Peshawar High Court
Abdul Khaliq Vs Wasi Ud Din Khattak etc
Outcome The revision petition was accepted, the appellate judgment was set aside, and the case was remanded to the trial court to decide both suits together in accordance with law.
- Case
- C.R No. 680-P of 2020
- Type
- Civil
- Length
- 8 pages
The case concerned whether the courts below were right to treat a connected suit as finally decided after an ex parte decree had been set aside and the suit later adjourned sine die. The High Court held that this was a misreading of the record, accepted the revision, set aside the appellate judgment, and remanded the matter for fresh decision with both suits to be decided together.
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- The background of the case
- 4 issues before the court
- 4 holdings, each with the court's own words and page
- 2 laws applied
- 3 cases relied on, linked to the library
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Written by AI from the judgment's text and may miss nuance. Rely on the full judgment below and the court's official copy. Court's own note: 1. Setting aside an ex parte decree wipes out its operative effect. Once an ex parte decree is set aside, it ceases to exist in law and cannot be treated as continuing to bind the parties or conclude the controversy. 2. A restored suit adjourned sine die remains pending; it is not finally decided. Mere sine die adjournment does not amount to final adjudication. A suit that has been restored and then adjourned sine die remains alive unless lawfully disposed of. The courts below erred in treating such a suit as having attained finality. 3. Misreading or non-reading of material record can vitiate a judgment. Where a court ignores a vital fact on record, especially one affecting the existence or finality of connected proceedings, its decision may become legally unsustainable and liable to revisional interference. 4. Connected suits arising from the same agreement or transaction should be considered together where necessary to avoid conflicting findings. Since both suits in this case arose from the same agreement, the proper course was concurrent consideration so that the real controversy could be resolved effectively and consistently. 5. Difference between void and illegal or erroneous order: Not every illegal or erroneous order is void; the expression “void order” must be used with care, for an order does not become non-existent in the eye of law merely because it is wrong on facts or law. A truly void order is one passed by a court acting without jurisdiction, or one resulting from a failure to exercise jurisdiction vested by law, in which case it may be treated as a nullity. By contrast, where the court is properly vested with jurisdiction but commits an illegality, error of law, or material irregularity in the exercise of that jurisdiction, the resulting order is not void but only voidable, and therefore remains effective unless set aside in appropriate proceedings in accordance with law and subject to the ordinary rules of limitation. 6. Limitation does not ordinarily run against a truly void order, but it does apply to an erroneous order passed within jurisdiction. 7. A revived proceeding must be decided strictly on merits, unaffected by the earlier ex parte decree that no longer exists. 8. The central principle laid down in the judgment: “once an ex parte decree is set aside, it loses all operative effect and ceases to have any legal existence for purposes of binding the parties or concluding the controversy; the necessary consequence is that the suit stands revived and must proceed to decision on its own merits in accordance with law. Equally, where such a restored suit is merely adjourned sine die, it cannot be treated as having attained finality, for a sine die adjournment does not amount to lawful disposal or final adjudication, and the lis continues to remain pending until determined by a competent order. In such circumstances, any assumption by a court that the earlier ex parte decree still subsists, or that the restored proceedings have become final notwithstanding their pendency, constitutes a clear case of misreading and non-reading of the material record, thereby rendering the resulting findings legally unsustainable and open to revisional correction. More so, where two suits arise out of the same agreement or transaction, the proper judicial course, so far as practicable, is to consider and decide them together so as to avoid conflicting findings and to secure an effective and complete adjudication of the real dispute between the parties. At the same time, it must be borne in mind that not every illegal or erroneous order is void in the eye of law; the expression “void order” is to be employed with precision and caution. A truly void order is one passed by a court acting without jurisdiction, or in failure to exercise jurisdiction vested in it by law, whereas an order passed within jurisdiction, though attended by illegality, error, or material irregularity in the exercise thereof, remains merely voidable and not a nullity. The distinction is of significance in the matter of limitation as well, for while limitation does not ordinarily run against an order that is a true nullity, it does apply to an erroneous order made within jurisdiction. Nevertheless, where the courts below have proceeded on a fundamental misconception of the record and the legal effect of prior proceedings, and such error goes to the root of the matter causing manifest miscarriage of justice, revisional interference is fully warranted. In all such cases, once the earlier ex parte decree has been lawfully set aside and the proceedings revived, the controversy must be adjudicated strictly on the basis of evidence and law, uninfluenced by any supposed finality attaching to a decree which, in the eyes of law, no longer exists. “
Full judgment
Official copyPESHAWAR HIGH COURT, PESHAWAR.
(JUDICIAL DEPARTMENT)
Civil Revision No.680-P/2020
Abdul Khaliq vs Wasi-ud-Din Khattak & another Date of hearing: 17.03.2026.
For Petitioner(s): Syed Naveed Ali Shah, Advocate. For Respondent No.2: Mr. Muhammad Zia-Ullah, Advocate. For Respondent No.1: Nemo (placed exparte)
JUDGMENT
FARAH JAMSHED, J.- Impugned herein are the judgments and orders dated 29.01.2018, passed in civil appeal No.32/13 of 2012, rendered by the learned Additional District & Sessions Judge-I, Peshawar and order dated 15.09.2020, passed in review petition bearing No.03/Review by the learned Additional District Judge-X, Peshawar, whereby, the appeal as well as review petition filed by the petitioner, were dismissed.
02.The chequered history of this civil revision petition is that the petitioner/plaintiff (Abdul Khaliq) filed a suit against the respondents/defendants, for specific performance and possession based on a registered deed No.4675 dated 27/11/1999 with respect to land measuring 03-Kanal in Khasra No.54 Khatta No.416/496, situated in the revenue estate of Moza Bhana Mari, District Peshawar.
He also prayed for a decree for possession, recovery, and compensation as per the agreement deed dated 14/07/2001, as well as permanent injunction.
03.On service of summons, the respondents/defendants put their appearance before the learned trial court and submitted their written statement, raising therein, legal and factual objections. The learned trial court, after framing of issues, recording of evidence, and hearing arguments of the learned counsel for the parties, dismissed the suit of the petitioner vide its judgment dated 16.07.2012.
04.Being aggrieved, the petitioner filed an appeal bearing No.32/13, which was dismissed by the learned appellate court vide judgment and order dated 29.01.2018.
Feeling unhappy, the petitioner filed review petition under section 114 read with section 7 of CPC for reviewing the said judgment and order dated 29.01.2018 and reversing the findings of the learned appellate court. The learned court, after hearing arguments, dismissed the review petition vide order dated 15.09.2020. Hence, this civil revision petition.
05.Arguments heard and record perused.
06.Perusal of the record indicates that a suit bearing No.149/1 was instituted by the petitioner for specific performance and possession on the basis of an agreement
deed No.4675 executed on 27.11.1999 with respect to the land measuring 03-Kanal, as already mentioned earlier.
07.The record further indicates that another suit bearing No.70/1 neem was filed by respondent No.1 & another against the present petitioner & others, for the grant of decree in the following terms: -
(A)i. recovery of Rs.18,00,000/- (balance consideration price of property, fully described in the same agreements dated 27.11.1999, 14.07.2001, 20.09.2001 & 22.09.2001) and
ii. Rs.50,00,000/- as special damages on account of mental torture, physical trouble, defamation and financial loss and breach of contract.
(B)i. forfeiture and confiscation to the plaintiffs of Rs.4,00,000/- according to agreement dated ii. Award of special compensatory cost under section 35-A CPC, and iii. cancellation of agreement dated 27.11.1999 and registered deeds No.407 to 410 dated 26.01.2002, in alternative.
08.The said suit was initially decreed exparte vide order dated 14.12.2012, however, later vide order dated 05.03.2013, the exparte order was set aside. On 02.04.2013, the plaintiff submitted an application for sine die adjournment, till the final disposal of pending appeal before this court against the order dated 16.07.2012 of the learned Civil Judge-XXX, Peshawar. The said application was
accepted, and the case was adjourned sine die vide order dated 02.04.2013.
09.It is evident from the record that both the aforementioned suits were instituted on the basis of the same agreement between the parties. However, suit bearing No.149/1 was decided on merits while the other suit bearing No.70/1 neem, remained pending and later adjourned sine die. The courts below appear to have proceeded on an incorrect conception that the latter suit bearing No.70/1 neem, was decreed on 14.12.2012, whereas, in fact the said suit was initially decreed ex-parte, but, later on, on the application of the plaintiff, the ex-parte decree and order was set aside vide order dated 05.03.2013 and the original suit was restored with costs. It is manifest from the record that both the learned courts below fell into a patent error in presuming that the said suit had attained finality by way of decree dated 14.12.2012, whereas, in actuality, the decree in question was an ex-parte, which was subsequently set aside through a lawful order dated 05.03.2013, restoring the suit to its original position. Thereafter, the matter was not finally adjudicated but was only adjourned sine die, and thus continued to remain pending for determination. In such circumstances, treating the suit as finally decreed was a
clear misreading and non-reading of the record, rendering the impugned findings legally unsustainable. This material aspect has escaped the attention of the learned appellate court while deciding appeal No.32/13 on 29.01.2018 and later while dismissing Review Petition No.3 vide order dated 15.09.2020. Such non-consideration of a vital point has resulted in miscarriage of justice, as the interconnected nature of both proceedings, arising out of the same agreement, required proper appreciation and concurrent adjudication. Consequently, the impugned judgments and orders cannot be sustained, and the matter warrants remand for a fresh decision after proper consideration of all relevant aspects.
10.As regards the preliminary objection of the petition being time-barred, the same is hereby brushed aside in the peculiar circumstances of the case. There can be no dispute that a truly void order, being a nullity in the eye of law, may not attract the ordinary bar of limitation. At the same time, it is equally settled that not every illegal or erroneous order does becomes void automatically. The question, therefore, is whether the impugned judgment is merely an erroneous exercise of jurisdiction, or a nullity that must be ignored altogether.
11.The distinction is recognized in our jurisprudence. In Muhammad Swaleh1 case, the Supreme Court explained that where a court assumes jurisdiction not vested in it by law, or fails to exercise its jurisdiction, the resulting order is void.
However, if the court acts illegally or with material irregularity in the exercise of its jurisdiction, the order is voidable. The apex Court observed2 that expressions like “void order” and “order without jurisdiction” are often overworked and must be used with caution, because an order does not cease to exist merely because of those labels.
12.The same principle was reiterated by the Supreme Court when it explicitly held3 that the bar of limitation does not operate in respect of void orders; it applies to erroneous orders. An order that is truly without jurisdiction and void need not even be formally set aside. Conversely, where the court had jurisdiction but committed a legal error in the exercise thereof, the order remains challengeable according to law and within limitation.
13.Tested on the above touchstone, the impugned appellate’s court judgment dated 29.1.2018 is not a void order. The appellate court certainly had jurisdiction to hear 1 Muhammad Swaleh and another vs. Messrs United Grain and Fodder Agencies
(PLD 1964 SC 97)
2 Messrs Conforce Ltd vs. Syed Ali Shah etc (PLD 1977 SC 599) 3 Land Acquisition Collector, Nowshera & others vs. Sarfaraz Khan & others (PLD
2001 SC 514)
the appeal; its error was in misinterpreting the legal effect of the setting aside of the ex parte decree and the consequent restoration, followed by sine die adjournment, of the connected suit. This error was significant and went to the correctness of the decision, but it did not strip the appellate court of jurisdiction nor render the order void. Thus, the argument that no limitation runs against a void order does not, by itself, resolve the issue of delay in the present case.
14.Be that as it may, the revisional interference is still warranted on merits, because the appellate court proceeded on an incorrect assumption that the ex parte decree in the connected suit continued to subsist. Once that decree had been set aside, it ceased to exist and lost its operative effect.
The restored suit still pending notwithstanding its sine die adjournment, and the controversy arising out of the same agreement deed dated 27.11.1999 could not be resolved by treating one proceeding as final and the other as barred by a decree which no longer exist. The correct and proper course was to consider both matters together, so as to avoid conflicting findings and ensuring an effective adjudication of the real dispute.
15.The apprehension that adjudication of the restored suit on its own merits may prejudice the earlier decision is
misconceived. Once the exparte decree was set aside, the restored suit was legally reinitiated and had to be decided independently on the basis of evidence and law. Any notion of finality attached to the initial exparte decree stood is nullified by its setting aside, and no prejudice can arise from a lawfully revived proceeding. The trial court, while deciding both suits together, shall ensure that neither party is allowed to derive an unfair advantage from any procedural overlap, and that the controversy is determined strictly on merits, without influenced by earlier non-existent exparte decree.
16.In this view of the matter, the impugned judgment cannot be sustained. The revision petition is accordingly accepted. The impugned judgment of the appellate court is set aside, and the case is remanded to the trial court with the direction to take up both suits together and decide them in accordance with law, after affording fair opportunity to the parties.
17.The parties are directed to appear before the learned trial court on 09.04.2026.
JUDGE
Date of hearing & announcement of judgment -------------------17.03.2026
Date of preparation & signing of judgment ---------------06.04.2026
Himayat, CS
Text extracted from the court's PDF and reflowed for reading. The court's official copy is authoritative.
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