The relevant facts for the decision of this revision are that Muhammad Hussain, predecessor-in- interest of the petitioners purchased land measuring 39 Kanals 19 Marlas situated in Mauza Sabzojat, Tehsil and District Muzaffargarh, from one Muhammad Sharif for a total consideration of Rs.75,000. The sale was witnessed by mutation No.124 dated 26-10-1982. The respondents Nos. 1 and 2 along with their deceased brother Mahi Khan filed a suit for possession invoking their superior right of pre-emption as co-sharers. But before the suit could be filed the vendee died, therefore, present petitioners were impleaded as defendants in the suit. The petitioners resisted the suit. The trial Court accordingly framed following issues:- (1)Whether the plaintiffs have got the superior right of pre-- emption?
(2)Whether sale price Rs. 75,000 was fixed in good faith or actually paid?
(3)What was the market value of suit land at the time of sale?
(4)Whether the valuation of the suit for purposes of court-fee and jurisdiction is incorrect? If so, its effect?
(5)Whether the plaintiffs are estopped to bring this suit?
(6)Whether the suit is time-barred?
(7)Whether the suit is bad for partial pre-emption?
(8)Whether the defendants effected any improvement over the property in suit? If so, to what extent and effect'
(9)Whether the plaintiffs themselves have not filed the suit, andhave not signed the plaint by themselves? If so, its effect?
(10)Whether any of the legal heirs of deceased-vendee have not been joined as party to the suit? If so, its effect?
(11)Relief .
2. The parties led their respective evidence. The trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 7-10-1989. The petitioners assailed this judgment and decree through an' appeal in the Court of District Judge, Muzaffargarh, who entrusted the appeal for disposal to Additional District Judge. Muzaffargarh. The latter proceeded to dismiss the appeal vide judgment and decree dated 14th of June, 1988 after holding that the appeal was filed on 17-10-1987, wherein Mahi Khan was impleaded as respondent No.2, who had already died on 25-9-1987 It was held that the petition for impleading the heirs of the said respondent No.2 was made on 3-1-1988, much afterthe expire of period of limitation. The judgment and decree of the Lowe appellateCourt is dated 14-6-1988 .
3.The petitioners in this background were constrained to file present revision petition in this Court.
The same was admitted to hearing and notices were issued to the respondents, who have contested this appeal.
4. I have heard the learned counsel for the petitioners as well as the learned counsel for the respondents. The learned counsel for the petitioners has argued that since the decree in the suit for pro-emption or. The basis of relationship was passed after 31st of July, 1986, therefore, the same is void and as such liable to be set aside.
5.On the other hand, the learned counsel for the respondenthas argued that the arguments in the main suit were heard on 22-9-198' and the matter was posted for 25-9-1987, when Mahi Khan, defendant No.2 died. However, this fact was not brought to the notice of the learned trial Court, which proceeded to decree the suit as it is on 7-10-1987. The petitioners filed an appeal in the Court of Districtjudge, Muzaffargarh. On 17-10-1987. The present respondents raisedan objection to the competency of the appeal against a dead person i.e. Mahi Khan, respondent No.2- The petitioners thereafter made an application on 3-1-1988 to implead the heirs of deceased-respondent. This petition was dismissed having been made after the period of limitation prescribed for filing of appeal while the appeal was dismissed as incompetent by the Additional District Judge vide judgment and decree dated 14-6-1988. It is in these circumstances that the present revision has arisen.
6.The learned counsel for the respondents ha-s argued Firstly, that there was no proper appeal before lower appeal Court, therefore, present revision is not competent. In this behalf he has referred to case of Masta v. Sarang and another PLD 1969 SC 261; Secondly, it is argued that since the Civil Judge had Jurisdiction, therefore, finding cannot be questioned in revision. The reliance is placed to the case of Muhammad Hussain Munix and others v. Sikandar and others PLD 1974 SC 139: Thirdly, it is argued that the decision may be incorrect but it is not void. In this behalf he has referred to Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others P I D 1973 SC 236;Fourthly, it was argued that now the judgment in the field is the judgment of the lower appellate Court and there is nothing wrong with the same. Therefore ,there is no merit in this revision petition. In this behalf he has referred to case of Saeed Ahmad' v. Indo Enamel Works Ltd.
Lahore PLD 1954 Lah. 490; andLastly, it was argued that the revision is not competent because the appeal was not competently filed and without availing right of appeal the petitioner cannot maintain this revision. The reliance is placed on Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506 and S. Azizul Hassan and another v. Malik Ghulam Muhammad 1971 SCMR 123.
7. I have heard the learned counsel for the parties and gone through the record and precedent cases. The legal question, which arises for determination is whether decree passed in clear violation of the law declared by Hon'ble Supreme Court, should be maintained if the appeal was dismissed by the lower appellate Court on technical ground or if no appeal was filed at all against such decree? I have asked Mian M. Zafar Yasin, Advocate to appear as amicus curiae and assist this Court on this legal proposition. He has argued that if the order is without jurisdiction, against law or decision of Hon'ble Supreme Court then whether the appeal has been filed or not, this Court can entertain the revision and set aside the decree. The learned counsel in this behalf has referred to the cases of Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCMR 82.
8. Before proceeding with the merits of the pleas raised by the learned counsel for the parties, I would deal with the scope of the jurisdiction with reference to the cases referred to by Mian M.Zafar Yasin, Advocate as amicus curiae. I first take up the case of Khuda Yar. The portion of the judgment dealing with the scope of the revision reads as under:- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is never less very vast and corresponds to a remedy of certiorariand in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked bythe Court suo motu, and Secondly, the Court 'may make such order in the case as it thinks it'. It is the duty of the Court to do justice and the same cannot be allowed to be defeated by formalities. The relevant portion of the judgment in the case of Khuda Yar reads as under:-- "The proposition could hardly be disputed that the principle object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern societyand the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called 'jurisprudence of Conception' a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra vires recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C . P. C . In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. It was observed by Kaikaus, J. In Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 as follows:- 'I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration justice is to help and not to thwart to grant to the people o their rights .Till technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
In a similar context, Cornelius, C.J. As he then was, observed in Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 as follow s : - "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say let justice prevail though the heavens should fall."
In Giovanni Di Santo v. Commonwealth of Pennsylyania USSCR 71 Law Edn.33 it was observed that the logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities. The salutory principle of interpretation which also points to the same direction appears to have been derived from the observation of Bowen L.J. In Curtis v. Stovin (1889)
22 QBD 513, which reads as follows:- "If it is possible, the words of a statute must be construed so as to give sensible meaning to them.
The words ought to be construed ut res magis valeat quam pereat."
9. Now I refer to the case of Karamat Hussain. The relevant portion of the judgment dealing of the judgment with the scope of the revision petition is as under:- "True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. Confer on every person who has litigated before a Court subordinate to the High cCourt e right to assert be ore the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiciton. Indeed where conditions for the exercise of revisional jurisdiction are satisfied the High Court should it self interfere. Course, it may in certain cir--cumstances, in exercise o its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the Writ Jurisdiction conferred upon the High Courts by the Constitution is discretionary. But the right to apply for a writ is certainly not a privilege. On the contrary, it is one of most valuable rights that can be conferred upon a citizen.
10. The competency of revision without availing the alternative remedy was discussed in the case of Khuda Yar and the relevant portion of the judgment reads as under:- "Although ordinarily, Courts have declined to exercise the revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could be justifiably made if required by the circum--stances of the case. Reference may be made in this regard to Ayodhyaprasad v. Secretary of State AIR 1924 Nag. 298. In Lila v. Mahange and others, a Full Bench case authority, it was observed by Sulaiman, Acting Chief Justice as follows:- "Section 115 is no doubt discretionary and, therefore, it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of separate suit would involve a protracted litigation through several Courts and is not always a convenient remedy when more effective and speedy remedy is available. There is no jurisdiction for restricting the power conferred upon the High Court under section 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered in its own merits and if the Court below has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of jusitice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit. We accordingly overrule the preliminary objection." In Fakhshish Singh and others v. 8iru, a judgment by Shadi Lal, C.J.. Contained the following observation, which is quite relevant:- "There can however be no doubt that there is no inflexible rule that where an aggrieved party has another remedy available, to him, the High Court should never interefere in revision. There are several judgments in which the High Court have intereferred on revision under section 115, C.P.C.
Even though the appellant had a remedy by a suit. The discretionary jurisdiction of the High Court has been exercised in order to avoid unnecessary hardship and multiplicity of proceedings. This principle is fully applicable to the facts of this case." A similar view was taken in Rama Charan Das v. Hira Nand, which was a Full Bench authority and to which Justice Din Muhammad who had taken a different view when sitting singly in Mai Das and another v. Mst Dhan Devi and others was a party.
The principle was reiterated that it was not an inflexible rule that where another remedy by way of a separate suit is open, revisional jurisdiction cannot be exercised. The relevant observation is as follows:- "The manner in which the learned subordinate Judge has dealt with the question that arose before him for decision is not only exceedingly unsatisfactory but is manifestly perverse. In view of the very grave and material irregularities committed by him and the gross perversity shown by him in handling the case, I should have no hesitation in setting aside his order in the exercise of our revisional jurisdiction and in holding that, on the evidence on the record, and in the absence of any other claimant to the Gaddi, Ram Charan Das has proved a prima facie right to be impleaded as a legal representative of Bharat Das, the deceased plaintiff. Mr. Puri for the respondent urged that, in view of the fact that another remedy is open to the petitioner by way of a regular suit, this Court should not exercise its revisional jurisdiction in his favour. It is by no means an inflexible rule that where another remedy by way of a regular suit is open, revisional jurisdiction should under no circumstances be exercised. Further, I do not think another suit would afford the petitioner in the present case an equally efficacious remedy. No doubt it will be open to him to claim the suit property on behalf of the temple and in that suit the question of title as between the temple and the defendant, as also the question of the plaintiff's status as the Manager of the temple will be tried and decided. However, in that suit the petitioner will not be able to avail himself of the compromise which the respondent is alleged to have made with Bharat Das and in which was the subject-matter of injury at the time of Bharat Das died."
11. In the case of United Bank Limited, it was held that order of dismissal of the suit was patently without jurisdiction and the objection . As to competency of revision without availing the right of appeal was overruled. The relevant portion of the judgment reads as under:- Learned counsel also contended, on the basis of Municipal Committee v. Sh. Aziz Elahi PLD 1979 SC 506 and S. Azizul Hassan and another v. Malik Ghulam Muhammad 1971 SCMR 123, that no revision under section 11 was competent if no appeal was preferred from the order which was appealable.
This point, however, is concluded and determined by a judgment of this Court in Manager, Jammu and Kashmir State Propertyin Pakistan v. Khuda Yar and another PLD 1975 SC 678It will be seen that the cases relied by the learned counsel for the respondents were not considered favourably as is clear from above quotation.
12. Now I proceedto deal with the arguments in favour of the petition. The learned counsel has argued with reference to judgments of Hon'ble Supreme Court in the cases of Sardar Ali v .
Muhammad Ali PLD 1988 SC 281, Muhammad Shoib v. Member (Revenue) PLD 1988 SC 355, Govt.
N.W.F.-P v. Malik Said Kamal PLD 1986 SC 360 and Aiwaz Khan and another v. Allah Bakhsh PLD 1988 SC 730 that a pending suit could not have been decreed on any ground after 31st July, 1986. The argument is well-founded. The decision in Sardar Ali's case was confirmed. Then the same position was made clear in the judgment of Ghulam Qadir. The relevant portion reads as under:- " .....It is reported as in Shoib and others v. Member Board of Revenue and others, PLD 1988 SC 355. It was clearly held that no decree can be passed now after the said date in favour of the pre-emptor on any ground .....Co-ownership,contiguity etc, " ..When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then existing pre-emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have gal been made use to the peculiarities and strictness of the relevant law in this behalf. Said order of the Supreme Court is: Sher Muhammad v. Allah Ditta PLD 1988 SC 412. The following observations therein fully demostrate how we felt about thefrivolous claims regarding Islamic Talabs:"It is admitted that so far no decree has been passed in theirfavour. It is not claimed that the requirement'Talabs' as in Islam was fu-1-Filled illed in these cases. In C.P.S.L.A No. 747 of 1983, learned counsel for the petitioners had not even hearexpression 'Talabs'
13. Now l proceed to deal with the arguments of the learned counsel for the respondents, which are as a matter of fact preliminary objections, has to the competency of the appeal, otherwise on the merits of decree he has nothing to defined in view of the clear pronouncement of the Hon'ble Supereme Court in the pre-emption matters.
14. First of all I take up the objections 2 and 3 together because the same are interrelated and interconnected. The objection to the competency of the revision was that since the trial Court has exercised the jurisdiction vested in it and his decree is not void but voidable. The accumulative effect of the two objections is that the decree o1 the trial Court is irregular exercise of jurisdiction.
The objections are absolutely misconceived. The Hon'ble Supreme Court has made it clear repeatedly that no decree in a pending pre-emption suit could B be pased after 31st of July, 1986.
Now if a Civil Judge still ventures to decree a pending pre-emption suit then his act will be without jurisdiction and decree passed void ab initio. The cases of Muhammad Hussain Munir and Nawab Syed Raunaq Ali donot support the point canvassed by the petitioner. The case of Muhammad Hussain Munir clearly support my view. The relevant portion reads as under:- , "It is well-settled that where a Court or a tribunal has juris--diction and it determines that question, it cannot be said thatit acted illegally or with material irregularity merely because and it came to an erroneous decision on a question of fact or, ever, of law. One of the earliest leading case on the point is the Privy Council decision in Amir Hussain Khan v. Sheo Bakhsh Singh 11 IA 237. This case concerned the revisional jurisdiction of the High Court under section 622 of Civil Procedure Code, 1882, which was in the same terms as section 115, Civil Procedure Code, 1908. The High Court has the power to inter-- fere in its supervisory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material irregularity. The High court's supervisory jurisdiction under .Article 98(2)(a)(ii)the 1962 Constitution (or for that matter under Article 1991 (a)(ii) of the present Constitution) having regard to its nature of content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects: first; the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C . P. C . , second, the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, when is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above Constitutional provision was designed to empower theHigh Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction in distinguish-- able from that exercisable in a full- fledged appeal, which plainly is not the intention of the Constitution-makers."
While the other relevant portion of the judgment reads as under:- "it must however be remembered that what is administered it Courts is justice in accordance with law and considerations ofwhat may appear is fair play and equity however important they may be, must yield to the provisions of law, or its well-recognised principles."
The relevant portion of the judgment in the case of Nawab Syed Raunaq Ali, which reads as under:- "This is no doubt correct, but it is also now well-establishes that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubin stein puts it in his book on 'jurisdiction and illegality' taken any action beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognizes a privilege to , then such action amounts to a. Usurpation of power unwarranted by law' and such an act is a nullity' that is to say, the result of a purported exercise of authors which has no whatsoever, such a case, it is we 1-estab sneer superior Court is not ground to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
It is, therefore, clear that an act wholly without jurisdiction' or performed in such a way that the law regards it as a colourable exercise of jurisdiction or unlawful usurpation of jurisdiction will be nullity in the eye of law. I, therefore, overrule both these objections.
15.The first and last points can be conveniently dealt with together. In the first instance it was argued that in the absence of appeal the revision is not competent. The argument is misconceived because in this matter appeal was filed. Even otherwise relying on judgments of Hon'ble Supreme Court in cases of Khuda Yar and United Bank Limited. I hold that the revision was competent because the decree is without jurisdiction and void. The learned counsel then explained that actually his objection is that since the appeal was not competently filed, therefore, the revision is not maintainable. This is his last objection as noted by me. It is for this reason that I have decided to deal with the first and last objections together. This Court while dealing with the revision has vast powers as is clear from the portion of the judgment of the Honb'ble Supreme Court referred to by me in the earlier portion of this judgment. In such I circumstances if the petitioner had filed revision petition without filing an appeal, I would have not hesitated for a single second to struck down the decree of the trial Court because that was in clear violation of the law declared by the Hon'ble Supreme Court. Since it is a case of total lack of jurisdiction and order is absolutely void. Therefore, it is a fit case to exercise revisional power.
16. Now I take up the fourth objection. The sum and substance of the objection was that the decree of the trial Court has merged in the decree of the appellate Court with the disposal of the appeal of the petitioners and since there is nothing wrong with the decree of the lower appellate Court.
Therefore, the same cannot be interfered in this revision. The learned counsel for the petitioners has referred to case of Saeed Ahmad, which is not relevant as it pertained to execution proceedings.
The objection is otherwise too infirm and misconceived. The basic decree being without jurisdiction and void cannot become legal by confirmation by the lower appellate Court.
17. On the other hand, its confirmation will not validate it but it F will also render the appellate decree void. All the superstructure built on this weak foundation will crumble down alongwithit.
When the foundation disappear the superstructure cannot stay.
18. Before parting with the judgment, I must acknowledge that the learned counsel for the parties and Mian M. Zafar Yasin, Advocate as amicus curiae, has rendered valuable assistance in the matter in reaching this decision.
19. The result is that I accept this revision petition, set aside, the judgment and decree of the Courts below and dismiss the suit off the respondents. However, there is no order as to costs.