P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

This petition under section 151 of the Code of Civil Procedure praying for expungement of certain remarks from the judgment of Mr. Muhammad Ali, Senior Civil Judge, Rawalpindi, dated the 31st of January 1955, in the Civil Suit No. 349 of 1953, entitled Mst. Zohra Bi, daughter of Haji Chiragh Din of Bhusa Mandi, Sadar Bazar, Rawalpindi Cantonment v. The Cantonment Board, Rawalpindi arises in the following circumstances. An auction held on the 22nd June 1953 of the lease of plot Survey No. 162/872/2, situated at Dalhousie Road, Rawalpindi Cantonment, resulted in the sale of the lease in favour of Mst. Zohra Bi for a sum of Rs. 2,700 of which Rs. 270 were paid soon after the bid closed and the balance was paid on the 7th of July 1955 after the auction had been approved by the Cantonment Board, Rawal pindi, on the 4th of July 1955. It appears that the amount realised by auction was too small and on the matter being brought to the notice of the Commander‑in‑Chief of the Pakistan Land Forces, he suspended the resolution 01 the Cantonment Board for 45 days and as no satisfactory reply was received by him, he directed the resale of the lease rights. There was a re‑auction at which the lease rights fetched Rs. 30,000 while they had been formerly sold for Rs. 2,

700. Mst. Zohra Bi, who is and was, at all relevant times, the wife of Sheikh Inyatullah Butt, who was at the time when her bid was considered by the Finance and Taxation Committee of the Cantonment Board and by the Cantonment Board itself, the Chairman of the Committee, brought a suit for a permanent injunction restraining the Cantonment Board, Rawalpindi. from putting to auction lease of the plot of land which lease had been auctioned in her favour earlier,, and it was while dismissing the suit of Mst: Zohra Bi, who neither at the time of the bid nor in her plaint was described as the wife of Sheikh Inyatullah Butt, that Mr. Muhammad Ali, Senior Civil Judge, Rawalpindi. made the following remarks which the petitioner wants to have expunged: "The plaintiff is the wife of Mr. Inaitullah Butt, a Member of the Board and Chairman of the Finance and Taxation Committee which confirmed the auction in her favour. It is clear that the auction in dispute was a result of some mani pulations on the part of the plaintiff's husband and was not in the best interests of the Cantonment Board". Before dealing with the petition, I might mention a few other facts about which there is no dispute between the parties. Mst. Zohra Bi appealed to the District Judge, Rawalpindi, but her appeal was dismissed by Mr. Bashir‑ud‑Din Ahmad, Dis trict Judge, Rawalpindi, on the 12th of January 1936. A second appeal (R. S. A. 177 of 1956) presented by Mst. Zohra Bi to this Court was dismissed by my brother Yaqub Ali at a pre liminary bearing on the 9th of October 1956. Mst. Zohra Bi sought permission from my brother Yaqub Ali for questioning his judgment by an appeal under clause 10 of the Letters Patent of this Court, but that permission was refused. The petitioner was neither a party nor a witness before Mr. Muhammad Ali who made the remarks which the peti tioner seeks to have expunged, and it is contended by his learned counsel that the remarks could not have been made without giving the petitioner an opportunity to prove to the satisfaction of the learned judge who made them that the opinion which he had formed without hearing him was not correct. The learned counsel for the respondent urged that the remarks were justified and that this Court has no jurisdic tion to order their expungement from the record. It appears necessary, therefore, to consider first whether or not this Court can in these proceedings order that the remarks be expunged: As already mentioned, the petition is under section 151 of the Code of Civil Procedure and there is force in the contention of the learned counsel for the respondent that that section does not give this Court the power which the petitioner wants it to exercise. Section 151 of the Code of Civil Proce dure reads as follows: "Nothing in this Code shall be deemed to limit or other wise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". It appears to me that the word "Court" in the section means only the Court before which the proceedings in which action 8 which is necessary for the ends of justice or to prevent abuse of the process of the Court are pending is to be taken. The Court by which the remarks to which objection has been taken were made is not this Court but the Court of the Senior Civil Judge, and I am of the view that section 151 of the Code of Civil Procedure does not authorise this Court to order expungement of remarks from the record of that Court in spite of the fact that that Court is subordinate to it. The learned counsel for the petitioner next drew my atten tion to subsection (2) of section 107 of the Code of Civil Procedure which says that subject to such conditions and limitation as may be prescribed, an Appellate Court shall have the same power and shall perform as nearly as may be the same duties as are conferred and imposed on Courts of original jurisdiction in respect of suits instituted therein, and contend ed that this Court could grant him the relief he prays for by virtue of section 107 (2) if section 151 of the Code of Civil Procedure were held to be inapplicable. It appears to me that subsection (2) of section 107 can be of no assistance to the petitioner because the petitioner has not come up to this Court in appeal,‑which indeed he could not have done as he was not a party to the suit‑, and the mere fact that this Court could have expunged the remarks if it had been dealing with the case on the appellate side, does not authorise it to order the expungement of the remarks on the present petition. The learned counsel for the petitioner then urged that the High Court possesses inherent powers to pass orders of the kind prayed for in the present case and argued that as this Court could order the expungement of remarks appearing in the judgment of a subordinate Criminal Court, there was no reason why it should be powerless merely because the remark occur in the judgment of a Civil Court. This argu ment overlooks the fact that the Code of Criminal Procedure contains section 561‑A which reads as follows: "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". It is by virtue of this section that High Courts have ordered the expungement of uncalled for remarks from judgments of Criminal Courts subordinate to it, but as no provision similar to the one contained in section 561‑A of the Code of Criminal Procedure exists in the Code of Civil Procedure. I am of the view that this Court cannot expunge remarks from judg ments of Courts subordinate to it in the exercise of some supposed‑inherent powers. I do not consider it necessary to examine the contention of the learned counsel for C the petitioner with which the learned counsel for the respondent agreed that the Senior Civil judge could have expunged the remarks to which objection has been taken by the petitioner, but I am not prepared to accept the contention of the learned counsel for the petitioner that the High Court must be possessed of inherent power to prevent abuse of the process of Courts subordinate to it. But in spite of holding that section 151 of the Code of Civil Procedure does not authorise this Court to order the expungement of remarks from the judgments of Courts subor dinate to it, and that this Court does not possess inherent power to do so, I am of the view that this Court is not entirely powerless in the matter. It appears to me that the power which the petitioner wants this Court to exercise may be exercised under section 115 of the Code of Civil Procedure which deals with revisional powers of the High Court and authorises it to send for the records of any case decided by a Court subordinate to it, and if it comes to‑ the conclusion that the conditions mentioned in that section are fulfilled, to pass such orders as it may think fit. The learned counsel for the respondent contended that the provisional powers possessed by the High Court do not authorise it to order remarks being expunged from judgments of Courts subordinate to it, and at any rate, as no petition under section 115 of the Code of Civil Procedure had been made, the power could not be exercised under that section. Taking the second of the objections of the learned counsel for the respondent first, I find that it has .no force. Section 115 .of the Code of Civil Procedure does not enjoin the existence of a petition for taking action before the High Court exercises its power under that section, and it is obvious that the High Court can send for the records of any case even if no petition has been made to it. It is true that because civil litigation is primarily the concern of the parties engaged therein the High Court would not ordinarily, without a petition in that; behalf, send for the records of a case and pass thereon an order which neither of the parties wants it to pass in the exercise of its revisional jurisdiction, but it can hardly be doubted that the High Court does possess the power even without a petition from either of the parties to a litigation to send for the records of a case decided by a Court Subordinate to it and pass such orders as may be called for. I, therefore, find no force in the contention that because the petition is not under section 115 of the Code of Civil Procedure, this Court cannot exercise its revisional jurisdiction under that section. Nor do I find any force in the contention of the learned counsel for the respondent that this Court cannot, in the exercise of its powers under section 115 of the Code of Civil Procedure, order that remarks from the judgment of a Court subordinate to it be expunged. Section 115 makes it clear that once the records have been sent for, the High Court can, subject to the limitations mentioned in the section, pass any order that it thinks fit, and I can find nothing in the language of the section to justify the contention that the High Court cannot order that the remarks in the judgment of a subordinate Court which the High Court considers to be unjustified should be expunged from the proceedings of the subordinate Court. I, therefore, hold that this Court has, in the exercise of its revisional jurisdiction, the power to order the expungement of remarks from the proceedings of Courts subordinate to it. I now pass on to the question whether or not the expunge ment of the remarks to which objection is taken by the petitioner should be ordered. It is well settled that Courts should say nothing that is likely to prejudicially affect a person without hearing that person. The reason for this rule is that remarks made by Courts are likely to be used by interested persons against the person about whom they were made, and consequently it has been laid down in a large number of cases decided by High Courts that disparaging remarks should not be made by Courts against persons who are neither parties nor witnesses before them. The petitioner was not a party to the suit and the fact that his wife was the plaintiff does not, to my mind, make any difference for our present purpose. The petitioner was not a witness either and condemning hint without hearing him offends against the salutary rule followed by Courts in this respect. If a Court makes disparaging remarks against a person who is neither a party nor a witness in the case, it can be said to have exercised a jurisdiction not vested in it by law or at least to have acted illegally or with material irregularity in the exercise of its jurisdiction, and as the provisions of section 115 of the Code of Civil Procedure will be applicable the High Court can order that the disparaging remarks be expunged. I have anxiously considered the matter and have arrived at the conclusion that while it is not necessary to order that both the sentences to which the petitioner objects be expunged from the judgment of the learned Senior Civil judge, it is necessary that the words "was a result of some manipulation on the part of the plaintiff's husband" be expunged from the second sentence objected to which should read as follows: "It is clear that the auction in dispute was not in the best interests of the Cantonment Board" and I order accordingly. To the extent indicated above, the petition is accepted but the parties are left to bear their own costs. Z.A.S./ A. H. Order accordingly.