2016 C L C Note 6
2016 C L C Note 6
[Lahore]
Before Faisal Zaman Khan, J
KASHIF AHMAD----Petitioner
Versus
MUHAMMAD TAHIR and 3 others----Respondents
Writ Petition No.20318 of 2014, decided on 14th July, 2014.
(a) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction under Art.199 of the Constitution can be assumed in order to foster justice and to correct a wrong---High Court can pass appropriate order in such regard provided it does not occasion any injustice to parties---Jurisdiction exercised by High Court under Art.199 of the Constitution is discretionary in nature and therefore, can be exercised or refused in appropriate cases depending upon facts of the case.
Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.
(b) Civil Procedure Code (V of 1908)---
----O. XVII, R.3 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition--- Non-production of evidence---Penal consequences---Application filed by respondent under S.12(2), C.P.C. for setting aside of judgment and decree was dismissed by Trial Court for the reason that respondent did not produce evidence on the date fixed---Lower Appellate Court remanded the case to Trial Court for decision afresh on merits---Validity---Trial Court lost sight of the fact that on the date when application was dismissed, neither parties were present nor last opportunity was provided by Trial Court on the request of delinquent party enabling court to proceed against under O.XVII, R.3, C.P.C.---Trial Court proceeded against respondent which was not in consonance with law---Order passed by Trial Court dismissing application under S.12(2), C.P.C. was not in accordance with law and was not sustainable, therefore, was set aside---Reasons given by Lower Appellate Court were based on true enunciation of law, therefore, the same were reiterated, ratified and endorsed---Application under S.12(2) C.P.C. would be deemed to be pending before Trial Court and respondent was allowed an opportunity to produce his evidence subject to payment of costs---Petition was dismissed accordingly.
Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others 2006 SCMR 1684 and Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others 2000 CLC 1363 ref.
Mian Abdul Rashid for Petitioner.
JUDGMENT
FAISAL ZAMAN KHAN, J.---The case set up by the petitioner is that he filed a suit for permanent injunction titled Kashif Ahmad v. Ch. Fazal Ahmad, etc. which was decreed on 07.1.2011. Feeling aggrieved, on 30.7.2011 respondent No.1 filed an application under section 12(2), C.P.C. against the said decree. This application was dismissed on 15.12.2012 under Order XVII, Rule 3, C.P.C. for non-production of evidence. Feeling aggrieved, an appeal was filed before Additional District Judge, Shakargarh, District Narowal, which was accepted on 06.6.2014, hence this petition.
2. Learned counsel for the petitioner contends that appeal filed by respondent No.1 against the order passed in application under section 12(2), C.P.C. was not maintainable, therefore, the order passed by the appellate court is without jurisdiction. Confronted with the situation as to whether an objection was raised by the petitioner regarding the maintainability of the appeal, the answer was in the negative.
3. Arguments heard and available record perused. It is strange to note that along with the order/judgment passed by the trial court in application under section 12(2), C.P.C. a decree sheet has been drawn by the trial court. Against the said decree, an appeal was preferred by respondent No.1, which was accepted with the stipulation that another opportunity is granted to respondent No.1 to produce his evidence subject to payment of Rs.2,000/- as costs.
4. It seems that respondent No.1 fell in error due to the act of the trial court, whereby while deciding the application under section 12(2), C.P.C., a decree-sheet was drawn, which perpetuated in filing an appeal against the said decree instead of preferring a revision. The appellate court strangely enough also treated the same to be an appeal under section 96, C.P.C. and decided the same. Be that as it may, the net result of the appeal was that the case was remanded to the trial court for providing another opportunity to respondent No.1 to produce his evidence.
5. This Court had two options before it while deciding this petition, i.e. either (a) to remand this case to the appellate court with the stipulation to treat the appeal as revision and decide the same in accordance with law; or (b) to decide the same and correct the error keeping in view the available material.
6. While weighing the option available to this Court in order to assume jurisdiction in the case in hand, apart from Article 199, powers under Article 203 of the Constitution were also looked into. For convenience, Article 203 is reproduced:
"High Court to superintend subordinate courts. Each High Court shall supervise and control all courts subordinate to it".
7. This Article has been discussed and interpreted by the Honourable Supreme Court of Pakistan in judgment reported as Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others [2006 SCMR 1684], the Court while interpreting Article 102 of the Constitution 1962, which is Pari materia to Article 203 of the present Constitution, has held as follows:
"11.---------------- The view taken was that the powers in question of the High Court are to supervise and control all courts subordinate to it. It is meant to enable High Court to discharge its duties as a superior Court towards fair and proper administration of justice. It has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Such supervisory jurisdiction is for making and keeping the administration of justice pure and not to help any particular party.
12. Borrowing words therefrom, we would say that a duty under Article 203 of the Constitution can be performed irrespective of whether anybody will be harmed or not and irrespective of whether anybody will be benefited by it or not the object of this provision is to enable the High Court to establish orderly, honourable, upright and impartial and legally correct administration of justice. See The King v. Richmond Confirming Authority (1921) 1 KB 248. Terminology used in Article 203 of the Constitution does not contemplate that High Court should issue an order against a party to a cause as such, it is concerned only, with the Courts subordinate to it rather than with the parties to a cause".
8. This Court in judgment reported as Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others [2000 CLC 1363] while examining Articles 199 and 203 of the Constitution has held as follows:
"8. From the foregoing examination of relevant provisions of the Constitution, precedents, following ratio emerges:--
(i) The power under Article 203 can be exercised even suo motu by the High Court as a custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of the law. This power can only be exercised over Courts and Tribunals subordinate to it under its jurisdiction.
(ii) The power under Article 199 is a power that can be exercised not only over Courts and Tribunals but over all other bodies, like Government and Governmental functionaries. Article 199 bestows a power which is known as the power of judicial reviews/power of issuing writs.
(iii) The power under Article 199 is meant to foster the justice and keep various functionaries of State, local bodies and so forth and so on within the area of gratifying principles.
(iv) The power of superintendence is to be taken as a power separate from the power to issue the writ. Factually speaking, the both powers are supplementary and complementary to each other. The power of superintendence is to keep the mainstream of justice free from extraneous pollutions, judicial perversions and from abuse of the judicial process.
9. Seen from the above context, the power under Article 203 is wider than the power to issue writs under Article 199. Article 203 is original in nature. In both the jurisdictional spheres, this Court can neither become an Appellate Court or a revisional Court nor is to ordinarily interfere with waking of subordinate judiciary. The power of superintendence is to be exercised sparingly and in a highly exceptional cases. The cases of total absence of jurisdiction, the manifest excess of jurisdiction or criminal imminent abuse of jurisdiction warrant the exercise of this power".
9. Similarly, under Article 199 of the Constitution jurisdiction can be assumed in order to foster justice and to correct a wrong hence; High Court can pass appropriate order in this regard, provided it does not occasion any injustice to parties. The jurisdiction exercised by the Court under Article 199 of the Constitution of the Islamic Republic of Pakistan is discretionary in nature and therefore can be exercised or refused in appropriate cases depending upon the facts of the case. Reliance in this regard can be placed on Nawab Syed Raunaq Ali, etc. v. Chief Settlement Commissioner and others [PLD 1973 SC 236].
10. After going through the facts, case law and options available to this Court, while exercising the second option, jurisdiction is assumed and vires of orders passed by both the courts below have been looked into in order to keep the administration of justice pure.
11. While examining the order passed by the trial court on the application under section 12(2), C.P.C., it is clear and obvious that the same has been passed without following the dictates of Order XVII, Rule 3, C.P.C. On 06.12.2012 (prior to the penultimate date), lawyers were on strike and the case was adjourned to 15.12.2012. On the said date, the trial court while invoking powers under Order XVII, Rule 3, C.P.C. dismissed the petition under section 12(2), C.P.C. on the pretext that numerous last opportunities were granted to respondent No.1 but he failed to produce his evidence. The trial court lost sight of the fact that on 06.12.2012 neither parties were present nor last opportunity was provided by the court on the request of the delinquent party enabling the court to proceed against under the above provision. In spite of that, trial court proceeded against respondent No.1, which was not in consonance with law. It is true that against the order/judgment passed by the trial court, a revision before the concerned District Judge should have been filed but instead of that, an appeal was filed, which was entertained in view of the decree-sheet wrongly drawn by the trial court. Appeal thereafter was accepted and the case was remanded to the trial court for providing another opportunity to respondent No.1 to produce his evidence. The conclusion drawn by the Additional District Judge is correct although the proceedings, in which he passed the order, were not in accordance with law. Be that so, the reasons given by the first appellate court were based on law, as envisaged by the superior courts by holding that adjudication should be on merits instead of technicalities. In the attending circumstances, one more opportunity provided to respondent No.1 for producing his evidence will not prejudice the rights of the parties and once for all shall help in deciding the issues on merits. This even otherwise will serve the mandate of law.
12. In view of what has been discussed above, this is held that order passed by the Trial Court dismissing petition under section 12(2), C.P.C. was not in accordance with law and was not sustainable and is, therefore, set aside. The reasons given by the Additional District Judge are based on true enunciation of law, therefore, the same are reiterated, ratified and endorsed.
13. As a sequel to the above, application under section 12(2), C.P.C. shall be deemed to be pending before the trial court and respondent No.1 is allowed an opportunity to produce his evidence subject to payment of costs of Rs. 2,000/-.
14. In view of the above and the findings rendered by this Court, this petition is dismissed, with above observations.
MH/K-45/L Petition dismissed.
[Lahore]
Before Faisal Zaman Khan, J
KASHIF AHMAD----Petitioner
Versus
MUHAMMAD TAHIR and 3 others----Respondents
Writ Petition No.20318 of 2014, decided on 14th July, 2014.
(a) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction under Art.199 of the Constitution can be assumed in order to foster justice and to correct a wrong---High Court can pass appropriate order in such regard provided it does not occasion any injustice to parties---Jurisdiction exercised by High Court under Art.199 of the Constitution is discretionary in nature and therefore, can be exercised or refused in appropriate cases depending upon facts of the case.
Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.
(b) Civil Procedure Code (V of 1908)---
----O. XVII, R.3 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition--- Non-production of evidence---Penal consequences---Application filed by respondent under S.12(2), C.P.C. for setting aside of judgment and decree was dismissed by Trial Court for the reason that respondent did not produce evidence on the date fixed---Lower Appellate Court remanded the case to Trial Court for decision afresh on merits---Validity---Trial Court lost sight of the fact that on the date when application was dismissed, neither parties were present nor last opportunity was provided by Trial Court on the request of delinquent party enabling court to proceed against under O.XVII, R.3, C.P.C.---Trial Court proceeded against respondent which was not in consonance with law---Order passed by Trial Court dismissing application under S.12(2), C.P.C. was not in accordance with law and was not sustainable, therefore, was set aside---Reasons given by Lower Appellate Court were based on true enunciation of law, therefore, the same were reiterated, ratified and endorsed---Application under S.12(2) C.P.C. would be deemed to be pending before Trial Court and respondent was allowed an opportunity to produce his evidence subject to payment of costs---Petition was dismissed accordingly.
Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others 2006 SCMR 1684 and Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others 2000 CLC 1363 ref.
Mian Abdul Rashid for Petitioner.
JUDGMENT
FAISAL ZAMAN KHAN, J.---The case set up by the petitioner is that he filed a suit for permanent injunction titled Kashif Ahmad v. Ch. Fazal Ahmad, etc. which was decreed on 07.1.2011. Feeling aggrieved, on 30.7.2011 respondent No.1 filed an application under section 12(2), C.P.C. against the said decree. This application was dismissed on 15.12.2012 under Order XVII, Rule 3, C.P.C. for non-production of evidence. Feeling aggrieved, an appeal was filed before Additional District Judge, Shakargarh, District Narowal, which was accepted on 06.6.2014, hence this petition.
2. Learned counsel for the petitioner contends that appeal filed by respondent No.1 against the order passed in application under section 12(2), C.P.C. was not maintainable, therefore, the order passed by the appellate court is without jurisdiction. Confronted with the situation as to whether an objection was raised by the petitioner regarding the maintainability of the appeal, the answer was in the negative.
3. Arguments heard and available record perused. It is strange to note that along with the order/judgment passed by the trial court in application under section 12(2), C.P.C. a decree sheet has been drawn by the trial court. Against the said decree, an appeal was preferred by respondent No.1, which was accepted with the stipulation that another opportunity is granted to respondent No.1 to produce his evidence subject to payment of Rs.2,000/- as costs.
4. It seems that respondent No.1 fell in error due to the act of the trial court, whereby while deciding the application under section 12(2), C.P.C., a decree-sheet was drawn, which perpetuated in filing an appeal against the said decree instead of preferring a revision. The appellate court strangely enough also treated the same to be an appeal under section 96, C.P.C. and decided the same. Be that as it may, the net result of the appeal was that the case was remanded to the trial court for providing another opportunity to respondent No.1 to produce his evidence.
5. This Court had two options before it while deciding this petition, i.e. either (a) to remand this case to the appellate court with the stipulation to treat the appeal as revision and decide the same in accordance with law; or (b) to decide the same and correct the error keeping in view the available material.
6. While weighing the option available to this Court in order to assume jurisdiction in the case in hand, apart from Article 199, powers under Article 203 of the Constitution were also looked into. For convenience, Article 203 is reproduced:
"High Court to superintend subordinate courts. Each High Court shall supervise and control all courts subordinate to it".
7. This Article has been discussed and interpreted by the Honourable Supreme Court of Pakistan in judgment reported as Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others [2006 SCMR 1684], the Court while interpreting Article 102 of the Constitution 1962, which is Pari materia to Article 203 of the present Constitution, has held as follows:
"11.---------------- The view taken was that the powers in question of the High Court are to supervise and control all courts subordinate to it. It is meant to enable High Court to discharge its duties as a superior Court towards fair and proper administration of justice. It has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Such supervisory jurisdiction is for making and keeping the administration of justice pure and not to help any particular party.
12. Borrowing words therefrom, we would say that a duty under Article 203 of the Constitution can be performed irrespective of whether anybody will be harmed or not and irrespective of whether anybody will be benefited by it or not the object of this provision is to enable the High Court to establish orderly, honourable, upright and impartial and legally correct administration of justice. See The King v. Richmond Confirming Authority (1921) 1 KB 248. Terminology used in Article 203 of the Constitution does not contemplate that High Court should issue an order against a party to a cause as such, it is concerned only, with the Courts subordinate to it rather than with the parties to a cause".
8. This Court in judgment reported as Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others [2000 CLC 1363] while examining Articles 199 and 203 of the Constitution has held as follows:
"8. From the foregoing examination of relevant provisions of the Constitution, precedents, following ratio emerges:--
(i) The power under Article 203 can be exercised even suo motu by the High Court as a custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of the law. This power can only be exercised over Courts and Tribunals subordinate to it under its jurisdiction.
(ii) The power under Article 199 is a power that can be exercised not only over Courts and Tribunals but over all other bodies, like Government and Governmental functionaries. Article 199 bestows a power which is known as the power of judicial reviews/power of issuing writs.
(iii) The power under Article 199 is meant to foster the justice and keep various functionaries of State, local bodies and so forth and so on within the area of gratifying principles.
(iv) The power of superintendence is to be taken as a power separate from the power to issue the writ. Factually speaking, the both powers are supplementary and complementary to each other. The power of superintendence is to keep the mainstream of justice free from extraneous pollutions, judicial perversions and from abuse of the judicial process.
9. Seen from the above context, the power under Article 203 is wider than the power to issue writs under Article 199. Article 203 is original in nature. In both the jurisdictional spheres, this Court can neither become an Appellate Court or a revisional Court nor is to ordinarily interfere with waking of subordinate judiciary. The power of superintendence is to be exercised sparingly and in a highly exceptional cases. The cases of total absence of jurisdiction, the manifest excess of jurisdiction or criminal imminent abuse of jurisdiction warrant the exercise of this power".
9. Similarly, under Article 199 of the Constitution jurisdiction can be assumed in order to foster justice and to correct a wrong hence; High Court can pass appropriate order in this regard, provided it does not occasion any injustice to parties. The jurisdiction exercised by the Court under Article 199 of the Constitution of the Islamic Republic of Pakistan is discretionary in nature and therefore can be exercised or refused in appropriate cases depending upon the facts of the case. Reliance in this regard can be placed on Nawab Syed Raunaq Ali, etc. v. Chief Settlement Commissioner and others [PLD 1973 SC 236].
10. After going through the facts, case law and options available to this Court, while exercising the second option, jurisdiction is assumed and vires of orders passed by both the courts below have been looked into in order to keep the administration of justice pure.
11. While examining the order passed by the trial court on the application under section 12(2), C.P.C., it is clear and obvious that the same has been passed without following the dictates of Order XVII, Rule 3, C.P.C. On 06.12.2012 (prior to the penultimate date), lawyers were on strike and the case was adjourned to 15.12.2012. On the said date, the trial court while invoking powers under Order XVII, Rule 3, C.P.C. dismissed the petition under section 12(2), C.P.C. on the pretext that numerous last opportunities were granted to respondent No.1 but he failed to produce his evidence. The trial court lost sight of the fact that on 06.12.2012 neither parties were present nor last opportunity was provided by the court on the request of the delinquent party enabling the court to proceed against under the above provision. In spite of that, trial court proceeded against respondent No.1, which was not in consonance with law. It is true that against the order/judgment passed by the trial court, a revision before the concerned District Judge should have been filed but instead of that, an appeal was filed, which was entertained in view of the decree-sheet wrongly drawn by the trial court. Appeal thereafter was accepted and the case was remanded to the trial court for providing another opportunity to respondent No.1 to produce his evidence. The conclusion drawn by the Additional District Judge is correct although the proceedings, in which he passed the order, were not in accordance with law. Be that so, the reasons given by the first appellate court were based on law, as envisaged by the superior courts by holding that adjudication should be on merits instead of technicalities. In the attending circumstances, one more opportunity provided to respondent No.1 for producing his evidence will not prejudice the rights of the parties and once for all shall help in deciding the issues on merits. This even otherwise will serve the mandate of law.
12. In view of what has been discussed above, this is held that order passed by the Trial Court dismissing petition under section 12(2), C.P.C. was not in accordance with law and was not sustainable and is, therefore, set aside. The reasons given by the Additional District Judge are based on true enunciation of law, therefore, the same are reiterated, ratified and endorsed.
13. As a sequel to the above, application under section 12(2), C.P.C. shall be deemed to be pending before the trial court and respondent No.1 is allowed an opportunity to produce his evidence subject to payment of costs of Rs. 2,000/-.
14. In view of the above and the findings rendered by this Court, this petition is dismissed, with above observations.
MH/K-45/L Petition dismissed.
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