' The facts relevant for the decision of this revision petition are that Ghulam Nabi filed a suit for declaration and permanent injunction. The suit was initially contested by the petitioner and respondent No,3 but at the subsequent stage the petitioner did not appear, therefore, he was proceeded ex parte. Thereafter, the trial Court appointed Qari , Muhammad Rafique, Advocate as Referee for the decision of the suit between the parties. The said Referee submitted his report whereby he proposed a fresh Warabandi between the private parties. The trial Court proceeded to decree the suit in terms of the report on 20-3-1991. The plaintiff moved for execution of the decree.
It was at this juncture petitioner came to know about the decree and filed an appeal on 4-8-1991, which was accompanied by an application under section 5 of the Limitation Act. The same was dismissed by the lower appellate Court on 14-12-1993 as time-barred. Hence the present revision petition which was admitted to hearing and notices were issued to the respondents. The petition was fixed for 21-2-1995. The same was treated as notice case with the consent of the parties and the arguments in the main petition were partly heard. The parties have concluded the argument today.
2. The learned counsel for the petitioner argued that respondent No,3 had only prayed for setting aside the Warabandi dated 5-4-1989. There was no prayer for fresh Warabandi, therefore, the impugned decree was beyond the prayer in the suit. It is added that although Qari Muhammad Refique was appointed as Referee yet he assumed the role of an Arbitrator illegally, therefore, the report should not have been accepted. In this behalf the learned counsel has referred to the judgments reported as Muhammad Hanif Khan and another v. Ghulam Farid Khan and others (PLD 1988 Lahore 250) and Muhammad Umar v. Muhammad Yousaf (PLD 1977 Lahore 676). It is added that the Civil Court has no jurisdiction to order a fresh Warabandi, which could be formulated by the Canal Authdrities. In this behalf reliance is placed on the judgments reported as Badar Din v.
Bahadur All and others (PLD 1968 Lahore 573) and Barkat Ali, etc. v. Muhammad Yaqoob (1981 CLC 1197). The arguments are summed up with the submission that if looked from that angle, the order is void and without jurisdiction, therefore, the question of limitation did not arise. In this behalf the learned counsel has referred to the judgments reported as Syed Nazir Hussain v. Settlement Commissioner, Lyallpur and another (PLD 1974 Lahore 434) and Jamal Bhai and 2 others v.
Administrator, Evacuee Trust Property and 6 others (1985 CLC 1411). It is added that in fact the first appeal was not time-barred. It was promptly filed after coming to know of the ex parte decree but the lower appellate Court failed to appreciate the controversy.
3. On the other hand, the learned counsel for respondent No,3 argued that the petitioner failed to prove sufficient cause for setting aside the ex parte decree. The appeal was hopelessly time- barred and rightly dismissed by the lower appellate Court while Mr. Arif Chaudhary, Advocate, appearing for respondent No,4 submitted that he has nothing to support the impugned judgment and decree of the trial Court and that of the lower appellate Court.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties.
The trial Court has proceeded in most careless and causal manner while dealing with the valuable rights of the parties. Qari Muhammad Refique was appointed as Referee at the instance of the plaintiff and defendant No,3. The other defendants were not represented at that juncture, therefore, there was no sense in entrusting the matter to the Referee for decision of dispute between the parties. This is not all. The lower Court did not keep in mind the relief prayed in the plaint while passing the impugned decree. It has not only travelled beyond the scope of the plaint but also overstepped its jurisdiction while passing a decree for fresh Warabandi. The learned counsel for the petitioner has rightly referred to the cases of Badar Din and Barkat Ali etc. (supra).
This is not all. If looked from this angle the order is void and without jurisdiction I am fortified in my view by the judgment of the Hon'ble Supreme Court in the case of Nawab Raunaq Ali etc. v. Cheif Settlement Commissioner and others (PLD 1973 SC 236). It is clarified that if void order is allowed to go unchallenged the same was stand legitimised. I am fortified in my view by the judgment of the Hon'ble Supreme Court in the case of Karim Bukhsh and 4 others v. Riaz Hussain and another (1993 SCMR 1667). Therefore, limitation should not have been considered while confirming the decree of the lower Court. Suffice it to refer to the cases of Syed Nazir Hassan and Jamal Bhai and 2 others (supra).
5. This Court is fully competent under section 115, C.P.C. To suo motu revise such void, without jurisdiction and perverse orders of the Courts below.
6. The upshot of the above discussion is that this petition is accepted. The impugned judgment and decree of the Courts below are set aside. The trial Court is directed to decide the suit afresh in accordance with law.