This RSA arises out of a suit for declaration filed by the respondents on 14-5-1964 challenging the order dated 17-10-1952 passed by the D.R.C. as being illegal and inoperative on the rights of the plaintiffs. The plaintiffs prayed that the shares determined by the DRC be refixed in the name of the concerned known as Mian Muhammad Din, Harnam Das. The plaintiffs had also prayed that after determining the shares of oil engine and grinding machine be delivered to the plaintiffs. According to the plaintiffs Mian Muhammad Din had a share of Rs.18,631.13 and that the evacuees had a share of Rs.166.75. The suit was resisted by the present appellant who filed his written statement in the Court which gave rise to the following issues:--
(1) Whether the Civil Court is competent to try this suit? OPP.
(2)Whether the order of Deputy Rehabilitation Commissioner, Sialkot, dated 17-10-1952, is illegal, inoperative, arbitrary and oppressive for the reasons given in the plaint? OPP.
(3) Whether the suit is barred by time? OPD.
(4) Relief.
After recording the oral as well as documentary evidence of the parties the trial Court decreed the suit vide the judgment and decree dated 26-9-1966. The appellant filed an appeal on 16-1-1967 with an application for condonation of delay. The appellate Court recorded evidence regarding the cause for delay and dismissed the appeal as being time-barred vide the judgment and decree dated 4-9-1969.
2. The appellants' learned counsel strenuously urged that the Civil Court had no jurisdiction in the matter, hence the decree dated 26-9-1966 was void. It could be ignored as being nullity or challenged by the appellant at any time because the period of limitation did not run against it. In this connection he placed reliance on the following judgments:--
(i) Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lah. 1039).
(ii) Syed Mahmood Alam v: Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6).
He further submitted that the Civil 1~ourt had committed a serious mistake by treating -the debts due to the firm as debts due from the firm and illegally modified the shares of the parties. This caused serious prejudice to the appellant. On the other hand the respondents' learned counsel urged that even in case of a void decree the period of limitation runs from the date of knowledge and the aggrieved party has to challenge it within the period of limitation. In this connection he places reliance on the judgments in the cases of:--
(i) Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6).
(ii) V.R. Mall v. Sh. Muhammad Yusuf and another (PLD 1975 Lahore 825).
(iii) Sayed Sajid Ali v. Sayed Wajid Ali (PLD 1975 Baghdad-ul-Jadid 29).
He further submits that the decree passed by the Civil Court was executed somewhere in the year 1970. The disputed oil engine and the grinding machine was delivered to the respondent in execution of the decree and was sold away thereafter. Hence at this belated stage tire appellants' claim has become infructuous.
3. After hearing the learned counsel for the parties, I find that the shares of the parties in the concern known as Muhammad Din Harnam Das, were determined by the Civil Court vide its judgment and decree dated 9-12-1950 (Exh. P.1) which was confirmed by the Custodian vide his order dated 16-2-1952. These facts are admitted in para. 4 of the plaint which reads as under: "(4) That the case referred above went to the learned Custodian of Evacuee Property for confirmation and on the 16th of February, 1952, his Lordship confirmed the order of the learned Civil Judge and directed that the Rehabilitation Department is authorised to effect the division of the available assets in the proportion fixed by the learned Civil Judge."
The Custodian directed the Rehabilitation Authorities to distribute the assets of the firm giving half share to the Muslim owners and the other half to the evacuee claimants. The order passed by the Custodian became final and could not be challenged before any other authority. The Deputy Rehabilitation Commissioner was merely supposed to divide the assets of the firm in accordance with the decision of the Custodian. The determination or re determination of shares of the parties or extent of the evacuee interest in the business concern was within exclusive jurisdiction of the Custodian. The jurisdiction of the Civil Court was clearly barred by virtue of provisions of section. 34 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, Which is reproduced below:- - "34. Jurisdiction of Courts barred.---(1) Save as expressly provided in this Ordinance no Civil or Revenue Court shall have jurisdiction--
(a) to entertain or adjudicate upon any question arising in any suit appeal, application or other proceeding as to whether any property is or is not evacuee property, or whether an evacuee has or has not any right or interest in any such property, or
(b) to question the legality of anything done under this Ordinance by or at the instance of the Custodian, or
(c) in respect of any matter which the Custodian is empowered by or under this Ordinance to determine.
(2) Whenever any question such as is referred to in clause (a) of sub--section (1) arises in any Civil or Revenue Court, the Court shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.
(3) No decision of any Court on any question such as is referred to in clause (a) of subsection (1), given between the fourteenth day of August, 1947, and the commencement of this Ordinance, shall be binding on the Custodian, or affect any right or interest of any evacuee in any property affected by such decision.
(4) No Court shall be competent to grant an injunction or other order in relation to any proceedings before the Custodian under this Ordinance or anything done or intended to be done by or at the instance of the Custodian under this Ordinance.
(5) No Court shall be competent to grant relief against extinguishment, forfeiture or penalty to a person whose right to any immovable property is or has been extinguished or forfeited in accordance with the terms and conditions of any agreement or grant relating to such property and who at the time of the extinguishment or forfeiture of such right is or was an evacuee."
A similar provision was incorporated in Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957) in the shape of section 41 of the Act. Since the Custodian had passed his order on 16-2- 1952, wherein he had determined the evacuee interest in the business concern, the provisions of section 34 of Pakistan (Administration of Evacuee Property) Ordinance, 1949, relating to bar of jurisdiction of Civil Court were attracted. The Deputy Rehabilitation Commissioner was merely supposed to divide the assets of the concern in accordance with the decision of the Custodian.
Even the Deputy Rehabilitation Commissioner had no jurisdiction to change the shares of the parties, much less the Civil Court. Moreover, the order passed by the Deputy' B Rehabilitation Commissioner for distribution of assets was immune from attack in the Civil Court by virtue of the provisions of section 16 of the Pakistan Rehabilitation Ordinance (XIX of 1948). Therefore, the judgment and decree passed by the trial Court on 26-9-1966, decreeing the respondents' suit was without jurisdiction and nullity in the eye of law. Had the said decree I been passed in the absence of the appellant then he would have been within his right to challenge the same from the date of knowledge or from the date when it was sought to be enforced against him. This view finds support from the judgment in Mahmud Alam's case. In the said case it was held: "It is true that the precedent law on the question of start of limitation from the date of knowledge is not consistent; yet there is ample authority for the proposition that, if the time starts running from the date of order or action, it should be presumed that the time will run from the date of knowledge of the order or action, if it was made or taken in absence of the party". In the present case the trial Court had passed the decree in the presence of the deceased appellant as well as his learned counsel. In the case of V.R. Mall, it was held that an affected person was not at liberty in all cases to choose his own time to get a void order removed or set aside. It was further held, "Further it is for the Court to ignore or set aside an order which is nullity and not for the individuals themselves. But if a person presumes that an order is a nullity and ignores the same he does so at his own risk. Subsequently, if he comes to a Court he shall have to show that the right he is claiming and which was hit by that presumed void order is not lost due to any provisions of the Limitation Act". A similar view was expressed in the case of Syed Sajid Ali. I respectfully follow the views expressed in the above- referred judgments and hold that the deceasedappellant ought to have filed the appeal before the learned District Judge within the period of limitation. Had the Civil Court passed the decree in his absence then he could have filed the appeal within the prescribed period counting the same from the date of his knowledge. However, in the present case the trial Court had passed the decree in the presence of the deceased appellant and his learned counsel. Hence he ought to have approached the appellate Court within the period of limitation for redress of his grievance. No doubt the trial Court had committed a serious mistake by treating the debts due to the firm as debts due from the firm and consequently reduced the evacuee share illegally, but this illegality could have been corrected, had the deceased appellant approached the appellate forum within time or shown sufficient cause for delay in the matter. He failed to show any sufficient cause for the delay, therefore, his first appeal was rightly dismissed by the appellate Court as being time-barred.
Admittedly the impugned decree was passed on 26-9-1966 in presence of Muhammad Yousuf, the deceased appellant. The deceased appellant applied for certified copy of the judgment and decree on 10-10-1966. It was prepared on 11-11-1966 and delivered to him on 22-11-1966. After obtaining copies, the appellant had about 17 days (up to 9-12-1966) for filing the appeal before the learned District -Judge, but he actually filed it on 16-1-1977 with a delay of about -38 days. In his application for condonation of delay the appellant claimed that he remained seriously ill for about 8 weeks and could not move about. After recording evidence, the appellate Court found the appellant's plea as well as the medical certificate produced by him to be false and rightly dismissed the appeal.
4. The respondent's learned counsel had drawn my attention to an order dated 29-8-1967 said to have been passed by the Deputy Settlement Commissioner, Sialkot, canceling the property from the name of the appellant for non-payment of price - under the provisions of para. 24 of the Schedule under Settlement Scheme No. 8. An uncertified copy of the said order was Annexed as annexure `B' to Civil Miscellaneous No. 5452--C-71 which was duly supported by the affidavit of Muhammad Yousaf son of. Muhammad Din respondent No. 1. 1 need not go into the question whether the property has been cancelled from the appellant's name because no certified copy of the order dated 29-8-1967 has been placed on the record. Moreover, as discussed above the appeal otherwise merits dismissal on other grounds.
5. 1 do not find any valid reason to interfere in the judgment/decree of the first appellate Court.
Resultantly this appeal fails and is dismissed leaving the parties to bear their own costs.