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Civil Reference No. 12/C of 1985, decided on 16th June,1987.

Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XLVI, R. 1‑‑Reference to High Court‑‑No point formulated by Court below for purpose of eliciting opinion of High Court‑‑Provisions of 0. XLVI, R. 1, C.P.C. do not contemplate that subordinate Courts can pass on to higher Courts pending files on pretext of inability to decide pending matters before them unless requirements of R. 1, O.XLVI, C.P.C. are fulfilled‑‑Additional District Judge's conduct in making a reference in utter ignorance of law deprecated and warning administered to him to be careful in future.

Sh. Abdul Rashid for Petitioners. Nemo for Respondent No. 1.

Rana Abdul Hameed Khan for Respondents Nos. 3 and 4. Date of hearing: 20th May, 1987.

This civil reference has been entertained by the office on the basis of memorandum No. 137/Ahlmad, dated 19‑2‑1985 addressed by Mr. Nazir Ahmad Ansari, Additional District Judge, Vehari to the Registrar of this Court. Alongwith it he has sent up the file of a petition under Section 12 (2) of the C.P.C. filed before him by Muhammad Ali son of Baddar Din which has been mentioned by him to ‑have been sent "to the Hon'ble High Court for decision". Therein is also contained his order dated 16‑6‑1984 mentioning the history of an appeal determined on 16‑7‑1979 by his predecessor‑in‑office (Mr. Manzoor Ahmad Kamboh).

2. The matter has been attended to and it is found that the foregoing does not meet the requirements of law. Office should not have entertained this memo and ought to have returned the papers to the Additional District Judge who has not formulated any point on which doubt was entertained by him or opinion of this Court was desired to be solicited and muchless has he expressed his own view there about. Even the facts of the case have been left by him as liable to be ascertained from the record sent up by him. It is quite astonishing that an Additional District Judge may be so ignorant about the law and may yet think it proper to embark upon such an enterprise without feeling even the necessity of apprising himself of the legal provisions governing the subject. For his benefit, Rule 1 of Order XLVI of the C.P.C. deserves to be reproduced:‑

"1. Reference of question to High Court.‑‑ Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties draw up statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court."

Perusal of this provision will have manifested that it is not left to the whim or pleasure of the Judge of a subordinate Court to make a reference in a case of any kind but it is necessary that there should be a suit or appeal wherein decree is not subject to appeal or an execution petition pending in his Court wherein may arise a question of the stated nature on which he entertains a reasonable doubt and then alone he can make a reference to the High Court by drawing up a statement of the facts of the case and setting out the question on which doubt is entertained, alongwith his own opinion. Neither of these requirements is fulfilled in this case and the memo of the Additional District Judge is wholly inadequate. It deserves to be regarded a mere waste paper. There is no provision of law enabling a lower Court to thus send up a case to the High Court. It has never been the contemplation that the pending files of the subordinate Courts may be moved over to the higher Courts on the pretext of inability of the concerned Judges to decide the matters P pending before them. It is unthinkable that the Additional District Judge concerned may not have known even this that the High Court is not a repository of the files pending in the subordinate Courts and muchless may it decide such a case for him. His conduct, in thus sending up the record of a case pending in his own Court, is to be simply deprecated and he is warned to, in his own interest, remain careful in future to desist from repeating such a mistake.

3. For the reasons stated above, this matter cannot be proceeded with as a Civil Reference but since my learned brother A.S. Salam, J. had ordered on 11‑3‑1985 that notice will also issue to the parties under Section 115 of the C.P.C. on the judicial side, therefore, I have heard the learned counsel in attendance who have candidly expressed their inability to support this proceeding as a Civil Reference within the contemplation of law because it is incompetent and even if the facts of the case set out in his aforesaid order are taken as capable of meeting the requirement of law, even then there is no point formulated for the purpose of eliciting opinion of this Court which cannot act in vacuum.

4. The Additional District Judge has himself concluded that the petition before him is not only barred by time but is also improperly constituted due to the omission of the other parties interested in the matter from being arrayed therein, therefore, it seems appropriate that the parties should be left to, if so advised, have their interests safe‑guarded by resort to such remedies, if any, as may be available to them under the law and it is not desirable that this matter may be considered by this Court in the suo motu power of revision when the party against whom that appeal was accepted by the judgment dated 16‑7‑1979 had not considered it advisible to challenge it in appeal or revision.

5. Furthermore, the decree passed in the appeal on 16‑7‑1979 being declaratory in nature, also prohibits interference in the possession of all the then appellants which include the name of the applicant Muhammad Ali son of Baddar Din at serial No.7 and it surpasses comprehension as to how may the claim decreed in the said appeal in favour also of the applicant be capable of causing prejudice to him In such a situation, question may also arise about the locus standi for filing the application which has been engaging the attention of the Additional District Judge. Obviously enough, no one can be under a compulsion to take the benefit of a decree passed in his name and he can always disregard it. Thus, even if it could be assumed for the sake of argument that, the father of the applicant was joined in the suit without his consent and, in an appeal arisen therefrom, even he himself had been arrayed as one of the appellants without his knowledge, even then he can ignore the decree so passed and refuse to take its benefit. In view of the foregoing, this case is not fit for interference even in the suo motu exercise of revisional power.

6. The result is that, with the above observations and warning administered to the Additional District Judge, the file is returned to him for being dealt with in accordance with the law. No order as to costs.

K.B.A./M‑283/L Order accordingly.

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