IN THE HIGH COURT OF SINDH,

KARACHI

J.M. No. 53/2017

Applicants : Province of Sindh & Others,

through Mr. Muhammad Muzaffar
Laghari, Addl. A. G alongwith
Gulsher Ahmed Mangi, Director
Exploration, Ghulam Rasool
Tanviri, Deputy Director and Syed
Sahib Bokhari, Law Officer, Mines
and Minerals, Government of
Sindh.

Respondent No.1 : M/s. Pakrock Corporation (Pvt.)

Ltd, through Mr. Ch. Atif Rafique,
Advocate

Date of hearing : 11.04.2019

JUDGMENT

YOUSUF ALI SAYEED, J:- This Application under Section

12 (2) CPC has been filed on 13.09.2017 by the Province of
Sindh, through the Directorate of Minerals Department,
assailing the compromise decree dated 07.03.2011 in Suit
Number 903 of 2000 (the “Underlying Suit”) on the ground
that neither the Application that had been presented under
Order 23, Rule 3 nor the Settlement Agreement on which the
compromise was predicated had been signed by the Director
General, Mines and Minerals Department, Province of Sindh,
and that the terms thereof contravened the “Sindh Mining
Concession (Granite) Order, 2007 (the “2007 Order”)
promulgated vide Notification No.SO(ADMN)/M&MD/1-
44/2003 dated 20.09.2007, whereby a restriction was said to
have been imposed on the grant of exploration licenses or
mining leases in Karoonjhar Range Mountains of Nagarparkar.
2. Addressing the preliminary objections raised on behalf of
the Respondent No.1 that recourse to Section 12(2) CPC
did not lie as against a decree made by consent and that
the Application was even otherwise barred by limitation,
it was merely submitted by the learned Additional
Advocate General that the Application was maintainable
and no period of limitation would apply as the impugned
Decree was a „void order‟. Reliance was placed in this
regard on a judgment of the Honourable Supreme Court
in the case reported as Land Acquisition Collector
Nowshera vs. Sarfaraz Khan PLD 2001 SC 514 and on a
judgment of a learned Division Bench of this Court in the
case reported as National Bank of Pakistan vs. Khairpur
Textile Mills Limited 2001 CLC 1187.

3. It was contended that the impugned decree was „void‟ as

the concurrence of the Director General, Mines and
Minerals Department, Province of Sindh was absent.
Furthermore, it was submitted that the 2007 Order had
not been brought to the attention of the Court at the time
that the compromise had been sanctioned. Reliance was
placed in this regard on a judgment of the Honourable
Supreme Court in the case reported as Government of
Sindh vs. Khalil Ahmed 1994 SCMR 782 and Directorate-
General Civil Defence, Government of Pakistan, Interior
Division, Islamabad v. Mian Abdul Salam 2007 SCMR
1779.

4. It was averred that the absence of proper authorization

on the part of the Province and suppression of the 2007
Order was demonstrative of the fact that the impugned
decree had been obtained through fraud and
misrepresentation, hence was liable to be set aside.

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5. Conversely, learned counsel for the Respondent No.1
submitted that the grounds taken by the Applicant were
baseless and misconceived. It was pointed out that the
parties had all been represented before the Court on the
date that the Underlying Suit was decreed and that the
Settlement Agreement itself bore the stamp and signature
of the Director General, Mines and Minerals Department,
Province of Sindh, with its execution being preceded by a
series of meetings between the representatives of the
Respondent No.1 and the functionaries of the
Government of Sindh, as reflected in the Minutes filed
along with the counter-affidavit of the Respondent No.1,
which, per learned counsel, demonstrated that the terms
of settlement had been determined following a protracted
process of consultation with participation and
concurrence of the competent authorities.

6. It was submitted further that the 2007 Order posed no

absolute restriction in the matter as the leases in favour
of the Respondent No.1 had been granted as far back as
1987, which were then cancelled in 2000, and
compromise was in relation to their restoration to the
extent of 25% of the area thereof. It was submitted that
there was nothing on record to demonstrate that such
restoration would transgress the 2007 Order, which was
being invoked only to raise an unwarranted objection in
relation to the claim of the Respondent No.1, whereas the
Province/Department had already given effect to the very
Settlement Agreement in relation the Respondent No.2.
He submitted that no case of fraud and
misrepresentation had been made out under the
circumstances.

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7. It was pointed out that, even otherwise, the Application
was barred by limitation, having been filed on
13.09.2017, beyond the period of three years prescribed
in terms of Article 181 of the Limitation Act. As to the
applicability of Article 181 of the Limitation Act, reliance
was placed on the judgments reported at Muhammad
Akram Malik vs. Dr. Ghulam Rabbani PLD 2006 SC 773,
Mst. Nasira Khatoon vs. Mst. Aisha Bai 2003 SCMR
1050, and Government of Sindh vs. Ch. Fazal
Muhammad PLD 1991 SC 197.

8. Learned counsel submitted that the assertion as to the

decree being a „void order‟ was completely misconceived
in as much as the Court seized of the Underlying Suit
had been competent to adjudicate on the matter and
proper representation had been available on the date that
the order had been made, representation from the
Advocate General‟s Office having also been present.

9. It was averred that even if for the sake of argument the

contention of the Applicant were to be considered, the
aspect of limitation could not be left completely open
ended and the period prescribed under Article 181 would
to be reckoned from date of knowledge, which ought to be
reckoned from 17.03.2011 in view of the presence of the
departmental functionaries and State counsel on that
date. It was submitted that even if such period were
reckoned from the date of first appearance from the side
of the Advocate General‟s Office made in Execution No.
60/2013, being 11.09.2014, the matter was still evidently
time barred and liable to be dismissed. He placed reliance
on the judgment of the Honourable Supreme Court in the
case reported as Muhammad Raz Khan v. Government of
NWFP and another PLD 1997 SC 397.

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10. Having considered the submission advanced and the
material on record, it is apparent that the Application is
bereft of merit and has been filed only to further delay the
proceedings in Execution No. 60/2013 filed by the
Respondent No.1 as far back as 22.11.2013. The grounds
taken by the Applicant are fallacious, as is apparent from
the face of the Settlement Agreement and the Order made
in the Underlying Suit on 07.03.2011 which reflects that
the Director General, Mines and Minerals Department
was a participant and that the relevant parties were duly
represented before the Court.

11. It merits consideration at the outset that there is a clear

a distinction between an illegal order and a void order, for
whilst every void order would certainly be illegal, every
illegal order would not necessarily be void. Whilst orders
passed without lawful authority, without jurisdiction, or
against the principles of natural justice may be void,
every order made by a competent judicial forum that
suffers from some error cannot necessarily be so
regarded. The distinction was explained by the
Honourable Supreme Court in Muhammad Swaleh v.
United Grain Fodder Agencies, PLD 1964 SC 97, with
reference to the grounds of revision set out in section
115, C.P.C. Their lordships observed that when a Court
or a Tribunal assumes jurisdiction not vested in it by law
or fails to exercise jurisdiction so vested, its order may be
void and a nullity in law. However, when it acts illegally
or with material irregularity in the exercise of its
jurisdiction, the ensuing order may be voidable but would
not be void.

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12. In the case of M/s. Conforce Ltd. v. Syed Ali Shah etc.,
PLD 1977 SC 599, it was stated by the Apex Court that
:-----
"....we would observe that a void order or an
order without jurisdiction is only a type of an
illegal order passed by a Court and the fact that
it has been passed and that it may, therefore,
create rights cannot be altered by describing it
as void or without jurisdiction. And, further, the
expressions "void orders" and "orders without
jurisdiction" are overworked expressions." (at
Page 601 D)

13. Subsequently, in the case of Land Acquisition Collector,

Nowshera & Others v. Sarfaraz Khan & Others, PLD 2001
SC 514, it was observed by the Honourable Supreme
Court that:

“It is settled law that the bar of limitation would

not operate in respect of void orders but not in
respect of erroneous orders. The question of '
limitation may not, therefore; arise in respect of
a judgment which is a nullity in law, void or
ultra vires the statute or the constitution. In
point of fact, if an order is without jurisdiction
and void, it need not even be formally set aside
as has been held in the 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.” (at
Page 517 A)

14. It is evident from the aforementioned precedents that a

mere irregular, incorrect, erroneous or illegal order does
not necessarily fall within conception of the term “void”,
and that the law of limitation would apply to such
orders.

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15. In the instant case, the Court was certainly fully
competent to adjudicate upon the subject matter of the
Underlying Suit and to pass the impugned Judgment and
Decree. No assertion to the contrary has even been
pleaded in this regard.

16. Even otherwise, it need scarcely be mentioned that it is

imperative for the proper working of any system of justice
that in a context such as the one at hand a party
aggrieved by an order passed by a competent judicial
forum be required to assail such order in a timely
manner through appropriate proceedings, as prescribed,
and cannot be allowed to escape the consequence of his
own indolence and circumvent limitation by recourse to a
plea that the order sought to be questioned is void and
hence is not subject to any statute of limitation.

17. In this regard, it merits consideration that in the case of

Muhammad Raz Khan (supra), on the subject of
limitation in relation to a „void order‟ it was held by the
Apex Court as follows:

“4. Secondly, there is no cavil to the proposition

that normally constraints of limitation do not
apply against void orders as held in case of
Muhammad Shaft v. Mushtaque Ahmed 1996
SCMR 865. Nevertheless every case is'
distinguishable on its facts and circumstances.
It is undoubtedly imperative for aggrieved party
to peruse legal remedies with utmost diligence
and satisfy conscious of the Court or quasi-
judicial authority for approaching respective
forums beyond prescribed limitation, even if
objections to that effect were not raised. This
principle has been discussed in PLD 1985 SC
153 (Hakim Muhammad Buta and another v.
Habib Ahmad and others) and PLD 1993 SC
147 (Province of Punjab and others v.
Muhammad Hussain and others). Thus,
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aggrieved person seeking redress has legal
obligation to justify each day's delay' for
launching proceedings, because with lapse of
time valuable right accrues to the opposite side.
This view has been consistently maintained by
superior Courts. However, reference may be
made to judgments reported in (i) PLD 1996 SC
292 (All Muhammad and others v. Muhammad
Shaft and others), (ii) PLD 1995 SC 396
(Government of Punjab v. Muhammad Saleem),
(iii) 1986 SCMR 930 (Muhammad Feroze Khan
v. Khalique Dad Khan and 28 others), (iv) PLD
1982 SC (AJ&K) 13 (Khadim Hussain Khan v.
The State).

5. Now looking to applicability of limitation

against void orders question would naturally
arise whether right of such person against
whom an adverse order exists would be
unfattered, ignoring established principles and
would enjoy limitless discretion to knock the
door of justice whenever desired by him; or
same should be regulated by judicious norms.
We earnestly feel that unless certain
constraints apply against right of challenging
void order specially relatable to period of
knowledge, the same may create complications
leading to dangerous results. Principle of justice
and fair play does not help those who were
extraordinary negligent in asserting their right
and despite becoming aware about alleged void
order adverse to their interest remain in deep
slumber. Therefore, according to our considered
opinion, facility regarding extension of time for
challenging orders cannot be legitimately
stretched to any length of unreason period at
the whim's, choices or sweet will of affected
party. Thus, order termed as nullity or void
could at best be assailed by computing period of
limitation when he factually came to know
about the same. When a person presumes that
adverse order is a nullity or totally devoid of
lawful authority and ignores it beyond the
period specified by law of limitation, then he
does so at his own risk. Therefore, in all
fairness terminus a quo will have to be fixed,
the date of knowledge of alleged void order;
which too must be independently established
on sound basis. In this behalf, we derive
strength from the observations contained in
PLD 1975 Baghdad-ul-Jadid 29 (Sayed Sajid Ali
v. Sayed Wajid Ali) and 1978 SCMR 367 (S.
Sharif Ahmad Hashmi v Chairman, Screening
Committee).”

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18. In view of the foregoing, it is evident that the Application
is misconceived and is even otherwise barred by
limitation. Accordingly, the same is dismissed. There is
no order as to costs.

JUDGE
Karachi
Dated ___________