' KHILJI ARIF HUSSAIN, J.---This appeal, with leave of the Court, is directed against the judgment dated 29-5-2001 passed by learned Single Judge of the Lahore High Court, Lahore, allowing Civil Revision No,1892 of 1993 filed by the respondent against the concurrent judgments and decrees passed by learned Senior Civil Judge and District Judge, Jhang, on 21-12-1992 and 28-1-1993, respectively.
2. Brief facts of the case necessary for disposal of the appeal are that respondents purchased the land in question through a. Registered sale deed dated 10-5-1980. Three different pre-emptors filed three separate suits for possession of the suit land which were contested by the respondents/vendees. The suit seeking possession through preemption filed by the appellants was decreed on 2-12-1987. The appellants pursuant to pre-emption decree deposited the decretal amount in the trial Court, whereas 1/5th of the consideration was already deposited. The land was attested in favour the appellants vide Mutation No,1601 dated 21-3-1990 in terms of the decree passed on 2-12-1987. The respondents admittedly not filed appeal against the judgment and decree dated 2-12-1987, however, filed a suit challenging the decree and mutation alleging that the decree was without jurisdiction and that the 1/5th amount deposited by the appellants was withdrawn by them.
3. After framing issues including the issue "whether the suit is maintainable in its present form?", and recording the evidence, the trial Court vide his judgment and decree dated 21-12-1992 dismissed the suit while decided the issue of maintainability of the suit against the respondents.
The respondents filed appeal aggrieved by the order of dismissal of the suit which too was dismissed by the learned District Judge, Jhang, vide his judgment dated 14-3-1993. The respondents questioned said two judgments by filing the revision before learned High Court, which was accepted by the impugned judgment.
4. Learned counsel for the appellants vehemently argued that after passing pre-emption decree in favour of the appellants on 21-12-1992 against which respondents did not file any appeal and the judgment and decree attained finality and was duly executed by recording names of the appellants in the record vide Mutation No,1601 dated 21-3-1990, the suit filed by the respondents on 29-5-1991 was not maintainable being duly acted upon. It was argued that section 35 of N.-W.F.P.
Pre-emption Act is materially different from section 34 of the Punjab Pre-emption Act and this aspect of the matter was not considered by learned Single Judge in Chambers of the High Court while setting aside the concurrent judgments and decrees recorded by the trial Court and the appellate Court. Learned counsel in support of his contention that the suit was not maintainable relied upon section 12(2) read with section 47 of the C.P.C. And argued that separate suit challenging the decree on the ground of jurisdiction is not maintainable. Learned counsel in support of his contention relied upon the case of Sarfraz v. Muhammad Aslam Khan and another (2001 SCM R 1062).
5. On the other hand, learned counsel for the respondents vehemently argued that the decree passed on 2-7-1987 was per se void ab initio and as such learned High Court has rightly decreed the suit filed by the respondents seeking declaration to declare that the decree dated 2-12-1987 passed by the trial Court in favour of the appellants and transfer of the land in their names by way of mutation dated 21-3-1990 was void and illegal. It was argued that decree of pre-emption cannot be passed after crucial dated i,e, 31-7-1986 as at that point of time Punjab Pre-emption Act was not in existence.
6. We have taken into consideration the arguments advanced by the learned counsel for the parties and carefully perused the record. Without going into the question whether a decree can be passed in pre-emption suit after 31-7-1986, the question which needs consideration is whether the separate suit challenging the decree passed by a Court in suit for preemption filed on 31-7-1986, is maintainable after incorporation of section 12(2) of the C.P.C., when validity of a decree/judgment/order is challenged on the plea of fraud, misrepresentation or jurisdiction.
7. Prior to the amendment in section 12, C.P.C. Validity of a judgment, decree or order can be challenged by way of an independent suit on the ground of fraud, misrepresentation or lack of jurisdiction, however, under the proviso of subsection (2) of section 12, C.P.C. Validity of a decree can be questioned only by filing an application before the same Court which had passed the judgment/decree or order.
8. Admittedly passing of the pre-emption decree was in the knowledge of the respondents and they for the reasons best known to them did not challenge the same by filing an appeal or revision or an application under section 12(2), C.P.C. Within a period of 3 years from the date of passing of the decree. The respondents filed suit on 25-5-1991 much after 3 years of the passing of the pre- emption decree to declare the same illegal and without jurisdiction and cancel the transfer of property by mutation on the basis of said decree.
9. Subsections (1) and (2) of section 12, C.P.C. Are independent clause. In subsection (1) of section 12, C.P.C. The expression "Rule" has D reference to the rules and forms contained in the First Schedule or made under section 122, C.P.C. Whereas, subsection (2) of section 12, C.P.C. Took away the right of a separate suit to challenge the validity of E judgment/decree/order on the plea of fraud, misrepresentation or want of jurisdiction.
10. From the close scrutiny of memo of plaint filed by the respondents seeking declaration to set aside the judgment and decree dated 2-12-1987 and in consequence whereof mutation was effected as illegal, without lawful authority, void ab initio, it appears that the respondents entire claim based on the ground that the trial Court which passed pre-emption decree on 2-12-1987 had no jurisdiction at the time the decree was passed and further appellants had withdrawn 1/5th amount deposited by them in Court.
11. We have gone through the record and find that due to mistake of the Court on an application filed by the appellants for withdrawal of 1/5th amount in another matter relating to one Abdul Rehman, the amount was paid from the amount deposited in the suit filed against Mst. Sahib Bibi which mistake was then rectified by the Court.
12. Before parting with this judgment, we would like to quote a passage from the judgment of this Court in the case of Sarfraz v. Muhammad Aslam Khan and another (2001 SCM R 1062), where decree dated 15-4-1987 (i,e, after the target, date) was challenged by filing an application under section 12(2), C.P.C. After more than three years, of the decree and it was held:-- "As it has been observed hereinabove that on 28th April, 1987 in pursuance of the directions of this Court the Act was promulgated and till then the N.-W.F.P. Pre-emption Act 1950 was holding the field as it was repealed from the commencement of the Act, therefore, any proceedings conducted and decree passed during this period shall not be rendered without jurisdiction and void because the Act of 1950 was holding the field and the Court was also bestowed with jurisdiction to decide cases accordingly. In addition to it Article 203-D(3)(b) of the Constitution of the Islamic Republic of Pakistan does not provide that if any law has been declared against the injunctions of Islam the proceedings instituted under the said law shall also come to an end on the date fixed by the Court for making such law in consonance with the injunctions of Islam. At the best its effect would be that the fresh suits of pre-emption after the stipulated date will not be instituted under the law which has been found contrary to the injunction of Islam but the claimants would be entitled for the enforcement of their rights under the Mohammendan Law, like the Provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits are applicable. Even otherwise it is a settled principle of law that an action started by a person shall be completed under the same law even if it has been repealed during pendency of the action unless the new law has saved the pending proceedings.
' Undoubtedly a right of pre-emption is a substantial right of an individual and it cannot be taken away merely due to repeal of law under which suit for its enforcement was filed. At the best such newly enacted law shall be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural. Reference in this behalf may be made to the case of Malik Gul Hassan and Co. And 5 others v. Allied Bank of Pakistan (1996 SCM R 237). Thus, the case in hand viewed from this angle as well would lead to draw inference that the decree dated 15-4-1987 was not liable to be set aside on the ground that it has been passed without jurisdiction or otherwise is void in the eye of law and no limitation will run against it for getting the same set aside."
13. For the foregoing reasons, the appeal is accepted, the impugned judgment of the High Court dated 29-5-2001 passed in Civil Revision No, 1892 of 1993 is set aside and the concurrent judgments and decrees dated 21-12-1992 and 14-3-1993 passed by the trial Court and the appellate Court, respectively are upheld. There shall be no order as to costs.