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Civil Revision No. 69 of 1985, decided on 28th November, 1985.
‑‑‑O. VI, r.17‑‑Amendment of plaint‑‑Requirements‑‑Court, held, would have discretion to allow or not to allow alterations in pleadings taking into consideration justification by determining real question of controversy between parties‑‑Such discretion, however, would be exerciseable in accordance with settled judicial principles to avoid multiplicity and for advancing substantial justice‑‑Amendment could be made only to the extent sanctioned by Court‑‑In absence of specific order by Court sanctioning amendments in plaint, no presumption could be drawn about requisite amendments.
‑‑‑O. IX, r.6‑‑Ex parte decree‑‑Passing of‑‑Requirements‑‑Court would be competent to pass decree without recording evidence but exercise of such discretion, held, would not absolve Court from responsibility of being satisfied about property and genuineness of claim‑‑Such discretion could not be deemed to be exerciseable in arbitrary, capricious or fanciful manner‑‑Even if for justifiable grounds, evidence could not be recorded yet strong basis must pre‑eminently exist to substantiate claim which obviously should be reflected from judgment in shape of sound cogent and convincing reasonings‑‑ Decree passed without specifying any reasoning whatsoever would be apparently defective, erroneous and illegal.
Shamroz Khan and another v. Muhammad Amin and others P L D 1978 S C 89; Khan Muhammad Khan and others v. Mir Sardar Ali and others P L D 1961 B 42; Firm Ayaram Atamparkash v. M. Sukhdev & Co. A I R 1942 Sind 57; Miss Nasrin Fatima Awan v. Principal Bolan Medical College and others P L D 1978 Quetta 17; Muhammad Yakoob v. Zahir Alam and others P L D 1976 Quetta 77; Land Acquisition Collector, Rawalpindi v. Lt.‑Gen. Wahid Ali Khan Burki P L D 1960 Lah. 469 at page 479(f) and Municipal Committee, Pattoki v. Muhammad Anwar 1982 CLC910ref.
‑‑‑S. 33 & O. XX, r. 4‑‑Judgment‑‑Meaning, scope and requirement‑ Judgment, would mean judicious determination of dispute between parties specifying ground and substantial reasoning for arriving at particular decision‑‑Judgment, held, ought to be self‑contained unambiguous, conveniently intelligible, lucid and capable of only one interpretation without leading for guess or probabilities with regard to matters sought to be determined‑‑Proper or valid judgment would be devoid of apparent vagueness, ambiguity or possibility of different or double inter pretation‑‑Bar of limitation for filing appeal, against decrees passed in utter disregard of legal requirement viz. recording of reasons for granting decree, would not be applicable.
Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104; Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208; Major Syed Walayat Shah v . Muzaffar Khan and others P L D 1971 S C 184; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97; Hussain Bakhsh and others v. Settlement Commissioner and another P L D 1969 Lah. p. 1039; Syed Muhammad Alam v. Syed Mehdi Hussain and others P L D 1970 Leh. 6; Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746; Faqir Muhammad v. Mulls Mahmood PLD 1973 Quetta 1; Mst. Rehmat Bibi and others v. Punnu Khan and others N L R 1982 SCJ 166 and Syed Nazir Hassan v. Settlement Commissioner Lyallpur and another P L D 1974 Lah. 434 ref.
‑‑‑S. 115‑‑Revisional jurisdiction, exercise of‑‑Cases involving illegal assumption, non‑exercise or illegal exercise of jurisdiction or apparent material irregularity, held, would justify exercise of revisional jurisdiction by High Court to rectify such material irregularity and patent illegalities‑‑Entire proceedings subject to "scope" and "limitation" prescribed in S. 115, Civil Procedure Code, 1908 would be open for examination and Court could not ward off patent irregularities merely for any technical reasons.
S. Zafar Ahmed v. Abdul Khaliq P L D 1964 Kar. 149; Tasbiullah v. Firm Amir Ghazan Khan P L D 1965 Pesh. 267; Ghulam Hussain and others v. Municipal Committee Peshawar and another P L D 1964 Pesh. 209; Muhammad Sadiq v. Irshad Begum 1982 C L C 1829; Latif Bakhsh v. Muhammad Noor Hassan and another 1983 C L C 1759; Rati Ram v. Niader Mal A I R 1941 All. 215; Shah Baz Khan v. Haji Atto Jan and others P L D 1958 Quetta 1; Manager Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678; Hap Muhammad Buts v. Habib Ahmed and others P L D 1985 S C 153; Suleman v. Muhammad Feroz Khan and others P L D 1970 Azad J & K 109; Tariq Yahya Khan etc. v. Ali Nawaz etc. 1984 C L C 935; Katragadda China Ramayya v. Chiruvella Venkanraju and another A I R 1954 Mad. 864; G. I. P. Railway, Bombay v. Mrs. Samuel w/o G.R. Samuel and others A I R 1943 Nag. 333; Muhammad Swaleh and another v. Messrs United Grain Fodder Agencies P L D 1964 S C 97 and Saeed Ahmed v. Messrs Indo Enamal Works P L D 1954 Lah. 490 ref.
‑‑‑S. 115‑‑Revisional jurisdiction, exercise of‑‑High Court in exercise of revisional jurisdiction while remanding case to trial Court for fresh trial giving guidelines for adopting proper procedure for disposal of case within specified time.
Muhammad Riaz Ahmed for Appellant.
Basharatullah for Respondents.
Dates of hearing: 18th and 19th November, 1985.
This petition is directed against judgment and decree, dated 21‑I1‑1984 passed by Qazi Turbat and 10‑7‑1985 passed by Majlis‑i- Shoora, Khuzdar.
2. Brief facts leading to this petition are that on 5‑3‑1977 respondent filed a suit for declaration in the Court of Deputy Commissioner, Turbat in respect of property situated in "Bazar Turbat". Petitioner filed written statement on 19‑3‑1977 denying assertions in the suit. He, however, claimed that property in dispute which is in his occupation was purchased by him from respondents. Learned Deputy Commissioner on 15‑4‑1977 framed following issues and referred the matter for disposal to Qazi Turbat as contemplated under the provisions of Dastoorul Amal Diwani, Kalat.
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The file was received by learned Qazi, Turbat on 4‑5‑1977 and case was registered as Civil Suit No. 29 of 1977. Better statement of parties were recorded on 8‑1‑1978 and on the same day following additional issues were framed:‑ .
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Record reveals that statements of certain witnesses of the petitioner namely D.Ws. (i) Wahid Bakhsh, (ii) Muhammad Hussain, and (iii) Faiz Muhammad were recorded on 16‑11‑1977 and 22‑1‑1978. Whereas Abdur Rahim and Taj Muhammad declined to make statement. However learned Qazi Turbat decreed the suit in favour of respondents, vide judgment dated 15‑4‑1978. Petitioner being dissatisfied on 12‑5‑1978 filed an appeal No. 43 of 1978 before Majlis‑i‑Shoora, Kalat which was dismissed, vide judgment, dated 4‑10‑1978. Thereafter Regular Second Appeal No. 16/78 was preferred before this Court which was partly accepted by means of judgment, dated 13‑12‑1981 and aforesaid judgments of ty4o Courts below were set aside and matter was remanded to learned Qazi, Turbat. Besides respondents were allowed to amend the plaint to include relief of possession. Operative portion of the said judgment is reproduced:‑‑
"In the circumstances of the case the decree of the First Appellate Court and the Trial Court are set aside and the case is remanded to the trial Court where amendment of plaint will be done and in case appellant wishes to file additional written statement in respect of prayer for possession he will be at liberty to do so. The case then will be disposed of by Qazi accordingly to law."
3. After remand this case was registered as Civil Suit No. 42 of 1982. Evidently amended plaint was not filed by the respondents in pursuance of directions quoted above. On the other hand an application seeking further amendments was submitted before trial Court on 28‑6‑1982 Notice whereof was however, given to petitioner. Alongwith said application, proposed amended plaint was also filed. This application was vehemently opposed and a detailed reply was also filed by petitioner on 20‑3‑1983. Admittedly there is no order on record which may indicate that amendment was at all allowed. In any case it is vehemently argued that application for amendment is deemed to have been granted as further proceedings were recorded in the case without any objection by the petitioner. This contention is not supported by fact or law. It may be seen that fresh written statement was neither sought for nor filed by petitioner. Similarly fresh issues were also not framed. However, on 20‑4‑1982 parties gave a signed statement indicating that they do not want to lead evidence. Thus, learned Qazi without recording further proceedings again decreed the suit, vide judgment, dated 30‑5‑1983 which was challenged before Majlis‑i‑Shoora, Khuzdar by means‑of Appeal No. 73 of 1983 which was filed on 4‑9‑1983. This appeal was, however, accepted, vide judgment, dated 13‑11‑1983 and case was again remanded with specific directions that petitioner be allowed to lead evidence. Operative portion of the order is reproduced:‑‑--
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On receipt of case after remand it was registered as Civil Suit No. 39 of 1984. The petitioner was summoned and was served for appearance on 3‑10‑1984. According to petitioner, learned Qazi had adjourned the case without giving next date. On the other hand record indicates that actually next date in the case was fixed for 21‑11‑1984. In the meantime petitioner on 4‑10‑1984 filed a list of 5 witnesses which were not summoned. However, on 21‑11‑1984 because of absence of petitioner ex parte order/decree was passed by trial Court against him. It is appropriate to reproduce said judgment/order.
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Petitioner filed an Appeal No. 23 of 1985 before Majlis‑i‑Shoora, on 17‑3‑1985 alongwith it an application for condonation of delay was also moved stating that since next date was not given by the trial Court as such he was not aware of date when impugned order/decree was passed. Appeal was dismissed by Majlis‑i‑Shoors, on 10‑7‑1985 on the point of limitation. Being dissatisfied present petition has been filed on 19‑8‑1985.
4. Learned counsel for petitioner referring to abovementioned back ground of the case vehemently urged that:
(i) Originally claim in suit was merely for declaration but this Court, vide judgment, dated 13‑12‑1981 permitted the plaintiff /respondents to include relief of possession in original plaint, which admittedly has not been complied with, rather new amendments were sought which were still under consideration therefore taking in view of factual position decree for possession could not be granted.
(ii) Ex parte judgment and decree is apparently vague, and does not convey proper meaning which therefore is not valid.
(iii) Even if it is assumed, that ex parte proceedings were properly drawn up, decree could not have been passed without recording evidence and at least by ignoring evidence already on record.
(iv) Since original plaint was not verified; and even proposed amended plaint was not attested on oath as required by Law Reforms Ordinance, therefore, decree is in violation of mandatory procedure prescribed by law as such same‑ is void.
(v) It was further contended that once, High Court is ceased of the jurisdiction then irrespective of technicalities revisional jurisdiction can be exercised even "suo motu" to correct patent illegalities.
5. Mr. Basharatullah learned counsel for respondent has vehemently argued that scope of revision is limited, since order passed by Majlis‑i- Shoora, was within its competence and first appellate Court has exercised discretion in declining to condone delay, therefore, petition is not maintainable.
(ii) As proposed amended plaint had been filed in the Court and application for amendment has not been rejected so far, therefore, it would be presumed that amendment had been granted by trial Court.
(iii) There did not exist sufficient cause for absence of petitioner on the date when ex parte decree was passed by the trial Court.
(iv) Similarly each day's delay ought to have been explained, which has not been done by the petitioner. Therefore revisional jurisdiction is not available to challenge impugned judgments.
6. I have considered the arguments advanced by learned counsel for .the parties. It is an admitted feature that in strict compliance of directions of this Court contained in judgment, dated 12‑12‑1981, amended plaint has not been filed by the respondents so far. In fact instead of filing amended plaint an application dated 28‑6‑1982 seeking further alterations was submitted by respondent which, however, was vehemently opposed by petitioner. In the circumstances arguments of learned counsel for respondent that although no order was passed on the application for amendment, yet since further proceedings leading to ex parte decree has been taken in the matter, therefore, amendment shall be deemed to have been granted by the trial Court is apparently fallacious and totally devoid of legal force. Such imaginary disposal is not contemplated by law. It is undoubted factual position that initially suit was merely for declaration but to avoid consequences of non‑maintainability on account of failure to claim consequential relief permission to include relief of possession was sought by respondents which was, however, granted by this Court on 12‑12‑1981. Surprisingly respondents instead of filing plaint in consequence of aforesaid judgment sought further amendment therefore, unless tacit order is made by the Court, under no stretch of imagination amendment can be deemed or presumed to have been sanctioned. Provisions of Order VI, rule 17 , C . P . C . clearly show that it is discretionary with the Court to allow or not alterations in the pleadings taking into consideration justification by determining real question of controversy between the parties. Apparently discretion in this behalf is exerciseable in accordance with settled judicial principles mainly to avoid multiplicity and for advancing substantial justice. The amendment can be made in the pleadings only to the extent same is sanctioned by the Court. Evidently unless a specific order is made by the Court, no presumption can be drawn. Consequently true position which factually emerges, shows that legally so far only original plaint, dated 5‑3‑1977 is on record. Therefore no decree could lawfully be passed beyond the claim in original plaint.
7. Next contention revolves around consideration of vires of ex parte decree. It may be seen that same was passed merely because petitioner was found to be wilfully absent. No reasons basis or justi fication has at all been assigned for passing ex parte judgment /decree. Learned counsel for respondent, however, contended that it was not necessary to mention any reasons as under existing provisions, ex parte decree can be passed even without recording any evidence. To appreciate this argument reference to Order IX, rule 6, C.P.C. is necessary which is reproduced here:‑----
6. Procedure when only plaintiff appears:‑
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then ‑‑‑‑‑
When summons duly served‑‑(a) If it is proved that the summons was duly served, the Court may proceed ex parte (and pass decree without recording evidence:
When summons not duly served.‑‑(b) if it is.......... . . . . . . . . . When summons served, but not in due time‑‑(c) if it is proved ..............................
(2) Where it is owing .Undoubtedly the Court is competent to pass a decree without recording evidence. But this does not absolve the Court of its responsibility of being satisfied, about propriety and genuineness of the claim, on the basis of averments of plaint duly verified on oath and documents etc. attached therewith. Discretion for proceeding to pass a decree without recording evidence is obviously available in just and proper cases. It, however, cannot be deemed to be exerciseable in an arbitrary capricious or fanciful manner. Evidently the Court in deciding to proceed without recording evidence is expected to be guided by judicial principles to satisfy its judicious conscious for approving assertions in the plaint. For arriving at proper conclusion it is obligatory for the Court to specify its basis for doing so, on sound and cogent reasoning. Thus, even if for justifiable grounds, evidence is not found necessary to be recorded; yet strong basis must pre‑eminently exist to substantiate the claim which obviously should be reflected from judgment in the shape of sound cogent and convincing reasonings. The object of existing law appears to provide prompt and effective relief when defendant remains absent after due service of notice. Under no circumstances aforesaid provisions could be construed to penalize an absentee defendant. It cannot be believed that legislature ever desired that in the matter of absence of defendant normal principles of justice be departed from and in that case even without evaluating or ascertaining worth of claim of the plaintiff, straightaway decree be passed. Any such construction would lead to confusion and absurdity. In my opinion in all circumstances the Court is bound to keep the scales of justice even and is required to carefully examine and scrutinize averments in suit and all attending circumstance for arriving at just conclusion even when recording of evidence is found to be unnecessary. In this behalf I respectfully follow observations in case Shamroz Khan and another v. Muhammad Amin and others P L D 1978 S C 89. Relevant observations are reproduced below:‑---
"This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word "may" here imports discretion and means may, not shall, therefore when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially. In the instant, case however, the suit was decreed against the said respondent merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents.
In the light of above discussion it may be seen that since impugned ex parte decree does not specify any reasoning whatsoever, therefore, same is apparently, defective, erroneous and illegal.
8. In the instant case there is an additional factor which is also of considerable significance. Admittedly petitioner had absented at a stage when as indicated above some evidence had already been recorded. Testimony of Wahid Bakhsh, Muhammad Hussain and Faiz Muhammad intended to support the stand of petitioner /defendant which undisputedly is available on the record of trial Court. Therefore, it has to be seen whether or not trial Court was competent to ignore evidence on record while proceeding to pass decree within the purview of Order IX, rule 6, C.P.C.
Mr. Basheratullah learned counsel for plaintiff‑respondent has attempted to argue that once the Court assumes authority for proceeding against the defendants without recording evidence then it would also be competent to ignore any evidence recorded at any stage. I am afraid that arguments in this behalf though attractive, yet is absolutely devoid of legal force, because such exercise of jurisdiction would negate ends of justice. No power can be vested in the Court to ignore any evidence available on the record. It is understandable, that a Court may have jurisdiction to declare, a particular piece of evidence to be inadmissible, irrelevant, incredible, non convincing or interested and accordingly may reject the same on account of one or the other, basis, ground or reasoning, but in my opinion it has no jurisdiction whatever to ignore or by‑pass any material or piece of evidence available on record. Failure to consider the same would completely vitiate the proceedings. In this view I am supported by observation in the following cases:
(i) Khan Muhammad Khan and others v. Mir Sardar Ali and others P L D 1961 B . 42 .
(ii) Firm Ayaram Atamparkash v. Muhammad Sukhdev & Co. A I R 1942 Sind 57.
(iii) Miss Nasrin Fatima Awan v. Principal Bolan Medical College and others P L D 1978 Quetta 17.
(iv) Muhammad Yakoob v. Zahir Alam and others P L D 1976 Quetta 77.
(v) The Land Acquisition Collector, Rawalpindi v. Lt.‑Gen. Wahid Ali Khan Burki P L D 1960 Lah. 469 at p. 479 (f).
(vi) Municipal Committee, Pattoki v. Muhammad Anwar 1982 C L C 910.
It may thus be seen that trial Court in ignoring petitioner's evidence which was admittedly available on record, has acted with material irregularity and has failed to exercise jurisdiction vested in it. Impugned ex parte decree is thus nullity in the eyes of law on this score as well.
9. There is another important aspect of the case that original plaint is not verified at all whereas proposed plaint has also not been verified on oath in accordance with the requirement of Law Reforms Ordinance, 1972. In these circumstances it is argued that unless plaint was verified on oath as contemplated by law, the trial Court could not exercise discretion to proceed in the matter ex parte without recording evidence; because amended provisions of Order IX, rule 6, C.P.C. presuppose that plaint should fulfil specific requirements prescribed by amended law. Thus, I am inclined to observe that if plaint is not verified on oath, in conformity with law; in that event trial Court would not be competent to pass decree solely on the averments of plaint, without recording any evidence. Because in that case plaint cannot be treated part of evidence in this matter. In this view I am supplemented by the observation of Honourable S C in case Khairunissa v. Muhammad Ishaq P L D 1972 S C 25. Relevant pare. at page 31 (head Note‑D).
"Apart from the unverified plaint there was no evidence on record to substantiate the claim of plaintiff /respondent. Therefore a decree could not have been passed without there being evidence to substantiate the same."
10. It is thus evident that ex parte decree, dated 24‑11‑1982 has been passed by the trial Court in flagrant violation of procedure prescribed by law as such same is deemed to be without lawful authority and of no legal effect. In this behalf reliance may be placed on following decided cases:‑--
(i) Bhag Mal son of Moti Ram v. Master Khem Chand son of Ram Kishen and others A I R 1961 Punjab 421.
(ii) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and others P L D 1971 S C 61
10‑A. In the same context it is relevant to see whether ex parte observation made by the Court fulfils the requirement of judgment in a case. Generally judgment means judicious determination of dispute between parties specifying ground and substantial reasoning for arriving at a particular decision. Manner of recording judgment and decree can be ascertained from section 33 and Order XX of C.P.C. Obviously decree is to follow the judgment. Therefore judgment ought to be self‑contained, unambiguous, conveniently intelligible, lucid and capable of only one interpretation without leading a scope of guess or probabilities as regards matter which have been sought to be determined by it. If there is apparent vagueness ambiguity, or possibility of different or double interpretation, the same, in my opinion would not be a proper or valid judgment. In the instant case apparently judgment, dated 21‑11‑1984 of trial Court does not lead anywhere. One cannot make out correctly the exact relief granted by the Court. Since decree is to contain terms in which relief has been granted by the Court therefore, it should be specifically reflected from the judgment, that to what extent claim has been accepted or rejected by the Court. Additionally decree is required to be drawn up in accordance with form specified in C.P.C. Thus, observation that case is decided under Order IX, rule 6 on account of absence of defendant, would not justifiably convey whether total claim of original suit or concerning proposed amended plaint has been granted in favour of respondents. Thus, it was obviously duty of the Court to specifically explain the extent to which respondents have been found to have justifiably proved their claim. It may be seen that in this case, even this is doubtful, whether trial Court had drawn up ex parte proceedings or had actually proceeded to pass ex parte decree. In the confused situation reflected from record I am inclined to hold that ex parte judgment and decree, dated 21‑11‑1984 passed by Qazi Turbat was without jurisdiction and in exercise of the authority not vested in it by law. Therefore the same is deemed to be void and nullity in the eyes of law. In this view of the matter whole superstructure and edifice constructed upon such void order would automatically fall alongwith the same accordingly bar of limitation would not apply. Thus, delay of about twenty‑four days in filing appeal before Majlis‑i‑Shoora will be of no legal consequence. In the peculiar circumstance contention of learned counsel for respondent that petitioner was supposed to explain each day's delay is not relevant. In this view I am fortified by the observation in following cases:‑---
(i) Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104.
(ii) Khuda Bakhsh v. Khushi Muhammad and others. P L D 1976 SC 208.
(iii) Major Syed Walayat Shah v. Muzaffar Khan and others P L D 1971 S C 184.
(iv) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97.
(v) Hussain Bakhsh and others v. Settlement Commissioner and another P L D 1969 Lah. 1039.
(vi) Syed Muhammad Alam v. Syed Mehdi Hussain and others P L D 1970 Lah. 6.
(vii) Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746.
(viii) Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1.
(ix) Mst. Rehmat Bibi and others v. Punnu Khan and others N L R 1982 S C J 166.
(x) Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another P L D 1974 Lah. 434.
(xi) Civil Revision No.17 of 1984 (Sultan Muhammad v. Wali Muhammad and others decided on 6‑4‑1985)
Thus, Majlis‑i‑Shoora acted improperly in rejecting appeal on the point of limitation and thereby has failed to correct glaring defects in the proceedings of trial Court.
11. Next contention of learned counsel for respondent that revisional jurisdiction cannot be invoked for challenging the judgment of Majlis‑i -Shoora also has no force. Section 115, C.P.C. lays down circumstances in which revisional jurisdiction of this Court can be exercised. For ready reference section 115, C.P.C. is reproduced:‑
115. Revision.‑‑(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑ --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
The High Court may make such order in the case as it thinks fit;
(Provided that, where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court).
(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under sub‑section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court).
It is quite evident that cases which involve illegal assumption, non‑exercise or illegal exercise of jurisdiction or apparent material irregularity; revisional authority of this Court can always be invoked. This is now well‑settled that a Court in the exercise of revisional jurisdiction can rectify material irregularity and patent illegalities and to pass such order as may be deemed fit to promote ends of justice. This power is therefore, exerciseble for correcting the errors, improprieties and illegalities of subordinate Courts as regards existence or exercise of their jurisdiction. However, this power is not to be available for challenging every order or any routine irregularity or illegality. It has, however, to be exercised in suitable cases. A full bench of erstwhile High Court of West Pakistan at its Karachi Bench, in case S. Zafar Ahmed v. Abdul Khaliq P L D 1964 Kar. 149 has authoritatively summarised the scope of exercise of revisional jurisdiction in the following manner:‑
(i) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision making such order as it thinks fit, if in the opinion of the High Court, such Court is giving the decision,
(a) has exercised or assumed a jurisdiction not vested in it by law, or
(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or
(d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provisions of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got put for the fact that step was taken.
(ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal.
(iii) When a complaint is made to the High Court that a Court subordinate to it has acted in any of the four ways mentioned in the first proposition and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but is not bound to send for the record, if it can satisfactorily ascertain by other means the facts necessary for a decision of the point raised."
Taking into consideration the requirements of law and aforesaid principles enunciated by the High Court it is clear that when it is case of assumption of jurisdiction not vested in the Court or adoption of procedural step which tends to violate or disregard mandatory provisions of law, clearly provide legitimate basis for invoking revisional jurisdiction. In the instant case it may be seen that on record there is only original plaint claiming mere declaration, which is hit by section 42 of the Specific Relief Act; evidence available on record has been illegally ignored judgment is without any reasonings besides being vague, and capable of different interpretations, and mandatory requirements of law and procedure have been arbitrarily ignored therefore, viewing cumulative effect of all these factors it is a fit case in which revisional jurisdiction can be exercised to set aside the glaring defects in the proceedings as well as the judgment. Reference in this behalf may be made to the observation in following cases:‑
(i) Tasbiullah v. Firm Amir Ghazan Khan P L D 1965 Pesh. 267)
(ii) Ghulam Hussain & others v. Municipal Committee Peshawar and another P L D 1964 Pesh. 209.
(iii) Muhammad Sadiq v . Irshad Begum 1982 C L C 1829.
(iv) Latif Bakhsh v. Muhammad Noor Hassan and another 1983 C L C 1759.
12. In addition to the above, it may also be seen that once petition is admitted, the entire proceedings subject to the "scope" and "Limitation" prescribed in section 115 are open for examination and the Court cannot ward off patent irregularities, merely for any technical reasons. Reliance may be placed on the observation in case (i) Messrs Hafiz Abdul Aziz Cotton Ginning Factory v. Messrs Haji Ali Muhammad Abdullah & Company P L D 1966 Kar. 197 at page 204:‑‑--
"These applications are admitted for regular hearing by learned Judge of this Court on 8‑2‑1962 therefore, this Court has the jurisdiction to make such order as it thinks fit."
(ii) Rati Ram v. Niader Mal A I R 1941 All. 215:‑---
"----------Once the High Court is seized of the revision, then, in my view, it becomes its duty to cast its eye not merely on one part of the proceedings but the whole of them. What come under the review of the High Court are the proceedings as a whole from start to finish and the object of the scrutiny of the High Court is that so far as possible justice may be done in the proceedings as a whole."
Respectfully following above dictum I was inclined to observe that technical objection regarding extent of interference in the order of Majlis‑i‑Shoora is not well‑conceived.
13. Apart from the same visualizing apparent illegalities and flagrant disregards to law and procedure shown by the trial Court, even if any obstacle appears in the way same can be safely surmounted, so as toy supersede the technicalities. In the instant case illegalities and irregularities of trial Court are so predominant and conspicuous that to meet the ends of justice hurdle of technicalities could be crossed even by exercising suo motu revisional jurisdiction. In this behalf I am fortified by the observation in following cases:‑--
(i) Shah Baz Khan v. Haji Atto Jan and others P L D 1958 Quetta 1.
(ii) Manager Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678.
(iii) Haji Muhammad Buts v. Habib Ahmed and others P L D 1985 SC 153.
(iv) Suleman v. Muhammad Feroz Khan and others P L D 1970 Azad J & K 109.
(v) Tariq Yahya Khan etc. v. Ali Nawaz etc. 1984 C L C 935.
(vi) Katragadda China Ramayya v. Chiruvella Venkanraju and another A I R 1954 Mad. 864.
(vii) G.I.P. Railway Bombay v. Mrs. Samuel widow of. G.R. Samuel and others A I R 1943 Nag. 333.
(viii) Muhammad Swaleh and another v. Messrs United Grain Fodder Agencies P L D 1964 S C 97.
(ix) Saeed Ahmed v. Messrs Indo Enamal Works P L D 1954 Lah. 490.
For the foregoing reasons I am inclined to accept the petition ant direct that the order, dated 10‑7‑1985 passed by Majlis‑i‑Shoora, Khuzdaz and order, dated 21‑11‑1984 passed by Qazi Turbat are set aside. Consequently case will be remanded to trial Court for disposal according to law.
It is unfortunate to note that trial Court has repeatedly taken hasty action and on each occasion has disposed of the matter without taking into consideration requirements of law and procedure which has resulted in successive remands. To obviate further confusion it is however, clarified that, learned Qazi Turbat on receipt of case file shall serve notice to the parties and at the first instance dispose of application dated 28‑6‑1982 filed by plaintiff seeking amendment of plaint. Thereafter either in accordance with order, dated 12‑12‑1981 of this Court or situation arrived on the disposal of above said application direct plaintiff to file amended plaint. Petitioner be allowed reasonable opportunity to file written statement. After obtaining pleadings trial Court should recast issues and provide opportunity to the parties for leading evidence to substantiate their respective claims. Statements of parties be also recorded with opportunity of cross‑examination to the opposite side. On the basis thereof final decision be made in the case on its own merits. This matter is pending since May, 1977 therefore it is further directed that trial Court should dispose of, the case expeditiously at the most within six months. The petition is according disposed of in above terms.
This judgment was announced by short order, dated 18‑11‑1985 above are my reasons for the same.
A.A. Revision petition allowed
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