MUHAMMAD SHAFI vs MUSHTAQUE AHMED through Legal Heirs and others

1. ' MUKHTAR AHMAD JUNEJO, J.---Appellant Muhammad Shafi son of Umrao alias Umerdin has filed this appeal with leave of this Court against a judgment dated 30-7-1992 delivered by the High Court of Sindh in Revision Application No,168/83 and Revision Application No,183/83.

2. ' The facts of the case are that Mst. Aqila Begum under two registered sale-deeds dated 6-10-1973, sold to Mushtaque Ahmed and others agricultural land bearing Block No,39/3 to 6, 11 to 14 and 54/3, 6, 11, 14 (measuring 12 acres) in Deh 349, Taluka Jamesabad, District Tharparkar which was subject- matter of Suit No,16 of 1976 (old No,72 of 1973), and agricultural land bearing No,33/4, 5, 11 to 15, 40/8 to 16 (measuring 16 acres) situated in the same Taluka (subject-matter of Civil Suit No,15 of 1976)

3. (old No,71 of 1973). Suit No,72/73 (new No,16 of 1976) was filed by appellant Muhammad Shafi for preempting sale of 12 acres of said land by Mst. Aqila Begum to the respondents. Civil Suit No,71 of 1973 (new No,15 of 1976) was filed by Umrao alias Umerdin (father of Muhammad Shafi) for pre- empting sale, of 16 acres of the land mentioned in his plaint, by Mst. Aqila Begum to the respondents. In their suits Muhammad Shafi and Umerdin claimed their right of pre-emption to purchase the suit land on the grounds, that they had land adjacent to the suit land and secondly, that they were in cultivating occupation of the lands pre-empted by them. In both the suits the respondents moved applications under Order 7, Rule 11 of C.P.C. For rejection of the plaint. The Trial Court returned the plaints of both the suits under orders dated 20-5-1975 which were set aside on 24-1-1976 by the District Judge who remanded the matters to the Senior Civil Judge, Mirpurkhas, where the suits were re-numbered. In the meantime, Umerdin plaintiff in Suit No,15 of 1976 died and in his place Muhammad Shafi and Mst. Fatima were brought on record as his L.Rs, After settlement of issues the parties were called upon to adduce evidence. On 11-1-1979 depositions of appellant Muhammad Shafi and his witness Khalil Ahmed were recorded in presence of Advocate for the respondents, who, when called upon to cross-examine said witnesses made statements that he had no instructions. In this way even the evidence of respondents was not given and their side was closed Ultimately both the suits were decreed on 28-1-1979. The respondents filed on 2-9-1979 Appeal No,60 of 1979 against the judgment and the decree in Suit No,16 of 1976 and Appeal No,59/1979 in Suit No,15 of 1976. Both the appeals were dismissed by the District Judge as time- barred and on merits, under a single judgment dated 12-1-1980. The respondents took the matter to the High Court under Revision Applications Nos.168/83 and 183/83, which were accepted under the impugned judgment dated 30-7-1992, by which the two suits were remanded to the Trial Court through the District Judge for trial after providing adequate opportunity to the parties to lead evidence. Hence this appeal.

4. ' Mr. Muhammad Ismail Memon, learned counsel for the appellant frankly conceded that after death of Umerdin the right of pre-emption vesting in him had been extinguished, in view of the observations made in the case of Malik Ghulam Nabi v. Member-III, Board of Revenue (PLD 1990 Supreme Court 1043) and hence no appeal could be filed on behalf of legal heirs of Umerdin, who had been substituted for Umerdin in Civil Suit No,15 of 1976. In respect of the Appeal No,60 of 1979 against the judgment and the decree of the Civil Judge in Suit No,16 of 1976 (old No,72 of 1973) learned counsel for the appellant argued that the same having been filed on 2-9-1979 against the decision dated 28-1-1979, was hopelessly time-barred. That no application was moved in said appeal for condensation of delay. Learned counsel cited a number of cases on the point that there can be no condemnation of delay under section 5 of the Limitation Act, in absence of an application seeking such condonation. Case-law was also cited on the point that in case of negligence by an advocate to pursue the case of his client, he was liable to the latter for damages.

5. That a valuable right had accrued to the appellant due to non-filing of appeal within time in the District Court. That in such a situation a client has no remedy except to file a suit for damages against his advocate ' Mr. Ali Akbar, learned Advocate-on-Record for the respondents argued that the District Judge under an order dated 2-9-1979 had admitted Appeal No,60 of 1979 despite office note that it was time-barred and that this amounted to condonation of delay. Learned counsel further argued that after an appeal was admitted, the objection about limitation cannot be pleaded. In support learned counsel cited the cases of Syed Faiz Ali Shah v. Chief Administrator of Auqaf, Lahore (1974 SCM R 33), Sardar Abdur Rauf han v. Land Acquisition Collector/Deputy Commissioner, Abbottabad (1992 SCM R 1181), Sh. Ghulam Muhammad v. The Bank of Bahawalpur Ltd. (1971 SCM R 148), Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 SCM R 261) and Ahsan Ali v. District Judge (PLD 1969 SC 167).

6. ' The order about admission of Appeal No. 60 of 1979 was passed on 2-9-1979 by the District Judge presumably in his Chamber. Said order shows that none of the advocates was heard on the point of limitation. None of the authorities cited by the learned counsel for the respondents, is clear on the point that a chamber order by learned Judge admitting a time-barred appeal would amount to his having condoned the delay. The cases cited on behalf of the respondents are distinguishable. In the case of Mrs. Zubaida Begum (1986 SCM R 261) this Court declined to interfere with an order by the Lahore High Court condoning the delay in filing of an appeal, after considering an affidavit by the concerned counsel that the reason for not filing the appeal in time was beyond his control. In the case of Ahsan Ali (PLD 1969 SC 167) this Court held that mere disposal of an appeal on merits is not sufficient to lead to the inference that the delay must have been condoned.

7. In the case of Sh. Ghulam Muhammad (1971 SCM R 148) sufficient cause was shown for condonation of delay in filing an application for setting aside abatement of a suit and delay was condoned on oral request. In said case Plaintiff-bank took time in ascertaining deceased defendant's legal heirs who tried to conceal his death. In the case of Sardar Abdul Rauf Khan (1992 SCM R 1181) it was held by this Court that generally a request for condonation of delay in respect of limitation period is to be made formally through an application but in a fit case this Court can condone the delay even on the basis of oral request. In the case of Syed Faiz Ali Shah (1974 SCM R 33) an appeal was admitted for hearing by one Bench of West Pakistan High Court, while another Bench same High Court entrusted with hearing of the same appeal dismissed the same as time-barred on the basis of office note. When the matter came to this Court it was held that the second Bench should have granted an opportunity to the appellant to file affidavit explaining the delay and to move proper application for condonation of the delay. It was not held in the case of Faiz Ali Shah that mere admission of the appeal, amounted to condonation of the delay in filing it. It was also not argued before the learned District Judge, that by passing the Chamber order admitting the appeal for hearing, he had condoned the delay. In the circumstances the Chamber order admitting the appeal for hearing cannot be construed as an order overruling the office objection about the appeal being time-barred. In the case of Muhammad Safdar v. Assistant Registrar, Supreme Court, Lahore (1984 SCM R 1508) an appeal barred by six days with no application for condonation of delay was dismissed as barred by limitation. In the case of WAPDA v. Aurangzeb (1986 SCM R 1354) this Court held that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. In the case of Abdul Hague v. Masood Jan and another (1984 SCM R 1391) a learned Bench of this Court held that valuable rights accrue to the successful party in the litigation on the expiry of the period of limitation and the delay in presenting an appeal or petition can only be condoned when each day's delay is satisfactorily explained. In the case of Jhanda v. Maqbool Hussain (1981 SCM R 126) it was observed by a learned Bench of this Court that it was the duty of a litigant to keep himself informed about the fate of his case in the High Court and negligence on the part of his counsel to give him the necessary information, would not per se constitute sufficient ground for condonation of delay when valuable rights have accrued to the opposite-party by efflux of time.

8. ' Learned Single Judge in the High Court who decided both the Revision Applications under the impugned judgment emphasised on duty of the defendants to be in touch with their counsel, in the following words: "There is no cavil for the proposition that defendants could not be absolved of their duty to be in touch with their advocate and be diligent in pursuing the cause, yet the peculiar circumstances of the case show that they were not negligent either."

9. ' Without specifying the "peculiar circumstances" which influenced learned Judge in leaning towards condoning the delay, he went on to observe as follows: "Merely because the respondents acquired valuable rights by virtue of absence of defendants from the Court, or due to improper procedure followed by their advocate in remaining absent, the judgment of the Trial Court, if found to be erroneous cannot be allowed to hold field nor the decision of the first Appellate Court dismissing the appeals on the ground of limitation could be allowed to stand."

10. ' Learned Judge in High Court appears to have overlooked the difference between void orders and erroneous orders. Bar of limitation may be ignored in respect of void orders but not in respect of erroneous orders. The question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires. As a matter of fact if an order is without jurisdiction and void, it need not be formally set aside as held in cases of Ali Muhammad v. Hussain Bakhsh (PLD 1976 SC 37) and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (PLD 1965 SC 68) and Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 SC 294). In Malik Khawaja Muhammad and others v. Marduman Baber Kahol and others (1987 SCM R 1543) a learned Bench of this Court observed as below: ' that the decree in the suit having been passed in utter contravention of the mandatory provisions of law, such order was a nullity against which no limitation could run."

11. ' In support of said observation reliance was placed on Mst. Rehmat Bibi and others v. Punun Khan and others (1986 SCM R 962). It was held by a learned Bench of this Court in the case of Allah Dino v.

12. Faqir Muhammad (PLD 1969 SC 582) that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law and no question of limitation would arise. The case of Allah Dino was followed in the case of Mst. Rahmat Bibi (1986 SCM R 962). Such view, about non- applicability of law of limitation, cannot be taken in respect of judgments which are erroneous but not void, ultra vires or nullity in law.

13. ' In the suit filed by petitioner Muhammad Shafi, the evidence on record was sufficient to establish his superior right of pre-emption for purchasing the suit land. In his evidence he deposed that he owned Block Nos.38/7 to 9 and 16 in the same Deh adjoining the suit land and that he took water from the same watercourse which was irrigating the suit land and that he was participator in the common amenities and appendages. This evidence was not challenged through cross- examination and was not rebutted as no evidence was led by the respondents. Hence trial Court's finding that petitioner Muhammad Shafi had successfully proved that he had right of pre-emption is unassailable. There was thus no necessity to remand the case.

14. ' For the foregoing reasons the impugned judgment dated 30-7-1992 is set aside and Trial Court's judgment dated 28-1-1979 and the decree passed in Suit No.16 of 1976 are restored and the appeal is accepted to that extent with no order as to costs. The decree passed in favour of Umerdin in Suit No.15 of 1976 shall be deemed to have abated on his death.