The abovementioned revision petitions were filed against the common judgment and decree dated 9-5-1994, passed by Mr. Inam Ullah Khan, Additional District Judge, Lahore, whereby, he accepted the appeals instituted by the respondents/defendants and set aside the decrees and judgments dated 14-1-1991 and 11-2-1993 respectively passed by the learned trial Court in favour of the petitioners/plaintiffs. Since the common judgment of the learned First Appellate Court is challenged in both the revision petitions, therefore, it will be just and proper to dispose them of through this consolidated judgment.
2. The brief facts are that Mst. Safia Latif filed a suit for declaration in which she contended that tale land measuring 6 Kanals, 10 Marlas bearing Khasra No.229/230 Min situated in village Dhanna Singhwala; Tehsil and District Lahore being an evacuee property was provisionally transferred to one Muhammad Hussain son of Ghulam Muhammad by the Settlement and Rehabilitation Department, Government of Pakistan vide Provisional Transfer Order No.709072 dated 12-3-1962.
Later, the aforesaid Muhammad Hussain surrendered his full rights in the land in question in favour of the aforesaid plaintiff by executing a deed of association which was approved by the Deputy Settlement and Rehabilitation Commissioner, Lahore vide his order dated 29-10-1964. Thereafter, the Permanent Transfer Deed dated 21-3-1969 was issued in favour of the plaintiff, who allegedly became absolute owner of the aforesaid plot of land. Since then, the plaintiff claimed to be in possession of the land aforesaid as owner through her tenant Muhammad Hussain aforementioned. The plaintiff applied to the Collector, Lahore for entering her name as owner of the land in Revenue Record but despite of repeated requests, it was not done. Strangely enough, the Collector, Lahore while acquiring 302 Kanals, 12 Marlas of land for transferring to Telegraph and Telephone Department vide mutation No.771 dated 12-6-1982, wrongly alienated the disputed land measuring 6 Kanals, 10 Marlas comprised in Khasra No.229/230 Min, though it was not legally transferable, having been already transferred to the plaintiff by the competent authority. Feeling aggrieved, the plaintiff applied for certified copy of mutation No.771 dated 12-6-1982 but the same was not supplied to him by the Collector. Hence she filed a suit for declaration cum permanent injunction against the Province of Punjab (defendant No.1), the Collector, Lahore (defendant No.2) and the Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad (defendant No.3). It was contended in the suit that the plaintiff had become owner with possession of disputed land after its permanent transfer in her favour and the subsequent transfer of the disputed land in the name of Telegraph and Telephone Department was stated to be mala fide without lawful authority and of no legal effect upon the rights of the plaintiff.
3. The same facts were involved in the connected suit and revision petition with the difference that Abdul Ghani plaintiff claimed 7 Kanals of land out of Khasra No.230 Min situated in village Dhanna Singhwala, Tehsil and District Lahore. He also claimed in his suit for declaration cum permanent injunction that the property in question being an evacuee was provisionally transferred to one Ghulam Muhammad son of Mahi by the Settlement and Rehabilitation Department by virtue of Provisional Transfer Order No.709071 dated 12-3-1962. Subsequently, the aforesaid Ghulam Muhammad son of Mahi surrendered his full rights in the property in question in favour of Abdul Ghani by a deed of association which was approved by the competent authority vide its order dated 29-10-1964. Thereafter, a Permanent Transfer Order dated 21-3--1969, fully detailed in the plaint, was issued to confer final transfer of the land in question in favour of the plaintiff. He took possession of the land as owner, and thereafter, Ghulam Muhammad son of Mahi aforesaid had become a tenant under him. Like Mst. Safia Latif, plaintiff Abdul Ghani also applied to the Collector for recording his ownership in the revenue record but the Collector declined to do so. Instead, it transpired that 302 Kanals, 12 Marlas of land including the land of the aforesaid plaintiff was transferred illegally in favour of the Telegraph and Telephone Department vide Mutation No.771 dated 12-6-1982. The aforesaid plaintiff (Abdul Ghani) also contended that the subsequent transfer in favour of the Telegraph and Telephone Department was null and void in the eye of law because the Permanent Transfer Deed stood intact in his favour and without cancelling it, its further transfer could not be made. In this regard, it was contended that since permanent proprietary rights had been conferred upon the plaintiff, therefore, those could not be cancelled nor the land could be transferred onward to anyone else.
4. Both the suits remained pending in the Court below and were ultimately decreed on the basis of ex parte evidence by the learned Trial Court.
5. Subsequently, the Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Pakistan Telecommunication Corporation through its Chairman, Islamabad and the General Manager, Pakistan Telecommunication Corporation, Lahore Region filed two separate petitions under Order 9, Rule 13 read with section 12(2), C.P.C. Against the impugned ex parte decrees dated 14-1-1991 passed in favour of the aforesaid plaintiffs. In those petitions, in addition to the respective plaintiffs, the Province of Punjab through Secretary, Board of Revenue Punjab,' Lahore and the Collector Lahore, District Lahore were also impleaded as defendants.
6. The aforesaid petitions were contested but were dismissed by Mr. Mushtaq Hussain, learned Civil Judge 1st Class, Lahore vide his order dated 11-2-1993 and as such, the ex pane decrees in favour of the respective plaintiffs were allowed to stand. The revisions/appeals against the aforesaid dismissals of petitions were filed by the Federation of Pakistan, and the Telecommunication Corporation of Pakistan and the General Manager, Pakistan Telecommunication Corporation, Lahore which were accepted by Mr. Inam Ullah Khan, learned Additional District Judge, Lahore vide his order dated 9-5-1994. The revision petitions were, however, returned for presentation in the proper Court but the appeals were accepted as stated above. The ex parte decrees were set aside.And the suits of the plaintiffs were also dismissed. The plaintiffs, thereupon, instituted the above captioned revision petitions to challenge the dismissal of their suits by the judgment dated 9-5-1994, passed by the learned First Appellate Court. It was prayed that the impugned judgment of the first Appellate Court be set aside and that the orders passed by the Courts below dated 11-2- 1993 and 14-1-1991 be restored.
7.I have heard the learned counsel for the parties at length.
8. It is submitted by the learned counsel for the revision petitioners that the learned First Appellate Court committed material irregularity in deciding the question of limitation; that the petitions for setting aside the ex parte decrees were hopelessly time-barred; that the respondent No. l was properly served in the original suit but nobody appeared to contest the same; that respondents Nos. 2 and 3 being the successors and attached departments of respondent No. l were also bound by the impugned decrees and that respondents Nos.4 and 5 having consented to the passing of the impugned decrees could not agitate the matter before the learned First Appellate Court.
Further contended that the learned first Appellate Court had misread the evidence brought on record, whereby, it was clearly shown that the petitioners/plaintiffs were the permanent transferees of the land in question. That the learned First Appellate Court, also, wrongly compared the facts reported in Province of the Punjab and others v. Muhammad Hussain and others reported as PLD 1993 Supreme Court 147 with the facts of the petitioners' cases and was misled to dismiss their suits. In this regard, it was contended that in the reported case, one Muhammad Hussain (a different person than Muhammad Hussain who had entered into association with Mst. Safia Latif) had brought a suit against the Settlement Department in which he contended that he was the owner of the land measuring 1887 Kanals, 14 Marlas in Khewat No.1, Khatuni Nos.1 to 52, according to Jamabandi for the year 1945-46 situated in Had Bast of village Dhanna Singhwala, Tehsil and District Lahore on the strength of purchase made by him from a Hindu evacuee on 14-6-1946 for a sum of Rs.90,000. The grievance expressed in the plaint was that being minor at the time of purchase of the aforesaid land in 1946 by his late father in his name, he remained for various reasons unaware of his property and rights therein till 1977 when he got the particulars of the property, a copy of the registered sale-deed and instituted the suit taking his cause of action to have arisen in 1977. The Collector refused to give effect to the registered deed and the Deputy Custodian held that he had no jurisdiction to deal with the claim. Hence he filed the suit aforementioned which was dismissed on various grounds including that he was not the owner of the land in question and that his claim was also time-barred. In addition to that, it was held that the parties were wrongly arrayed being in violation of section 79 read with Order XXVII of the Civil Procedure Code. The suit also allegedly infringed the provisions contained in Article 174 of the Constitution as all the suits against the Federation had to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Learned counsel for the petitioners contended that the facts of the case in hand were intrinsically different than the reported case. In this connection, it was submitted that the claim of Muhammad Hussain was based on some registered document which was executed before partition in the year 1'946 and since then the plaintiff of that case remained silent till he brought the suit somewhere in 1978. Hence, the suit was held to have been time-barred. In the instant case, the suit was well within time and was instituted against the proper parties. The claim was based on the Permanent Transfer Deed, issued by the competent authority and hence there was no comparison between the facts of the case in hand and that of the reported case. Even the claim of the plaintiffs was admitted during the trial of the petition for setting aside the ex parte order which was hotly contested and in which nothing was brought on record that the transfer deed in favour of the plaintiffs was based on fraud and misrepresentation. On the contrary, a Government official named Arif Butt representing the Province of Punjab appeared and admitted the claim and the documents in favour of the plaintiffs but he was wrongly disbelieved by the learned First Appellate Court. That there was actually no reason to disbelieve the evidence of Arif But because the respondents never produced any evidence to show that in fact the transfer in favour of the plaintiffs/petitioners was either bogus or tainted with fraud. In such a situation, the impugned ex parte decrees did not suffer from any legal lacuna nor the subsequent petitions for setting aside those decrees moved by the respondents had any merit in them having been time-barred. The respondents also failed to show sufficient cause for setting aside the ex parte decrees and hence, those were rightly dismissed.
9.Learned counsel for the contesting respondents contended that the land in question alongwith other land had been transferred to the Pakistan Telecommunication Corporation and the General Manager of the aforesaid Corporation based at Lahore, were the proper parties to be sued in the .Suit below. Since they were not made the defendants, therefore, the ex parte decrees against them would not stand and there would be no question of running out limitation against them except when they had come to know about such decrees as aggrieved parties. That the plaintiffs had allegedly committed gross illegality in impleading Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad in the original suits instead of impleading the Corporation which had succeeded after the creation of the aforesaid Corporation through a statute. This was allegedly in violation of section 79 of the Civil Procedure Code and Article 174 of the Constitution of Pakistan. Since there were no proper parties before the trial Court in the original suits, therefore, all the proceedings in those suits were null and void. It was also urged that the allotment and transfer in favour of the plaintiffs had become void after the land was notified to be the ownership of the Pakistan Telecommunication Corporation by a competent Authority being an urban property. It was, therefore, urged that the learned First Appellate Court had rightly passed the order, whereby, the dismissals of the petitions for setting --aside the ex parte decrees were set aside and the suits were dismissed.
10. I have gone through the entire record pertaining to the original civil suits, petitions under Order 9, rule 13 read with section 12(2), C.P.C. And the record of the learned First Appellate Court. The original suits were filed in 1990 by both the petitioners/plaintiffs separately on the basis of the transfer deeds in their favour. One Arif Butt, Record Keeper had appeared on behalf of. The Province of Punjab i.e.; defendant No. l in those suits and had made a statement that the plaintiffs in both the suits were the P.T.O. Holders regarding the property in question with effect from 12-3-1962 and that the P.T.Ds. Were also issued in their favour in 1969 and that the P.T.Os. And the .T.Ds. Still stood validly in favour of the aforesaid plaintiffs and that those have never been cancelled; that the plaintiffs did not owe any arrears as they had paid full and final amount regarding the land in question; and that there was no litigation of any kind between the plaintiffs or the department. The aforesaid representative Arif Butt further stated that he had no objection on behalf of the Government of Punjab i.e.; defendant No. l if the suits are decreed as the aforesaid defendant does not want to contest the same. This statement was made on 6-1-1991 and was signed by the aforesaid representative. Thereafter, the plaintiffs examined one Imtiaz A.I separately in each of the suits who also contended that the P.T.Os. And the P.T.Ds. Had been issued in favour of the petitioners/plaintiffs who were in possession of the same and that the land was being cultivated through their tenants; that land measuring 13 Kanals and 10 Marlas belonging to the plaintiffs had wrongly been transferred to defendant No.3 i.e.; Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan; that defendant No.2 i.e.; Collector was moved for the correction of the entries in the Revenue Record but he declined, whereupon, the suits were filed.
11. . It follows from the above that the suits were decreed on the basis of the aforesaid evidence and since then there was no objection from the Province of Punjab against those decrees. Now the question would arise whether there was any misjoinder or non-joinder of the parties in the suits.
The law which has already been referred to above state, that the suit against the Province is to be filed by impleading the concerned Province in the plaint. Likewise, the suit. Against the Federation is to be filed by impleading Pakistan as a Federation through the Secretary of the relevant department. In the instant case, defendant No. l was the Province of Punjab through the Secretary, Board of Revenue, Punjab and defendant No.3 was Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad. Hence there does not seem to be any irregularity or illegality in impleading them as defendants particularly when the Province as well as the Federation were sued in accordance with the provisions of the Constitution as well as the Code of Civil Procedure. The Collector, Lahore was also impleaded as he was concerned with the maintenance of the correct Revenue Record. The plaintiffs were permanent transferees of the land in question through the P.T.Os. Issued in 1962 and the P.T.Ds. Issued in 1969 much before the mutation No.771 dated 12-6-1982, issued in favour of the Telegraph and Telephone Department. It is, thus, obvious that since the plaintiffs had already got permanent proprietary rights, therefore, the land in question was not available for transfer to -any other department on B 12-6-1982 and as such, transfer in favour: of the Telegraph and Telephone Department was not good in the eye of law. The suits to that effect filed by the plaintiffs were well based in order to get the Revenue Record corrected in accordance with their title deeds. '
12. Now the question would arise whether the defendants in the original suits were properly served or not. In that respect, it may be pointed out that the notices were issued to all the defendants on 29-11-1990 for 9-12-1990. The suits were also accompanying the petitions for temporary injunctions being an urgent matter. The notices were issued in the suits as well as in the petitions for temporary injunction for a shorter date. There seems to be no irregularity because injunction could only be issued after notice to the Government. The notices were accordingly issued and it were served upon the Collector as would be clear from the second copy of the notice which was acknowledged to have been received by some official of the office of the Collector on 5-2-1990.
Likewise, the second copy of the notice to the Federation of Pakistan through its Secretary was also on file alongwith receipt of the registered envelope showing that the notice was despatched to the aforesaid defendant. The. Notice upon defendant No.1 was also received back duly signed by an official of the department on 4-12-1990. Hence service upon all the defendants was complete and since they did not appear except defendant No.1, therefore, they were rightly proceeded against ex parte and the suits- were rightly decreed ex parte. .
13. Now the question would arise whether the petitions under Order 9, Rule 13 read with section 12(2), C.P.C. Against the impugned judgment and decrees showed sufficient cause for setting aside those decrees. It was contended in the petitions aforesaid that the petitioners came to know about the impugned decrees on 24-7-1991 and as such, they could not challenge the impugned judgment and decrees in time and hence, the limitation would start from the date of knowledge.
This appears to be not a correct version because petitioner No. Li.e.; Federation of Pakistan was sent a notice through a registered post for service alongwith the notice through the ordinary process. There is nothing on record to show that the aforesaid notice never reached the department concerned; that the provisions contained in section 80, C.P.C. Were not complied with to give the requisite notice in a specified period before decreeing the suit; that both the decrees suffered from fraud and misrepresentations and were liable to be sete aside. The petitions were also opposed on the grounds that those were barred by limitation and that the petition under section 12(2), C.P.C. And a petition under Order 9, Rule 13, C.P.C. Could not be combined and as such, the joint petition under two different provisions of law was not maintainable. The' respondents/applicants Nos.2 and 3 i.e.; Pakistan Telecommunication Corporation and its General Manager had allegedly no locus standi to file those petitions for setting aside the decrees as they were not parties in the original suits.
14. It was further contended that on merits also, the petitions were not competent as the plaintiffs were the bona fide permanent transferees of the land in question. That the learned trial Judge, after framing the issues, came to the conclusion that the petitions for setting aside the ex pane decrees were time --barred and that the decrees obtained on 14-1-1991 did not suffer from any fraud or misrepresentation or collusion of respondent No.2 (Province of the Punjab) with the plaintiffs. In this regard, it was observed by the learned trial Court that not an iota of evidence in respect of fraud was brought on record to show that there was any misrepresentation, fraud or collusion in obtaining the title-deeds by the petitions/plaintiffs. On the contrary, it was found that Mr. Arif Butt, Record Keeper of the Board of Revenue had clearly stated that ' the petitioners/plaintiffs were bona fide transferees of the property in question. After discussing the evidence and coming to the conclusion that there was no fraud, misrepresentation or collusion in the disputed transactions and that the petitions were time-barred, the same were rightly dismissed by the trial Court. The learned First Appellate Court reversed the findings on the ground that the property had since been transferred to the Pakistan Telecommunication Corporation, therefore, transfer in favour of the petitioners was bad in the eye of law and that their suits were not properly instituted. The appeals as stated above, were, therefore, accepted.
15. After taking into consideration the foregoing facts and on perusal of report, it becomes clear that in a suit titled Muhammad Hussain v. Government of Pakistan, an application under Order 1, Rule 10, C.P.C. Was admittedly moved by the plaintiffs/petitioners to become a party in which the respondents/petitioners i.e.; Pakistan Telecommunication Corporation and the General Manager were also parties. That application was moved on 17-6-1991 and that the respondents/applicants were also party to that suit. It is, thus, obvious that the learned Civil Judge had rightly held that they had the knowledge of the decrees in question when the aforesaid petition was made but they slept over and did not take the remedial action to file the petition under Order 9, Rule 13, C.P.C. For setting aside those decrees in time. It appears that after coming to know about decrees, the Telephone Department acted in lethargy to file the petition beyond limitation period and, hence, could not advance any sufficient reason nor could explain each day of delay as was required by law. There is, therefore, no truth or force in the plea that they only came to know about the decrees on 24-7-1991.
The other plea that the Pakistan Telecommunication Corporation and the General Manager should have been impleaded in the original suits, does not carry convincing force because the alleged transfer order was made in favour of Pakiswa Telegraph and Telephone Department through General Manager, Telephone Region, Lahore and not in favour of Pakistan Telecommunication Corporation which by the date of transfer i.e.; 20-6-1979 had not yet come into existence because the Ordinance creating it came in 1990, which was later on brought on the statute book as Act XIII of 1991. It was admitted by Hafiz Muhammad Abdul Shakoor, Divisional Engineer as A.W.1 that Telephone Department was under the administrative control of Ministry of Communication, Government of Pakistan. As such, the original suits in the name of Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan were rightly instituted and had those `--been instituted in the name of Pakistan Telecommunication Corporation or the General Manager then it would have in fact violated the Constitutional provisions contained in Article 174 of the Constitution and the provisions of section 79 read with section 80 of the Code of Civil Procedure. It is, thus, obvious that there was no legal defect with either of the suits in the Court below nor it could be proved that the respondents in those cases were not served. It is also on record that applications under Order 1, Rule 10, C.P.C. Were made by the respective plaintiffs in a suit filed by Muhammad Hussain against the present respondents i.e.; Telephone Department and as such, they had gained knowledge about the impugned decrees on 17-6-1991 but they filed the present petitions on 20-7-1991 without showing any sufficient cause for delay beyond 30 days. As such, the petitions were hopelessly time-barred on that ground as well. The learned trial Judge had rightly observed that there was no evidence on record to show that the transfer deed in favour of the plaintiffs/petitioners were bogus or were tainted with fraud, misrepresentation or collusion.
Likewise, there was nothing on record to show that Arif Butt i.e.; representative of the Board of Revenue was an unauthorised person to make the statement. On the contrary, he was the Record Keeper and had made his statement from the record which he had brougt in the Court and had testified that the petitioners/applicants were the bona fide transferees of the land in question by the competent Authority. Since they had become owners by virtue of the permanent transfer- deeds in their favour issued in 1969, therefore, the aforesaid transfer to them having not been cancelled, the land in question was not available for re-transfer. Hence its subsequent transfer in favour of the respondent i.e.; Telephone Department on 20-6-1979 was illegal and violative of the proprietary rights of the petitioners/plaintiffs. As such, there was no merit in the petitions under Order 9; Rule 13 read with section 12(2) of the Code of Civil Procedure moved by the respondents/defendants and those were rightly dismissed by the learned Civil Judge but the learned First Appellate Court wrongly and arbitrarily set aside the ex parte proceedings and also dismissed the suits without taking into account that the facts in the reported authority of the Supreme Court of Pakistan and the facts in the case in hand, were totally different from each other.
Likewise, the learned First Appellate Court fell in error to come to the conclusion that Arif Butt was not an authorised person to make statement in the trial Court. On the contrary, his statement clearly shows that he was Record Keeper and was authorised to appear in the Court to represent the department. He had not given the oral evidence based on his memory but had produced the record from which, he had stated that the plaintiffs/petitioners were bona fide transferees and had rightly been issued Permanent Transfer Deeds. In such a situation, holding otherwise, the learned First Appellate Court travelled beyond its jurisdiction and also mis--read and misinterpreted the evidence which was brought on record.
16. In view of my above discussion, both the revision petitions are accepted and the impugned judgment and decree dated 9-5-1994 passed by the learned Additional District Judge, Lahore i.e.; the First Appellate Court are set aside in both the cases and the applications moved by the respondents for setting aside the ex parte decrees under Order 9, Rule 13 read with section 12(2), C.P.C. Are dismissed and the orders passed by the learned Civil Judge on 11 -2-1993 in both the petitions are upheld. Likewise, the impugned orders dated 14-1-1991, passed by the learned Senior Civil Judge granting ex parte decrees in both the cases are also upheld. The parties are left to bear their own expenses throughout.
17. Learned counsel for the petitioners did not press Criminal Original No.68-C of 1994 Mst. Safia Latif v. Federation of Pakistan and Criminal Original No.69-C of 1994 Abdul Ghani v. Federation of Pakistan and requested for their withdrawal. These are accordingly disposed of as withdrawn.