2006 PLP 111 (YLR)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

The relevant facts for the purpose of this petition are that the respondent No.1, Muhammad Siddiq filed suit for specific performance of contract against the respondents Nos.2 to 11, which was decreed on 30-8-2001. The petitioners submitted an application under section 12(2), C.P.C. contending that the land was sold in their favour on 2-4-2001 which fact was concealed and the decree was obtained as a result of collusion between the respondents No.1 and respondents Nos.2 to

11. The application under section 12(2), C.P.C. was rejected. The petitioners being aggrieved preferred appeal under section 96, C.P.C. which was heard by the learned 1st Additional District Judge, Badin and was dismissed vide judgment dated 8-8-2003. The petitioners still dissatisfied have filed this petition seeking the following relief:-- (i) Declaration that the judgment and decree dated 30-8-2002 (Annexures-F/1 and 2), Order dated 10-4-2003 (Annexure-N) passed by respondent No.13 and judgment dated 8-8-2003 (Annexure-P) passed by respondent No.13 having been passed without lawful authority and are of no legal effect. (ii) That permanent injunction be issued restraining the respondents from acting upon the said judgment and decree, order and judgments dated 30-8-2001 and 10-4-2003 and 8-8-2003 and in any manner from executing the said judgments, decree and order. (iii) Any other relief this Honourable Court deems fit may be granted. At the very outset Mr. Jhamat has been confronted with the legal position whether any appeal lies against the order passed under section 12(2), C.P.C. Mr. Jhamat has frankly conceded that no such appeal lies and the remedy available is by way of revision application. Mr. Jhamat was next confronted with the point whether the entire proceedings before the 1st Additional District Judge, Badin, were without jurisdiction as no appeal was available in law. Mr. Jhamat has conceded that although the proceedings pertaining to the appeal are without jurisdiction and illegal but it was the duty of the Court to examine the question of jurisdiction and to convert the appeal into revision application in order to bring the proceedings within the ambit of law. He has submitted that it is the duty of the Court to examine its own jurisdiction and to see that if there is any jurisdictional error it is corrected so that the proper dispensation of justice is done. Mr. Jhamat has submitted that even at this stage a direction can be given for converting the 1st Appeal into revision and for hearing thereof afresh. Mr. Jhamat was asked whether in this petition drafted by him any such prayer has been made. Mr. Jhamat has replied in negative, but has again reiterated his contention that instead of non-suiting the petitioners on ground of technicalities, this Court should exercise its jurisdiction and pass appropriate order in order to give an opportunity to the petitioners to pursue their remedy on merits. In short he has submitted that the appeal preferred before the 1st Appellate Authority be converted into revision and the relief in this petition be moulded by this Court in a way which is conducive to the dispensation of justice. On the other hand Mr. Allah Bachayo Soomro learned counsel for respondent No.1 has submitted that since the petitioners have not availed the proper remedy available to them in law either before the 1st Appellate Court or before this Court through this petition, therefore, the petition is liable to be dismissed. The respondents Nos.2 to 11 have not appeared and Mr. Allah Bachayo Soomro, has submitted that they are in collusion with the petitioners. After hearing the learned Advocates for the parties we find that petitioners as well as respondent No.1 both are alleging collusion on the part of respondents Nos.2 to

11. According to petitioners they are in collusion with respondent No.1 and according to respondent No.1 they are in collusion with the petitioners. Be that as it may, for the time being the point for consideration is whether in the interest of justice this Court should mould the prayer in a way that the petition be treated with a relief for treating the 1st appeal as revision. There is no dearth of law on the point that technicalities should be avoided as far as possible and the substantial justice be done to the parties and for that purpose even if there is no prayer made by a party, the Court can itself mould the prayer and allow the relief if deemed fit in the facts and circumstances of a case. As already observed there is allegation of collusion on the part of petitioners as well as respondent No.1, therefore, we are of the opinion that a properly constituted order should be in the field so that the parties may pursue their remedy ultimately before this Court. At present there is a void order passed by the 1st Additional District Judge, Badin which is nullity, being without jurisdiction, with the result that the parties shall be deprived of their valuable rights. We are persuaded to agree with the submission of Mr. Jhamat that when the appeal was filed it was the duty of the Court to see whether the appeal was maintainable and if it was not maintainable the objection ought to have been raised so that the petitioners could avail the opportunity of correcting the error and pursue the remedy in a proper manner. The Honourable Supreme Court of Pakistan has dealt with the duty and responsibility of Court in the case of Sherin v. Fazal Muhammad 1995 SCMR

584. The Honourable Supreme Court after dilating upon responsibility of the Court has observed that there is a marked deficiency and decline in the proficiency of the learned Members of the Bar and it is high time that the Bar Council should do something to arrest this decline and the Court should also be extra cautious in examining the. proceedings which are filed before it at the very initial stage so that the proceedings which are filed before the Courts having no jurisdiction are presented before proper Court and the mistake committed is rectified without loss of time. The Honourable Supreme Court in the above case held that the appellants were illiterate and the filing of appeal in wrong forum was entirely attributable to the carelessness of the appellants counsel. The Honourable Supreme Court further observed that although the counsel for appellant was a Senior Advocate but unfortunately there has been a tendency of some decline in the proficiency of the members of this noble profession practising at the Bar. The Honourable Supreme Court further observed that some restraint needs to be exhibited by the Court in imposing too large a burden on a litigant, for the lapses of his counsel. The Honourable Supreme Court further observed that the absence of timely action on the part of District Judge to take notice of the filing of appeal in wrong forum was the major cause of delay in filing appeal in High Court, where the appeal was required to be filed. Respectfully following the dictum laid down by the Honourable Supreme Court it is held that the 1st Appellate Court as well as the learned counsel for the petitioners before the appellate forum did not perform their duties in accordance with the law, with the result that the petitioners are in a difficult situation where this Court should come to their aid in exercise of the writ jurisdiction, failing which they shall be left with no remedy. Consequently, it is directed that the 1st appeal filed before the District Court Badin, be treated as revision application and may be heard afresh whereafter a speaking order be passed. The petition is allowed in the above terms. M.H./T-36/K?????????????????????????????????????????????????????????????????????????? Petition allowed.