MUHAMMAD SANA ULLAH vs PROVINCE OF PUNJAB And Other

This judgment shall decide Civil Revisions Nos.2005 of 1985, 2006 of 1985 and 2007 of 1985 as common question of law are involved in all these three cases.

2. Three suits were filed by the petitioners in these three civil revisions for recovery of damages for wrong to the standing crops by the respondents. The respondents were summoned. They put in appearance and were called upon to file written statement. The written statement was not filed despite grant of several adjournments and the defence was struck off on 21-3-1982. Evidence of the parties was recorded and all the suits were decreed on 1-12-1983. Appeals filed by the respondents were heard by a learned Additional District Judge, Mianwali who dismissed the same in limine vide judgment arid decree dated 9-2-1984. The petitioners then filed execution applications on 25-2- 1984. While the execution was so pending the respondents filed application under section 12(2), C.P.C. On 29-4-1984 stating that Court which passed the decree had no territorial jurisdiction to entertain and try the suit filed by the petitioners. This application was resisted: The learned trial Court proceeded to allow the application vide order dated 9-2-1985 and to set aside the judgment and decree passed by the learned trial Court. Appeals filed by the petitioners were dismissed by the learned Additional District Judge, Mianwali on 8-5-1985.

3. Learned counsel for the petitioners argues that impugned orders are without lawful authority inasmuch as firstly the learned trial Court at Mianwali had the requisite jurisdiction and secondly the decree could - not have been set aside on the ground that the Court did not possess territorial jurisdiction. Learned. Assistant Advocate-General has tried to support the impugned order.

4. I have gone through the copies of the records appended with the three civil revisions.

5. As stated by me above, the suit was filed for compensation for wrong done to the standing crops by the respondents. Under section 19, C.P.C. Such a suit could have been filed on the option of the petitioner either in the Court where wrong was done to the movable property or where the defendant resides or carries on business. As per contents of the plaint the wrong was done in Tehsil Bhakkar, District Mianwali. The suit was instituted in the Court of learned Senior Civil Judge, Mianwali on 6-12-1981. The suit was thus instituted in the correct Court. The respondents failed to put any written statement despite adjournment granted by Court and the defence was struck off on 21-3- 1982. Thereafter the evidence of the parties was recorded and ultimately after hearing the arguments the suit was decreed on 1-12-1983. The case of the respondents is that w.e.f. 1-7-1982 Bhakkar Tehsil was declared to be a District and the matter pertaining to the said Tehsil stood transferred to District Headquarter at Bhakkar. This is an objection pertaining to territorial jurisdiction of the Court passing the decree. It will be advantageous to reproduce here section 21, C.P.C.:-- "No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. "

A reading of the said section shows that objection as to territorial jurisdiction of a Court has to be taken in the Court of first instance i.e. Trial Court, in the present case, at the earliest possible opportunity and in case issues are framed then before framing of such issues and the second condition is that such an objection can be allowed to be taken at a subsequent stage only where there has been consequent failure of justice. In the present case after the defence was struck off on 21-3-1982 (and on the said date it is no body's case that the Court had no territorial jurisdiction).

Thereafter the suit remained pending till 1-12-1983. The respondents joined the proceeding. I find that some of the adjournments were granted by learned trial Court precisely for the reason that the learned counsel for the respondents was absent. Evidence of the parties was recorded. At no stage throughout the pendency of the suit the objection as to the place of suing was raised even after 1-7-1982. To my mind when the law referred to by me above, debars a party from raising such an objection even in an appeal or revision from the decree passed by learned trial Court, it would be stretching the scope of section 12(2), C.P.C. To breaking point. If a party was allowed to raise an objection under the said provision of law when law prohibits it to take even in an appeal from the said decree.

6. It needs to be stated here that the said section 21 of C.P.C. Constitutes an exception to the general rule that a decree passed by a Court not having jurisdiction is a nullity. To my mind unless and until an objection is raised in the manner prescribed in section 21, C.P.C. a decree passed by a Court having no territorial jurisdiction cannot be set aside. I draw support in the said observation from a judgment of this Court in the case of S.A. Latif v. Nadar Khan (PLD 1968 Lah. 144). I would also like to refer here to the following observations in the case of Hira Lal Patni v. Sri Kali Nath (AIR 1962 SC 199):-- "It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like section 21 of the Code of Civil Procedure. "

7. I also find that there has been no consequent failure of justice in the learned trial Court proceeding with the suit even after 1-7-1982. The respondents did not file written statement despite opportunities, they remained joined with the proceeding till the decision of the suit. They availed the remedy of appeal. It cannot be urged that there had been failure of justice in the present case.

8. In view of the above discussion, I find that the learned Courts below have proceeded to exercise a jurisdiction not vested in them by setting aside the decree dated 1-12-1983.1 may also note here that the learned Civil Judge and also learned District Judge were perhaps oblivious of the fact that the decree had been appealed against and had been affirmed in appeal vide judgment dated 9- 2-1984. The application under section 12(2), C.P.C. Was not even competent before the learned Civil Judge.

9. All the three civil revisions are accordingly allowed. The order dated 8-5-1985 of the learned District Judge as also that dated 9-2-1985 of the learned Civil Judge are set aside and the application of the respondents filed under section 12(2), C.P.C. Is dismissed with costs throughout.

The result would be that the execution petitions filed by the petitioners in three revisions shall be deemed to be pending before the learned Senior Civil Judge, Mianwali, where the parties shall appear on 15-11-2000, whereafter learned executing Court shall proceed with the execution petition in accordance with law to get the decrees satisfied.