1. ' RAM MUHAMMAD KHtJRSHID KHAN, J.-This certificated appeal by the appellant (vendee defendant) originally filed before the Judicial Board, as it was so named then, and later on transferred to this Court, calls in question the judgment of the High Court passed on 25th November, 1974, whereby a learned Single Judge accepting the appeal of the respondents, discharged the judgment and decree of the learned District Judge, Mirpur and restored the judgment passed by the learned Sub- Judge.
2. ' To appreciate the controversy the following facts, relevant to the dispute, may with advantage be stated :- ' One Maula Bakhsh (deceased) whose heirs are now arrayed as appellants, purchased the land measuring one kanal and 10 marlas vide a registered sale deed executed by Ghulam Muhammad pro forma-respondent No, 4 on 23rd July, 1965. Abdul Aziz, pro forma-respondent No, 5 on 2nd April, 1966, filed a suit for possession by pre-emption claiming to have right of prior purchase of the land in dispute being the son of Ghulam Muhammad vendor. Ghulam Hussain and others (respondents Nos. 1 to 3) also brought a pre-emption suit for possession of this very land on 19th July, 1966, against the vendee Maula Bakhsh deceased claiming to hail from the common ancestor of the vendor.
3. ' In the other pre-emption suit, Ghulam Hussain and others (rival pre-emptors) were not made a party. On 8th February, 1967, Abdul Aziz and Maula Bakhsh struck a compromise by which Abdul Aziz contended to have only 12 marlas of the land and abandoned his claim about the remaining 18 marlas in favour of Maula Bakhsh. Abdul Aziz thus got a decree for possession of land measuring only 12 marlas out of the suit land on 8th February, 1967, from the trial Court. In the cross suit of Ghulam Hussain and others (respondents) Abdul Aziz was impleaded as defendant after the aforementioned compromise decree on 21st December, 1967.
4. ' The learned Sub-Judge passed a decree for possession in favour of Ghulam Hussain and other rival pre-emptors only to the extent of 18 marlas of land and refused to pass a decree of the remaining 12 mar/as of land on the ground that compromise decree not having been challenged by the rival pre-emptors (respondents) by way of a suit or an appeal have attained finality.
5. ' Feeling dissatisfied by this judgment Maula Bakhsh vendee, went in appeal before the District Judge Mirpur. The learned District Judge allowed his appeal on the ground that the suit of the respondents (rival pre-emptors) shall be construed as a suit of partial pre-emption as they have failed to challenge successfully the compromise decree. Thus the suit of Ghulam Hussain and others (respondents) stood dismissed as per findings of the District Judge dated 21st January, 1973, as being hit by the principle of partial pre-emption. However, on second appeal before the High Court by Ghulam Hussain and others (pre-emptors) respondents, a learned Single Judge of the High Court, vide order dated 25th November, 1975, accepting the appeal reversed the finding of the learned District Judge and restored that of the learned Sub-Judge. The learned Judge in chambers, however, issued a certificate of fitness for filing an appeal before the Judicial Board (as it was so named then) on two fold grounds:
(i) Whether a rival pre-emptor is restrained by a consent decree obtained by the rival pre-emptor, when the rival pre-emptor was not impleaded as a party in the pre-emption suit as required under section 28 of the Pre-emption Act, and
(ii) Whether if in such a consent decree some land is left to the vendee, is it bit by the principle of partial pre-emption ?"
6. ' The learned counsel for the parties were heard. The learned Advocate for the appellants on being faced with an objection raised by the other party, conceded that the appeal is time barred. But for our own satisfaction when we looked into the relevant law, it pained us to know that the period of limitation prescribed for such appeals under the provisions of Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974 (section 14 of the Act) is 90 days and not thirty days as conceded by the learned counsel for the appellants from the date of the grant of the certificate by the High Court for filing such appeals. The certificate in this case was granted on 15th January, 1975. The appeal thus is well within time. The Advocates on the role of the Supreme Court are expected to look into the relevant law, lest their clients may suffer for their lack of caution and vigilance.
7. ' It may be stated here that Ghulam Hussain and other respondents (rival pre-emptors) neither moved any appeal nor filed cross objections. The appeal was filed by Maula Bakhsh vendee (deceased) before the first Appellate Court as well as before this Court.
8. ' The learned counsel for the appellants failed to make out a case of partial pre-emption meriting dismissal of the suit of respondents (rival pre-emptors). No such law was brought to our notice which could attract the rule of partial pre-emption in this case, nor any such law, in our knowledge, is in existence.
9. ' However, in the light of the above-mentioned circumstances, to do substantial justice between the parties, in exercise of the powers vested in the Supreme Court, under section 42-A of the Interim Constitution Act, 1974, we felt advised to issue notice to Abdul Aziz respondent to show cause as to why consent decree, which prima facie, was hit by the doctrine of partial pre-emption and also offended the provisions of section 27 of the Right of Prior Purchase Act in not impleading Ghulam Hussain and another (respondents) rival pre-emptors, in his suit, may not be vacated. He did not however appear in answer to the notice. However, the learned counsel for the appellants was asked to address the Court as to why the consent decree, in favour of the appellants, to the extent of 18 marlas, which was passed in the absence of rival pre-emptors, may not be vacated as it violates the provisions of section 27 of the Right of Prior Purchase Act.
10. ' On behalf of the appellants, it has been contended that even if the consent decree for non- impleading the respondents (rival pre-emptors) may not be valid, they are estopped to take advantage of it as it had attained finality for its having not been impeached by way of an appeal, suit or cross objections.
11. ' As against this, it has been urged on behalf of the respondents, that the consent decree being violative of the provisions of section 27 of the Right of Prior Purchase Act, is entirely without jurisdiction and a nullity. Such a void decree, according to him need not be set aside and is necessarily to be recalled and treated as void.
12. ' We have given due consideration to the arguments addressed at the bar. The question that arises for determination is, whether a decree in violation of section 27 of the Right of Prior Purchase Act is not impleading rival pre-emptors, is a void decree or voidable against the rival pre-emptors and whether such decree can be set aside without any appeal or cross objection.
13. ' Let, first question, he taken first. Section 27 reads :- "27. When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of other suits, and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right."
14. ' The plain reading of the section shows that in the case of several pre-emption suits arising out of the same sale under section 27 of the Right of Prior Purchase Act, the name of each plaintiff (pre- emptor) must be added as a party (defendant) in the suit of every other preemptor. The wisdom behind it is that such a course is necessary to enable the Court to adjudicate upon the contending claims. This section enacts a convenient procedure and its provisions being mandatory, their strict compliance is necessary. In such cases a duty is cast upon the Court to implead each rival pre- emptor as a defendant in the other suit. Besides in deciding the suit the Court shall in each decree state the order in which each claimant is enlitled to exercise his right. This is a mandatory provision of law and in this case as one of the suits (Abdul, Aziz's suit) is decided in the absence of the rival pre-emptors, the decision being in violation of the provisions of section 27 of the Right] of Prior Purchase Act is void and cannot be binding on them.
15. ' We may now refer to some of the relevant authorities. In PLD 1952 Lah. 489 (a Division Bench case) which had somewhat identical question, it was. Held by Mr. Justice S. A. Rehman, J. (as he then was) : "The decree passed in his favour was in violation of the terms of section 28 of the Act which prescribes that when more suits than one, arising out of the same sale or foreclosure, are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits, the Court shall, in each decree, state the order in which each claimant is entitled to exercise his right. There can be no doubt that if the procedure laid down In this section had been followed, section 17 of the Act would have been at once attracted to the case and, the appellant as well as Amir Baz Khan would each have been granted a decree for half the property. In my opinion, the decree obtained by Amir Baz Khan in these circumstances is of no avail to him as against the right of the appellant whose suit was pending at the same time." (The underlining* is ours).
16. ' To the same effect is Ghulam Tayyib v. Shahro Khan and others (1) it has been held in that case :- "Although personally I am doubtful whether Mool Chand's case was correctly decided, it has been followed in a number of other cases and the question does not arise for decision in the present case where two separate suits had been filed under section 28 of the Pre-emption Act, which lays down that 'when more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which (1) PLD 1962 B 1 each claimant is entitled to exercise his right'. The effect of the imperative provisions of this section is that if one of these suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff."
17. ' 1979 CLC 889 is a direct authority on the point. In that case, a suit for possession by pre-emption was brought by Jaffran Eibi appellant without impleading Saleh Muhammad rival pre-emptor.
18. Saleh Muhammad had brought another suit for possession by pre-emption it which he impleaded Mst. Jaffran Bibi as a party. Mst. Jaffran Bibr appellant secured a consent decree which was held as not binding on Saleh Muhammad rival pre-emptor and the suit of Saleh Muhammad was decreed in respect of whole property ignoring the decree obtained by the appellant. The finding returned by the learned Judge was :- "As the appellant did not implead Saleh Muhammad as party to her suit, the decree obtained by her is not binding upon Saleh Muhammad,"
19. We therefore, hold that the consent decree of 12 marlas of land in favour of Abdul Aziz, being in violation of the provision contained in section 27 of the Right of Prior Purchase Act is a nullity.
20. ' The most important question which still requires to be answered is whether the rival pre-emptors (Ghulam Hussain and others) who have failed to file an appeal, cross objections against the consent decree, are entitled to ignore it and have for them a decree of the total land measuring 1 kanal and 10 marlas.
21. ' In this respect, firstly it has been contended by the learned counsel for the appellant that a subordinate Court does not act illegally or with material irregularity if it decides wrongly a matter within its competence. According to him, the learned Sub-Judge had jurisdiction to decide a case wrongly as well as rightly and the consent decree as such having remained unchallenged shall stand. We are not impressed with this argument and are of the view that the decree is passed without jurisdiction. No doubt the difference between a total lack of jurisdiction and an irregularity is sometimes one of decree and a matter of difficulty. Every irregularity or even illegality in the exercise of jurisdiction does not render the order void and without jurisdiction. By merely, showing, therefore, that an order passed, was in violation of some provisions of law of procedure, the conclusion that the order is nullity, would not follow. It should further be shown that there was such a violation of some statutory provisions of principle of natural justice, which rendered proceedings coram non judice. It is correct that an error in a decision of subordinate Court does not, by itself involve that the subordinate Court has acted illegally or with a material irregularity so as to justify interference, nevertheless if erroneous decision results in the subordinate Court exercising a jurisdiction, net vested in it by law, o failing to exercise a jurisdiction so vested, decision in such a case is to be ignored as to have never been given.
22. ' It is elementary that if a mandatory condition for the exercise of jurisdiction by a Court is not fulfilled, the entire proceedings which follow, become illegal and suffer from inherent defect of jurisdiction.
23. ' Any order, passed in continuation of these proceedings, in appeal or revision equally suffers from illegality and is without jurisdiction. In the case before us, the consent decree, passed by the learned Sub-Judge in violation of the strict provisions of section 27 of the Right of Prior Purchase Act, is ab initio illegal. The proceedings based on such procedure culminating in the consent decree are therefore, without jurisdiction. There can also be no doubt that in such circumstances 'it could never be too late to admit and give effect to the plea that the decree was nullity'.
24. ' Therefore, the contention of the learned counsel, that the consent decree having remained unchallenged by way of an appeal or regular suit, remains valid and cannot be set aside, is without force and when this Court is seized with the case in appeal, is under the provisions of Order XLI, rule 33 which reads :- "33. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such farther or other decree or order as the case may' require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : ' Provided that the Appellate Court shall not make any order under section 53-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order" is clothed with the power to pass any decree and make any order which ought to have been passed or made by the subordinate Court and failure of any party to impeach the decree by way of appeal cross objections, does not create a bar. In S. M. S. Subramanian Chettiar and another v. Sinnammal and others (1). It was observed :- "Where a plaintiff, being dissatisfied with a decree passed in his favour, prefers an appeal, the Appellate Court, in a proper case, has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiff's case in toto, though the respondent did not prefer a cross-appeal or memorandum of objections challenging the decree passed by the first Court. (Underlining* is ours).
25. ' In this case AIR 1921 All. 367, AIR 1927 P C 252, AIR 1923 Mad. 392, AIR 1927 Mad. 620 and AIR 1925 Mad. 266 were relied upon. Similarly in a case entitled 'Messrs S. M. Yousaf & Bros. v. Mirza Muhammad Mehdi Pooya and another (2) the law on the point is enunciated to the effect :- "The terms of rule 33, 0. XL1, C. P. C. Are of the widest amplitude to enable an Appellate Court to pass decrees according to the (1) AIR 1030 Mad, 801 (2) PLD 1965 SC 15 justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's here the whole decree was before the appellate Court but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against a defendant would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle that 'in the absence of a counter appeal being filed a decree against another defendant cannot be given' not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
26. ' General propositions extracted from precedent cases to the effect that the power given, by the rule is widely expressed and must be applied with discretion, where interference is required "to adjust the right of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power "would lead to impossible, contradictory and unworkable orders" undoubtedly are considerations which would justify the exercise of the discretion conferred by the rule, but it is right to say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts."
27. In view of the above we hold that in the event a decree is nullity, absence of an appeal, suit or cross objections to avoid such decree is n bar for holding that such decree is inoperative and ineffective qua the rights of other rival contestants. It is also now well-recognized principle of law if a decree is a nullity, it would be ignored wherever it is preyed in service. The simple reason is that such a decree or order is considered as to have never been passed. In a case entitled Muhamma Swaleh and others v. Messrs United Grain & Fodder Agencies (1), the learned Court observed :- "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound (I) P D 1964 SC 97 to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction." (Underlining* is ours).
28. ' In view of the aforementioned state of law, with which we respectfully, against there is no escape but to hold that the consent decree obtained by Abdul Aziz and Mania Bakhsh (deceased vendee) is of no avail to them as against other plaintiff-pre-emptors whose suit was pending at that time and that they in the circumstances are entitled to a decree of the total land sought to be pre- empted.
29. ' In view of the above, we ignore the consent decree of the learned Sub-Judge partly passed in favour of the appellant-vendee and partly in favour of Abdul Aziz and setting aside the judgments and decrees of all the Courts below, pass a decree in favour of respondents (rival pre-emptors) of the total land measuring 1 kanal and 10 marlas.
30. ' The rival pre-emptors (respondents) had already deposited a sum of Rs, 250 as sale consideration of 18 marlas of land for which a decree was passed by the learned Sub-Judge. But as now a decree for the total land of 1 kanal and 10 marlas is passed in their favour, they will further deposit a sum of Rs, 550 alongwith the amount spent on the registration of the sale deed within two months from the date this judgment is notified to them. In view of the complex legal questions involved, we pass no order as to costs.