1991CLC360 (PLP)

P L D 1984 SC (A J & K)166 rel. (c) Azad Jammu and Kashmir Courts and Laws Code Act 1949‑‑‑ ‑‑‑‑S. 55‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Civil Procedure Code (V of 1908), Ss.96 & 115‑‑‑High Court failing to decide appeal as revision on merits in exercise of general power of superintendence and control‑‑‑Supreme Court having ample powers to pass any order for doing complete justice between the parties without there being the opinion of High Court before it, instead of remanding the case, opted to decide the point involved in case itself. P L D.1988 SC (AJ&K) 27 ref. Syed Mushtaq Hussain Gillani for Respondents. Date of hearing: 17th November. 1990. SARDAR SAID MUHAMMAD KHAN, CJ.‑‑This appeal, by‑ leave, has been directed against the judgment and decree of the High Court dated 4‑4 1990 whereby the appeal filed by the appellant, herein, was dismissed by the Court as being time‑barred. A petition for leave was riled to this Court, inter alia, on the grounds that the High Court erred in holding that there was no sufficient reason for condoning the delay. While hearing the petition for leave to appeal the same was allowed partly to the extent as to whether the High Court was legally bound‑to treat the appeal as revision petition and dispose of the same as such. The leave on the point regarding condonation of the delay was refused. The learned counsel for the appellant, Mr. Ghulam Mustafa Mughal, has addressed the Court on the above reflected point. He has submitted that the High Court has ample power under section 35 of the Courts and Laws Code Act, 1949, read with section 46 of the Azad Jammu and Kashmir Interim Constitution Act to correct an illegality in exercise of power of 'superintendence and control' vested in it. The learned counsel has cited some authorities in support of his contention. In a case reported as P L D 1984 Supreme Court (Azad J & K) 166,4 it was held that mistake being apparent on the record, the High Court had power to correct the same in exercise of the powers vested in it under section 35 of the Courts and Laws Code Act, 1949 read with section 46 of the Interim Constitution Act. It was further opined that bar contained in section 115, C.P.C. that a revision petition is not competent where an appeal lies, does not apply to the powers which vest in the High Court under the aforesaid provisions. The identical view was taken in an unreported case entitled `Ghulam Mohammad Lolabi v. Kh. Mohammad Usman', Civil Appeal No.26 of 1981. The proposition was again affirmed in an unreported case entitled `Mst. Qasim Jan v. Mir Zaman', Civil, Appeal No.22 of 19$

9. We affirm the view taken in the aforesaid cases and hold that the High Court has ample power to interfere for correcting an illegality resulting in miscarriage of justice under section 35 of the Courts and Laws Code Act read with section 46 of the Interim Constitution Act. Next, it has been contended by the learned counsel for the appellant that as the point before the High Court that the appeal should be treated as revision petition and decided at such in exercise of the general power of superintendence and control was not decided by the High Court, the case should be remanded to the High Court to decide the appeal as revision on merits. The learned counsel has cited some authorities in support of his contention that where the High Court omits to give finding on a point raised, the case must be remanded to have the wisdom of the High Court. In P L D 1988 Supreme Court (Azad J & K) 27 it was held that a question whether the case should be remanded if a point raised is left undecided by the High Court is discretionary. It was observed that as a general rule an order of remand would be proper where the hearing in the lower Court has been illegal, irregular or defective. The matter came up for consideration as to whether in case the High Court omits to deal with a point it is imperative to remand the case in all circumstances. In an unreported case entitled `Mst. Oasim Jan v. Mir Zaman' Civil Appeal No.22 of 1989, referred to above, where the High Court failed to exercise general powers of 'superintendence and control', this Court disposed of the appeal itself instead of remanding the case to the High Court. The relevant extract from the judgment is as under:‑‑ "The present suit was filed in 1979 while the previous suit to which Mst. Qasim Jan was a party commenced on 5‑10‑1962 and that round ended on 19‑2‑1979 when leave to appeal was refused by this Court. In these circumstances it will be against the interests of justice to send the case back to the High Court. We, therefore, proceed to decide the question whether a case has been made out for interference under the powers of superintendence. We have ample powers to pass any order for doing complete justice between the parties without their being the opinion of the High Court before us:" We follow the principle laid down in the above cited authority and thus instead of remanding the case would like to decide the points involved in the case ourselves. Therefore. it is directed that a notice shall issue to the learned counsel for the parties to address arguments on merits of the case as to whether there was any illegality which should have been rectified by the High Court under general powers of superintendence and control. The case shall come up for arguments, on 12‑12‑1990. A.A./288/S.C.A. Order accordingly.