1984 PLP 1284 (SCMR)

7. Muhammad Zahoor and Muhammad Sultan (petitioners herein) felt aggrieved and filed a civil revision against the aforesaid order in the Court of the Additional District Judge, Gujranwala. By his order, dated 19th April, 1979 the learned Additional District Judge, accepted the same and set aside the order of the learned Civil Judge allowing the application of Lal Muhammad for amendment /correction, on the ground that Order VI, rule 17, C.P.C. could not apply to any application except that for amending the pleadings in the suit and that the aforementioned application for amendment did not fall within the ambit of the definition of the word 'pleadings' as given in Order VI, rule 1, C.P.C.

8. Since the abovenoted order of the Additional District Judge became final, because no further remedy is provided in the C.P.C against it, Lal Muhammad filed a Constitutional Petition in the High Court praying that the said order of the learned Additional District Judge be declared to be illegal and without lawful authority.

9. The learned High Court vide its judgment, dated 17th November, 1983 allowed the writ petition and declared the judgment of the Additional District Judge, dated 19th April. 1979, to be illegal and without lawful authority and quashed the same on the grounds, inter alia, that the learned Civil Judge, in exercise of his inherent power under section 115, C.P.C., could allow the amendment in question; that the learned Additional District Judge could not, therefore, interfere with the said order and that the Additional District Judge also erred in overlooking that the second proviso to Order XI I, rule 4, C. P. C. could be pressed into service by the learned trial Judge for allowing the amendment sought by Lal Muhammad. 9-A. Feeling aggrieved Muhammad Zahoor and Muhammad Sultan peti tioners have filed the present petition for leave to appeal against the abovesaid judgment of the High Court.

10. Learned counsel for the petitioners vehemently urged before us that the learned Judge in Chamber had erred in holding, in exercise of his Constitutional Jurisdiction, that the (impugned) order of a Court of General Jurisdiction, passed under section 115(2) of the Civil Procedure Code was 'illegal' and 'without lawful authority' specially in view of the fact that subsections (3) and (4) of section 115, C.P.C. (which were added to the said section by amending Ordinance (XII of 1972), generally known as the 'Law Reforms' Ordinance. These sub sections read as follows:- S.115. (1) and (2) ...... (3) If any application under subsection (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."

11. The counsel urged that the purpose of conferring revision juris diction under section 115, C.P.C. on District Judges by the afore mentioned amendment was to take off some of the load from the High Court, thus preventing the accumulation of cases in that Court and providing for rapid disposal of cases pending there, as also to shorten the time consumed in litigation it is for this purpose that it has been specifically provided in subsection (4) of section 115 , C . P . C . that if a revision is filed before a District Judge against an order of a Court subordinate to it, no further revision shall be entertained by the High Court. The counsel urged that the Legislature, in its wisdom, deliberately barred by further remedy before the High Court in order to achieve the above-noted purpose. He, therefore, argued that to file a writ petition in such cases amounts to circumventing law and flouting the obvious intention of the Legislature. He urged further that "writ jurisdiction" had been conferred on the High Court mainly to provide for judicial review of executive actions. It could, of course, be extended to judgments of quasi-judicial bodies or orders of a Persona Designation But, by no stretch of imagination, could it be used for getting the judgments or orders of Courts of general or plenary jurisdiction held as being "illegal" or "without lawful authority". He referred to the case of Muhammad Hussain Munir P L D 1974 S C 139 wherein it has been held that where an authority has jurisdiction to decide a matter it can do so rightly or wrongly and the High Court could not in the exercise of its Constitutional Jurisdiction hold that the order was without lawful authority or suffers from lack of jurisdiction and submitted this dictum applied with greater force to judgments and orders of ordinary civil Courts. No doubt over the past two or more decades superior Courts have been frequently interfering with the final orders passed by the Settlement authorities deciding questions of fact and, in some case, even recording of evidence. But then settlement operations after the unprecedented upheavil and large scale migration of people, was unique and extraordinary phase in the history of our country and the circum stances prevailing in some sections of the Settlement Department occasionally necessitated intervention by the superior Courts in order to ensure justice. This view is supported by the following observation of this Court in Punjab v. Sita Ram and others P L D 1966 F C 157 as reproduced in the case of Rafiuddin v. Settlement & Rehabilitation Commissioner P L D 1971 S C 252 at 273 by Mr. Justice Hamood-ur Rehman:- "As was pointed out by the Federal Court in the case of the Punjab Province v. L. Sita Ram and others, while considering the nature of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, such legislations are legislations are legislations of extremely of special character which are from the very nature of things to be construed not so much on considerations that would weigh with Courts of law but also on considerations of policy. They were designed for meeting an extraordinary situation of a complex and confusing nature created by the influx of a large number of refugees who had to be settled and were intended to be so adaptable as to meet the changes in the situation that developed from time to time. They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed." It is also supported by another observation of this Court in Syed Abdur Rashid v. Pakistan and others P L D 1962 S C 42 (which has been cited as approval in the case of Rafiuddin (supra):- "The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was "fallacious to conceive of a claim.... as being in the nature of a right or interest in property". It was rather a question "of purely granting a benefit or a privilege" and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit."

12. This concept, however, gave rise to case-law which extended the 'writ jurisdiction' in such a manner that even political issues ants other similar matters which should not ordinarily, have been brought to Courts, were sought by the parties to be decided by the High Court in exercise of its Constitutional Jurisdiction.

13. One of the arguments advanced in support of this assumption of jurisdiction was that after the writ jurisdiction of the Court was precisely defined by the 1962 and subsequent Constitutions, the High Courts in Pakistan were no longer bound to act within the limits prescribed by case-law relating to Writ Jurisdiction, as understood in England and some other countries.

14. The counsel argued that if this practice is allowed to continue, almost all the judgments of the subordinate civil Courts, under the Civil Procedure Code as also the judgments of the ordinary Criminal Courts shall be challenged in the High Courts and invoking its Consti tutional Jurisdiction and the superior Courts will be flooded with frivolous petitions to an extent hithereto unknown, with the result that the Court will be hopelessly clogged and the magnitude of institution in these Courts shall become so enormous as to cause break down of the very system prevalent at present.

15. There is considerable weight in these contentions and we think that it is high time that we consider the question as to whether or not the judgments and orders of Courts of general and plenary jurisdiction under Civil Procedure Code, should be allowed to be challenged in the High Court in the exercise of its Constitutional Jurisdiction specially when the Legislature has barred further appeals or revisions. Leave is, therefore, granted for the said purpose. Security in the sum of/ Rs. 1,

000. To be heard on the same record with permission to file additional documents at an early date. M. Z. M. Leave granted.