' Petitioners' application for the rejection of the plaint in the suit for pre-emption filed by the respondents Nos.1 and 2, has been dismissed by the learned trial Court vide order, dated 1-12-1997.
Revision filed by the petitioners also failed on 19-2-1998, hence this petition.
2. Briefly stated the facts of the case are that, the 'respondents Nos.1 and 2 filed a suit for pre- emption against the petitioners on 14-1-1975; this suit was allowed vide judgment and decree, dated 10-2-1985 by the learned Civil Judge Class; the petitioners preferred an appeal against the above, which was accepted by the learned Additional District Judge on 2-4-1986, holding that the learned Judge, who passed the decree, had no pecuniary jurisdiction; however, remitted the case for re-writing of the judgment in accordance with law. The petitioners 'filed F.A.O. No,81 of 1986, which was accepted by this Court on 30-9-1997. In paragraph No,3 of the judgment of this Court, it was held as under:-- "I need not enter into any lengthy discussion in this case, because the judgment of the trial Court suffered from inherent lack of jurisdiction as held in PLD 1975 SC 331 and again in 1983 PSC 394, both referred to in the judgment of the learned District Judge."
' In paragraph No,4 of this judgment, it was concluded as follows:-- "In this view of the matter, this F.A.O. Is accepted, impugned order of the learned Additional District Judge is set aside and the case is remanded to the Court of first instances for the fresh trial including the recording of evidence etc."
' On remand of the case by this Court, the petitioners moved an application for rejection of the plaint on the ground that, the judgment and decree passed by the learned trial Court on 10-2-1985 was declared as without jurisdiction and, therefore, being nullity in the eyes of law, is not a judgment deemed to have been passed before 31-7-1986 enabling the respondents to continue with their suit for pre-emption under the old law, resultantly, the plaint should be rejected. As mentioned earlier, this application has been disallowed by the learned trial Court vide order, dated 1-12-1997 and revision filed by the petitioners also failed on 19-2-1998. The view taken by the Courts below is that, this Court has remanded the case for fresh trial including recording of evidence, therefore, they are obliged to dispose of the matter in terms of the remand order.
3. Learned counsel for the petitioners contends that the judgment and decree of the learned trial Court, dated 10-2-1985 was declared as void because of lack of pecuniary jurisdiction of the Civil Judge III Class, therefore, such void decree cannot be considered to be a decree, which was saved in Sardar Ali's case reported as PLD 1988 SC 287. It is further submitted that the decree without jurisdiction is void and nonexistent in the eyes of law, therefore, it confers no right on the respondents to continue with the suit filed by them under the old preemption law. In support of his contentions, learned counsel has relied upon the following judgments:-- ' D.A. Gill and 3 others v. Lahore Diocesan Trust Association and 39 others 1986 M LD 942 (Kar.), Nazir Begum and others v. Fazal Dad and others 1999 SCM R 210 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others PLD 1975 SC 3311
4. Conversely, the learned counsel for the respondents states that, notwithstanding the fact that the decree passed by the Civil Judge III Class, dated 10-2-1985 has been declared by this Court to be without jurisdiction and thus void, yet for the purpose of sustaining the right to continue with the pre-emption suit under the old law, such decree would be deemed to be a decree saved in Sardar Ali's case.
5. Arguments heard.
6. In Sardar Ali's case, the Honourable Supreme Court, while considering the effect of Said Kamal's case, on the pending pre-emption litigation, under the old law, concluded that three points of view have emerged so far: "One, that suit filed before 31-7-1986 would be decided in accordance with the previous laws till the final stage. Two, that notwithstanding the change in law, a decree of pre-emption obtained prior to that date, will continue to have effect subject of course to the modification thereof in accordance with the law under which it was passed; however, if no such decree was passed prior to that date, it could not be passed subsequent to it. And three, that not only the suits pending on that date will abate but also the decrees obtained prior to it will be annulled by the higher forums in duly filed proceedings on the basis of the change of law."
Thus with a view to clarify the true legal position and settle the controversy, following seven questions were formulated:--
(1) Whether a pre-emption suit not decided by the Trial Court before 31st July, 1986, could be decreed after the said date?
(2) Whether plaintiff in a pre-emption suit, having failed in trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date including the Supreme Court?
(3) Whether a plaintiff having fai'ed to obtain a decree in the trial forum before 31-7-1986 and having challenged his failure in the higher forum, his case was remanded to lower forum, where it was still pending without any decree in his favour till then, can be granted a decree for the first time?
(4) Whether a plaintiff having obtained a pre-emption decree in the trial forum before 31-7-1986 and a challenge to such a decree was pending before the Supreme Court for a lower forum in appeal, revision or writ petition, can (decree-holder) be non-suited on the ground that the relevant law ceased to have effect on 31st July, 1986?
(5) Whether a plaintiff, having failed in the trial forum had in appeal or other proceedings in a higher forum, succeeded in obtaining a decree before 31st July, 1986, can be non-suited in the still higher forum including the Supreme Court, on the ground that the relevant law had ceased to have effect on 31st July, 1986?
(6) Whether a plaintiff having obtained a decree for preemption in the trial forum lost the case in higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986 and seek its restoration?
(7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be .Entitled to seek its restoration regardless of the fact, whether the matter is pending before the trial or any higher forum?
' The Honourable Supreme Court in paragraph No,64 of the judgment, came to the following conclusion:-- "In the, opening part of this judgment, we visualized the varidus questions vis-a-vis situations which have arisen or might arise in connection with the present controversy. In the light of discussion and view on the points involved, the answers to questions Nos.1 to 5, are in the negative, while questions Nos.6 and 7, are answered in affirmative. These questions and answers would in our view resolve most of the controversies. However, if there is a different question, or any new situation, arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed. And answers already rendered."
7 . It is clear from the above that the question about the effect of a decree passed without jurisdiction, was not resolved in Sardar Ali's case. Learned counsel for the parties have also not cited any other judgment, through which, this question has been conclusively determined.
8. According to the ratio of Sardar Ali's case, the decree-holder on account of a pre-emption decree, passed before the target date, acquires the property rights, under the decree, which could be assigned, transferred or inherited as any other property rights. Thus, protection, was made available to those decrees, which were even illegal or passed in erroneous exercise of jurisdiction, subject to modification, etc. By the higher forum under the old law. However, to my mind, a decree passed without jurisdiction does not fall within the above category and cannot be equated to the erroneous or illegal decree.
9. According to the judgment cited by learned counsel for the petitioner and also in view of the cases reported as Province of the Punjab and others and Abdul Majeed 1983 PSC 394; Chief Engineer, Building Department v. Messrs Pakistan National Construction 1988 SCM R 723 and Sultan Khan alias Sultan Ahmed and others v. Mst. Sardar Bibi and others 1986 CLC 74, the decrees, which have been passed, without jurisdiction, would be nullity in the eyes of law. Besides, in the present case in F.A.O. No,81 of 1986, this Court has declared that the decree in favour of the respondent, dated 10-2-1985, was passed by the learned Civil Judge, lacking inherent jurisdiction. In view of the above such decree, which has been declared to have been passed by the learned Civil Judge, having no jurisdiction, would not create any right in the decree-holder to sustain any action under the previous law for the reason that the decree without jurisdiction, since its inception would be non-existence altogether and would merely be a simple piece of paper. This view is strengthened from the settled law that an executing Court cannot go behind a decree, but if a decree is void, on account of lack, of inherent jurisdiction, the Court shall refuse to execute the same.
10. In the above circumstances, I am constrained to hold that as the decree, dated 10-2-1985, was void ab initio, therefore, it would not be deemed to have ever passed before 31-7-1986 and thus, respondents, on the basis of above, notwithstanding that while disposing of F.A.O. No,81 of 1986, this Court remanded the case, for fresh trial, including recording of evidence, could continue with his suit under the old law. It may be pertinent to state here that whip disposing of above F.A.O., point whether on the basis of decree, which was declared as void, respondent could continue the suit, was never a moot point, or was resolved by the Court, therefore, even if the case was remanded for retrial it would not preclude the petitioner from defending the cause on the legal ground.
' In view of foregoing discussion, this writ petition is allowed; the orders passed by the Courts below, are declared to be without jurisdiction and the matter is remanded to the trial Court, for the purpose of deciding the application of the petitioner under the provisions of Order VII, rule 11, C.P.C.
Afresh in the light of the observation contained herein.