1995 PLP 1578 (CLC)

MUHAMMAD YOUNAS SURAKHVI, J.‑‑‑This appeal, with the leave of the Court, has been directed against the order of the High Court dated December 19, 1994, whereby, the order passed by the District Judge Bagh on April 30, 1994 was maintained.

2. Muhammad Hussain Khan and others, respondents, herein, instituted a suit in the Court of Sub‑Judge Dhirkot pertaining to land bearing Survey No.45 situate %t Dhirkot. An ad interim injunction was granted in their favour. On the objections filed by the defendants, appellants herein, the interim injunction issued earlier was maintained by the order of Sub‑Judge dated December 20, 1992.

3. Feeling aggrieved with the aforesaid order the appellants, herein, filed an appeal before the District Judge which was dismissed vide order dated April 30, 1994.

4. The appellants then preferred a second appeal before the High Court which was again dismissed vide the impugned order. A learned Judge in the High Court on the preliminary objection raised by the learned counsel for the respondents to the effect that only one appeal against an order for confirmation of an injunction or its cancellation was competent and that right having been availed by the appellants before the District Judge, so the second appeal in the High Court was incompetent, found favour and as such the appeal was dismissed as being not maintainable.

5. Raja Ibrar Hussain, the learned counsel for the appellants, vehemently contended that the learned Judge in the High Court without any justifiable reason dismissed the second appeal filed by the appellants, herein, merely on technical grounds, without going into the merits of the case. The learned counsel submitted that it is the requirement of law that an appeal should have been converted into a revision petition and vice versa because the same is not of law. The learned counsel maintained that by treating the appeal into revision petition the High Court should have gone into the legality of the orders passed by the District Judge and the Sub‑Judge, as m the estimation of the learned counsel, the plaintiff‑respondents had no prima facie case, balance of convenience and irreparable loss in their favour, as such the appeal filed by the appellants, herein, was likely to succeed in the facts and circumstances of the case.

6. On the other hand Ch: Muhammad Ibrahim Zia, the learned counsel for the respondents, strenuously contended that law on the subject is clear and there should have been no misunderstanding on the part of appellants in applying the correct law. It was enjoined upon the appellants to file a revision petition in the High Court against the order of the learned District Judge and to get the relief, provided the same was permissible to them under law. The learned counsel also maintained that there was no request on behalf of the appellants to convert the appeal into revision petition as such the learned ,fudge was not obliged to convert the memo of appeal into revision petition on his own, particularly so when the learned counsel for the appellants was not present in the Court, on the day the impugned order was passed by the High Court. In the aforesaid view of the matter the learned counsel submitted that the impugned order for having been passed in proper exercise of the jurisdiction vested in the High Court, does not warrant any interference by this Court.

7. We have heard the respective contentions, canvassed by the learned counsel for the parties and perused the record made available with care.

8. At the very out set it may be pointed out that there is no cavil with the proposition that an appeal could have been converted into a revision petition and the revision petition into an appeal, provided the same was within a period of limitation and the other necessary formalities were fulfilled. There is no manner of doubt that this power vests within the discretion of the Court exercising the jurisdiction, but these powers are to be exercised liberally and m accordance with settled principles of law. It has been a long standing practice of the Courts, particularly in Azad Kashmir to convert a revision petition into ,an appeal and an appeal into a revision petition. This practice has virtually become a rule of law. Especially so when the powers of revision in Azad Kashmir are more exhaustive and wider in scope. In Azad Kashmir a revisional Court can pass any order in the interest of justice.

9. There is a plethora of rulings and pronouncements of Superior Courts that law always leans in favour of adjudication on merits rather than strifling on mere technicalities. Out of the aforesaid numerous authorities a few are quoted below:‑ In "Haji Abdullah Khan and others v. Nisar Muhammad Khan and others" (PLD 1965 SC 690), it was observed 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 the case "The Thai Engineering Industries Limited v. The Bank of Bahawalpur Limited and another" (1979 SCMR 32), it was observed that "a Court should lean in favour of adjudication rather than strifling proceedings on technicalities." In "Abdul Aziz and others v. Sheikh Abdur Rahim and others (PLD 1984 SC 164), the same principle was illustrated and conversion of second appeal to a revision petition was permitted. In "Ali Muhammad v. Allah Ditta and others" 1985 CLC 2817, an appeal was treated as revision by the High Court. In case reported as "Farid Majid and another v. Mohammad Nawab" (PLD 1976 Karachi‑891, at 'relevant page 895 it was observed that "although the appeal is not competent, there is a long line of cases which have consistently held that, where an appeal is preferred in a case in which no appeal lies, the High Court may, in a proper case, treat the memo of appeal as an application for revision under section 115, C.P.C. and deal with it on that footing." Similarly in the case "Karamat Hussain and others v. Muhammad Zaman and others"(PLD 1987 SC 139), a Bench of Supreme Court of Pakistan comprising of five learned Judges observed at page 143 in the following manner:‑ "Thus if the second appeal that is brought before the High Court exhibits certain features which demonstrate that it falls within the scope of interference under section 115, C.P.C., the Court should exercise its jurisdiction under the said provision of law. It hardly needs saying that the Court will be in a position to examine this aspect of the matter only if it considers the facts of each case and this can only be done if the appeals are treated as revisions whereafter the question can be examined by the High Court whether the Court subordinate to it has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. confer on every person who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction."

10. After survey of the case‑law on the point it becomes abundantly clear that High Court is vested with the vast power to convert a memo of appeal into a revision petition and revision petition into an appeal. As said earlier, no doubt the discretion lies with the High Court but the same should be exercised liberally and in accordance with the accepted principles of law. In our considered view it would have been in consonance with the requirements of law, justice, equity and fair play that the High Court should have converted the appeal into a revision petition as the same was well within a period of limitation and given its finding on the merits of the case. We ourselves do not want to pre‑empt the job of the High Court. So accepting the appeal we remand the case to the High Court with the direction that it should treat the memo of appeal as a revision petition and record its findings on the facts of the case, as to whether in the circumstances of the case, the injunction confirmed by the trial Court and upheld by the District Judge is liable to be vacated or not and to proceed in accordance with law, without any order as to costs. AA/76/SC (AJ&K) ???????????????????????????????????????????????????????????????? Case remanded.