1. ' This judgment will dispose of two Constitutional petitions bearing Nos.26/1992 and 27/1992 as they arise out of the same order.
2. 2(a) The facts giving birth to these petitions can be summarised as follows. Petitioner Javed Akhtar is the son of Late Moulana Abdul Quddus Bihari who had been allotted a Plot No,SR/8/18, Hassan Ali Effendi Road, Karachi, alongwith other claimants after protracted litigation vide order dated 8-6- 1974 passed by the then Additional Settlement Commissioner (Urban and Settlement of Land), Camp Office, Karachi. The operative part of the order is reproduced as under: ".... And rest of the entire area is hereby transferred to Moulana Abdul Quddus Bihari i,e, two Kothries on the Gate left and right side and a Chapra plus remaining area after allowing passage to all the occupants..."
3. ' The point of notability in the said order is that eight persons were mentioned in the order with specific area of land allotted to them but the area allotted to Moulana Abdul Quddus was not specified. Even the measurement of the Kothries and the Chapra was not stated in the order. This order was passed by one Ali Jaffer Haideri which discloses the way how the properties were allotted to different persons.
(b) It appears from the record that Moulana Abdul Quddus Bihari had filed a Constitutional Petition No,1299/75 before this Court and one report was submitted by one Mukhtar Ahmed Khan, Deputy Settlement Commissioner (General), Central Settlement Cell, Karachi on behalf of official respondents. In the said report it was stated that "the Additional Member, Board of Revenue under some misunderstanding passed ambiguous order. Hence it is evident that even the official members had realized that the order passed by the said Ali Jaffer Haideri on 8-6-1974 was an ambiguous order. It has been stated in para. 3 of these petitions as well as in para. 3 of the report that: "Demand notice was also issued to the petitioner for the transfer of an area of 624 Sq. Yards including the area covered by the two Kothries and Chapra..."
4. ' It was stated in para. 6 of the petitions that deceased father of the petitioner was running a motor garage under the Chapra and respondent No,3, the main controverts in these petitions had been in his employment... The petitioner's father came to know sometimes in the year 1983 that the respondent No,3 by fraud and misrepresentation obtained an ex parte judgment and decree. The petitioner's father immediately dismissed the respondent No,3 from his service but in consequence of his dismissal he trespassed a portion of the said plot measuring about 70 sq. Yards. A suit for possession and mesne profits for 70 sq.Yards is pending in the High Court of Sindh at Karachi, being Suit No,726/1990.
5. In para. 7 of the petitions it was stated that the respondent had dispossessed the petitioner's father by force from another portion measuring about 106 sq. Yards and a suit under section 9 of the Specific Relief Act for recovery of possession of the portion is pending in the High Court of Sindh being Civil Suit No,708/1988. (Underlining is my own).
6. ' Same properties are the subject-matter of the petitions in hand which are the subject-matter of those suits.
(d) Contrary to the claim of petitioner, respondent No,3 claimed that he had come to know in 1979 that Moulana Abdul Quddus Bihari through misrepresentation and fraud had obtained transfer order on 20-8-1975 about the said garage. Record of C.P. No,26/1992 unfolds that a Suit No,41/1987 was filed by the said respondent No,3 in the Court of XII Civil Judge at Karachi (South) and the record of C.P. No,27/1992 discloses that a suit being No,1996/1979 was instituted in the Court of IV Senior Civil Judge (South), Karachi. Moulana Abdul Quddus Bihari was one of the respondents in those suits. These suits were decreed ex parte and transfer of the disputed portion of the Chapra in favour of the petitioner's father was held to be void after issuance of the show-cause notice by "The Settlement Cell Board of Revenue (Land Utilization), Karachi". The show-cause-notice to petitioner's father followed the cancellation of mutation/transfer. Thus the said property became available for further transfer after including the same in the pool of such properties.
(e) The petitioner's father thus, moved the concerned Trial Court by moving an application under Order IX, Rule 13, C.P.C. On 21-5-1983 for setting aside the ex parte decree by taking a plea that he had never been served but he came to know about the ex parte decree from the department. The said application was dismissed. The order of dismissal was not challenged in any higher forum.
(f) It appears that after failure to get relief under Order IX, Rule 13, C.P.C., in 1983, petitioner's father again approached the Courts of IV Senior Civil Judge and the XII Civil Judge in 1990 i,e, after about 7 years. This time relief sought was to set aside the ex parte decree under section 12(2), C.P.C. Those applications were dismissed by the Courts. Two Civil Revision Applications Nos.17/1991 and 18/1991 were filed against the dismissal orders passed by the subordinate Courts but both those revisions met the same fate on 2-12-1991. Hence these petitions.
(Note) In prayer clause of C.P. No,26/92 the dates of judgment and decree have been shown as 13- 4-1971 and 25-4-1971 respectively instead of 13-4-1987 and 25-4-1987.
7. ' The prayer in C.P. No,26/92 is that: ' Judgment and decree dated 13-4-1987 and 25-4-1987 respectively passed by XII Civil Judge (South), Karachi; order of dismissal dated 12-12-1990 passed by the said Court and judgment dated 2-12-1991 passed by the Revisional Court i,e, HI Additional District Judge, South, Karachi.
8. ' He declared without lawful authority and are of no legal effect; Similarly the prayer in C.P. No,27/92 is that: ' Judgment and decree dated 23-12-1979 and 6-2-1980 respectively passed by IV Senior Civil Judge, Karachi.
9. ' Order dated 11-12-1990 by the said Court and judgment dated 2-12-1991 passed by the Revisional Court i,e, III Additional District Judge, South, Karachi, be declared without lawful authority and are of no legal effect.
(g) Before any final order could be passed in both these petitions, an application Miscellaneous No,76/95 under Order 1, Rule 10(2), C.P.C. Read with section 151, C.P.C. Was filed in C.P. No,27/92 on behalf of Mst. Munira Khatoon on 21-8-1995 with a prayer that she may be made a party as petitioner No,2 because she was one of the legal heirs of Moulana Abdul Quddus Bihari. This application was allowed on 21-8-1995. The learned counsel for the parties filed summary of written arguments besides arguing the matter in the Court.
10. ' Ch. Muhammad Iqbal also appeared on behalf of the Government of Sindh and supported the orders-passed by the Trial Courts and the Revisional Court.
11. 6(a) Admittedly Moulana Abdul Quddus Bihari had appeared before the Trial Court and moved an application in 1983 under Order 9, rule 13, C.P.C. Which was dismissed. After the dismissal of that application, it cannot be said that Moulana Abdul Quddus Bihari was not aware of the ex parte order passed by the Trial Court.
12. ' When it had come to his knowledge that an ex parte order had been passed against him in 1983 he could file an application under section 12(2), C.P.C. Within three years if he was not interested to file any appeal, revision or petition against the order passed on his application under Order 9, Rule 13, C.P.C. Instead of filing applications under section 12(2), C.P.C. Within three years i,e, till the end of 1986, applications under section 12(2), C.P.C. Were filed after about seven years i,e, in 1990. As the said applications were time-barred, hence they were dismissed and the order of dismissal was further confirmed by the revisional Court.
(b) The learned Advocates for the petitioners admitted that no appeal, revision or petition was filed against the order of dismissal of application filed under Order 9, Rule 13, C.P.C. Filed in 1983. It was also admitted that application under section 12(2), C.P.C. Was filed after about 7 years instead of 3 years but their contention is that period of 3 years for filing such application would be applicable in the cases where ex parte decree was obtained by fraud and mis-representation. But where the question of jurisdiction is involved and the Court passes any decree without jurisdiction, then neither Limitation Act would be applicable nor it would be necessary to file application within three years.
13. ' Thus the whole controversy can be narrowed to find out the answer to the question whether limitation period of three years is applicable in the cases of fraud and misrepresentation only or the said period of limitation can be made applicable in those cases too where question of jurisdiction was raised by the aggrieved party? However I would touch all other grounds too which were urged by the learned counsel of the parties in their written arguments because they are also not of less importance.
7. The points raised by the learned Advocates may now be discussed seriatim.
14. ' The first ground relates to service of summons. The contention of the learned counsel for the petitioners is that the Trial Court had ordered for fresh service on 13-7-1979 but no fresh service was issued as ordered. And the order sheet dated 16-12-1979 shows that the same old process issued for the first date of hearing i,e, 8-7-1979 was held to be good on 16-12-1979. The matter was put off to 22-12-1979 for ex parte proof. Thus there was no notice for the actual date of hearing i,e, 16-12- 19'79. In these circumstances passing an ex parte order was without jurisdiction. I am of the view that for the purpose of getting ex parte order set aside on the ground of service of summons proper provision of law is Order 9, Rule 13, C.P.C. The relevant portion of Rule 13 reads as follows:
13. Setting aside decree ex carte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: ' Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.
15. (2)
16. Thus any irregularity in the service of summons can be assailed under Order 9, Rule 13, C.P.C. For the purpose of getting any ex parte decree set aside and not under subsection (2) of section 12, C.P.C. Which reads as follows: "12.--(1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
17. Hence I am of the view that both these provisions of laws be read independently particularly on account of this reason that limitation period of these two provisions is different. If it is presumed the service of summons upon the petitioner's father was defective and the order of dismissal of application under Order 9, Rule 13, C.P.C. Was not proper, the petitioner's father could challenge the said order of dismissal in the higher forum. As the said order was not challenged, hence it attained finality. Thus the point of service cannot be agitated by filing an application under section 12(2), C.P.C. Under the garb of fraud when there is specific provision of law to agitate that point i,e, Order 9, Rule 13, C.P.C. And particularly in the Constitutional petitions which cannot be treated appeals or revisions.
18. ' The learned counsel for the petitioners have referred three reported cases in support of his contention but the facts of those cases do not appear to be helpful to them. The first case has been reported as Shakoor Hussain v. Muhammad Sadiq in 1991 MLD 67. The facts of that case radiate that ex parte decree was passed by the Court on August 9, 1986. Application for setting aside the ex parte order was moved on September 1, 1986. The learned Sub-Judge of the Trial Court allowed the said application after he was satisfied that service of summons was not proper. Hence the plaintiff assailed the order of the learned Judge. It is interesting to point out that, in the said case the process-server, and Reader of the Court were also made witnesses. The facts also reflected this bitter reality that the ex parte order had been passed on a day which was not the date of hearing. It is thus abundantly clear that the order of the Trial Court in the said case was based on fraud. But the order was assailed under Order 9, Rule 13, C.P.C. Because it was a matter of service of summons. The order was thus upheld by the Revisional Court. It is important to point out that subsection (2) of section 12, C.P.C. Was introduced in the C.P.C. 1980 hence it was available to the petitioner's father when application under Order 9, Rule 13, C.P.C. Was filed to get the ex parte order set aside on the ground of improper service. Introduction of this subsection (2) in section 12 did not mean that fraud committed in service of summons can be agitated by filing an application under section 12(2) once again on the same grounds which had been availed in the previous application moved under Order 9, Rule 13, C.P.C. Such an effort amounts to get relief indirectly which could not be obtained directly by challenging the dismissal order passed on application under Order 9, Rule 13, C.P.C. On account of negligence. In the petitions in hand, Moulana Abdul Quddus Bihari had availed the opportunity under Order 9, Rule 13, C.P.C. So he could not agitate the same once again, and that too, after about 7 years. On account of these reasons I have no doubt in my mind to hold that the case of Shakoor Hussain (supra) is not helpful to the learned Advocates for the petitioners.
19. ' The facts in the case of Muhammad Swaleh v. Messrs United Grain and Fodder Agencies reported in PLD 1964 SC 97 unfold that the Trial Court had fixed the matter on a day which was declared holiday. Hence the matter was put before the Court on the next day and the Court proceeded ex parte. When the matter came before a learned Single Judge to exercise its revisional jurisdiction under section 115, C.P.C., the learned Judge expressed his view that duty of the litigant was to appear on the next day if the Court was closed on the day fixed for -hearing. This view of the Hon'able High Court was not upheld by the Hon'able Supreme Court by holding that: "It is true that the learned Single Judge had a discretion to set aside or not to set aside the order of 22nd April, 1996 but the discretion is judicial and subject to the appellate powers of this Court and in this case the failure to exercise jurisdiction was due to mistaken view of law."
20. ' In the present petitions in hand, this Court cannot exercise appellate powers or revisional powers while exercising its Constitutional jurisdiction. Therefore if a party does not prefer any appeal or revision against an order of dismissal of an application under Order 9, Rule 13, C.P.C. It should not expect from the High Court to exercise its Constitutional jurisdiction as an Appellate Court or the Revisional Court.
21. ' Similarly in the case of Malik Muhammad Nazir v. Mian Abdul Rahim reported in PLD 1968 Lahore 792, the aggrieved party had contended that he was not duly served. The learned subordinate Court, after recording the evidence of the parties accepted the application moved under Order 9, Rule 13, C.P.C. And set aside the ex parte order. Against that order revision was filed before the High Court to exercise its jurisdiction under section 115, C.P.C. Thus the Court in that case had exercised its revisional jurisdiction and not the Constitutional jurisdiction. Hence it can be said with certainty that none of the three reported cases, referred by the learned Advocates for the petitioners attract the point involved in the petitions in hand.
4. There is marked difference between the powers of High Court when exercising Appellate or Revisional Jurisdiction and when dealing with a case in the exercise of its writ jurisdiction. High Court; while exercising jurisdiction under Article 199 of the Constitution, does not sit as a Court of appeal or of revision. The shield of Writ Jurisdiction by the superior Court can be used to save an unfortunate person from the arrows of illegalities or irregularities, if thrown by the subordinate Courts without any lawful authorities, provided the aggrieved person has also been vigilant about his statutory duties but Writ Jurisdiction cannot be invoked to wash away the effects of negligence.
22. ' On the basis of these propositions I am unable to embrace the contentions of the learned counsel for the petitioners regarding irregularities in service of summons, wrong address, defects in verification of the plaint, absence of necessary parties etc.
5. It has been contended by the learned counsel for the petitioner that after the repeal of evacuee laws the transfer of evacuee property in the name of petitioner's father had attained finality before Settlement Authorities and the validity thereof could not have been questioned in the Civil Courts.
23. In this connection, the learned counsel relied upon the transfer order dated 9-6-1974. This contention requires to bring into light certain important and hidden realities being reflected from the annexures attached with the plaint.
(i) Annexure ' A' ends with the following words: "The question of allotment of the plot will be considered later on."
24. Dt. 13-3-1952 (Sd.)
25. (M.'S.A. Baig) CSP, Chairman, Rehabilitation Board for the Federal Capital Area, Karachi.
26. ' This annexure shows that the plot in dispute was unearthed but it had not been to anybody.
(ii) Annexure 'B' was apparently signed by A.A. Jaffry (Assistant Rehabilitation Commissioner) and Abdul Quddus Bihari. But the schedule of the property mentioned in this annexure does not show the total area of the plot or the area in dispute which had been allotted to Moulana Bihari. It is notable that the measurement of the area of the plot was not less than several thousands.
27. ' It shows how the evacuee properties were distributed by those great C.S.P.'s Officers of that time to different persons. Undoubtedly they had put the foundation of everlasting disputes in their order.
(iii) Annexure 'C' is the photostat copy of first page of a Writ Petition No,1299/76 filed against several persons in the High Court of Sindh. This petition was filed by Moulana Abdul Quddus Bihari. Neither the copy of the petition was filed nor the copy of the judgment was attached with these petitions. In my view this petition was the most important petition because the stand of Moulana Abdul Quddus Bihari could come to light after going through the said petition. However para. 15 of the written arguments reflects that the said petition was withdrawn by making a statement at Bar when a report (Annexure D) was filed by the concerned authorities.
(iv) The annexure attached after that first page of C.P. No,1299/76 is an order passed by Ali Jaffar Haidri (Additional Settlement Commissioner) Camp at Karachi. It unfolds that an appeal was filed before Additional Settlement (Urban) and Settlement Commissioner Camp at Karachi by Moulana Abdul Quddus Bihari because one Mr. Abdul Mateen Siddique, Dy. Settlement Commissioner, Karachi had rejected the request of the Moulana to transfer the property in dispute in his name.
28. This order clearly shows that Moulana Abdul Quddus Bihari was not the only occupant on that plot.
29. Last few lines of the order show that several other persons were also in possession of different portions of the plot. The said order shows that eight persons other than the Moulana were also allotted different pieces of land with different measurements from the same plot and Moulana Abdul Quddus Bihari was allotted two Kothris and one Chapra plus remaining area of the said plot after allowing passage to all the occupants.
30. ' The underlined sentences are sufficient to show that the learned Additional Settlement Commissioner (Land) of that time decided the matter in such manners that it laid a foundation of permanent litigations among the allotees because:
(a) No measurement of the area allotted to Moulana Abdul Quddus Bihari was made clear in the order;
(b) No measurement of the passage had been mentioned in the order. For example if the occupants wanted 10 feet wide passage and the Moulana was ready to spare only 3 feet wide space, then question arises who would decide the said dispute? The referred order on this point was kept silent.
31. ' It is the summary of documents attached with the present petitions and the nature of the orders passed by the CSPs of that time.
32. ' Under such circumstances if order dated 8-6-1974 was a final order as stressed by the learned Advocates for the petitioners and the Revenue Authority had also ceased to exist then question arises who was competent authority to deal with the disputes between the parties in respect of such properties. The history of disputes shows that these disputes were of two types i,e,, the pending disputes prior to 1-7-1974 when the evacuee laws were repealed and the disputes between the parties arising after 1-7-1974. So far as the disputes prior to 1-7-1974 were concerned they could be termed as the pending disputes and could be decided by certain notified officers.
33. But the disputes arising between the parties after 1-7-1974 were out of the jurisdiction of those notified officers who were appointed by the Government after repeal of evacuee laws on 1-7-1974. I am of the view that such disputes could only be decided by the Civil Courts. Therefore it cannot be said that the Civil Court had no jurisdiction to entertain such kind of disputes.
7. The terms "without jurisdiction", "coram non judice" and such other words are used by now and then by the learned Advocates at the time of arguing any matter and usually put the seal of these terms on each and every type of illegality or irregularity attracting the factual aspects of any matter whilt the Advocates appearing on the other side usually assail such arguments on the ground that disputed questions of facts cannot be taken into consideration by the High Court in its writ jurisdiction. Therefore, I consider it necessary to explain the point of jurisdiction with the help of following example.
34. ' A Magistrate taking cognizance under subsection (1) of section 190, Cr.P.C. Of an offence triable exclusively by a Court of Session, is bound to send that case to the Court of Session for trial without recording any evidence. If any Magistrate, instead of sending such case to the Court of Session, starts trying such case himself, then such an act of the Magistrate would be in excess of his jurisdiction and the High Court would be justified to strike down each and every step taken by the Magistrate. But if the case is tried by a Sessions Court and the said Court commits certain irregularities or illegalities regarding service of summons upon the witnesses, recording of evidence, service of summons upon the witnesses on incorrect addresses etc. Then such irregularities or illegalities cannot take away the jurisdiction of the Sessions Court. In this example trial by the Magistrate was attracted by the term "coram non judice" or without jurisdiction but the illegalities and irregularities committed by the Sessions Court cannot be covered by these terms.
35. All these irregularities and illegalities can be challenged in appeal within the stipulated period or in Revision within reasonable time before the Appellate or Revisional Court but not in the writ jurisdiction. No doubt that every High Court enjoys the powers of Appellate Court, Revisional Court besides having certain powers in its writ jurisdiction but the scope of each jurisdiction is different from the other.
36. ' Appeal is removal of a cause from a lower Tribunal, Court or Authority to the higher Tribunal, Court or Authority for the purposes of rehearing the same by appraising the evidence to give its own decision. In case of revision the High Court enjoys the power of an Appellate Court even to rectify erroneous orders on question of facts as well as on question of law. The Revisional Powers of the High Court under sections 439 and 439-A, Cr.P.C. In criminal cases or under section 115, C.P.C. In civil cases are much wider than the powers of High Court in appeal or writ jurisdiction because the High Court in writ jurisdiction can interfere with an order where there is jurisdictional defect and not in the cases where .There is some procedural defect such as defects in service of summons recording of evidence etc. ' If the written arguments of the learned counsel for the petitioners are tested on the anvil of above discussion and propositions, then there remains no doubt that most of the points raised in their verbal and written arguments on the face of facts mentioned in the petitions do not attract the writ jurisdiction of this Court because the High Court is not entitled to investigate disputed questions of facts in the exercise of its writ jurisdiction.
8. Now we, come back to the question as framed in the first few lines of para. 6 above. Contention of the learned counsel for the petitioner is that period of limitation for three years would be applicable in the cases where an application under section 12(2), C.P.C. Was moved on the ground of fraud and misrepresentation and not on the ground of jurisdiction. Such contention, as raised by the learned counsel for the petitioner, amounts to conceding that the points relating to the allegations of fraud and misrepresentation raised by the petitioner at the time of filing applications under section 12(2), C.P.C. Had lost their force after the expiry of 3 years from the date of knowledge because the said period had expired in 1986 while the applications were filed in 1990. So far as the period of limitation for filing an application under section 12(2), C.P.C. On the point of jurisdiction is concerned the learned counsel for the petitioners contended that no time limit has been prescribed for such application and hence it can be filed at any time. As the Civil Court had no jurisdiction to entertain such suits therefore the order passed by the Court was void. It was also contended that law of limitation is a procedural law and it cannot prevail over the substantial right given by section 12(2), C.P.C.
37. ' I have no doubt in my mind that void orders passed by any Court having no jurisdiction to pass such orders must be struck down at any time without having regard to the limitation. I have also no doubt in this reality that the law of limitation is substantially a procedural law. But the question arises whether this contention can be made applicable in the cases of appeals too because appeals also encircle rights of the parties. If the answer to this question is 'yes' then there remains no need of keeping "Limitation Act" alive and the terms of appeal, revision and writs be removed from the Statute Book and only simple application be filed in each and every case. It is thus evident that such contention cannot be given such a broad concept which could destroy the whole legal system. Hence such interpretation cannot be tenable.
38. ' I have, therefore, no hesitation in my mind to hold that where there is mention of limitation for filing any suit, application or appeal etc. Then the same would be fully applicable as well as forceful to decide the fate of matters on the point of limitation and if no time limit is mentioned for filing any application or petition then latches and knowledge about the facts of a case by any petitioner must not be ignored by the Courts. If the petition has not been filed within reasonable time, the same may not be entertained by the Court. In this connection the question of reasonability has to be decided by the Court on the face of the facts and circumstances of each case. It is admitted position that in the cases of revisions and writs the period of limitation has not been prescribed but it does not mean that the litigants have been given a right to enjoy sound sleep for a long time in respect of their rights where they could file revision or writ petition within reasonable time. Hence it cannot be said that filing such petitions is within the discretion of the parties as and when they so desire to knock the doors of the Courts or when they awake from their sound and slumber sleep of negligence. I am therefore of the view that question of laches must not be ignored by the High Court if any petitioner has not filed any petition within reasonable time in respect of any order in spite of having knowledge of that order.
39. ' On the same proposition I am of the view that period of limitation for filing an application under section 12(2), C.P.C. On any ground including the ground of jurisdiction is three years. In spite of this view if I accept that contention of the learned counsel for the petitioner has some force in it, even then filing of applications under section 12(2), C.P.C. After about 7 years from the year of knowledge cannot be treated reasonable particularly when both these petition do not reflect any sign of reasonableness to ignore undue delay in filing the application under section 12(2), C.P.C. Before the concerned subordinate Courts. Hence interference by this Court by invoking writ jurisdiction in the decisions pronounced by the subordinate Courts appears to be unwarranted.
40. ' For the reasons discussed by me above, these petitions merit dismissal and same are accordingly dismissed with no order as to costs. Notwithstanding to the dismissal of these petitions, any observation made in this judgment shall not affect the suits being contested by any person in respect of the same properties in any manner whatsoever.