1986 PLP 1241 (CLC)

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