' The question of law that falls for determination in this petition under section 115 of the Code of Civil Procedure is a question of great public importance ; it is whether a decree of a Civil Court declaring an order of an authority to be without jurisdiction and, void can be challenged in another civil suit and whether the Civil Court can in the subsequent suit declare that the decree in the former civil suit was itself without jurisdiction and was of no legal effect.
2.. The predecessors-in-interest of the plaintiffs of this suit were occupancy tenants of the land in suit. By means of two mutations both dated 17-8-1911, they mortgaged their occupancy rights in favour of Sadullah and Abdullah. Later, in the year 1934 the original mortgagees, Sadullah and Abdullah, transferred their mortgagee rights in the land to the predecessor-ininterest of the defendants, in the suit. As is well known by operation of law, the occupancy rights were extinguished and the plaintiffs became the owners of the land in suit in 1960. On 1-3-1972 the plaintiffs filed an application under section 10 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 (to be referred to as the 1964 Act) for the restitution of the possession of the mortgaged land. The Collector by his order dated 29-8-1973 accepted their application.
3. The Collector's order dated 29-8-1973 was challenged by the mortgagees, defendants herein, by means of a civil suit. Their suit was decreed by a judgment of the Civil Judge dated 7-7-1977.
Although the decree dated 7-7-1977 was appealable decree, yet the plaintiffs did not appeal and, therefore, the decree attained finality. The result of the decree dated 7-7-1977 was that the Collector's order dated 29-8-1973 ceased to have any legal effect.
4. The matter so rested till 1979, when the plaintiffs brought this suit for a declaration that the decree dated 7-7-1977 was itself without jurisdiction.
5. Section 10 of the 1964 Act provides: "10. The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.
' Explanation.---A mortgage shall be deemed to subsist for the purpose of this Chapter notwithstanding a decree or order for its redemption having been passed; provided that redemption has not taken place before the presentation of a petition under this section."
' Section 11 of that Act enacts that "where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage not less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording his reasons for such order."
6. Section 12 empowers the Collector, "notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any Court", among others, to order that the mortgage shall be extinguished without payment of the mortgage money or any part thereof and where the mortgagee is in possession, to direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deed, if any, of such land in the possession of the mortgagee be restored to the mortgagor, if he finds that the application is in respect of the mortgaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years or is in, respect of mortgaged land the term of the mortgage whereof has expired.
7. In this judgment the plaintiffs will be described as the owners and the defendants will be described as the mortgagees.
8. It appears from the judgment of the learned Civil Judge dated 7-7-1977 that the ground on which the mortgagees had challenged the order of the Collector dated 29-8-1973 was that they had become full owners of the mortgaged land by prescription, for their mortgage was more than 60 years old and that the Collector was wrong in law in directing the restitution of possession of the mortgaged land. The owners (they were defendants in that suit) contested the suit and the crucial questions were put in the following two issues:-- "(1) Whether the plaintiffs are the mortgagees in possession of the suit land for more than 60 years and the right of redemption has become barred by limitation? O.P.P.
(2) On proof of issue No, 1 whether the Assistant Commissioner, Isakhel has wrongly ordered the redemption of the suit land by his order dated 29-8-1973? O.P.P."
' The learned Civil Judge who decided that suit referred to the mortgage mutations dated 17-8-1911 and observed: "It is evident that the suit land was mortgaged by the father and two uncles of defendants in favour of Saidullah Khan and Abdullah in the year 1911. In the year 1934 the father of plaintiff purchased the rights of mortgagee vide Mutations Nos. 1910 and 1911. Since then the plaintiffs are in possession of the suit land and defendants have not redeemed the property.
Limitation for the redemption was closed on 17-8-1971 after the completion of sixty years." The learned Civil Judge noticed that the application under section 10 of the 1964 Act was brought on 17- 7-1972 and it was barred by time and "so the orders of the redemption of the suit land dated 29-8- 1973... ... ..Are wrong and unlawful." He, therefore, granted the mortgagees a declaration that they had become "full owner of the suit land.. ...... By lapse of sixty years, the order of the redemption of the suit land made by the Assistant Commissioner, Isakhel dated 29-8-73 is wrong, unlawful and shall have no effect on the rights of the plaintiffs."
9. We have seen that under section 10 of the 1964 Act the right to apply for restitution is given to the mortgagor "of any subsisting usufructuary mortgage" not less than 20 years old or of any usufructuary mortgage the period whereof has expired, and that by section 11, which is couched in mandatory language the Collector must dismiss the petition if he is satisfied that the petition is not in respect of a "subsisting usufructuary mortgage" not less than 20 years old or a usufructuary mortgage the period whereof has expired. Keeping the provisions of sections 10, 11 and 12 of the 1964 Act in mind, it should be clear that what the learned Civil Judge had held by his judgment dated 7-7-1977 was that the mortgage in question was not a subsisting usufructuary mortgage within the meaning of those provisions and, therefore, the Collector had no jurisdiction to order the restitution of possession of the mortgaged land to the owners.
10. The declaration sought by the owners in this suit was that they were the owners in possession of the suit land; that the Collector's order dated 29-8-1973 was a valid order and that the judgment and decree of the Civil Judge dated 7-7-1977 were illegal, void and without jurisdiction. The suit was contested by the mortgagees, one of the gounds of defence being that the decree of the Civil Court dated 7-7-1977 operated as res judicata and the Civil Court had no jurisdiction to set it aside.
Yet, the learned Civil Judge by his judgment dated 27-4-1982 decreed the suit and the learned Additional District Judge dismissed the mortgagees' appeal by his judgment dated 13-10-1983.
11. In coming to that conclusion the learned Courts below referred to the mortgage mutations to point out that though the mortgages were effected in the year 1911 yet the period of the mortgages was 5 years. In the opinion of the learned Courts below, and here it will be sufficient to quote from the judgment of the learned Additional District Judge, "the period of limitation for redemption of mortgage was to be reckoned from 1916. Application for restitution of mortgage Exh.P.30 was moved on 1-3-1972 and as such, period of 20 years, as envisaged under section 10 of Act XIX of 1964, had. Already elapsed. The right of redemption was to extinguish 60 years after 1916, i,e, in the year 1976. In other words, application under section 10 of Act XIX of 1964 was moved well within time and the case of original owners was duly covered by section 10 of the said Act. The Collector was, therefore, fully competent to order restitution and, thus, order Exh.P.32 was not without jurisdiction."
The learned Additional District Judge went on to hold that "the jurisdiction of the Civil Court was barred under section 17 of the said Act." Even otherwise, so held the learned Additional District Judge, "the order passed by... ... ..Civil, Judge.. Is patently illegal because the learned Civil Judge failed to understand the legal proposition involved therein."
12. Having so held, the learned Additional District Judge observed that "an order passed without jurisdiction is a nullity in the eyes of law and the Courts are always competent to ignore the same."
For this proposition he referred to two cases, namely, Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 Supreme Court 97) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331). The learned Courts below were thus led or, if I may say with respect, misled into holding that the judgment and decree of the Civil Judge dated 7-7-1977 were: without jurisdiction and, hence, it was a nullity and the same could be ignored." Such a decree in the opinion of the learried Additional District Judge "cannot operate as res judicata."
13. If this view of the Civil Court's jurisdiction be correct then it must necessarily produce extraordinary results. The Collector's order dated 29-8-1973 was declared to be wrong in law and, therefore, without jurisdiction by the Civil Court's decree dated 7-7-1977. In its turn that decree was in itself declared to be void and without jurisdiction by the learned Courts below. Suppose that this Court upholds the decrees of the Courts below, then tomorrow in another suit brought by the mortgagees, it will be on this view of the Civil Court's jurisdiction, open to another Civil Court to declare that the decrees passed in this suit, were based on a wrong view of the law and were, therefore, without jurisdiction. There will, therefore, be no end to litigation and the rights of the parties will always remain inchoate and uncertain. This view of the law must, therefore, lead to results so manifestly unjust, that I shudder to think that it can be correct.
14. In approaching the question of the Civil Court's jurisdiction, one must keep in mind the important distinction between general and limited jurisdiction or between the jurisdiction of superior and inferior Courts. This is a distinction between the jurisdiction of the Courts of law which exercise the judicial power of the State and that of the special tribunals and is described by the expressions "superior Courts" and "inferior Courts or Tribunals." There can be no doubt that the Civil Courts are Courts of general jurisdiction. The phrase "inferior Tribunals" is not used in any offensive sense; it is a categorising and not a derogatroy description. The phrase "inferior tribunal" merely means that the tribunal had a limited jurisdiction, as defined by the statute which sets up the tribunal (Anisminic's case (1969) 2 A.C. 147 at page 233). And as the Civil Court is deemed to have general jurisdiction, the law presumes that that Court had acted within jurisdiction. This presumption is denied to inferior Courts. It has been held that "nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and on the contrary , nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged." (Rex v. Chancellor (1948) 1 K.B. 195 at 205, 206 cited in Sultan Ali v. Noor Husain PLD 1949 Lahore 301 at 316).
15. It is also well settled that the power which the Civil Courts exercise when declaring an act of an authority or tribunal to be without jurisdiction and of no legal effect is the power of judicial review.
In fact before the writ jurisdiction was conferred upon the High Courts by the insertion in 1954 of section 223-A in the Government of India Act, 1935, in the areas now forming part of Pakistan, the only means of redress in matters where the question was whether a tribunal or statutory authority had acted without or in excess of jurisdiction was a civil suit. The relief usually claimed was the relief of declaration. That the power of the Civil Court is the power of judicial review in such cases was recognized in Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 201). In that case an order had been reviewed by an officer who was not competent to do so. The order was challenged in a petition under section 223-A of the Government of India Act, 1935. It was held that there was nothing to prevent a Civil Court from declaring that the order was not under the Pakistan Rehabilitation Ordinance, 1948, or beyond it. This course was not availed of; instead the aggrieved party invoked the writ jurisdiction of the High Court. It must be held, therefore, that when the Civil Court in. The suit of the mortgagees declared by its judgment dated 7-7-1977 that the order of the Collector dated 29-8-1973 was without jurisdiction it did so by way of judicial review. Similarly when the Courts below in this suit declared that the judgment and decree of the Civil Court dated 7-7- 1977 were without jurisdiction, they too were exercising the same power of judicial review. And in doing so, what they lost sight of was the important principle that judicial review is available as a remedy for mistakes of law made by inferior Courts and tribunals only and that mistakes of law made by Judges of the Civil Courts as Courts of general jurisdiction and Judges of the High Court can be corrected only by means of an appeal to an appellate Court (Lord Diplock in re: Racal Communication Ltd. (1981) AC 374 at 384). The Civil Court which gave the judgment dated 7-7-1977 was certainly not an inferior Court vis-a-vis the Civil Court in this suit; that Civil Court was as much a Court of general jurisdiction and hence a superior Court as the Civil Courts, who decided this suit.
In other words, the Civil Court who decided the mortgagees' suit and decreed it on 7-7-1977 was a Court of concurrent jurisdiction and not an inferior Court. It must follow, therefore, that there was no power of judicial review in the Courts below to review the judgment and decree dated 7-7-1977 and to declare that they had been made without jurisdiction and that the only means of correcting the judgment and decree dated 7-7-1977 was an appeal to the appellate Court.
16. The doctrine of res judicata as enacted in section 11 of the Code of Civil Procedure is founded on the general rule that "a man shall not be twice vexed for the same cause" and that "if an action be brought, and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial, which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatam, the former judgment, while it stands, is conclusive between the parties, if either attempts, by commencing another action, to re-open that matter; and for this rule two reasons are always assigned: the one, public policy, for interest public sit finis litium; the other, the hardship on the individual that he should be twice vexed for the same cause." (See Broom's Legal Maxims at pages 217, 218 ). When a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process. (Broom's Legal Maxims at page 220).
17. There is in the judgment of the learned Additional District Judge a mention of the provision of section 17 of the 1964 Act which section forbids a Civil Court "to entertain any claim or enforce any right under a mortgage declared extinguished under this chapter or to question the validity of any proceedings under this Chapter", for holding that the decree dated 7-7-1977 was without jurisdiction, for that section excluded the Civil Court's jurisdiction in these matters. Assuming that that section was intended to oust the jurisdiction of the Civil Courts, it is a well-recognized principle of law that the Courts have a general jurisdiction over the administration of justice and when the legislature establishes a special tribunal the jurisdiction committed to such special tribunal is in fact carved out of the general jurisdiction of the Courts. It is therefore for the Courts to decide the true construction of the statute, which defines the area of a tribunal's jurisdiction, to see that that tribunal keeps within the limits of its special jurisdiction, for if it does not, then it trespasses into the general jurisdiction of the Courts. Therefore, if there is a dispute on the point whether a Court has or has not jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it has to hold that it has no jurisdiction. In this sense, jurisdiction of Courts is never barred, for they are judges of their own jurisdiction and it is for them to decide whether in a given case their jurisdiction has been taken away. For, on principle it is for the Civil Court as a Court of general jurisdiction to determine in the last resort the limits of the power of a Court of special jurisdiction. (See State v. Zia-ur-Rehman PLD 1973 SC 49.At 77; Hirday Nath's case AIR (sic) Cal. 34 and Anisminic case (1969) 2 AC 147). As was held in the well-known case of Secretary of State v.
Mask & Co. (AIR 1940 PC 105): "It is settled law that the exclusion of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
18. It has been seen that the Civil Court which gave the decision dated 7-7-1977 was interpreting the expression "subsisting usufructuary mortgage" as it occurred in sections 10, 11 and 12 of the 1964 Act. In interpreting that expression the learned Civil Judge who gave the decision dated 7-7-1977 was not venturing upon any extraneous exercise. The learned Civil Judge had to interpret that expression in order to determine his own jurisdiction. As was said by Kaikaus, J. In Jamal Shah case PLD 1966 SC at 49 it is the distinction attaching only to Judicial Tribunals that their acts within their jurisdiction though illegal are not null and void, but so far as the administrative officers or authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. Thus there is a presumption that "where Parliament confers on an administrative tribunal or authority, as distinct from a Court of law, power to decide particular questions defined, by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined; and if there has been any doubt as to what that question is, this is a matter for Courts of law to resolve in fulfilment of their Constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. "(Lord Diplock in re:Racal Communication Ltd. (1981) AC 374, 382, 383).
19. The question then is--does a clear error of law by a Court of law shown to have been conferred the power to decide question of law make the decision without jurisdiction or without lawful authority? As has been observed above the Civil Courts are Courts of general jurisdiction; undoubtedly they have the power to decide all questions of law agitated before them. It is a well known and indisputable proposition that when there is jurisdiction to decide a particular matter; then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. As Kaikaus, J. Said in Badrul Haq Khan v. Election Tribunal (PLD 1963 SC 704): The word 'decide' implies a power to come to more than one conclusion." I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported."
20. Having noticed the propositions of law which must govern this case I am now in a position to approach the question whether the learned Courts below were right in declaring that the decree of the learned Civil Judge dated 7-7-1977 was without jurisdiction and a nullity . In holding that the Collector had acted ultra vires his powers under sections 10, 11 and 12 of the 1964 Act, the learned Civil Judge was interpreting the words "subsisting usufructuary mortgage." Assuming that he was wrong in law in taking the view that the period of 60 years was to be reckoned from 1911 and that the application for restitution of possession under section 10 was not made timeously, the simple question is whether the learned Civil Judge had as a Court of general jurisdiction the jurisdiction to decide that question of law or not. The answer must be that he had the jurisdiction to decide it; and the fact that he decided it wrongly did not on the well established principles stated above make his decree without jurisdiction. A similar question arose before the Court of Appeal of England in Pearlman case (1979 1 QM 56). Geoffray Lane, L.J. In his minority judgment said: "The Judge is considering the words it 'le schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this Court to be a wrong conclusion upon a different question. It seems to me that, if this Judge is acting outside his jurisdiction, so then is every Judge who comes to a wrong decision on a point of law."
' This view of Geoffary Lane, L.J. Was approved by the Privy Council in South East Asia Fire Bricks case (1981 AC 363) and by the House of Lords in Racal Communication Ltd. (1981 AC 363) and so far as I know is the prevalent law of England. I respectfully adopt it.
21. For these reasons I am of the opinion that the learned Courts below were wrong in treating the decree of the learned Civil Judge dated 7-7-1977 as a nullity. For the reasons stated above, I cannot think that the provisions of section 58 of the Qanun-e-Shahadat, 1984 can be invoked to the aid of the owners. That Article entitles a party to a suit or other proceeding to show that a judgment, order or decree which is relevant under Articles 54, 55 and 56 of the Qanun-e-Shahadat and which has been proved by the adverse party was M delivered by a Court incompetent to deliver it. But it has been seen that the Civil Judge who passed the decree dated 7-7-1977 was competent to pass it.
The inexorable conclusion must be that the decree dated 7-7-1977 was competently made and, therefore, operated as res judicata. In this view of the matter the judgment and decree dated 7-7- 1977 were with jurisdiction. 1' As regards the observations referred to by the learned Courts below in Muhammad Swaleh case and Raja Muhammad Fazil Khan case it is noteworthy that Muhammad Swaleh case was a case under section 115 of the Code of Civil Procedure; it was thought unnecessary to decide whether the order in question and the ex parte decree were wholly void "for there is no doubt as to their being not in accordance with law and this is. a sufficient ground for their being set aside" and in Raja Muhammad Fazil Khan case the question was whether "an entitlement certificate issued under Martial Law Regulations Nos. 84 and 89 of 1960 could be cancelled by an Officer on Special Duty of the Central Record Office on the ground that it had been obtained by practising fraud on the Settlement and Rehabilitation Department." In other words the order in question was not by a Court of general jurisdiction but by a Settlement Officer with limited statutory jurisdiction. The principles laid down in those cases must, therefore, be read in the context of their own particular facts.
22. Learned counsel for the respondents then argued that as the view of the law taken by the learned Civil Judge who gave the decision dated 7-7-1977 was wrong and what the judgments of the learned Courts below did was to correct a manifest injustice therefore, this Court should not exercise its discretion under section 115 of the Code of Civil Procedure in favour of the revision petitioners. I cannot agree. The respondents had contested the suit resulting in the judgment and decree dated 7-7-1977. They had allowed them to become final by not appealing against them, which, as observed above was the only means of correcting the error of law into which the learned Civil Judge had allegedly fallen. They slept over the matter for about two years and then adopted the course of challenging the judgment and decree dated 7-7-1977 by this suit which course was not open to them. They were thus guilty of not only violating the public policy upon which the doctrine of res judicata is founded but also vexing the petitioners twice for the same cause. Such a party is not in my opinion entitled to the discretion of the Court.
23. In the result, I accept the revision petition, set aside the judgments and decreed of the Courts below and dismiss the suit with costs throughout.