P L D 1988 Supreme Court (AJ&K) 27 (PLP)

This appeal, by leave, directed against the judgment of a learned Single Judge of the High Court dated 8th of May, 1986, arises in the circumstances detailed below:‑ The appellant, Ch. Muhammad Ibrahim, herein, alongwith one other, namely, Ch. Ibrahim son of Abbas Ali, claimed compensation of the 'Shamlat Deh' land measuring 35 Kanals 1 Marla comprising survey Nos. 366, 361, 385, 390, 395, 396, 402, 413, 417 min and 439, situate in the area of village "Hardo Seotha'. Title of the land was claimed by virtue of a sale‑deed executed in their names by one Mulk Raj and others during Dogra Regime. Collector, Mangla Dam Affairs, Mirpur, vide order dated 2‑2‑1967, disallowed their claim and they were not assessed for any compensation of the aforesaid 'Shamlat Deh' land. Ch. Muhammad Ibrahim, appellant, alongwith Ch. Ibrahim son of Abbas Ali (not a party in this appeal) moved a reference to avoid the order of the Collector, Mangla Dam Affairs in the Court of District Judge, Mangla Dam Affairs, Mirpur. The learned District Judge, vide order dated 26‑12‑1971, accepted the reference and held that Ch. Muhammad Ibrahim, appellant, and Ch. Ibrahim son of Abbas Ali are entitled to the compensation of the 'Shamlat Deh' land.

2. The Custodian respondent herein, dissatisfied with the order, went up in appeal before the High Court which was accepted by a learned Single Judge on 8th of May, 1986. The learned Single Judge opined that the sale‑deed being a forged one, the question of payment of compensation of 'Shamlat Deh' land does not arise. It may be observed that Ch. Ibrahim son of Abbas Ali, who was one of the appellants before the Court of District Judge, Mangla Dam Affairs, was not impleaded as respondent before the High' Court. Only Ch. Muhammad Ibrahim, appellant herein, was impleaded as a respondent.

3. Leave was sought and granted to look into the following points: ‑ (i) Whether without impleading Ch. Ibrahim son of Abbas Ali the co‑petitioner before the District Judge, Mangla Dam Affairs, the appeal before the High Court was competent? and (ii) Whether the appreciation of evidence to hold that the sale‑deed is a forged one, has been made in conformity with the settled principles of appreciation of evidence in civil matters?

4. Raja Imdad Ali Khan, the learned counsel for the appellant, submitted that besides the points on which leave is granted another point which is of vital importance needs consideration. He submitted that the land under reference is situated in the area of village 'Hardo Seotha' while the land described in the appeal before the High Court is situated in the area of village 'Hardo Ouchi' and since this factor, according to the learned counsel, makes the impugned judgment with regard to the disputed land ab initio void, he may be allowed to argue this vital legal point. In view of the importance of the question, Raja Imdad Ali Khan was allowed to take up this point on which he had made his submissions.

5. Ch. Shah Wali and Agha Ashiq Hussain, the learned counsel for the respondent, agreed that the infirmities, especially the infirmity covered under point No. (i) of the leave granting order and now raised by Raja Imdad Ali Khan, do exist but they prayed that these questions may be resolved by this Court and the case may not be remanded to the High Court for deciding the points afresh.

6. Whether the points raised by Raja Imdad Ali Khan should be decided here or the High Court, after remanding the case, be asked to decide them, is the next question to be considered.

7. In appealable cases it is always desirable that the Courts should pronounce their opinion on all the relevant points which arise or have been raised in a case. It is in fact the duty of the Courts to look into all the relevant points, though not raised or argued at the Bar. Omission on the part of the lower Courts from whose orders A the appeals are permissible to the Supreme Court to decide all such points is a grave omission and cannot lightly be ignored.

8. In the case before me, the lapse on the part of the High Court to decide two vital points referred to above is a vital error. The failure on the part of the High Court to decide these points, in fact, shows misapplication of the mind. In Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 S C M R 323 Mr. Justice Hamoodur Rahman, Chief Justice (as he then was), considered the omission where the impugned order passed by the High Court did not disclose the application of the mind of the High Court to the merits of case that was before it and relying on Adamjee Jute Mills Ltd. v. The Province of East Pakistan P L D 1959 S C (Pak) 272, remanded the case with the observation:‑ "In view of the fact that a substantial question was raised by the applicant invoking the writ jurisdiction of the. High Court, it was, as observed by Munir, C.J., 'the undoubted duty of the High Court to state what the precise point raised by the applicant was and the grounds on which it was rejected'."

9. The High Court and the Supreme Court are Courts of record and they are expected to decide every important point involved in case and the fact that such point was not argued at the Bar would hardly make any difference. If the High Court leas undecided an important matter arising out of the dispute though not argued, it would be said that the High Court has failed to apply its mind to the controversy and decided the case in vacuum. Naturally the Supreme Court, in such cases, would feel poor without the wisdom of the High Court and deciding a matter .in such circumstances would, not only look improper but may at times be brought under bitter legal criticism.‑

10. In Haji, Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690 Mr. Justice' B. Z. Kaikaus, J., who, spoke for the Court, held:‑ "It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party." In that case the point with regard to the effect of the minority of the plaintiffs on the validity of the argument for sale as well as the question as to whether agreement should be specifically enforced in a suit by a minor was involved. It was held by the Supreme Court that the points were wrongly disallowed to be argued on the ground that they were not argued before the lower Court. The Supreme Court observed that they all being pure question of law can be raised at any stage and the Court is bound to decide these questions irrespective of the fact even if no counsel is engaged.

11. I am conscious of the difference between the proceedings before the Appellate Courts and in Revisional Court. In revisional Courts the jurisdiction to interfere is determined by the statute that creates the jurisdiction. Under section 115 of the Code of Civil Procedure, for instance, the revisional Court cannot interfere on the sole ground that on the merits the decision was not in accordance with law, though the fact that the statute was overlooked and no decision was given with respect to it.

12. Since the omission here in deciding the points is made by the High Court in exercise of its Appellate jurisdiction, it would be said that the omission had prejudiced the appellant's case and we cannot exclude the possibility that in case the learned Judge of the High Court had considered the points, the conclusion might have been different. The impugned judgment in fact while ignoring the important, points referred to above has flouted the principle to be followed in deciding a matter. Such an order cannot be considered as a valid judgment and remand is always desirable.

13. The impugned judgment does not show that the learned Judge has applied his mind to the above points and that is why he omitted to decide them. This disregard to the provisions of law and omission, though inadvertent, has not only wasted the valuable time of the parties but has caused unnecessary expense and trouble to them. It should be remembered that the judicial order, as we know, must be as applied its mind to the manifesting by itself that the Court has applied resolution of all the material issues arising out of the controversy because the litigants, who bring their disputes to the law Courts with the incidental hardships and expense, do expect a judicial treatment of their case in deciding all the important matters arising he list irrespective of the fact that such matters have not out of been highlighted or focussed by any of the counsel during the course of arguments.

14. It is to be observed that the question whether there should be a remand in a matter is always a judicious discretion of the Court which is to be exercised in accordance with the dictates of justice. The nature of the error committed, the magnitude of the miscarriage of justice and the possibility and extent of prejudice to the person affected are all relevant factors to be duly weighed for a remand. As a general rule an order for remand would be proper where the hearing in the lower Court has been illegal, irregular or otherwise defective; for instance when some vital points arising out of the controversy have not been decided (as the case is before me).

15. For the aforesaid reasons, I think that the objection raised by Raja Imdad Ali Khan is a substantial one. I, therefore, feel constrained to set aside the impugned judgment and remand the case to the High Court for deciding it afresh after hearing the learned counsel for the parties on the above‑ referred points. In the peculiar circumstances of the case no order as to costs. M.B.A./204/A Case remanded.