitioner’s alleged attorney, and his counsel. This application was not signed by the petitioner. It was stated in this compromise application that the petitioner had surrendered in favour of the respondent all his rights of ownership in respect of the entire property; the respondent was at liberty to get the entire property transferred / mutated in his name from CDGK ; the original title documents of the entire property were handed over by the petitioner to the respondent ; and, in case of failure by the petitioner to execute the sale deed in favour of the respondent, the respondent would be entitled to get the sale deed of the entire property registered in his favour through the Nazir. Vide judgment dated 31.03.2007, the lower appellate court accepted the compromise in view of the no objection given by the petitioner’s counsel, the judgment and decree passed in favour of the petitioner and against the respondent by the trial court were set aside, the appeal filed by the respondent was allowed, and the matter was remanded back to the trial court with the direction to decide the matter afresh in accordance with law.
6. It is worth mentioning here that, though the dispute was only in respect of the suit property measuring 32 sq. yds., but the alleged compromise was filed and got recorded through the lower appellate court in the absence of the petitioner in respect of the entire property measuring 120 sq. yds. It is also to be noted that after accepting and allowing the alleged compromise, there was no justification for the lower appellate court to remand the case back to the trial court for decision afresh.
7. After remand of the case, an identical compromise application containing the same terms and conditions was filed before the trial court on04.05.2007, signed by the respondent, his counsel, the petitioner’s alleged attorney, and his counsel. This application was also not signed by the petitioner. On the same day, that is on 04.05.2007, this application was placed before the trial court in the absence of the petitioner / plaintiff, when the respondent / defendant and the alleged attorney of the petitioner / plaintiff were present. By order dated 04.05.2007, the petitioner’s Suit was disposed of in terms of the compromise, and it was ordered that a preliminary decree be prepared. Accordingly, a preliminary decree was prepared on 07.05.2007. Strangely enough, the respondent immediately filed Execution Application No.12/2007 on 06.07.2007, although the matter had been compromised according to him through a family settlement.
8. In May, 2010, the petitioner filed an application under Section 12(2) CPC before the trial court for recalling / setting aside the order dated 04.05.2007 and the preliminary decree dated 07.05.2007 passed in pursuance thereof, on the ground that the same had been obtained by the respondent / defendant through misrepresentation and fraud. It was asserted by the petitioner that the purported power of attorney was meant only for Civil Appeal No.84/2004 filed by the respondent as mentioned in paragraph 4 of the power, and not for his Suit ; the petitioner had not authorized anyone as his attorney to represent him in his Suit in respect of the suit property or the entire property ; he never compromised the matter with the respondent nor did he submit any compromise before the trial court ; and, the entire exercise was fraudulent and malafide as the same was done in his absence and behind his back. It was also pleaded by the petitioner that the alleged compromise was accepted by the trial court without applying its judicial mind, as on the one hand the alleged compromise was totally one sided and without any consideration, and on the other hand, no relief or the preliminary decree could be granted to the respondent in the petitioner’s Suit in pursuance of the alleged compromise. It was stated that the petitioner came to know about the orders on the compromise applications passed by the lower appellate court and the trial court through Suit No.1149/2009 filed by the respondent against him and some other persons for permanent injunction. The respondent filed his counter affidavit to the application filed by the petitioner under Section 12(2) CPC, which was dismissed by the trial court vide order dated 23.10.2010 after hearing. Being aggrieved with the said order of dismissal of his application, the petitioner filed Civil Revision Application No.120/2010, which was also dismissed by the Revisional Court through the impugned judgment dated 04.01.2012.
9. We have heard the learned counsel for the parties and have also examined the record and proceedings of both the courts below. The learned counsel for the petitioner submitted that the trial court and the Revisional Court erred in dismissing the petitioner’s application under Section 12(2) CPC without framing issues, as the serious allegations of fraud and misrepresentation raised by the petitioner could only be decided through evidence. He further submitted that no relief or decree could be granted to the respondent / defendant in the Suit filed by the petitioner / plaintiff, as the maximum relief that could be granted to a defendant is when the Suit against him is dismissed. He also submitted that the impugned preliminary decree was granted to the respondent / defendant without his filing any counter claim in the petitioner’s Suit and paying the requisite court fee thereon. The learned counsel also reiterated the grounds urged by the petitioner in his application under Section 12(2) CPC.
10. In reply to the submissions made on behalf of the petitioner, the learned counsel for the respondent supported the impugned judgment and order. He maintained that there was a family settlement between the parties and the compromise was effected in pursuance thereof with the consent and knowledge of the petitioner. He contended that there was no misrepresentation and / or fraud either on the part of the respondent or in the proceedings, and that the application filed by the petitioner under Section 12(2) CPC was malafide. He prayed for the dismissal of this petition.
11. Before discussing the respective contentions of the parties, especially the grounds of fraud and misrepresentation alleged by the petitioner, we would like to dilate upon an important aspect of this case. The Suit filed by the petitioner was decreed against the respondent on 16.09.2003. It is an admitted position that Civil Appeal No.84/2004 filed by the respondent against the said decree was barred by 06 months and 10 days and he had filed an application in his said appeal for condonation of such long delay. It is also an admitted position that for about three years, that is, from 26.04.2004 till March 2007, no order was passed by the lower appellate court on the above application filed by the respondent. The purported compromise application was filed before the lower appellate court on 24.03.2007, and vide judgment dated 31.03.2007, the compromise was allowed by the lower appellate court in view of the no objection given by the petitioner’s counsel, whereby the judgment and decree passed by the trial court in favour of the petitioner and against the respondent were set aside, the appeal filed by the respondent was allowed, and the matter was remanded back to the trial court with the direction to decide the matter afresh in accordance with law. It is important to note that, when the purported compromise was filed and allowed and the judgment in pursuance thereof was pronounced by the lower appellate court, the application filed by the respondent in his Civil Appeal No.84/2004 for condonation of the delay, was pending, and the delay in filing the appeal by the respondent had not been condoned by the lower appellate court. As such, the purported compromise was allowed and judgment was pronounced by the lower appellate court in an appeal which was admittedly barred by time.
12. In the above context, we would like to observe that the jurisdiction of a court is always subject to limitation. If the proceeding brought before a court is barred by time, the court cannot assume jurisdiction and shall have no jurisdiction in the matter, unless the delay is condoned first. Till such time, the jurisdiction of the court will be restricted only to the extent of deciding the question of limitation. In case such question is decided by the court by declining to condone the delay, the proceeding shall remain time barred and the matter will end there. On the other hand, if the delay is condoned, only then shall the court have the jurisdiction to proceed further in the matter. Thus, it is mandatory for the court to decide the question of limitation before entertaining the matter and before passing any other order therein. Since the court shall not have jurisdiction in a time barred proceeding in view of our above observations, all steps taken and orders passed in any such time barred proceeding, and in all proceedings arising therefrom, shall be void and without jurisdiction. The last view expressed by us is supported by Mansab Ali V/S Amir and 3 others, PLD 1971 Supreme Court 124, wherein a Larger Bench comprising of five learned Judges of the Hon’ble Supreme Court was pleased to hold that it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction ; and, any order passed in continuation of such proceedings, in appeal or revision, equally suffer from illegality and are without jurisdiction.
13. In the instant case, the mandatory condition of deciding the question of limitation first, was not fulfilled by the lower appellate court. As the purported compromise was allowed and judgment was pronounced by the lower appellate court in an appeal which was admittedly barred by time, the judgment dated 31.03.2007 by the lower appellate court in respondent’s Civil Appeal No.84/2004, was illegal and coram non judice. The subsequent order dated 04.05.2007 and the preliminary decree dated 07.05.2007 of the trial court, were passed in pursuance of the said judgment dated 31.03.2007. Since the said judgment dated 31.03.2007 passed by the lower appellate court was illegal and coram non judice, the aforementioned order dated 04.05.2007 and the preliminary decree dated 07.05.2007 passed by the trial court, were also illegal and coram non judice in view of the well-established principle that when the very foundation is held to be illegal or void, the entire superstructure built thereon automatically falls to the ground.
14. We are of the view that Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973, has conferred the general power upon the High Court, without any limits, fetters or restrictions, to supervise and control all subordinate courts in all administrative as well as judicial matters, and has made the High Court the custodian of justice within the territorial limits of its jurisdiction. There is no doubt in our minds that in cases where there is a total absence of jurisdiction or the manifest excess of jurisdiction, the High Court will not refrain in exercising its power under Article 203 (ibid) by remedying the error, mistake, wrong or illegality committed by a subordinate court. The error committed by the lower appellate court in the respondent’s Civil Appeal No.84/2004 was of such a nature that it cannot be ignored by this Court. Due to the said error, multiple errors crept into all subsequent proceedings resulting into not only multiplicity of proceedings, but also grave miscarriage of justice. Since the judgment and order impugned in this petition are the outcome of the aforementioned illegal and coram non judice judgment dated 31.03.2007 passed in the respondent’s Civil Appeal No.84/2004, the same cannot be allowed to remain in the field.
15. We, therefore, allow this petition and CMA No.1623/2012 with no order as to costs by setting aside the following judgments, orders and preliminary decree :-
i) impugned judgment delivered on 04.01.2012 by the Vth Additional District Judge, Karachi East, in Civil Revision Application No.120/2010 ;
ii) impugned order dated 23.10.2010 passed by the Ist Senior Civil Judge Karachi East in Suit No.235/2002 ;
iii) judgment dated 31.03.2007 delivered by the IIIrd Additional District Judge, Karachi East, in Civil Appeal No.84/2004 ;
iv) order dated 04.05.2007 passed by the Incharge / Link Judge, Ist Senior Civil Judge, Karachi East, in Suit No.235/2002 ; and
v) preliminary decree dated 07.05.2007 passed by the Incharge / Link Judge, Ist Senior Civil Judge, Karachi East, in Suit No.235/2002.
The matter is remanded to the District Judge, Karachi East, either to decide himself, or to direct the IIIrd Additional District Judge, Karachi East, or any other Additional District Judge, to decide the application filed in Civil Appeal No.84/2004 by the present respondent under Section 5 of the Limitation Act, 1908, in accordance with law, preferably within a period of 30 days from the date of their first appearance. The parties shall appear before the lower appellate court on 15.08.2013 for compliance of this Court’s order.
Chief Justice
Judge