1. SHEZADA MAZHAR, J.--- Facts necessary for the decision of the present writ petition are that respondent No.3 instituted a suit for declaration that he is owner in possession of the suit-land measuring 29 kanals and 11 marlas situated at Mauza Ara Jasrata and that defendant has fraudulently got sanctioned Mutation No.1384 regarding land situated at Mauza Ara Jasrata and Mutation No.1444 regarding land situated at Mauza Badyal. The respondent also denied to have made a gift in favour of the petitioner.
2. 2.The suit was resisted by the petitioner on various grounds and on the pleadings of the parties, various issues were framed by the Civil Court. After recording evidence of the parties, the learned trial Court dismissed the suit of the respondent No.3 on 24-3-2010. Against the said judgment and decree dated 24-5-2010, respondent No.3 preferred appeal before the District Judge, which was allowed by the learned Additional District Judge vide judgment and decree dated 26-9-2012 and remanded the case to the learned Civil Judge for decision afresh. On remand a legal question arose, as to whether there has to be a de novo trial or a fresh decision on the basis of record. The learned Civil Judge vide order dated 13-5-2013 opined that since Appellate Court has remanded the case for fresh decision on merits, therefore, both the parties were directed to produce evidence afresh.
3. 3.On 3-7-2013, the petitioner raised another objection that as there was no objection with regard to the evidence of the plaintiff recorded by the learned Presiding Officer itself and therefore, it is only the defence evidence, which is to be recorded. Learned Civil Judge also turned down the said objection of the petitioner vide order dated 3-7-2013, therefore, the petitioner challenged the orders dated 3-7-2013 as well as 13-5-2013 before learned Additional District Judge wherein a prayer for the review of the order dated 26-9-2012 was also made. The learned Additional District Judge vide order dated 10-9-2013 dismissed the revision petition, hence the present writ petition.
4. 4.Learned counsel submits that the order dated 26-9-2012 was without jurisdiction, as the same has been passed on the basis of National Judicial Policy, which has no legal standing and the same is in direct conflict with Order XXVI, C.P.C. Further submits that National Judicial Policy is not mandatory, therefore, omission on the part of trial Court could not be termed as an illegality in the absence of any prejudice caused thereby to any party. Further submits that recording of evidence will provide the respondent an opportunity to fill up the lacuna. Submits that no objection was raised by respondent No.3 in the memorandum of appeal regarding National Judicial Policy, therefore, appeal could not be decided on the point, which has not been raised by any of the parties. Learned counsel submits that fundamental object of the supervision under Article 203 of the Constitution is to keep the administration of justice pure and for that this Court has the powers to correct the failure, fault, dereliction of duties, laches and jurisdictional defects. Submits that order passed by the courts below should be set aside in the writ jurisdiction of this Court. In support of his contention, the learned counsel relied upon Muhammad Ramzan v. Muhammad Jahangir and another (2012 CLC 844 (Lahore)) and Noor and others v. Mst. Sattan through Legal Representatives and others (PLD 2013 Lahore 30)
5. 5.On the other hand, learned counsel for the respondent No.3 has supported the orders passed by the courts below. Further submits that no writ lies against an interim order or an order of remand.
6. Further submits that the applications have been filed to delay the proceedings of the suit. In support of his contentions, relied upon Muhammad Maqsood Shah Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28, Mst. Salim-un-Nisawidow and 5 others v. Aziz and another (200 CLC 860) and Abdul Majeed v. Noor Muhammad and 2 others (PLD 2006 Lahore 649).
7. 6.I have heard the arguments of the parties and gone through the record of the case as well as the judgments relied upon by both the learned counsel.
8. 7.The main controversy which needs to be decided is whether the order dated 26-9-2012 is in accordance with law and whether the said order can be challenged after a period of about eleven months, if so on what grounds/basis?
9. 8.Perusal of the order reveals that the same has been passed only on the basis of National Judicial Policy, which requires that if evidence is recorded through Local Commission, the same shall be done in the physical presence of the Presiding Officer/Judge. It is also mentioned in the order that Presiding Officer has failed to make a memorandum of the substances of what each witness has deposed in her own handwriting from her declaration in open court and also failed to affix signatures, thereupon and thereby violated the provisions of Order XVIII, Rule 8, C.P.C.
10. 9.To this Court, the discrepancy/irregularity committed by the learned trial court had not caused any party any prejudice. It was not the case of the respondent No.3 before the learned Additional District Judge that due to such irregularity, record of the case has become inaccurate, therefore, the omission of the learned trial court cannot be termed as an illegality. The use of word "shall" in the Order XVIII Rule 8 shall not make it mandatory only for the reason that word "shall" has been used. It is to be seen whether any penal consequences will follow, if the provision is not followed. In the case of Order XVIII, Rule 8 no penal consequences are mentioned in the statute. Further the object of the procedural law is to help and not to hinder the grant to the people of their rights.
11. Similar view was taken by this Court in Bahadur Ali v. Syed Ghulam Sabir Gillani (1990 MLD 588), wherein, it was held:--- "The object of the procedural law is to help and not to hinder the grant to the people of their rights.
12. All the technicalities have to be avoided unless their compliance is essential on the ground of public policy. Any system which gives effect to form and not to substance defeats the substantive right and is not conducive to the object of dispensation of justice."
13. 10.From the above, this Court is of the view that unnecessary technicalitiesshouldnotbeallowedtodeterthedueprocessoflaw and therefore, the order dated 26-9- 2012 was passed on mere technicalities.
14. 11.However, the matter does not end here as after the said order, petitioner did not challenge the same, rather accepted and appeared before the learned trial Court and raised different objections, which were turned down by the learned Civil Judge and revision was also denied. All these subsequent orders (orders dated 13-5-2013 and 3-7-2013) were passed on the basis of order dated 26-9-2012.
15. 12.The order dated 26-9-2012, when challenged was already barred by time and regarding this, learned counsel has termed the said order as "without jurisdiction" and a "void order" and submitted that no limitation runs against a "void order". Learned counsel for the petitioner has also referred to Article 203 of the Constitution and to submit that illegality committed by the Additional District Judge vide order dated 26-9-2013 can be corrected by this Court on suo motu powers as well as on application.
16. 13.I am afraid the order dated 26-9-2012 cannot be termed as an order without jurisdiction, as learned Additional District Judge has the jurisdiction to pass the remand order. Learned counsel for the petitioner may term the said order as wrong order, but not without jurisdiction. Further the said order cannot be termed as "void order" under law. Void order means "an order, which has no legal force or binding effect or which is not capable of being enforced by law". The order impugned in the present writ petition is not a void order. The order dated 26-9-2012 is neither without jurisdiction, nor is a void order; therefore, the same cannot be set aside on this ground. The Hon'ble Supreme Court in case S. Sharif Ahmed Hashim v. The Chairman Secreening Committee, Lahore and another (1980 SCMR 711) has held that:--- "The true position has been clarified by Munir, C. J., with usual lucidity (I say so with respect) in Yousaf Ali v. Muhammad Aslam Zia (1) where Munir, C.J. observed at page 117:--- A void order, does not alter fact that it was passed and by describing it as void, Courts cannot alter fact of order being passed. Order passed can create consequences, hence no hard and fast rule that such order must always be struck down"
17. This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
18. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
19. It was further held:--- "that there is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is stopped by his conduct from challenging it, or if he has been guilty of laches."
20. 14.In the present case, petitioner had the knowledge of the order, but failed to challenge the same for a period of more than eleven months without any just cause, therefore, the same cannot be set aside in writ jurisdiction.
21. 15.In view of the above discussion, this Court does not feel to interfere in the orders passed by the learned courts below. The instant writ petition, is therefore, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.