EBRAHIM SOBANI Versus NASEEM AKHTAR SOOFI
1. Through this revision application the applicants have called in-question the order dated 3-4-2000 passed on an application under Order VII, rule 10, read with section 151, C.P.C. with reference to the judgment and decree dated 25-8-1994 passed in Suit No. 1635 of 1992 by the learned VIIIth Senior Civil Judge, Karachi East and the Execution Application No. 14 of 1994 pending in the said Court.
2. The facts of the case, in brief are that respondents Nos. 1 to 4 filed a suit for declaration and injunction against respondents Nos.5 and 6 in the Court of VIIIth Senior Civil Judge, Karachi East stating therein that the plaintiff/respondent No.1 was son of late Altaf Akhtar Soofi while plaintiffs Nos.3 and 4 were the daughters and plaintiff No.2 was his widow and as such plaintiffs Nos. 1 to 4 were the legal heirs of deceased Altaf Akhtar Soofi who died on October 2, 1966.
3. According to the contents of the plaint, deceased Altaf Akhtar Soofi was issued permanent transfer order dared 12-3-1960 by the then Deputy Settlement Commissioner, Karachi in respect of property No.GRE-8/323/VII-AE-142 Garden East, Karachi, measuring about 1145 sq. yards. It was further averred in the plaint that applicant No. 1 namely Esmail Sobani executed a Declaration of Surrender dated 27-6-1964 to the effect that the deceased will be entitled to get his name entered in the record of rights of CDC instead of his name as Sobani has surrendered his right/title in the said property in favour of deceased Altaf Akhtar Soofi.
4. According to the plaintiff they were in lawful possession of the said property by inheritance after the death of deceased Altaf Akhtar Soofi and were entitled to mutation of the property in their names and favour. The suit was valued for the purpose of jurisdiction and court-fees at Rs.10,000 and for declaration and injunction at Rs.10,000. Photostat copies of the following documents were annexed, with the plaint.
(1) P. T.O. dated 12-3-1960 (Annexure 'A').
(2) Declaration dated 27-6-1964 (Annexure 'B').
(3) Extract in name of Esmail Sobani (Annexure 'C').
(4) Certificate dated 25-2-1967 of Doctor as to death of A. A. Soofi (Annexure D').
5. From the perusal of order dated 25-8-1994 passed in the above suit it reveals that after service of summons upon the defendants who are Government officials the learned A.G.P. filed his memo. of appearance in the trial Court on 20-7-1993 but despite repeated adjournments and grant of time, written statement on behalf of the defendant was not filed. The plaintiffs moved an application under Order VIII, rule 10, C.P.C. with the prayer that the judgment be announced as defendants have failed to file the written statements within the stipulated time. The order further reveals that the notice of the said application was served upon the counsel for official defendants who filed objections to the application mainly requesting for grant of further time. However, the learned trial Court did not feel inclined to grant further time and passed the order whereby the application moved on behalf of the plaintiffs was allowed with the result that suit of the plaintiffs was decreed under Order VIII, rule 10, C.P.C. After obtaining decree, it seems that the plaintiffs filed an Execution Application which was pending in the trial Court. In the meantime the applicants moved an application under section 12(2), C.P.C. on 19-5-1997 before the trial Court challenging the said decree dated 25-8-1994 on the ground of fraud and misrepresentation, and want of jurisdiction, inter alia, pleading therein that the decree was obtained by the plaintiffs on the basis of P.T.O. and surrender deed which were in fact forged documents. The counter-affidavit to the said application was filed. However, the said application was dismissed for non -prosecution on 17-8-1999. Later on application for restoration was filed which also came to be dismissed on 4-2-2000. In the meantime applicants filed a suit, against the respondents Nos.1 to 4 for cancellation of documents, declaration, permanent injunction and recovery of damages, inter alia, alleging therein that the applicants Nos.1 and 2 were the legal and rightful owners, and in possession of property bearing No.323 Garden, East Karachi, and that neither any "surrender deed" was executed by the applicant No.3 nor transfer of the suit property was made in favour of Altaf Akhtar Soofi, as the same stood in the name of Settlement Department and the record of rights. It was further averred that the judgment and decree in the suit was obtained by way of collusion, and till 31-12-1996 the applicant No.3 was in possession of the property, which was subsequently, gifted by him to the applicants Nos. 1 and 2, who were the owners in possession of the same. It was therefore, prayed to declare that the document purporting to be the surrender deed was void ab initio being- the product of fraud.
6. The above mentioned suit being Suit No.909 of 1997, which was valued at Rs.51,000 was instituted on or about September, 1997 in the said Court of learned Senior Civil Judge, (East) Karachi.
7. However, the learned trial Judge, took suo motu notice of the valuation of the property vide order dated 8-3-1999 and while determining the value of the suit plot viz. the "suit property" to be at Rs.19,56,385, returned the plaint vide order dated 11-5-1999 to be presented before the competent Court having jurisdiction.
8. Subsequently the applicants filed the same plaint in this Court, which was registered as Suit No.997 of 1999, and came to be heard on original side by learned Single Judge of this Court on 23-2-2000, and following orders were passed in respect of under mentioned applications moved by the parties.
9. "(1) C.M.A. No.9662 of 2000, under Order X, rules 1 and 2, C.P.C. filed by the plaintiff.
(2) C.M.A. No.10799 of 1999, under Order VII, rule 11. C.P.C. filed by defendants Nos. 1, 3 and 4.
(3) C.M.A. No.1035 of 2000, under Order XXXIX, rules 1 and 2, C.P.C. read with section 151, C.P.C. filed by the plaintiff.
10. "(1) This application shall retrain pending.
(2) This application is disposed of on the undertaking given by the learned counsel for defendants that neither any third party interest shall be created in the suit `property by the plaintiffs nor will they dispossess of the plaintiffs from the suit property and also that the defendants' name shall not be mutated in the suit property by them till further orders.
(3) After having partly heard counsel on the application under Order 7, rule 11, C.P.C. by consent it is ordered that the suit be adjourned sine die till the plaintiffs have exhausted their remedy before the trial Court. Consequently learned counsel for the defendants does not press this application under Order 7, rule 11 and same is disposed of in the foregoing terms."
11. It seems, however that, before hearing of the applications in the said suit, the applicants moved fresh application before the learned trial/Executing Court under section 12(2) which was pending disposal.
12. That on 29-2-1000 an application under Order VII, rule 10, C.P.C. was moved on behalf of the applicants/intervenors before the learned Executing Court praying therein for return of application under section 12(2), C.P.C. read with section 151, C.P.C. alongwith- suit No.1635 of 1992 and Execution No.4 of 1994 to be presented to the Court in which the suit should have been instituted for the reasons disclosed in the application duly supported by the affidavit. However, the same was dismissed by the Executing Court vide order dated 3-4-2000 which reads as under:--
13. "Heard learned counsel for intervenor/ applicant and perused the record.
14. The case file of Suit No. 1635 of 1992 alongwith Exh. No.94 was received by the administration order of Honourable District Judge (East), Karachi on 12-9-1998. This is not the position that the execution application has been instituted before this Court afresh.
15. I, therefore, do not find any substance in this application as I am not empowered to transfer the case/ex -application, hence the instant application has no merit which is hereby dismissed."
16. Feeling aggrieved of the above order, the applicants have impugned the same in the present revision application.
17. I have heard Mr. M. Naeem-ur- Rehman, Advocate for the applicants and Mr. Qamar Muhammad Khan, Advocate for the respondents Nos. 1, 3 and 4 the main contention of the learned counsel for the applicant was that the judgment and decree passed by the learned trial Court was void ab initio, coram non judice, and invalid, the same having been passed in violation of section 9, C.P.C. According to the learned counsel the value of the suit property was beyond pecuniary jurisdiction of the trial Court as the property was situated in Garden East which is in the heart of the city and the comments which were submitted by the Assistant Commissioner, South Karachi before the learned trial Court show that the property would be of the value between Rs.8,00,000 to Rs.10,00,000 (Rupees eight to ten lacs). According to him the private respondents were not supposed to fix the valuation in the arbitrary manner. Learned counsel for applicants invited my attention to the "Deed of Surrender" purported to have been executed by Esmail Sobani in order to show that in fact the property belonged to the applicants and that the said surrender deed was a forged document. He also pointed out the interpolation made in the P.T.O. and alleged the same to be manipulated document. Learned counsel next argued that the plaint in the suit filed by the applicants in respect of the same suit-property was returned by the learned trial Court for filing the same before Court of competent jurisdiction, as he suo motu determined the valuation of the suit property to be Rs.19,56,385. In support of his contentions, learned counsel has placed reliance on the case-law reported in 1995 SCMR 105, 1997 SCMR 1635, PLD 1996 SC 246 and PLD 1975 SC 331.
18. On the other hand learned counsel for the private respondents has contended that section 8 of the Suits Valuation Act, 1887 provides that the value for the purpose of court-fees for obtaining declaratory decree and consequential relief the suit is to be valued by the plaintiff at his discretion. In support of his contention he has relied upon PLD 1985 SC (AJ&K)
1. Learned counsel has further contended that the applicants have not approached this Court with clean hands and have suppressed the material facts. It has been contended that the application filed by the applicants under section 12(2), C.P.C. was dismissed for non-prosecution and the suit filed in the High Court of Sindh, Karachi was also not pressed. It was next contended that the provisions of section 115, C.P.C. were not attracted to the facts and circumstances of the instant case. In any case it was further argued that the Revision application having been filed after 90 days from the decree was barred by time. In support of his arguments learned counsel for the private respondents has relied upon case law reported in 1999 CLC 362, 1127 and 713.
19. I have given anxious consideration to the arguments advanced by the learned counsel, examined all the relevant documents including the impugned order and perused the case-law referred hereinabove.
20. The order which is impugned in this revision application was passed on 3-4-2000 and the revision application was filed in this Court on 2-6-2000 which was admittedly much before the expiry of the period of 90 days. Thus the objection raised by the learned counsel for the respondents Nos.1 to 4 with regard to the plea of limitation is without force and is accordingly overruled.
21. It is not disputed that the plaint in the suit filed by the applicants before the same Court in respect of same suit property was returned to be filed before the Court of competent jurisdiction vide order dated 11-5-1999 on the ground that the value of the subject-matter was beyond the pecuniary jurisdiction of the said Court. The learned Judge proceeded to suo motu determine the value of the suit plot to be in excess of Rs.19,00,000 (nineteen lacs) and held that he no jurisdiction to adjudicate the matter.
22. It is also an admitted fact that an application moved by the applicants under section 12(2), C.P.C. is pending before the Court of VIII Senior Civil Judge, Karachi (East) which is the executing Court. This fact has been affirmed by the respondent No.1 in his application filed before this, Court on 13-6-2000 under sections 148/151, C.P.C. in the following words:--
23. "In fact it is the 12(2), C.P.C. application which is fixed for orders on 10-7-200 after hearing the applicants. "
24. The learned VIII Senior Civil Judge, Karachi (East) vide the impugned order dated 3-4-2000 proceeded to dismiss the application solely on the ground that because the case file of Suit No. 1935 of 1992 alongwith Execution No.14194 was received by him by way of transfer through an administrative order passed by the learned District Judge (East) and since the execution application was not instituted before him he was not empowered to transfer the case/execution application.
25. Needless to mention that the Judicial Officers were expected to pass orders after applying their mind in a judicious manner, and not to act mechanically in order to non- suit the parties without any just, fair and reasonable cause, as has been repeatedly emphasized by the superior Courts.
26. I am afraid, the manner in which the present application was summarily dismissed by the learned Judge could be termed to be neither judicious nor reasonable. The application was dismissed in a slipshod manner, without proper application of mind by passing a non-speaking order, rendering the same to be invalid and unsustainable. The bare perusal of the contents of instant I revision application will reveal that the application was moved under Order VII, rule 10, C.P.C, for return of application under section 12(2), C.P.C. alongwith Suit No.1635 of 1992 and Execution No.14 of 1994 to be presented before the competent Court, and there was absolutely no request for transfer, thus the order was patently misconceived, and misdirected.
27. As obvious from the facts of the case, the very jurisdiction of the Court which passed the decree has been called in-question by the applicants, alleging that the Court was approbating and reprobating inasmuch as that the suit filed by the respondent No. 1 was decreed, and the execution proceedings were being continued while the plaint in the suit filed by the applicants in respect of the same property was returned on the ground that the value of the subject-matter was beyond the pecuniary jurisdiction of the Trial/Executing Court. It was persistently alleged that the decree sought to be executed was nullity and void ab initio.
28. It may not be out of place to mention that the provisions relating to the execution of decrees are enumerated in Part II under sections 36 to 47 of the Code of Civil Procedure. Section. 42 of the Code of Civil Procedure regulates the powers of the Court executing transferred decrees, while section 47 of the Code empowers the Court executing the decree to determine all questions relating to the execution discharge I or satisfaction of the decree.
29. In view of the above narrated facts and circumstances and the case-law discussed hereunder I have no hesitation to hold that the Executing Court was competent to decide the question whether it possessed the jurisdiction, including pecuniary jurisdiction to executing the decree as a void decree can be challenged even in execution proceedings. The following case-law can be referred:
(i) PLD 1996 Lahore 99; (ii) 1999 CLC 331
30. In Messrs Haji Ahmad & Company v. Muhammad Siddique and others, PLD 1965 (W.P.) Karachi 293, A Learned Single Judge of this Court while quoting the judgment of Supreme Court of India in the case of Heera Lal Patni v. Siri Kali Nath AIR 1962 Supreme Court (India) 199 held that the validity of a decree can be challenged in execution proceedings if it is passed by a Court entirely lacking in jurisdiction in respect of subject-matter of the suit. The observation of learned Judge in the Supreme Court of India was as under:--
31. "The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizen of the case because the subject-matter was wholly foreign in its jurisdiction of that the defendant was dead at the time the suit had been instituted or decree passed or some such other ground which would have the effect of tendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit over the parties to it."
32. Honourable Supreme Court of Pakistan in the case of Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 was pleased to hold as under:--
33. "It is well-settled principle that Executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity."
34. I do not deem it proper to make any observation with regard to the validity or otherwise of the decree and/or jurisdiction of the learned trial Court or for that matter the Executing Court, and leave this question to be decided by the learned Court seized of the matter. However, since the learned VIII Senior Civil Judge, Karachi East has acted illegally by overlooking the provisions of law, and passing an arbitrary order, the Revision will be maintainable, and the powers under section 115, C.P.C. can be competently exercised. For reference see 1999 YLR. 1498 (American Express v. M.N. Beg, Advocate). Accordingly the order dated 3-4-2000 is hereby set aside, the matter is remanded back to the learned VIII Senior Civil Judge, Karachi East. The application under Order VII, rule 10, C.P.C. as well as application under section 12(2), C.P.C. moved by applicants will be deemed to be pending. The above application shall be disposed of on merits by passing appropriate orders in accordance with the lay after hearing the parties.
35. If deemed proper, the learned trial Court may frame issue/issues to determine the valuation of the suit property for the purpose of jurisdiction at the relevant time, with reference to the applicability of the law. In such case the parties shall be allowed to lead evidence on the points involved.
36. This revision application stands allowed in the above terms.
37. M.B.A./E-23/K Order accordingly.