' MUHAMMAD ATHAR SAEED J.--- This application (C.M.A. No,379 of 2011) has been filed by the respondent No,3 for the review of the order of this Court dated 25-9-2008 whereby a Division Bench of this Court had allowed the High Court Appeal No,67 of 2008 and set aside the order of the learned Single Judge by which the application of present respondent No,3 under Order I, Rule 10, C.P.C. Was allowed, and the matter was remanded to the learned Single Judge for passing a fresh order.
2. The main ground raised in support of the review application is that the learned Court had not considered the provisions of section 3(1) of the Law Reforms Ordinance, 1972 which provide that Intra Court Appeals can only be filed in respect of orders passed by the learned Single Judge in exercise of his original civil jurisdiction.
3. Brief facts of the case are that a revision application had been filed by present appellant against the order of the trial Court and the present respondent No,3 had moved an application under Order I, Rule 10, C.P.C. For being impleaded as a party in the revision application and that application was allowed by the learned Single Judge and against that order the appellants had preferred the Intra- Court . Appeal before a Division Bench of this Court on which the office had raised objection as to how the appeal was maintainable but without disposing of the office objection a learned Division Bench of this Court had allowed the appeal to the extent that they had set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge for de novo consideration and the learned Single Judge while passing a fresh order of remand had disallowed the application of the applicant under Order I, Rule 10, C.P.C.
4. Since both the learned Judges of the Division Bench are no longer judges of this Court, therefore, the review application was fixed before us.
5. Notices were issued to the appellant and the other respondents who had supported the appellant in the appeal and on 16-3-2011 and today we have heard Mr. Gohar Iqbal, Advocate for the appellant assisted by Mirza Saeed Baig, Advocate and appellant Syed Vizarat Hussain Zaidi and Mr. Muhammad Ali Waris Lari, Advocate for respondent No,3/the present applicant.
6. Mr. Muhammad Ali Waris Lari drew our attention to section 3(1) of the Law Reforms Ordinance, 1972 and pointed out that under this Section appeal is competent to be filed to a Bench of two or more Judges of High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original civil jurisdiction. He stated that it is admitted fact that the order allowing his application under Order I, Rule 10 was passed by the learned Single Judge in a revision application filed before the learned Single Judge against the order of the trial Court and therefore the impugned order was not passed in exercise of the original civil jurisdiction but in exercise of its revisional jurisdiction and therefore the appeal was not competently filed and Division Bench of this Court has no jurisdiction to pass the above order.
7. The learned counsel further submitted that the office had initially raised an objection about the maintainability of the appeal but this Court `had initially vide its order dated 22-4-2008 held that the office, abjection shall be determined at the subsequent stage but While passing final order on 25-9-2008 the office objection was neither considered nor looked into but the appeal was examined and decided on merits. He submitted that the Court was not properly assisted at the time of final arguments and it was not pointed out to the Court that it had no jurisdiction to hear the appeal and that it was not maintainable.
8. The learned counsel then submitted that the review application has been filed beyond the period provided as an order passed without proper jurisdiction is a void order and no period of limitation runs against such order. In this connection he relied on a judgment of this Court in the case of Federation of Pakistan v. Metropolitan Steel Corporation (2002 PTD 87). In support of his arguments on the merits of the case the learned counsel relied on the judgments in the case of N.Q. Industries v. MRs, Bapai Kaikhusro (PLD 196$ Karachi 589) and Mst. Rashid Jehan v. Muhammad Ashfaq (1991 MLD 2619).
9. Mr. Gohar Iqbal the learned counsel for the appellant strongly opposed the review application and submitted that not only the review application has been filed beyond the period of limitation but it is not maintainable in so far as no review has been provided under the Law Reforms Ordinance, 1972. In this connection he relied on a judgment of the honourable Supreme Court of Pakistan in the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 Supreme Court 94).
10. He further stated the order which is sought to be reviewed has now attained the status of a past and closed transaction and cannot be disturbed by any order of this Court. On this point the learned counsel relied on the following judgments:-
(1) Sheri-CBE and others v. Lahore Development Authority and others (2006 SCMR 1202)
(2) Pir Bakhsh Represented by his Legal Heirs and others v. The Chairman, Allotment Committee (PLD 1987 Supreme Court 145).
The learned counsel therefore prayed that the review application may be dismissed.
11. The learned counsel however candidly conceded that the High Court Appeal which was decided by the order sought to be reviewed was not maintainable in view of the provisions of section 3(1) of the Law Reforms Ordinance, 1972. He however submitted that in view of the fact that it has now become a past and closed transaction and has attained finality and therefore it cannot be disturbed.
12. Mirza Saeed Baig and the appellant adopted the arguments of Mr. Gohar Iqbal Advocate for the appellant.
13. We have examined the review application in the light of the arguments of the learned counsel and have perused the case-law relied on by the learned counsel.
14. Although the learned counsel for the appellant Mr. Gohar Iqbal was opposing the review application but has candidly conceded that the appeal in question was not maintainable under the provisions of section 3(1) of the Law Reforms Ordinance, 1972 but we are 'of the view that it will still be relevant to reproduce the provisions of section 3(1) of the Law Reforms Ordinance, 1972:--- ' Appeal to High Courts in certain cases:--- ' An appeal shall lie to a bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
15. A perusal of the above section establishes beyond doubt that an Intra-Court Appeal to a Bench of two or more Judges of this Court is competent only against decree or a final order made by a single Judge of this Court in exercise of its original civil jurisdiction and it is an admitted fact that the order was passed by the learned Single Judge in a revision application filed against the order of the trial Court i.e. In his revisional jurisdiction and not in the original civil jurisdiction and therefore the appeal which was filed before the Court was not competent and the learned Division Bench exceeded its jurisdiction by passing the impugned order. In the light of this observation we will examine the A arguments made by the learned counsel for the appellant Mr. Gohar Iqbal that it is a past and closed transaction, and has attained finality and cannot be revisited.
16. The first case relied on by the learned counsel was the judgment of the honourable Supreme Court in the case of Pir Bux quoted supra. In that case the honourable Supreme Court has held as under:--- "What it decides generally is the ratio decidendi or rule of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle three matters are now res judicata between them and cannot be the subject of further dispute. But the Court's findings will not be conclusive except as between the same parties. Third parties not involved in the original case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party."
We are of the view that there can be no cavil to the proposition that matters cannot be allowed to continue indefinitely and there should be some end to litigation and the law provides that once a case had been heard and appeals have been taken and the time of appeal has gone all parties to the dispute and their successors are bound by the Court's findings on the issue thereunder.
However, this precedence will only apply to this case if a conclusion is reached that time required for filing a review has passed and that situation will only arise if we hold that the order which has been sought to be reviewed is not a void order and therefore will be bound by period of limitation but if we hold that the order in question is void order then it has to be examined whether the ,period of limitation will run against a void order. Before we take up the other judgments relied on by the learned counsel for the appellant it will be desirable that we first determine whether the impugned order is void order or an illegal order. In this connection the learned counsel for the applicant has relied on a judgment of this Court in the case of Metropolitan Steel Corporation quoted supra wherein the (late) honourable Chief Justice of this Court Sabihuddin Ahmed, J. Had exhaustively and very elaborately discussed the difference between a void order and a voidable order and the fact of limitation in respect of void ordeRs, In this connection we are reproducing paragraphs 17, 18 and 19 of this judgment which are relevant to the controversy in issue:---
17. Alternatively Mr. Lakho argued that the impugned judgment and decree was void and a nullity in law and it was well-settled that statutes of limitation do not run against such judgments and ordeRs, In this context he relied upon the observations of the honourable Supreme Court in Rehmat Bibi and others v. Punnu Khan and others (1986 SCMR 962) and Syed Haji Abdul Wahid and another v. Syed Sirajuddin (1998 SCMR 2296). Indeed we are aware that apart from the above cited precedents there are several other pronouncements where their lordships have held that no limitation runs against a void order which is non-existent in the eyes of law and can even be ignored. Nevertheless it is important to consider whether the impugned judgment can be characterized as void or a nullity in law so as to attract the application of the above principle.
18. Mr. Khalid Anwar on the other hand relied upon the observations of the four-Member Bench of the honourable Supreme Court to the effect that it was a fallacy to assume that a void order would invariably be struck down regardless of the consequences of its decision because by describing it as void a Court cannot alter the fact that such order was passed and could create consequences.
He also referred to the observations that a writ may be refused against a void order if it would enable the petitioner to circumvent the provision of a statute of limitation. In the above context we would like to refer to the observations of their lordships to the effect that void orders and order without jurisdiction are overworked expression and it would be better to use this expression in the narrow sense as held in Conforce Limited v. Syed Ali (PLD 1977 SC 599) as being, confined to order passed by Tribunal not having jurisdiction to do so.
19. Be that as it may, a survey of the precedents clearly reveals that their lordship have always maintained a distinction between the void and illegal or a voidable order and statutes of limitation have been held applicable only to the first type of order. The distinction was explained by the honourable Supreme Court in Muhammad Swaleh v. United Grain Fodder Agencies (PLD 1964 SC 97) with reference to the three grounds of revision contained in section 115, C.P.C.. Their lordships observed that when a Court or a Tribunal assume jurisdiction not vested by law or, fails to exercise jurisdiction so vested its order may be void and a nullity in law. However, when it acts illegally or with material irregularity in the exercise of its jurisdiction the order is only voidable but not void.
Even in subsequent cases their lordships have declared orders passed by Tribunals having no jurisdiction or passed without notice to necessary party void but have not applied this concept to all illegal ordeRs, Indeed a broadened scope of the expression "void order" might upset the entire judicial system and particularly the provision for invoking appellate remedies within the time prescribed by statutes of limitation as every unsuccessful litigant could sleep over a Court order which in his opinion is void or 'defy the same with impunity in the hope that he could ultimately plead that the order was void and non-existent in law which could be ignored. Mr. Lakho himself in all fairness did not want us to go to such extent.
A perusal of paragraph 19 leads to the conclusion that on the basis of the judgment of the honourable Supreme Court in the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97) their lordships observed that when a Court or Tribunal assumed jurisdiction not vested by law or fails to exercise jurisdiction so vested, its order may be void and nullity in the eyes of law. When we examine the impugned order it is seen that the learned Division Bench had assumed the jurisdiction which was not vested in it under any provision of law but in fact exercise of jurisdiction was a violation of section 3(1) of the Law Reforms Ordinance, 1972 which provides for the jurisdiction of Intra Court Appeals and therefore under the above definition the impugned order is a void order and a nullity in law. In paragraph 17 the learned (late) Chief Justice had observed that it is a settled law that no limitation runs against a void order which is nonexistent in the eyes of law, therefore, the review is not time barred and therefore we are of the considered view that the impugned order had not attained finality and had not become a past and closed matter.
17. In the case of United Grain and Fodder Agencies the honourable Supreme Court has held that a decision of Supreme Court does not affect the past and closed transaction and on the basis of the judgment pronounced by the Court proceedings prevailing at that time cannot be reopened. We have already held that the matter before us was not a past and closed transaction and even this judgment supports our view that only those proceedings which have been finally disposed of in accordance with law cannot be reopened and as already stated this appeal was decided in violation of section 3(1) of the Law Reforms Ordinance, 1972.
18. In the case of Sheri-CBE and others quoted supra, the learned counsel had submitted that matter has not been finally disposed of but only leave was granted to consider whether in absence of finding regarding existence of a prima facie case or about balance of convenience or accrual of irreparable loss of public money, the interim injunction could be recalled/suspended. It is a settled law that ing order do not fall within the ambit of Article 189 and are not of binding nature. Even otherwise we are of the view that this case has no nexus with the matter before us.
19. Now we take up the contention of the learned counsel based on the judgment of the honourable Supreme Court in the case of Muzaffar Ali v. Muhammad Shafi quoted supra that the review does not lie from the proceedings in an appeal filed under the Law Reforms Ordinance, 1972 as no review has been provided under the Law Reforms Ordinance itself. In the above case the honurable Supreme Court had decided as under:-- -
18. He laid particular emphasis on subsection (2) of the above section and submitted that in respect of suits (in original), the Civil Procedure Code confers on a trial Court a power to review its orders, therefore; when from the order of a Rent Controller, then the powers of the High Court shall be the same as the powers of a civil Court with regard to the trial of a "suit". Continuing this subject, learned counsel for the respondent argued that in this context even if a Rent Controller himself may not be able to review his orders on merits as the Civil Procedure Code does not apply to him and proceedings before him are not proceedings of a suit, nevertheless, the powers of a High Court in a Second appeal under the Rent Restriction Ordinance are for extensive and more than that of the Rent Controller, inasmuch as, the High Court shall have (to emphasise) the powers of "Courts of Original Jurisdiction in respect of suits instituted therein", and this is despite the fact that the appeal to the High Court has not came up before it from a "suit" or from "a Court" of "Original jurisdiction" as such. We have considered this plea, but are unable to endorse it because as already stated Explanation to section 15(4) of the Ordinance expressly excjudes provisions of Chapter VIII, i.e., section 114 and section 117 of the Civil Procedure Code (Chapter IX) and it is. Not justified to bring back these provisions by reference to powers of a civil Court in a suit in general.
Moreover the word "suit" in section 107(2) has to be read as stated in the Explanation with "such modifications as the context may require", which would mean that the High Court shall have the same powers as a Rent Controller may have had with regard to the main application initiated before him in his original jurisdiction under the Ordinance, save those which may have been expressly or impliedly excluded.
19. The upshot of the above discussion is that looked at from whatever angle the conclusion is inescapable that as the Ordinance neither expressly nor by reference bestows any powers of review, the High Court has no jurisdiction to review its orders passed in a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959. We hold accordingly.
20. Although we are of the considered opinion that this judgment is distinguishable as it relates to the provisions of special law dealing with Rent Restriction Ordinance and in which by a section the provisions of C.P.C. Including sections 114 and 117 have been specifically excluded and the Law Reforms Ordinance is a general law providing for the filing of Intra Court Appeals from the orders passed by Single Judge in its original civil jurisdiction and there is no specific exclusion of the provisions of C.P.C. Therefore the provisions of C.P.C. Shall apply but we have also managed to lay our hands on another judgment of the honourable Supreme Court of Pakistan in the case of Muhammad Yaqoob v. Messrs United Bank Limited and others (2007 SCMR 922) where their lordships held that since the provisions of C.P.C. 1908 continued to be applicable being not ousted by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Therefore the Banking Court had the jurisdiction to examine and decide application filed under section 12(2), C.P.C. Before it. In this judgment the honourable Supreme Court held as under:- --
3. Heard the learned counsel on behalf of the parties, scanned the entire record and perused the order impugned carefully which has been passed in view of the dictum laid down in case Gold Star v. Muslim Commercial Bank (supra). A bare reading of the order impugned would reveal that all the contentions incorporated in C.M.A. No,47/B of 1999 were neither dilated upon nor decided in a comprehensive manner and it was also ignored that the controversy as to whether an application under section 12(2), C.P.C. Is maintainable in the matters under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 has been set at naught by the different High Courts keeping in view the facts of each case. There is no cavil to the proposition that the provisions of Civil Procedure Code, 1908 continue to be applicable being not ousted by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. In this regard reference can be made to the dictum laid down in case of Muhammad Ayub Batt v.
Allied Bank Ltd. PLD 1981 SC 359. The question as to whether section 12(2), C.P.C. Has been ousted or not should have been examined by the learned Single Judge in the light of provisions as enumerated in section 3 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which could not be done. The significance and import of section 12(2), C.P.C.
Was examined by the learned Sindh High Court in case Mian Munir Ahmed v. United Bank Limited PLD 1998 Karachi 278 and it was held as follows:-- "The appellant can seek relief under section 12(2) of the Code of Civil Procedure. We would, therefore, leave the question of quantum of liability of the appellant to be taken up in terms of section 12(2), C.P.C. That provision, needless to add, effectively provides for safeguards against a decree which may have, inter alia, operated in excess of jurisdiction. The applicability of section 12(2), C.P.C. To the proceedings before a Special Court does not seem to be in doubt because section 3 in the Banking Companies (Recovery of Loans) Ordinance, 1979, expressly mandates that the provisions of the Ordinance shall be in addition' to, and unless otherwise proved, not in derogation of other laws. Besides, a Special Court, in all the powers of a Civil Court under the Code of Civil Procedure which obviouly includes powers under section 12(2) C.P.C. What is more, procedure of such Court, relevantly, pursuant to section 7 of the Ordinance, is the summary procedure provided for in Order XXXVII of the Code, in turn subject to section 12 if attracted."
21. We are of the considered opinion that the provisions of C.P.C. Are applicable to the Law Reforms Ordinance, 1972 and therefore this G review petition is maintainable. Even otherwise section 12(2)
C.P.C. Provides that where a person challenges validity of a judgment, decree or order on the plea of want of jurisdiction he can seek the same by filing an application before the Court which passed the final judgment or' the order and it is a settled law that this Court in its inherent jurisdiction can convert an appeal or constitutional petition or revision to any other remedy and therefore the application filed under one section can also be converted to an application under any other section therefore despite holding that the review application is maintainable we also hold that it can be converted into an application under section 12(2), C.P.C. Which according to the judgment quoted by the honourable Supreme Court in the case of Muhammad Yaqoob and others quoted supra, is applicable to other laws also.
22. On the basis of the above discussion we are of the firm opinion that impugned order of this Court dated 25-9-2008 cannot be sustained and therefore vide our short order passed in Court after hearing the learned counsel we had allowed the application, recalled the order dated 25-9-2008 and all actions taken on the basis of the above order were quashed. ' This application is disposed of in the above manner Review accepted.