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| Plj 2026 civil note 41 |
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Must read judgment.
PLJ 2026 Civil (Note) 41
[Lahore High Court, Lahore]
Present: Khalid Ishaq, J.
Rana NAJAM-UL-ABBAS--Petitioner
versus
Mst. LUBNA SHAMIM and 2 others--Respondents
W.P. No. 2863 of 2017, heard on 9.10.2025.
Specific Relief Act, 1877 (I of 1877)--
----S. 39--Civil Procedure Code, 1908 (V of 1908), O.VII R. 11, O.XLI
R. 1--Suit for cancellation of agreement to sell--Suit for cancellation of agreement--Subsequent sale deeds in favor of third parties--Earlier decree in favour of petitioner (specific performance)--execution and registration of sale deed--Concealment/mala fide attempt to frustrate agreement--Objection regarding maintainability of suit--Limitation--Application for rejection of plaint--Allowed--Remedy of appeal was available in terms of Section 96 read with Order XLI Rule 1 CPC but no appeal was filed against judgment & decree of Trial Court whereby plaint filed by respondent No.1 was rejected--Revisional Court failed to take into consideration this important jurisdictional aspect of matter and proceeded to pass impugned judgment--Law on subject was well settled that where appeal was available under Section 96 read with Order XLI Rule 1 CPC, remedy of revision was incompetent--Petition allowed. [Para 6] A
PLD 1969 SC 261; PLD 1970 SC 506; 1971 SCMR 123 ref.
Ch. Muhammad Imran Bhatti and Mazhar Hussain Tahir, Advocate for Petitioner.
Nemo for Respondent No. 1.
Date of hearing: 9.10.2025.
Judgment
This Constitutional Petition, Filed under Article 199 of the Constitution of Islamic Republic Pakistan (the “Constitution”), lays a challenge to the judgment & decree dated 24.12.2016 (“Impugned Judgment”) passed by the learned Addl. District Judge, Faisalabad (“Revisional Court”) whereby the revision petition filed by Respondent No. 1 under Section 115 of the Code of Civil Procedure, 1908 (“CPC”) was allowed and consequently, judgment & decree dated 04.02.2015 (“Trial Court Judgment”) passed by the learned Civil Judge, Faisalabad (“Trial Court”) was set-aside.
-
Brief facts of the case are that on
26.09.2008 Mst. Lubna Shamim Respondent
No. 1 field a suit for cancellation of
agreement to sell dated 20.03.2002
(the “Agreement”) before the Trial
Court against Rana Najam-ul-Abbas
(the “petitioner”). The petitioner
appeared before the Trial Court and
filed written statement with the
contentions that Agreement has
specifically been performed in
furtherance of a judgment & decree
passed in the suit for specific
performance by way of execution and
registration of sale of conveyance
bearing document No. 5501/1 dated
09.09.2006, therefore, the suit for
cancellation is not maintainable. It was
specifically contended in the written
statement that Respondent No. 1 earlier
executed the Agreement in favour of the
petitioner, however, in order to
frustrate the said agreement, she
executed and got registered sale of
conveyance bearing document No.
3402/1 dated 29.10.2003 in favour of
Haji Atta-ur-Rehman, Zulfiqar Ali,
Muhammad Sher and Muhammad Hanif,
however, the said sale deed was
cancelled vide judgment & decree dated
31.05.2006 passed in favour of the
petitioner. Rejection of the plaint
was sought by the petitioner on the
abovementioned ground, as well as, on
the ground of limitation as the suit for
cancellation was filed after the
described period of limitation. Perusal
of the written statement, which is
available with the record of this case,
further depicts that by virtue of earlier
pending litigation between the parties,
Respondent No. 1 Lubna Shamim was aware
of the decree dated 31.05.2006 passed in
favour of the petitioner. To be precise,
Respondent No. 1 Mst. Lubna Shamim filed
an application dated 04.03.2005 for
setting-aside the ex-parte proceedings
dated 29.06.2004 in the suit No. 94-1
dated 13.03.2004 filed by the present
petitioner titled as ‘Rana
Najam-ul-Abbas v. Lubna Shamim etc.’.
This was the suit for declaration,
cancellation of documents confirmation
of possession and for specific
performance of the Agreement, hence,
Respondent No. 1 was aware of the
decree in favour of the petitioner.
The petitioner filed an application under
Order VII Rule 11 of CPC before the Trial
Court for rejection of the plaint which
was accepted and plaint was rejected
due to non-affixation of Court fee and a
decree sheet was drawn on 04.02.2015.
Since the remedy of appeal was available
in terms of Section 96 of the CPC
against the judgment & decree dated
04.02.2015, however, no such appeal was
filed by Respondent No. 1 and once
limitation for filing of the appeal
had lapsed, Respondent No. 1 opted to
file a civil revision under Section 115
of CPC on 11.05.2015, which civil
revision was allowed and the judgment &
decree of the Trial Court was set-aside.
Hence this Constitutional Petition. -
At the outset of the hearing, learned
counsel for the petitioner was confronted
as to the limited scope of interference
while exercising jurisdiction under
Article 199 of the Constitution. In
response learned counsel for the
petitioner submits that since the remedy
of appeal was available with Respondent
No. 1 for laying a challenge to the
judgment and decree dated 04.02.2015 and
the limitation for filing the appeal had
lapsed, therefore, the revision petition
was not maintainable owing to
availability of remedy of appeal as well
as for being barred by limitation and as
such, the judgment passed by the
Revisional Court is patently illegal. -
Respondent No. 1 did not turn up and
service of the said respondent was
affected through proclamation for today
but even then none has entered
appearance on her behalf, therefore,
said respondent is proceeded against
ex-parte. -
Ex-parte arguments heard. Record
perused. -
Without adverting to other questions
involved in this case, this Court has
considered the basic threshold question
of jurisdiction of the Revisional Court,
which jurisdiction has been exercised
while passing the Impugned Judgment.
Indeed, remedy of appeal was available
in terms of Section 96 read with Order
XLI Rule 1 of CPC but no appeal was
filed against the judgment & decree of
the Trial Court whereby plaint filed by
Respondent No. 1 was rejected.
Revisional Court failed to take into
consideration this important
jurisdictional aspect of the matter and
proceeded to pass the Impugned
Judgment. Law on the subject is well
settled that where an appeal is
available under Section 96 read with
Order XLI Rule 1 of CPC, the remedy of
revision is incompetent Reliance may
be placed on the cases reported as
“Masta v. Sarang and another” (PLD 1969
SC 261), “Municipal Committee,
Bahawalpur v. Sh. Aziz Elahi”
(PLD 1970 SC 506) and “S. Azizul Hassan
and another v. Malik Ghulam Muhammad”
(1971 SCMR 123). The jurisdiction
cannot be exercised by any Court,
Tribunal or Forum, unless specifically
conferred. Article 175(2) of the
Constitution embodies this basic
Principle. The question of jurisdiction
lies at the very foundation of
all proceedings, which must be present
or the proceeding is void. It is well
settled by now that the defect of
jurisdiction goes to the root of the
matter and strikes at the very authority
of Court or Tribunal to pass an order,
therefore, the question of jurisdiction
has to be decided ahead of all other
questions. Courts are sanctuaries of
justice,
exercise and derive jurisdiction and
authority to adjudicate and determine
rights and obligations of disputants
in accordance with the Constitution
and law. No Court, Tribunal or Forum
should exercise any jurisdiction in
any matter brought before it until
and unless, such jurisdiction had
been conferred upon it by the
Constitution itself or under any law.
Parameters are laid down in
substantive and procedural law defining
the scope and limitation within which
such
jurisdiction is to be exercised by the
Courts.[1] There was no jurisdiction
available with the Revisional Court
to entertain the Civil Revision Petition
in terms of Section 115 of CPC when
appeal had already become barred by
limitation, therefore, Impugned Judgment
is without jurisdiction and as such,
the same is patently illegal. -
For what has been discussed above,
this petition is allowed and the Impugned
Judgment is hereby set-aside.
(J.K.) Petition allowed
[1]. Executive District Officer, School and Literacy District Dir Lower and others v. Qamar Dost Khan and others” (2006 SCMR 1630), “Mansab Ali v, Amir & 03 others” (PLD 1971 SC 124), “Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others” (2017 SCMR 118) “S. M. Waseem Ashraf v. Federation of Pakistan through Secretary M/o Housing and Works, Islamabad and others” (2013 SCMR 338