IFTIKHAR MUHAMMAD CHAUDHRY, CJ. --- This appeal is directed against the judgment dated 30.06.2004 passed by Lahore High Court, Lahore whereby Civil Revision filed by the present respondents has been allowed.
2. This case has chequared history, spread over a period of more than 45 years. Litigation, in respect of landed property, measuring 23 Kanals, 14 Marlas, bearing Khasra Nos. 5406, 5416, 5428, 5429, 5466, 5437, 5409, 5410, 5439, 5417 in Khata No. 17, Khatuni Nos. 41, 42, 43, Khata No. 21, Khatuni Nos. 18, 50, 51, 52, 53, Khasra No. 5408, 5433, 5418, 5421, 5442, 5443, Khata No. 32, Khatuni Nos. 78, 79, 80, 81, 82, Khasra Nos. 5533, 5534, 5607, 1088, 1089, 1091, 1092, 602, 615, situated at village Hanjarwal, Tehsil & District Lahore, which comprised in Khasra No. 3755 to 3758 and 3763 in village Niaz Baig, Lahore, commenced in pursuance of suit filed as back as in the year 1963, by Munsaf A.I, father of the appellant Khadim Hussain, who was stated to be minor at that time, against Mst. Sabriran Bibi, for possession through right of preemption. In written statements submitted by the vendee, right of the pre-emptor Khadim Hussain was not disputed but sale consideration of the land, subject-matter of the suit, was disputed.
3. Learned Civil Judge decreed the suit on 13,01.1963, in favour of the appellant, subject to deposit of Rs. 14,500/- within two months.
Unfortunately, the amount of sale consideration was not deposited within the stipulated period.
However, on his request, time for deposit of. The amount was enlarged to three months w.e.f.
01.04.1963, in pursuance of written request made by him. Both the parties preferred appeal on 25.03.1963. The learned Additional District Judge suspended the directions of the deposit of the sale price on 28.06.1963. Both the appeals were dismissed on 15.11.1963, however, two months' time was granted to the pre-emptor/appellant to deposit the sale price. He preferred RSA bearing No. 114 of 1964 before the learned High Court on 27.02.1964. The learned High Court, while admitting appeal of the appellant for regular hearing, suspended the order of the deposit of price on 07.04.1964.
However, on 17.11.1964, appellant filed an application, praying that the amount of sale price be reduced from Rs. 14,500/- to Rs. 5,000/-. On 22.05.1974, appeal was dismissed for non-prosecution.
Afterwards, the predecessor in-interest of respondents Mst. Sabiran Bibi passed away on 16.08.1976.
Interestingly, in the meantime, no efforts were made for readmission of the appeal. Later on, appellant submitted two applications, CMA No. 6460-C/1976 for restoration of RSA and CMA No. 6470-C/1976 for condonation of delay, in filing of application for re-admission of appeal on 24.11.1976 and 27.11.1976, respectively. On 02.03.1977, notices of both the CMAs were issued to Mst.
Sabiran Bibi, who allegedly was served through her husband Sheikh Muhammad Amin son of Siraj Din. As per the death certificate which was filed before the High Court, her husband had already died as back as on 28.05.1967. On 07.06.1977, one Nawazish A.I Advocate, appear on behalf of Mst.
Sabiran Bibi and stated that a compromise has been effected between the parties. In view of his statement RSA No. 114/1964 was restored, although the application was barred by time and application for condonation of delay was not maintainable because of non-application of Section 5 of the Limitation Act on the proceedings under Order XLI, Rule 19, CPC. Be that as it may, RSA was readmitted and dismissed in terms of compromise, while granting time to counsel for the appellant for depositing the sale price upto 06.07.1977. The said amount had been deposited on 30.06.1977.
4. On acquiring the knowledge about the above proceedings , Muhammad Aslam son of Mst.
Sabiran Bibi Respondent No. 24 filed CMA No. 4214-C/1977 for setting aside order dated 07.06.1977, being obtained fraudulently and having been passed against a dead person. Simultaneously, on 25.02.1978 CMA No. 1176-C/1978 was filed by remaining heirs of Mst. Sabiran Bibi for setting aside order dated 07.06.1977, on the ground that against a dead person, no decree can be passed.
Learned High Court accepted this application on 21.05.1978 and recalled the order dated 06.07.1977, holding that the order/decree had been passed against a person who had died several months ago and that a fraud was played upon the Court by the appellant with a view to have the appeal restored and time for payment extended. As a result whereof CMA No. 6460C/1976 was ordered to be listed for hearing whereas application for condonation of delay, i.e. CMA No. 6470C/1976, was dismissed.
It is most important to note at this juncture that order dated 21.05.1978, setting aside the order dated 07.06.1977 was never challenged as such it attained finality.
5. Learned High Court on 19.12.1978 dismissed the CMA No. 6460-C/1976 being barred by time and without merits. Against this order CPSLA No. 835/1979 was filed for leave to appeal, which was dismissed on 17.03.1986. Concluding para therefrom is reproduced herein below for convenience:-- - "The petition for leave to appeal was filed bona fide and has been pursued with diligence therefore, application in that behalf can also be made before the High Court. As to the competency of the High Court on disposal of appeal in a pre-emption matter to grant reasonable time to the pre- emptor to make the deposit of the pre-emption money, it has been held in a number of judgments of this Court that the High Court has such power."
6. Before the High Court, appellant submitted CMA No. 18877-C/1988 under Order XXII, Rule 14 and Section 151, CPC, for extension of time on 11.04.1988, which was disposed of on 15.03.1989. The High Court disposed of the application keeping in view the statement of the appellant that he had already deposited the amount pursuant to the order of the Trial Court dated 06.07.1986. It is informed by the learned counsel for appellant that after depositing amount of Rs. 14,500/- on 30.06.1977, he got mutated property, subject-matter of the proceeding, in his favour vide Mutation No. 1807, dated 10.10.1991 and in the meantime, possession of the property was also taken by him at his own. On this, the heirs of Mst. Sabran Bibi filed two suits; one for possession of the land on the basis of their title and; second that they are owner of the property because Khadim Hussain lost his pre-emption suit. The appellant Khadim Hussain also filed a suit for declaration against the heirs of Mst. Sabiran Bibi, challenging the sale-deed in her favour. All the three suits were consolidated and disposed of by common judgment, allowing the suit of possession filed by the successor-in- interest of respondent Mst. Sabiran Bibi and dismissed the suit of appellant Khadim Hussain on 06.06.1978. Appeal filed before the Additional District Judge, Lahore which was allowed, as a result whereof his suit was decreed and the suits of the respondents (heirs of Mst. Sabiran Bibi) were dismissed vide judgment dated 31.07.1997. Accordingly, respondents preferred Civil Revision No. 12888 of 1997, before the learned High Court which was accepted by means of impugned judgment dated 02.07.2004, whereby the suit of the appellant Khadim Hussain was dismissed on account of non-depositing of the decretal amount, whereas both the suits filed by respondents were deceased as prayed for. Against the last mentioned judgment of the High Court, present appeal has been filed.
7. Learned counsel vehemently contended that the appellant had acquired the right in his favour after depositing Rs. 14,500/-, as the sale price of the land on 30.06.1977, in pursuance of order dated 07.06.1977 and possession of the property had also been obtained by them, therefore, notwithstanding the fact whether a formal decree was passed in his favour or not but as the order dated 07.06.1977 has been implemented, as such possession of the property cannot be taken from him.
8. On the other hand, learned counsel for the respondents stated that the appellant had committed fraud with the Court, therefore, he cannot claim the advantage of a fraudulent proceedings.
9. We have heard the learned counsel for both the sides and had gone through the record of the case accordingly. It is to be noted that order dated 07.06.1977, suffered from two major defects; firstly it was passed against a dead person namely Mst. Sabiran Bibi, upon whom the notice of CMA No. 6460-C/1976 was served through her husband Sheikh Muhammad Amin, who had died, as per the certificate produced before the High Court, on 28.05.1967.
Similarly, Mst. Sabiran Bibi had also died on 16.08.1976 as it is mentioned in the order dated 21.05.1978 passed by the High Court, setting aside the order dated 07.06.1977, therefore, Nawazish A.I, Advocate, who allegedly represented her had no authority to enter into .Any compromise with the appellant. Second defect in the order, apparently seems to be that it was obtained by playing fraud with the Court. Yet another important aspect of the case, which too cannot be overlooked, namely that the sale price has to be deposited when ere are valid proceedings. Although on 30.06.1977, in pursuance of order dated 07.06.1977, sale price was deposited, in terms of an appeal, which was disposed of on the basis of fraudulent deal.
10. There is no cavil with the proposition that neither any proceedings can be initiated against a dead person nor a valid/legal order can be passed against him/her. Reference in this behalf may be made to the case of Mehr Muhammad v. Dy. Settlement Commissioner and another (PLJ 1980 SC 97), Hafiz Brothers (Pvt.) Ltd. v. Pakistan Industrial Credit & Investment Corporation Ltd. (2001 SCMR 1) and Rehmat Din v. Nasir Abbas (2007 SCMR 1560). In the last mentioned report, it has been observed that "there could be no petition/appeal against a dead person as it would be nullity ".
11. Learned counsel appearing for the appellant in support of his contention relied upon the case of Debendra Nath Dutt v. Administrator General of Bengal (35 Indian Appeals 109). This judgment does not support the learned counsel. As per the facts of the case "in 1902, one namely-Cowie applied to the High Court for grant to himself of letters of administration of the estate of the deceased as the attorney of an alleged Henry Craster and he falsely stated that the deceased had died intestate and had left the said Henry Craster Carster his only son and next of kin him surviving; the petition was supported by a false declaration and affidavit by Cowie and had annexed thereto a power-ofattorney whereby the alleged Henry Craster purported to empower Cowie to make the application. Cowie sold the shares and converted them into his own use. The sureties pleaded that, the grant of letters of administration having been obtained by misrepresentation and fraud and therefore being void, the bond was likewise void and unenforceable, both as itself induced and obtained by fraud and also as entered into under a mutual mistake as to the circumstances and the subject-matter of the contract, and also as founded on a misrepresentation made to the appellant by the Court, namely, that the said Henry Craster really existed and was the only son and next of the kin of the deceased, and that these facts had been well proved to the Court. In the majority judgment of the Privy Council, it has been held that "the granting of letters of administration by the Court to the said Cowie did not amount to any representation whatever by the Court; that the eighty-six and a half shares in the Bank of Bengal having been lost to the estate, and the proceeds having been received and misappropriated by Cowie, the sureties were liable to pay the amount; and that the position of the sureties had not been altered to their prejudice by the delay of the executors of the deceased in informing them of the fraud, and consequently they were not discharged by such delay", The import of this judgment is that as far as the sureties were concerned, their liability was not discharged, notwithstanding the fact that Cowie had obtained the decree by fraud.
12. Learned counsel also relied upon Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331). In this judgment, it is held that "an order obtained by fraud is not void, but only voidable; it remains operative as long as it is not set aside, rescinded, or recalled by a competent authority in proper proceedings; an order is to be treated as void only when it is made by a Court, Tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose; such an order would amount to "a usurpation of power unwarranted by law", and accordingly it would be a nullity; if on the other hand, an order is made by a Court or authority having the necessary jurisdiction it is not C.L.R. an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf; while it is true, as has been so often stated, that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed question of law and fact which can only be established in an elaborate inquiry. "
13. Similarly, he also relied upon A.I lqtidar Shah v. Custodian, Evacuee Property (PLD 1964 Lahore 274). Majority judgment of this report is of no help to the learned counsel.
14. On the other hand, learned counsel appearing for the heirs of Mst. Sabiran Bibi relied upon Rehmatullah v. Saleh Khan (2007 SCMR 729), wherein it has been held that "Fraud vitiates even solemn order". He also relied upon Mst. Fehmida Begum v. Muhammad Khalid (1992 SCMR 1908), Muhammad Younis Khan v. Government of NWFP (1993 SCMR 618), Lal Din v. Muhammad Ibrahim (1993 SCMR 710), Muhammad Siddique v. Abdul Majid (1999 SCMR 2674), Muhammad! Sharif v.
Sultan Hamayun (2003 SCMR 1221) and Hamza Haji v. State of Kerala (AIR 2006 SC 3028). In the last mentioned judgment, a detailed survey has been conducted in support of proposition that "Fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of Courts of justice."
15. Likewise, he has also relied upon' S.P. Chengalvaraya Naidu v. Jagannath (AIR 1994 SC 853), Govt.
Of Sindh v. Khalil Ahmed (1994 SCMR 782) and Bashir-ud-Din v. Govt. Of NWFP (1995 CLC 1394).
Reference was also made by the learned counsel to "KERR on the law of FRAUD AND MISTAKE" wherein the same principle i.e. "Fraud, is an intrinsic collateral act, which vitiates the most solemn proceedings of Courts justice" has been elaborately discussed.
16. On having gone through the law laid down in the above-referred judgments, we have reached at an inescapable conclusion that the appellant Khadim Hussain played a fraud with the Court by obtaining an order dated 07.06.1977, which has been set aside on 21.05.1978 and up-till now this order has not been challenged at all. At the cost of repetition, it may be noted that CMA No. 6460C/1976 came up for hearing before the High Court on 19.12.1978 and it was dismissed being barred by time and being without merits. Against this order, although a CPSLA was filed before this Court, which was dismissed with the observation, which has been reproduced herein above. Therefore, plainly for the reason that on the basis of an order dated 07.06.1977, which was obtained by playing fraud with the Court, against a dead person, no benefit of the same can be extended to the appellant, instead he deserve serious condemnation because of his such act as the litigation remained pending for a considerable period.
17. Learned counsel appearing for the appellants contended that the respondents have admitted the fact that the appellant is enjoying the possession of the property as during pendency of the suit, one of the respondent filed an application, seeking restrain order against the appellant not to sell the property, but the application was dismissed on 10.03.1993 and the same was not challenged. Therefore, in view of the doctrine of acquiescence, respondent cannot claim possession of the property in dispute.
18. Learned counsel appearing for the respondent negate the stand of the appellant primarily on legal plain and contended that appellant is a pre-emptor, therefore, doctrine of acquiescence will operate against him but not against the respondents, who are vendees.
19. We may observe here that filing of an application, to restrain the appellant from selling the property and passing orders on the same, had no bearing on the proceedings, because during pendency of the suit for possession, filed by the respondents, the parties' rights shall be governed under Section 52 of the Transfer of Property Act, 1882. As per the implication of this Section, during the pendency of the suit, property cannot be disposed of and if some one opts to do so, he shall be responsible for such deeds . In addition to it, if a transaction of sale had taken place after the institution of the suit, the rights of the decree-holder shall be protected, therefore the arguments so raised by the learned counsel has not advanced his ease in any manner.
Before parting with the judgment, we may also observe that pre-emption right has always been considered feeble and pre-emptor is bound to follow the suit vigilantly and any slackness is always sufficient to non-suit him. As in instant case, that amount of sale price of Rs. 14,500/- has not been deposited in pursuance of a valid order, as such if would be deemed that no amount in fact had been deposited. This Court in number of cases has held that if once a decree has been passed subject to deposit of sale consideration, the suit shall automatically dismissed for non-deposit of sale proceed. Reliance in this behalf can be placed upon the case of Shujat A.I v. Muhammad Riasat (PLD 2006 SC 140) and Ghulam Qadir v. Ghulam Famed (2006 SCMR 984).
Thus for the foregoing reasons, we see no force in this appeal, therefore, the same is dismissed, leaving the parties to bear their own costs.
Civil .