The petitioners are vendees of a piece of land measuring 15 Kanals, 16 Marlas from, one Talib Hussain which they purchased vide sale deed dated 22-3-1980 for the business of Poultry Farm.
Abdul Ghafoor the predecessor-in-interest of the respondents filed the suit to pre-empt the said sale on 22-3-1981, which suit was contested by the petitioners, After the framing of the necessary issues the parties produced evidence in support of their respective pleas. On consideration of the evidence the learned trial Court dismissed the suit on 20-4-1986 who found the suit to be barred by time. An appeal was filed thereagainst by the plaintiff/pre-emptor which was accepted by the learned District Judge, Vehari remanding the matter to the trial Court for deciding the same afresh according to law. It was thereafter that the trial Court decreed the suit vide judgment dated 29-9- 1987 who took the view that despite the judgment in the Said Kamal's case PLD 1986 SC 360 the suit was to be decided according to the previous law in view of PLD 1987 Lah.
358. The petitioners filed an appeal thereagainst by which time Abdul Ghafoor had died and his legal heirs had been brought on record of the trial Court. In the memorandum of the appeal however, name of one of his legal representative Mst. Naseem Akhtar had been omitted as a result whereof an application was filed by the petitioners for correction of the memorandum of the appeal and inclusion of her name therein. The said application was however, withdrawn for no apparent reason on 4-10-1989 by the learned counsel for the petitioners, The learned Additional District Judge thereafter dismissed the appeal on 4-4-1990 that in the absence of the Mst.Naseem Akhtar "It shall be deemed that there is no appeal against her". This is a revision petition thereagainst.
2. It is contended by the learned counsel that the judgment of the learned trial Court dated 29-9- 1987 whereby the suit was decreed was void ab initio and without jurisdiction inasmuch as no such decree could be passed after 31-7-1986, in view of Said Kamal's case PLD 1986 SC 360 and Sardar Ali's case PLD 1988 SC 287. It is further contended that it was a bona fide omission that the name of the Mst. Naseem Akhtar one of the legal representative of Abdul Ghafoor deceased could not be mentioned in the memorandum of appeal which was sought to be corrected later but the learned counsel withdrew the said application without any authorisation. In this regard referring to the Wakalat Nama which had been given to the learned counsel, it is contended that no such authority had been given to the said learned counsel relies on 1989 CLC 776; 1989 CLC 310; PLD 1989 SC 541 and 1988 SCM R 82 to support his above contentions.
3. The respondents who had been duly served had engaged the learned counsel whose name appears in the cause list but is not present. The petition has thus been heard ex parte:
4. As mentioned above the suit was dismissed by the trial Court initially on 20-4-1986 but on remand by the Appellate Court the same was decreed on 29-9-1987. While passing such a decree the learned trial Court took an erroneous view of the matter that the law applicable at the time of filing of the suit would govern the situations. It was not so in view of Said Kamal's case (supra) and Sardar Ali's case (supra) as no such decree could be passed in favour of pre-emptor after 31-7- 1986. The judgment was thus wholly without jurisdiction and patently illegal. The petitioners were quite serious in challenging the same but unfortunately omitted to include the name of Mst.
Naseem Akhtar in the memorandum of the parties for which they made an application which was withdrawn on 4-10-1989 by their learned counsel. There is no understandable reason as to why the learned counsel proceeded to withdraw this application. The contention of the learned counsel for the petitioners that indeed the learned counsel had no such instructions or auhtority to withdraw the said application is also not without substance. The Waqalat Nama of Mr. Rafeeq Aslam Khan, Advocate does not find mention of any authority or power of withdrawal.
5. The main and fundamental aspect of the case was that the trial Court had passed the decree on 29-9-1987 which it could not pass in view of the law laid down by the Hon'ble Supreme Court. The learned Appellate Court failed to keep that aspect in view and dismissed the appeal, simply for the reason that in the absence of name of Mst. Naseem Akhtar in the memorandum of the parties the appeal was not properly constituted. In Mukhtiar Hussain and others v. Elahi Bakhsh and others 1989 CLC 747 the trial Court had decreed the pre-emption suit on 7-10-1989 whereagainst the appeal filed by the vendee was dismissed by the First Appellate Court that the same had been filed against the dead person and the application filed to implead the legal heirs was belated and incompetent in law. The revision petition filed by the vendee was accepted as the judgment and decree of the trial Court was without jurisdiction and could not become legal by the dismissal of the appeal thereagainst. In Malik Muhammad alias Malkoo and others v. Jan Muhammad 1989 CLC 776, it was held that a decree passed on the basis of some compromise after 31-7-1986 was illegal being result of misconception of the legal position. The revision petition, filed by the vendee, was accordingly accepted setting aside the judgments of both the Courts below. In C.R. No,821-D of 1988, decided on 29-4-1989, the view taken was that even the dismissal of the appeal on the ground of limitation would not stand in the way of this Court to exercise the revisional jurisdiction to strike down the decree passed by the trial Court after the target date. Applying the principle laid down in Sardar Ali's case (supra) the revision petition was accepted setting aside the judgment and decree of the Courts below. The principle laid down in the abovementioned precedents is aptly attracted to the instant case in which the decree has been passed by the trial Court on 29-9-1987 after the target date i,e, 31-7-1986, the same was void and without jurisdiction and is liable to be set aside by this Court.
6. In view of the above, this petition is accepted, setting aside the judgments and decrees of the Courts below, as a result whereof, the suit filed by Abdul Ghafoor, predecessor-in-interest of the respondents, will be deemed to have been dismissed. No order as to costs.