Through the present writ petition decree and judgment dated 22-6-1989 passed by the Civil Judge Rawalpindi in a suit titled "Farzand Raza Naqvi and others v. Muhammad Din " was assailed.
2. The predecessor-in-interest of the respondents Nos,2 to 7 obtained ejectment order from the Rent Controller Rawalpindi City in respect of House No,AA/1367-A, Mohallah Akalgarh, Rawalpindi against one Raja Abdul Aziz Khan. The order of ejectment was confirmed by the appellate Court vide its judgment dated 15-3-1969.
3. In execution of the ejectment order the predecessor-in-interest of respondents Nos,2 to 7 obtained possession of House No,AA/1367-A on 4-11-1970. During the execution proceedings he tried to take possession of House No,AA/1370-A which was owned by the predecessor-in-interest of the writ petitioner.
4. An objection petition was filed by the predecessor-in-interest of the petitioners claiming his House as bearing No,AA/1370- A which was stated to be a distinct property than House No, AA/1367-A.
5. The order- of he Executing Court passed in favour of the predecessor-in-interest was put to challenge by contesting respondents through an appeal. It was dismissed by Additional District Judge Rawalpindi vide its judgment dated 17-7-1978. A Civil Revision No,55 of 1976 was preferred by the contesting respondents in the Lahore High Court Lahore which was also dismissed vide judgment dated 4-6-1979. Paras. Nos,7, 8 and 9 of the same are produced as under: "
7. I have gone through the record of this case. Learned counsel further' argued that there is no proof that the Property in dispute is AA-1370-A. this is not correct. The respondent had led oral evidence on this point, but no evidence to controvert it was led by the petitioner. It is clear from Exh.P.2 that House No,AA/1370-A was transferred on his KNCH form to Muhammad Iqbal on 14th April, 1969. The P.T.D Exh.P.W.3/1 proves that Muhammad Iqbal surrendered his rights in favour of Muhammad Din who thus became transferee of the property with effect from 13th April, 1971. From Exh.P.1 which is a demarcation by the settlement Inspector, later on, obviously approved by the D.F.C., it is proved that this demarcation was effected on the application of Muhammad Din who was in possession of Property No,1370-A.
It is further clear that Ibrar Hussain petitioner at that time too was lying claim to this property as a part of House No,AA/1367-A, but the Settlement Inspector found that this property which was in possession of Muhammad Din respondent was not the property transferred to Ibrar Hussain and thus was not a part of Property No . AA/1367-A.
8. The effort of the petitioner had been only to confuse the matter by relying upon record in regard to some other Property bearing No,1370-E, but it was stated by P.2 that the was no property of this number in that locality. His further objection is that the Property No,1370-A was a plot, but this does not prove anything since at the time of the visit of the Settlement Inspector, it was found that it was a house in which the respondent was residing. Even from the other documents Exh.P.2 and P.W.3/1 it is clear that this property is a house. There is no evidence on record that the respondent is in possession of any property other than the property transferred to him.
9. From the facts stated above, it is clear that the Property No,AA/1370-A was owned by the respondent and he is in possession thereof. He is not in possession of any portion of Property No,1367-A which was in occupation of Abdul Aziz. It is clear that the dispute between the petitioner and the respondent in regard to what is known as Property No,AA/1370-A is not a new dispute raised by him. Now the effort of the petitioner is to obtain the possession of that house indirectly in the grab of this ejectment order against Abdul Aziz. His decree stands satisfied by the ejectment of Abdul Aziz. There is no merit in this petition, which is dismissed with costs." (Sd.) AFTAB HUSSAIN, Judge.
6. Although the issue relating to the possession and occupation of the property having separate and distinct entity was decided up to the High Court but the predecessor-in-interest of respondents Nos,2 to 7 filed a suit for declaration and claimed the house of the petitioners bearing No,AA/1370-A as portion of his House No,AA/1367-A. The suit was dismissed by the trial Court vide its judgment and decree dated 5-2-1985 holding that the suit was barred by res judicata.
7. That the. judgment and decree dated 5-2-1985 was challenged in appeal by respondents Nos,2 to 7. The appeal was dismissed as withdrawn unconditionally vide order dated 17-11-1985 passed by the Additional District Judge Rawalpindi.
8. Respondents Nos,2 to 7 filed a second suit on 22-7-1986 on the same cause of action which was pending in the Court of Mian Mureed Hussain Civil Judge Rawalpindi when the predecessor-in- interest of the petitioners namely Muhammad Din suffered an attack on paralysis and he could not pursue the matter and suit was ultimately decreed exparte on 22-6-1989. It is stated in the petition that an application for setting aside the exparte decree could not be pursued because of the disability of late Muhammad Din. Therefore, the application was also dismissed on 22-11-1990.
9. The execution of ex parte decree was sought by the respondents where the counsel of Muhammad Din moved an application dated 29-4-1991 which was dismissed by the Executing Court vide its order dated 11-7-1994.
10.The learned counsel appearing for the petitioners had assailed the ex parte decree dated 22- 6-1989. He submitted that the appeal from the order of rejection of his application for setting aside the ex parte decree could not be filed by the predecessor-in-interest of the petitioners because during that period he suffered a severe attack of paralysis. The medical certificate from the Medical Specialist and Neurologist Major General (Retd) Dr. M. Badruddin was placed and relied by the counsel. Arguing further the learned counsel submitted that the ex parte decree passed by the trial Court was the result of failure to exercise jurisdiction. According to the learned counsel in the ex parte evidence the judgment of the High Court in CR. No,55 of 1979 was produced by the respondents themselves which was Exh.P.5. Bare perusal of the judgment would reveal that Property No,AA/1367-A and Property No,AA/1370-A have been held to be separate and distinct properties. According to the learned counsel if the Civil Judge would have only considered and applied his mind to the evidence brought on record including the judgment of the High Court no decree could have been passed.
11.It was argued by the learned counsel that the ex parte decree was awarded by the trail Court in a mechanical manner without discussing the evidence brought on the record. Lastly it was argued by the learned counsel for the petitioners that it is a case of hardship because the status of the Property No,AA/1370-A belonging to the petitioners and Property No,AA/1367-A claimed by the respondents was settled through the judgment of the High Court and the judgment in the earlier suit. Through these judgments which attained finality the rights of the petitioners qua property No,AA/1370-A were settled and respondents procured an ex-parte decree availing of severe in capacity of late Muhammad Din which he suffered due to paralysis. The learned counsel submitted that the decree passed by the civil Judge was in excess of the jurisdiction and as the same could not be passed in view of the previous judgment of the High Court in C.R.No,55 of 1979 as well the judgment of the civil Court in the first suit filed by the respondents. According to the learned counsel the second suit whereby an ex-parte decree was passed was barred by res judicata and if the trial Court would have adverted to the judgment of the High Court which was produced on record as Exh.P.5, the ex-parte decree could not have been passed. The learned counsel for the petitioners placed reliance on the cases of Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 S.C. 37), Shabbir Ahmad v. Chairman District Council Lasbella etc. (1993 M LD 19), Yousaf Ali v.
Muhammad Aslam Zia etc. (PLD 1958 S.C. (Pak.) 104), Abdul Majid etc. v. Abdul Ghafoor Khan etc. (PLD 1982 S.C. 146), Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCM R 878), Wali Muhammad v.
Mst. Meena etc. (1994 SCM R 2243), Muhammad Ismail v. Deputy Settlement Commissioner etc. (NLR 1992 UC 725) and Pakistan Post Office v. Settlement Commissioner etc. (1987 SCM R 1119).
12.Conversely the learned counsel appearing for the respondents argued that the writ petition is not maintainable as the petitioners have not availed the right of appeal. The learned counsel contended that the petitioners had filed an application for setting aside the ex parte decree which was dismissed vide order dated 22-11-1990 thus the ex-parte decree had attained finality and it could not be challenged through a writ petition in the year 1994. Secondly it was argued by the learned counsel that writ petition is hit by laches. Lastly it was contended by the learned counsel that the ground of sickness of late Muhammad Din was not sufficient to warrant interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973.
13.I have considered the arguments of both the parties and perused the record. Prima facie it is established that Properties Nos,AA-1370-A and AA 1367-A were held to be separate and distinct property by the High Court in C.R.No,55 of 1976 and petitioners and respondents were held to be in possession of their respective properties. It also appears from the record that the predecessor-in- interest of the respondents Nos,2 to 7 tiled a suit seeking a declaration that House No,AA-1370-A was a portion of House No,AA-1367-A. This suit was dismissed vide judgment and decree of the trial Court dated 5-2-1985 passed by the trial Court. Respondents Nos,2 to 7 have challenged this judgment and decree of the trial Court which was unconditionally withdrawn by respondents No,2 to 7 as is apparent from the order dated 17-11-1985.
14.In the second suit filed by the predecessor-in-interest of respondents Nos,2 to 7 a written statement was filed by the predecessor-in-interest of the petitioners. Issues were also framed but the predecessor-in-interest of the petitioners was proceeded ex-parte and ultimately an ex- parte decree which is impugned order was passed. The exparte decree does not contained any reasoning nor a decision on issues. Although the evidence by respondents was brought on the record which included the earlier judgment of the High Court given in C.R.No,55 of 1979. Perusal of the record shows that ex-parte decree is conflict with the judgment of the High Court in C.R. No,55 of 1979.
15. Normally writ jurisdiction is not made available to a person who has failed to avail the remedy of appeal but in the present case the ex-parte decree is manifestly result of failure to exercise jurisdiction vested in the trial Court. If the judgment of the High Court in C.R. No,55 of 1979 which was produced by the respondents themselves as Exh.P.5 would have been considered, the ex-parte decree probably would have not followed. The written statement- of the deceased Muhammad Din was already on the file. Objection of res judicata was there and issue to that effect was also framed. The trial Court was required to decide this issue in the light of the evidence brought on the record. Perusing the record I am persuaded to hold that the ex-parte decree dated 22-6-1989 passed by the trial court was not in proper exercise of its jurisdiction. It suffers with failure to exercise jurisdiction vested in it. The subject-matter of the suit involved valuable right of the parties.
The instant case warrants an interference for the reason that the ex parte decree although not appealed by the petitioners due to his serious sickness, is in conflict with the judgment of this Court in C.R. No,55 of 1979.
16. Although very sparingly but the jurisdiction under Article 199 of the Constitution is available to judicially review the proceedings of the subordinate Courts and if there is a glaring jurisdictional defect, there is no bar or the fetter placed to exercise jurisdiction under Article 199. The instant case is an appropriate one which merit an interference by this Court under Article 199.
17. So for as the plea of laches raised by the respondents I hold that it could not be equate with the statutory bar of limitation. A bar of limitation operate as a legal bar for the C grant of remedy whereas laches operate as a bar under equity, In applying the principle of laches the dictate of justice and equity and balance of legitimate rights are kept in view. In the present case the right of the petitioners which were affirmed by the judgment of the High Court in C.R. No,55 of 1979 were being taken away through an ex parte decree of the trial Court which could not be defended by the predecessor-in-interest of the petitioners due to severe attack of paralysis which he suffered during the period. It would not be in the interest of justice to sustain an ex parte decree which apparently suffers with jurisdictional defect. Therefore, I hold that the laches is no bar in the present case and I condone the same in favour of the present writ petitioner.
18. Consequently I allow this writ petition. The ex parte decree dated 22-6-1989 and order dated 22- 11-1990 is held to have been passed without jurisdiction and lawful authority. According it is set aside and the suit filed by the predecessor-in-interest of respondents Nos,2 to 7 shall be deemed to be pending before the trial Court which would be decided on merits according to law.