Petitioner No. 1 Aslam-Ali Shah, Hashmat Ali Shah son of Akbar Ali Shah the predecessor-in-interest of Petitioners Nos. 2-A to 2- D, Zafar Abbas/Petitioner No. 6 and Mst. Sadaqat Saeed/Petitioner No. 7 filed a suit for declaration whereby they challenged Mutation of Inheritance No. 6 of the year 1953, Chak No. 88/W.B, Mailsi in favour of Asghar Ali, Haider Ali sons of Fakhar-ud-Din and Mat. Akbar Bibi alias Kubran Bibi daughter of Fakhar-ud-Din, who are now being represented by Respondents Nos.
1-A to 4-E, Asghar Ali Shah Respondent No. 5 and Mst. Akbar Bibi alias Kubraan Bibi Respondent No.
6. The suit was resisted by respondents/original defendants. However, according to the facts, on behalf of Defendant No. 2 Haider Ali Shah the predecessor-ininterest of Respondents Nos. 1-A to 1- D one Mian Shabbir Ahmad, Advocate, Mailsi made a conceding statement in the learned trial Court on 10.4.1991 and suit filed by the petitioners/plaintiffs to his extent was decreed. The suit, however, in respect of remaining defendants was dismissed vide judgment and decree dated 6.5.1991. Haider Ali Shah/Defendant No. 2 the predecessor-in-interest of respondents filed a petition under section challenging the legality of the judgment and decree dated 6.5.1991 on the basis of alleged conceding statement made by his counsel in the learned trial Court, which remained pending after recording statements of both the parties. Due to pendency of the appeal the learned trial Court adjourned the proceedings on application under Section 12(2) CPC to await decision in appeal and receipt of record; that the appeal subsequently filed by the plaintiffs/petitioners before the learned appellate Court was dismisied on 3.12.1995, against which Civil Revision No. 1067-D/1995 was filed, which too met the same fate vide judgment and decree dated 3.1.1996. Petitioners further challenged the said dismissal order in C.P.L.A No. 963-L-1996, which was also dismissed vide order dated 6.4.1996 by the Hon'ble Apex Court.
2. That the application under Section 12(2) CPC as earlier mentioned, filed by Haider Ali Shah Defendant No. 2 remained pending in the learned trial Court which however vide order dated 13.7.2001 was dismissed due to non-prosecution. The respondents subsequently on 25.4.2009 moved an application for restoration of that petition under Section 12(2) CPC dismissed for non- prosecution vide order dated 13.7.2001 on the ground that they were not in the knowledge of pendency of any such petition as their father had died on 4.11.1994; that petition was resisted by the petitioners through filing their written reply wherein they agitated that petition for restoration was opelessely barred by time as it was filed after eigt years of the dismissal of original petition. Prayed that it be dismissed.
3. The learned trial Court after hearing the parties vide order dated 10.7.2009 restored the petition under Section 12(2) CPC to be disposed of on merits. Feeling aggrieved present petitioners preferred revision petition, which was heard and decided by learned ADJ Mailsi, who vide impugned judgment dated 26.10.2009 dismissed the same. Feeling aggrieved the petitioners have preferred this writ petition.
4. Learned counsel for the petitioners contends that admittedly the suit to the extent of Haider Ali Shah Defendant No. 2 predecessorin-interest of respondents was decreed to his extent on the basis of a conceding statement made by his learned counsel; that no-doubt the petition under Section 12(2) CPC was filed but it remained pending; that appeal against the dismissal of the suit was filed before the learned ADJ in which after the death of Haider All Shah the respondents were arrayed as party and the matter remained (sic) to the Hon'ble Supreme Court whereby the respondents were shown as a party to the litigation; that respondents were in the knowledge of the pendency of the litigation as well as petition but they did not bother to appear before the learned trial Court and their petition was rightly dismissed for non-prosecution; that the petition for the restoration of application under Section 12(2) CPC was admittedly filed after 8 years of its dismissal which is hopelessly barred by time; that the learned trial Court as well as learned appellate Court did not advert to the actual legal as well as factual aspects of the case and restored the petition without any lawful justification. While relying on 2006 SCMR 1304 (Muhammad Feroze and others Vs. Muhammad Jamaat Ali), PLD 1985 Supreme Court 131 (Noor Muhammad Vs. Sarwar Khan and 2 others), 2005 CLC 1478 (Mirza Allah Ditta alias Mirza Javed Akhtar Vs. Amna Bibi and 2 others) and PLD 2005 Lahore 1 (Muhammad Akbar Vs. Muhammad Malik and another) prayed that writ petition be allowed.
5. On the other hand, learned counsel, for the respondents vehemently opposed this petition on the ground that admittedly application under Section 12(2) CPC after passing the decree on the basis of conceding statement was moved by the original defendant Haider Ali Shah before the learned trial Court. The matter remained pending as it was being contested by both sides and evidence of both sides had already been recorded and it remained on adjourning to await the orders passed by the learned appellate Court and for production of record; that matter went up to the Hon'ble Supreme Court of Pakistan which ended against the petitioners; that it was not in the knowledge of respondents the legal heirs of Haider Ali Shah that any application under Section 12(2) CPC was pending and when they came into knowledge they immediately moved a petition, which was rightly restored as the order whereby the application was dismissed for nonprOsecution was void order. It was not a date fixed for hearing and in such eventuality when the Court itself kept on pending the petition under Section 12(2) CPC to await the order and record it could not be dismissed as such. Even otherwise, the petitioners who earlier remained on appearing never informed the learned trial Court about the death of Haider Ali who died in the year 1994 and even after 1994 the matter remained pending till 2001 and subsequently it was dismissed for non- prosecution; that it was a void order and no limitation runs against such order; that both the Courts below rightly passed the findings and restored the petition to be disposed of on merits in accordance witklaw. While relying on PLD 1993 Lahore 564 (Mahmood Arif Vs. Chief Administrator, Auqaf). 2002 CLC 1372 (Muhammad Shafiq and another Versus Maqsood Ahmad and 2 others).
1993 SCMR 1949 (Qazi Muhammad Tariq Vs. Hasin Jahan and 3 others). PLD 1982 Supreme Court 413 (Begum Shams un Nisa vs. Said Mbar Abbasi and another). 1997 SCMR 526 (Waris Khan and 2 others Vs. Mst Zainab Nisa and others) and PLJ 1993 SC 103 (Muhammad Yasin Vs. Sh. Hanif Ahmed and 4 others) prayed that this petition be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties.
7. No-doubt, the main suit filed by the present petitioners, whereby they challenged inheritance mutation, was resisted by the respondents including the deceased Haider Ali Shah. It was for the reason that counsel allegedly appointed by Haider Ali Shah made a conceding statement whereby the suit to his extent was decreed, while suit in respect of remaining respondents was dismissed.
Haider Ali Shah immediately filed petition under Section 12(2) CPC which remained pending but due to non-availability of record as well as pendency of the appeal filed by the petitioners themselves learned trial Court kept on pending petition under Section 12(2) CPC for disposal in accordance with law. The matter remained pending and during that pendency, in the year 1994, Haider Ali Shah Defendant No. 2 the predecessor-ininterest of respondents died. The main appeal went up to the Hon'ble Supreme Court of Pakistan but petitioners' claim was dismissed; that subsequently when the respondents came to the knowledge about pendency of petition under Section 12(2) CPC, as the petitioners' started claiming themselves as the owner to the extent of the decree passed against Haider Ali Shah, they approached the concerned Court and moved petition under Section 12(2) CPC. If the judgment passed by the learned ADJ is seen, he in Para 12 of the judgment observed as under: "There is however, merit in the contention on behalf of the appellants that one of the legal heirs, namely Haider Ali Defendant/Respondent No. 2 has since conceded the suit of the appellant, therefore, the impugned decree passed to his extent shall subsist. Though it is claimed from the other side that he too has been cheated and an application under Order XII, Rule 2 CPC, for setting it aside is pending in the lower Court. Be that as it may the impugned judgment to the extent of Haider Ali shall subsist till it is set aside, if so, on the said application."
Even otherwise, if the order dated 13.7.2001 is seen it was not a date fixed for hearing and the learned trial Court only due to non-appearance of the respondents dismissed the petition under Section 12(2) CPC. The judgments cited by learned counsel for the respondents i.e. PLD 1993 Lahore 564 (Mahmood Arif Vs. Chief Administrator, Auqaf) and 1993 SCMR 1949 (Qazi Muhammad Tariq Vs. Hasin Jahan and 3 others) clearly support the respondents' version that if any suit not fixed for date of hearing, its dismissal due to non-prosecution is illegal and without lawful justification.
8. As far as, the point of limitation is concerned, it is consistently held by the Hon'ble Superior Courts of this Country that no limitation runs against a void order. If the findings of the learned trial Court are seen it has specifically been mentioned in Para No. 5 of the order that grounds exist for restoration of the petition under Section 12(2) CPC. Even otherwise, other aspects reflected from the record that the petition under Section 12(2) CPC was contested by Haider Ali Shah deceased Defendant No. 2 and statements of both sides have already been recorded and it was only at the stage of final arguments. In these, circumstances, there is no ground for interference into concurrent findings of the learned Courts below which even otherwise cannot be interfered while exercising constitutional jurisdiction, which proposition is further supported by the judgment cited by learned counsel for the petitioners himself i.e. PLD 1985 SC 131 (Noor Muhammad vs. Sarwar Khan and 2 others). Resultantly, finding no merit in this writ petition same is hereby dismissed.