1. ' Facts of the case are intricate and course of its litigation chequered. Therefore, a brief statement of facts shall be necessary for proper perception of the controversial point.
2. ' 44 Kanals, 4 Marlas of land, situate at Mauza Sheikhupura of Tehsil and District Jhelum was settled upon Rana Hameed in lieu of his land abandoned in India. Out of it, 16 Kanals, 18 Marlas were sold to Fazal Hussain through Mutation No,244 sanctioned on 6-8-1960. Remaining 27 Kanals, 6 Marlas were also sold to Fazal Hussain by Mutation No, 247 sanctioned on 2-10-1960. Mst. Musharaf Sultana claimed pre-emption in respect of above sales and brought two separate suits for it. Suits proceeded two separate trials. On 7-12-1961, Trial Court decreed pre-emption in both the suits in favour of Mst. Musharaf Sultana, subject to her depositing specified purchase-price in each case before 8-1-1962. There is no dispute that purchase-price was deposited in time fixed in the respective decrees by the trial Court. Fazal Hussain preferred two separate appeals for assailing the judgments and decrees of the trial Court before District Judge, Jhelum. Sale of land measuring 27 Kanals, 6 Marlas was subject-matter of pre-emption suit No,5/480 of 1962. Appeal preferred from the decree in aforenoticed suit was numbered as 12 of 1962, whereas, the other appeal taken from the decree passed in Pre-emption Suit No,6/481 of 1962 covering sale of 16 Kanals, 18 Marlas of land was registered as 13 of 1962. In two separate judgments, appeals were allowed solely on the ground that sale of evacuee-land was immune from pre-emption. In consequence, both the pre- emption suits brought by Mst. Musharaf Sultana were dismissed. She took up the matter before the High Court in second appeal and a civil revision. Second appeal was registered in the Court as R.SA. No, 298 of 1962, whereas civil revision was numbered as 299 of 1962. As the matter in appeal and revision involved a common point for decision beiween the parties, they were admitted to a formal hearing.
3. ' Parties to the appeal and revision were represented by same set of counsel. Rana Nazir Ahmad, Advocate, represented Mst. Musharaf Sultana, whereas Fazal Hussain was represented by Fazl-e- Miran Chauhan, Advocate. RSA No,298 of 1962 was heard by Sardar Muhammd Iqbal-J, later Hon'ble, the Chief Justice of Lahore High Court, and, allowed on 19-3-1968 by remitting the matter for its hearing and decision afresh to the Lower Court. Further, an application for Leave to Appeal from the judgment was dismissed by the Hon'ble Judge himself and appeal to the Supreme Court from the judgment did not succeed. It so happened that an order of remand was made in second appeal only and no separate order was shown to have been recorded in the connected civil revision. Nonetheless, for an unexplainable reason, both the matters covered, in appeal and civil revision, were either understood or taken to have been remitted for reconsideration by the lower Appellate Court where, those were registered separately, as Appeals No,12 and 13 of 1962.On' 30-9- 1975, appeals were dismissed on merits in a single order by the learned District Judge, Jhelum.
4. Detailed order was recorded in appeal covering sale of 27 Kanals, 6 Marlas, and, a short order in the other appeal relating to sale of 16 Kanals, 18 Marlas of land.
5. ' Upon deposit of purchase-money in Court in time, in execution of decrees passed in pre-emption suits, the land-in-dispute was mutated in the name of Mst. Musharaf Sultana, who took its possession through Court. Upon gaining title to and possession of the land in dispute, she agreed for its sale in favour of Arshad Mahmood son of Fazal Hussain at Rs,15,000 per Bigah, on 7-7-1977, and, received Rs,2,000 as advance payment. Sale was to be finalized till 28-9-1977. As balance- payment was not paid, sale-agreement was rescinded and the land-in-dispute further sold in favour of Muhammad Sadiq, Bostan Khan sons of Baru Khan, and, Barkat All son of Muhammad Fazil, for a sum of Rs,1,50,000 through a registered sale-deed on 18-10-1977. Fazal Hussain, whose son had earlier agreed to puchase the land-in-dispute, and, had not succeeded, chose to pre- empt this sale, and brought a suit against the vendees of the land in the Civil Court at Jhelum,. On 6-10-1978. On 17-10-1978, Fazal Hussain was called upon by the trial Court to deposit Zar-i-Panjam in the sum of Rs,30,000 till 18-11-1978. On the very date of making of the order, he applied to the trial Court to furnish security, instead of cash-deposit. This application was dismissed by the trial Court on 15-11-1978. Thereupon, the plaintiff filed an appeal/revision against the order of the trial Court refusing permission for filing of security, instead of cash-deposit, but the appeal/revision was also dismissed by the learned District Judge, Jhelum, on 26-11-1978. After having failed in his attempt for gaining an order for security, he applied to the Trial Court for extending the time for depositing Zar- iPanjam. Extension having not been allowed by the Trial Court, plaint in the pre-emption suit was rejected under section 22 (4) of Punjab Pre-emption Act, on 9-12-1978, by learned Senior Civil Judge, Jhelum. It may be noted that pre-emption suit filed by Fazal Hussain was registered as Suit No, 257 of 1978.
6. ' Meanwhile, pendency of Civil Revision No,299 of 1962 covering sale of. 16 Kanals, 18' Marlas of land was surfaced in the High Court. It was listed before late M.E. Rana, J, on 16-5-1978. On this date of hearing, though, Mr. Fazl-e-Miran Chauhan, Advocate, appeared on behalf of respondent Fazal Hussain, but neither Mst. Musharaf Sultana nor her counsel entered appearance. The Court ordered that "the petitioner or his counsel is not present. In timation to both of them once again for an actual date." On 20-5-1978, Civil revision was relisted before the same Hon'ble Judge. Mr. Nazir Ahmad Khan, Advocate, appeared for the petitioner, and, Mr. Fazl-e-Miran Chauhan, Advocate, for the respondents. The Court observed:- "The petitioner is not intimated of the date. The learned counsel states that she has shifted to Lahore. He may furnish the office the present address within a week. Intimation may be sent to the petitioner on the new address for 17th of June, 1978."
7. Thereupon, Civil revision was placed before my learned brother Mian Mahboob Ahmad, J, now Hon'ble, the Chief Justice of Lahore High Court. His Lordship after marking the presence of the learned counsel for the parties recorded that:- "On 20-5-1978, it was directed that the learned counsel for the petitioner should furnish the address of the petitioner to the office within a week so that intimation could be sent to her on the new address. The learned counsel for the petitioner submits that the brief of the case was taken away from him long time ago and he also furnished fresh address of the petitioner to the office in compliance' with the aforesaid order dated 20-5-1978. Office has issued post card acknowledgement due to both the parties and their learned counsel. Both the learned counsel are present. The respondent is also present and had received post card. The petitioner also must have received the post card.
8. ' The case has been called out. Neither the petitioner appears nor any one properly instructed represents her. Since the reamed Counsel for the petitioner also has no instructions, there is no alternative but to dismiss this petition for non-prosecution. ."
9. ' At this stage, I may pause for a while to observe that Fazal Hussain had preempted the sale of the land in dispute by Mst. Musharaf Sultana by Mine a Civil suit on 6-10-1978 and the plaint in the pre- emption suit was rejects d 9-12-1978. Despite that, Fazal Hussain suppressed this material event from I he Court, and did not acquaint it with the important developments taking place meanwhile.
10. There is no explanation forthcoming on record for this strange behavioun ' Upon dismissal of Civil revision in default, on 25-6-1979, Fazal Hussain applied to learned Senior Civil Judge, Jhelum (Execution Application No, 79 of 1979) for restitution of possession under section 144 of Civil Procedure Code. Restitution Application was dismissed on 17th July, 1980, by the Court.
11. An appeal filed against the decision on the Restitution Application was dismissed on 31-7-1980 by the learned District Judge, Jhelum. A further appeal E.SA No, 57 of 1981 was allowed by my learned brother Akhtar Hassan, J. On 28-1-1990 by directing restoration of possession by the Executing Court. It may be observed that the date of hearing recorded at the top of the judgment is 29-1- 1990. There is either mistake about the date of hearing or the date of judgment.
12. ' There is yet another offshoot, which gave another turn to the litigation. On 31-7-1963, Mst. Musharaf Sultana had withdrawn the preemption amount from the Court. She was shown to have redeposited it, in Court on 25-9-1968 after acceptance of her revision petition. Noticing the fault, Ghulam Hussain petitioned learned District Judge, Jhelum, on 23-7-1975, with whom the appeal was still pending, praying that upon withdrawal of preemption money, decree in favour of Mst.
13. Musharf Sultana had become void and her suit stood dismissed. In his order dated 30-9-1975, learned District Judge while dismissing the appeal, of Fazal Hussain also decided against him on his application. Against the decision, Civil Revision No, 1244 of 1975 was filed by him in this Court. It was admitted on 28-11-1975, and, was allowed by my brother Akhtar Hassan, J. On 30-1-1990.
14. Further, Civil Revision No, 1245 of 1975 against the judgment and decree dated 30-9-1975 was also allowed by my brother Akhtar Hassan J. On 28-1-1990. This revision petition was in respect of that part of the property, which was covered in Civil Revision No,299 of 1962, dismissed for default in appearance on 14-3-1979 by Mian Mahboob Ahmad, J. Leave to appeal (Civil Petition No, 204-R of 1990) against the judgment in Civil Revision 1244 of 1975, Civil Revision 1245 of 1975 and E.SA. No, 57 of 1981 was granted on 12th June, 1990, and, 9th January, 1991, in two separate orders by the Hon'ble Supreme Court of Pakistan. In the latter order, the Hon'ble Supreme Court wished for an early disposal of the restoration application, if possible, within six months.
15. ' On 7-1-1991, Muhammad Sadiq applied under section 12 (2), Civil Procedure Code, read with Rule 19 of Order 41 of the Code for the restoration of Civil Revision No, 299 of 1962 dismissed for Vault, on 14- 3-1979. Fazal Hussain, Mst. Musharaf Sultana, heirs of Bostan Kan and Barkat Ali himself were impleaded as respondents. There was no opposition to the restoration from respondents No,2 to 10.
16. Only Fazal Hussain, respondent No,1 resisted. The restoration application and filed a written reply. In defence, he submitted that the application was barred by limitation; that applicant was a non- party and had no locus standi to seek restoration; that sale in his favour was hit by lis pendens and gave him no cause for setting aside of dismissal order by the High Court.
17. ' Learned counsel for the parties have been heard at length. Scenario of facts has been reproduced above. Only point requiring determination was, whether in the circumstances enumerated above, dismissal order ought to be recalled for hearing of the Civil revision on merits, as was done in the connected second appeal. Like the provisions relating to suits and appeals for dismissal in default and making ex parte orders in them and also corresponding provisions for recalling them in Orders 9 and 41 of Civil Procedure Code, there is no express provision in the Code for dealing with a civil revision. Absence of express provision, however, did not necessarily lead to absence of jurisdiction in the Court for dismissing the Civil revision in default, and, a power for its restoration upon proof of sufficient cause. Except for a case reported in PLD 1974 Karachi 339, general consensus of the Courts is on the view that the revision petition dismissed in default was restorable in exercise of inherent powers of the Court preserved to it under section 151 of Civil Procedure Code. Reference, with advantage can be had to rulings reported in 1971 SCMR 740, PLD 1981 Supreme Court 513, PLD 1982 Lahore 192, 1983 CLC 335, 1990 CLC 1936 and AIR 1957 Nagpur 83. In the last judgment from Nagpur. Jurisdicton, the Court dealing with the matter expressed itself as:- "We agree that Order IX, Rule 9 or Order XLI, Rule 19 of the Civil Procedure Code does not apply to a Civil revision petition and that there is no corresponding specific provision relating to it, but that does not mean that the Code has denied such a jurisdiction to the Court of revision. There is nothing in the Code to prohibit the restoration of a Civil revision dismissed for default of appearance. To apply the provisions of S. 151 ibid to such a case (a case not covered by the express provisions of the Code) is not to assume a jurisdiction not conferred by the Code.
18. ' There are the inherent powers which a Court can always invoke to do justice unless something prohibits the use of inherent powers or the Code has already provided for the matter in a certain way. The revision petition, can, in our opinion, be restored by this Court in exercise of its inherent jurisdiction under S. 151 of the Civil Procedure Code. This is the view expressed in Kanshi Ram v. Mst.
19. Dharmi, AIR 1953 Him-P 102 (B) wherein Ramamurthi Iyer v. Meenakhsundcrammal (A) (supra) was not followed, and we accept the view with respect. It is based on the well-established principle that the inherent power of the Court is meant to meet those cases which are not covered by the express provisions of the Civil Procedure Code."
20. ' In AIR 1959 Punjab 457, Full Bench took the view that:- "Every tribunal has inherent power to correct its own error, provided, of course, the circumstances are such that the correction of that error is necessary in the interest of justice. Such inherent power is necessarily implied in the setting up of any authority on whom the responsibility of deciding any matter rests. This inherent power, which must vest in all tribunals, has to be exercised sparingly and only in circumstances which compel its exercise."
21. The Court, therefore, is possessed of inherent jurisdiction to recall and set aside an invalid or an unjust order, for it exists only to promote justice, and not to defeat its purpose. As it has been said above, two matters before the High Court were deeply inter-woven and proceeded on a common bedrock. Only point for decision in them was; whether sale of evacuee-property was immune from pre-emption. Both the matters though separately numbered proceeded simultaneously and may hayg been listed together. R.S.A. Was decided by the learned Judge and the case was remanded.
22. Civil revision was bound to follow the suit and could not come to a different resuk. Surprisingly, it eluded attention and no order could be recorded on it by the Court. The office as well as the lower Appellate Court shared common misconception that both the matters were remanded for redecision. At least, there is no doubt that the learned District Judge took it so. None from the parties invited the attention of the Court hearing the appeals about the omission noticed later in the High Court. Fazal Hussain himself claimed pre-emption in respect of the sale of the land-in- dispute. In making pre-emption, he shall be deemed to have admitted the ownership of the land- in-dispute by Mst. Musharaf Sultana. Strangely, when the matter was listed in the High Court, neither he nor his learned counsel thought it fit to disclose the information about the sale of the land-indispute by Mst. Musharaf Sultana to Muhammad Sadiq and others and also his act of filing the pre-emption suit. Had this information been divulged, the Court would have been put to notice for adjusting the hearing of Civil revision, accordingly, and, may not have dismissed the Civil revision merely on the ground of default in appearance. As for Rana Nazir Ahmad, Advocate, he looked innocent, and, in absence of requisite information from Mst. Musharaf Sultana may not be cognizant of subsequent developments. In my view, it was clear duty of Fazal Hussain to inform the Court about subsequent developments, more particularly, about his own act of filing the pre- emption suit and failing in it. It is common ground that there is no limitation prescribed for filing of a revision under Code of Civil Procedure, though ninety days' practice is observed as a rule in Courts, and delay thereafter, is required to be explained by the applicant. Limitation did not bar or affect exercise of inherent powers of the Court to make orders, which arc necessary for the ends of justice or to prevent the abuse of the process of the Court. Having regard to the nature of case, and, peculiarity of circumstances, present is a pre-eminently fit case for exercise of inherent powers by the Court to avoid miscarriage of justice, which otherwise was inevitable to follow.
23. Applicant was a bona fide transferee for value of the land in dispute. Dismissal in default of the Civil revision adversely hit him. He was entitled to a hearing on merits and could legitimately lay a claim for it. Rule of lis pendens would not bar his right to be heard on merits of his cause. I would, therefore, recall the order of dismissing the revision petition for non-prosecution for its hearing on merits. In doing so, express my deepest respects to my learned brother who made the order, which was now being recalled. Civil Miscellaneous. Was allowed by a short order on 8-2-1992, for the reasons to be recorded later on. Above are my reasons for the short order.