PLJ 2011 SC 895
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Ghulam Rabbani & Khalil-ur-Rehman Ramday, JJ.
Mst. BANORI--Appellant
versus
JILANI (deceased) through Legal Heirs etc.--Respondents
Civil Appeal No. 511 of 2010, decided on 10.8.2010.
(On appeal from the judgment dated 14.4.2010 of the Peshawar High Court, D.I. Khan Bench, passed in C.R. No. 249 of 2004)
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Civil Procedure Code, (V of 1908), S. 115--Constitution of Pakistan, 1973, Arts. 185(3)--Leave to appeal was granted to consider whether the benefits envisaged by provisions of S. 12(2) of Limitation Act, were available to a party filing an application u/S. 115 of CPC. [P. 898] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--Civil revision--Supervisory power to correct jurisdictional errors--Dispensation of justice--Revisional power--Limitation of time--Revisional power conferred on High Court was essentially a supervisory power to correct jurisdictional errors, illegalities and irregularities creeping into decisions of Courts sub-ordinate to High Court--Revisional power was meant to ensure dispensation of justice which was un-polluted by legal infirmities--High Court was commanded to exercise control and superintendence over the Courts sub-ordinate to it unfettered by an technicalities. [P. 898] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Delay in dispensation of justice--Interlocutory matters--Proceedings would then be called by High Court--Validity--When such revision petitions were filed with respect to decisions relating to interlocutory matters, proceedings in the suit also got stayed on account of summoning of record resulting in inordinate through avoidable delays in dispensation of justice. [P. 899] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Scope of--Added of provision--Revisional jurisdiction--To furnish copies of pleadings--Where information laid before High Court leading to exercise of revisional jurisdiction arose out of an application filed by some person then such person would be bound to furnish copies of pleadings of documents and order of sub-ordinate Court alongwith such an application that High Court would then decide the fate of such an application without calling for the record of sub-ordinate Court. [P. 899] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Scope of--(Amendment by Act of 1994)--No limitation of time, prescribed even through the proviso added in year 1980 within which an application could be filed in High Court--Application filed by a person seeking revision of decision would have to be filed in High Court within 90 days of making of decision sought to be revised and through further amendment introduced by Act (XIV of 1994) it was further provided in second proviso that sub-ordinate Court would provide a copy of decision sought to be revised within 3 days of the passing and finally that High Court would finally decide such an application within 6 months of making thereof. [P. 899] E
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--Revisional jurisdiction--Provisions prescribed the form of application to be filed--Document required to be furnished with such an application--Question to supply a copy--Period of time within which such an application could be made, the obligation of the Court making the decision to supply a copy--Period of time within which such a copy was to be supplied--Such an application to be decided without calling for the record of sub-ordinate Court except in exceptional situations and finally the period of time within which such an application was to be disposed. [P. 901] F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i) Scope--Proviso was added through amendment made in year 1980--Second proviso was inserted in 1992 and portion in-question casting an obligation on sub-ordinate Court to provide a copy of decision within three days was added through an amendment in 1994--Duty of Courts of law--Effect to legal provisions and not to make ineffective--Useless and unworkable provision was not correct--Validity--Sub-ordinate Court may be passing tens of orders qualifying as revisable decisions every day involving tens of parties but then impression that every such Court was required to arrange copies of every such decision or case decided and then to run after all parties to provide them with irrespective of fact whether such party did or did not want to seek revision was misplaced. [P. 902] G
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 20--Entitlement of supply a copy within the prescribed time--Concept of Cr.P.C. which was alien to CPC--One drafting the obligation and ones introducing in second by proviso know that under the scheme envisaged CPC--Anyone desirous of obtaining a copy of a judgment was required to make an application for purpose and it was then that same was supplied to him at his expense--Court being obliged to supply a copy of a judgment to a party was a concept of Cr.P.C. which was alien to CPC. [P. 902] H
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & Scope of--Limitation Act, (IX of 1908)--S. 12(2)--High Court dismissed the application as being time barred by denying her the benefits of S. 12(2) of Limitation Act--No limitation of time was prescribed even through the proviso added in 1980 within which such an application could be filed in High Court--Question of, whether provisions of S. 12(2) of Limitation Act, were or were not attracted--Question casting an obligation on sub-ordinate Court to provide a copy of decision within three days was added through an amendment in the years 1994--Validity--High Court took no step to find out whether legal command contained in second proviso regarding supply of a copy of decision--Question within three days were complied--If copy had not been supplied to revision petitioner within prescribed time, then what was to be effect--Courts of law can never be a party to putting legal provisions to dis-use or to discard the same--It is one of obligations of every Court to give effect to each and every provision of each and every law--Provisions of two proviso added to S. 115, CPC were extra-ordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice--Appeal was allowed. [Pp. 903 & 904] I, J & K
Mr. Muhammad Younis Bhatti, ASC. for Appellant
Mr. Shah Khawar, ASC and Mr. M. S. Khattak, AOR for Respondents.
Date of hearing: 10.08.2010.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--A suit filed by Mst. Banori appellant pre-empting the sale of a piece of land was decreed by the trial Court through a judgment dated 30.9.2002. However, the appeal filed by the vendee was accepted by a learned Additional District Judge at Bannu as a consequence whereof the said suit filed by Mst. Banori was dismissed. The said pre-emptor then approached the Peshawar High Court through an application filed under Section 115 of the CPC seeking revision of the said appellate judgment dated 21.5.2004. The High Court through an order dated 14.4.2010 dismissed the said application (Revision Petition) as being time-barred by denying her the benefits of sub-section (2) of Section 12 of the Limitation Act.
2. This revisional order passed by D.I. Khan Bench of the Peshawar High Court was impugned before this Court through Civil Petition No. 1209 of 2010 which petition was allowed through an order dated 15.7.2010 granting leave to Mst. Banori petitioner to consider whether the said benefits envisaged by the said provisions of Section 12(2) of the Limitation Act, 1908 were available to a party filing an application under Section 115 of the Code of Civil Procedure. Hence this appeal.
3. The provisions of Section 115 of the Code of Civil Procedure, 1908, as originally enacted, read as under:--
"115. The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto, and if such sub-ordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
the High Court may make such order in the case as it thinks fit."
From these provisions, it transpires that this revisional power conferred on the High Court was essentially a supervisory power to correct jurisdictional errors, illegalities and irregularities creeping into the decisions of the Courts sub-ordinate to the High Courts. It would also be noticed that since this revisional power was meant to ensure dispensation of justice which was un-polluted by legal infirmities, therefore, the High Court was commanded to exercise control and superintendence over the Courts sub-ordinate to it unfettered by any technicalities e.g. some aggrieved person approaching the Court for the purpose or even by constraints of limitation of time.
4. As has been mentioned above, the power under Section 115 of the CPC was basically a power exercisable suo moto. Therefore, no restriction whatsoever was placed on the sources from which the information regarding any error, illegality or irregularity of the kind mentioned in the said Section 115 could reach the High Court. Resultantly, nothing stopped even the parties to a lis from laying any
such information before the High Court and this is then what permitted even private persons from filing applications in the High Courts which gradually came to be known as REVISION PETITIONS. And since no limitation of time regulated the said matter, therefore, such a revision petition could, in theory, be filed even after months and years of a decision taken by a sub-ordinate Court. The record of the proceedings in question would then be called by the High Court and, not infrequently, when such revision petitions were filed with respect to decisions relating to interlocutory matters, the proceedings in the main suit also got stayed on account of summoning of record resulting in inordinate though avoidable delays in dispensation of justice.
5. It was to eliminate such-like delays that through the Ordinance No. X of 1980, a proviso was added to the above-quoted provisions of Section 115 of the CPC which provisions had been, through the Law Reforms Ordinance No. XII of 1972 re-numbered as sub-section (1) because three other sub-sections were also added to the said Section 115 CPC which sub-sections are, however, not relevant for the purposes of the present case. The said proviso which then became the proviso to sub-section (1) of Section 115 CPC provided that where information laid before the High Court leading to the exercise of revisional jurisdiction arose out of an application filed by some person, then such person would be bound to furnish copies of the pleadings, of the documents and the order of the sub-ordinate Court alongwith such an application and further that the High Court would then decide the fate of such an application without calling for the record of the concerned sub-ordinate Court.
6. No limitation of time was, however, prescribed even through the said proviso added in the year 1980 within which such an application could be filed in the High Court.
7. A further effort was made in the year 1992 to avoid delays in the decision of civil cases and it was through Act VI of 1992 that a further proviso was added which finally prescribed that any such application filed by a person seeking revision of some decision would have to be filed in the High Court within 90 days of the making of the decision sought to be revised and through a further amendment introduced by Act XIV of 1994 it was further provided in the said second proviso that the concerned sub-ordinate Court would provide a copy of the decision sought to be revised within 3 days of the passing of the same and finally that the High Court would finally decide such an application within 6 months of the making thereof.
8. The above noticed provisions of sub-section (1) of Section 115 as they stand now after the above-noticed amendments, read as under:--
"115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto, and if such sub-ordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegality or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the sub-ordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the sub-ordinate Court:
Provided further that such application shall be made within 90 days of the decision of sub-ordinate Court which shall provide copy of such decision within three days thereof and High Court shall dispose such application within six months."
A perusal of the said provisions would reveal as under:--
(a) that the jurisdiction conferred by Section 115 CPC is essentially a supervisory jurisdiction of superintendence and control meant to ensure correction of illegalities and irregularities found in the decisions of the Courts sub-ordinate to the revisional Court;
(b) that in the discharge of its said obligation, the revisional Court had not been placed at the mercy of the parties to a lis or of some other person and was required to act even suo-moto;
(c) that no law prescribed any limit of time for such a Court within which such an error could be rectified;
(d) that there was, however, no bar on any person, laying, through an application any information before the revisional Court about any such error, illegality or irregularity in any of the decisions of the sub-ordinate Courts and seeking correction thereof;
(e) that a person making such an application had, however, been bound to do so within ninety days of the decision sought to be revised;
(f) that such a person was required to furnish, alongwith the said application, copies of the pleadings and other documents and of course a copy of the order being questioned;
(g) that the sub-ordinate Court making the decision which is sought to be revised, was bound to supply a copy thereof within three days of the making of the same;
(h) that the revisional Court was then required to dispose such an application within six months and that also, except in exceptional cases, without calling for the record.
9. These provisions of Section 115 CPC thus appear to be a complete code vis-a-vis the invoking and exercise of revisional jurisdiction. Confining ourselves to the facts of the present case i.e. to the matter of applications seeking exercise of revisional power, suffice it to say that the said provisions prescribe the form of application to be filed; the documents required to be furnished with such an application; the period of time within which such an application could be made; the obligation of the Court making the decision in question to supply a copy thereof; the period of time within which such a copy was to be supplied; such an application to be decided without calling for the record of the sub-ordinate Court except in exceptional situations and finally the period of time within which such an application was to be disposed.
10. The provisions of Section 115 CPC, after the addition of the two provisos, give us a complete scheme including the time limits prescribed for various steps in the matter of applications which could be filed invoking the revisional jurisdiction. Therefore, the question whether the provisions of Section 12(2) of the Limitation Act, 1908 were or were not attracted in the case of such applications, was not relevant. While we are on the subject, we may state here that we could not persuade ourselves to approve some of the observations of a learned Division Bench of the Lahore High Court made in the case of Punjab Road Transport Corporation vs. Muhammad Iqbal Lodhi (2003 CLC 1539) vis-a-vis the obligations of the sub-ordinate Courts to provide copies of the relevant decisions within three days. The relevant part of the said judgment reads as under:
"16. The second contention of the learned counsel for the petitioners that the limitation of 90 days would only start running if a copy of such decision is supplied by the sub-ordinate Court within 3 days, is not of much substance because this direction and the further direction in the same proviso for disposal of such application by High Court within 3 months, appears to be of regulatory nature. It is also to be seen that there can be many orders passed by the trial Court, which may fall within the category of "decision" or "case decided". It is not necessary for the trial Court to provide copy of each such order to the aggrieved party. At the same time, it is also not necessary that every such order would necessarily be challenged under Section 115, C.P.C. Thus, the period of 90 days' limitation cannot be attached with this condition of supply of copy within 3 days."
11. As has been noticed above, the first proviso to Section 115 CPC was added through an amendment made in the year 1980. The second proviso was inserted in the year 1992 and the portion in question casting an obligation on the sub-ordinate Court to provide a copy of the decision in question within three days was added through an amendment in the year 1994. This command was thus a conscious and a considered insertion in the said provision and brushing the same aside as an unwanted surplusage and in fact annulling and rendering the same as futile and nugatory, was, to say the least, doing offence to the said legal provision. The duty of the Courts of law, inter-alia, was to give effect to the legal provisions and not to make them ineffective. The impression that the said was a useless and an unworkable provision was also not correct. It is true that a sub-ordinate Court may be passing tens of orders qualifying as revisable decisions everyday involving tens of parties but then the impression that every such Court was required to arrange copies of every such decision or case decided and then to run after all the parties to provide them with the same irrespective of the fact whether such a party did or did not want to seek revision thereof, was misplaced. A bare reading of the said two provisos would demonstrate that it would be a person aggrieved of such a decision who would make an application questioning the same and it would thus only be such a person who would be entitled to be supplied with a copy thereof within the said prescribed time.
12. A conscious imposition of such a burden on a sub-ordinate Court would be further evident from another circumstance available in law. A perusal of the provisions of rule 20 of Order XX of the CPC would demonstrate that the one drafting the said obligation and the ones introducing the same in the said second proviso knew that under the scheme envisaged by the CPC, anyone desirous of obtaining a copy of a judgment was required to make an application for the purpose and it was then that the same was supplied to him at his expense. And that the Court being obliged to supply a copy of a judgment to a party was a concept of the Criminal Procedure Code which was alien to the C.P.C.. Reference may be made to the provisions of Section 371 Cr.P.C. Importing a concept foreign to the CPC and adding the same to it, could not have been without a purpose nor could the same have been an un-considered act on the part of the law-maker. The same, therefore, deserves the respect which would be due to it.
13. Having thus examined all aspects of the matter and having also considered a judgment delivered by a learned two Member Bench of this Court in the case of Province of Punjab vs. Muhammad Farooq (PLD 2010 SC 582), we hold as under:--
"(a) that any person seeking revision of a decision made by a sub-ordinate Court could do so through an application to be filed by him for the purpose;
(b) that such an application was required to be accompanied by the copies of the pleadings, other documents and by a copy of the order sought to be revised;
(c) that such an application was to be filed within ninety days of the decision in question;
(d) that it was the obligation of the concerned sub-ordinate Court to provide a copy of such a decision to such a person within three days of the making of the said decision;
(e) that since no one could be allowed to suffer on account of an act of a Court, therefore, the time taken by the concerned Court in providing such a copy to such a person after being informed for the purpose would be excluded from the said period of ninety days;
(f) that the revisional Court was expected not to call for the record of the sub-ordinate Court for the disposal of the matter except in exceptional cases for reasons to be recorded in writing;
(g) that the revisional Court was then required to dispose the matter within six months; and finally
(h) that the requisite respect was required to be shown to the said legal obligations and effect was required to be given to them.
14. Reverting now to the facts and merits of this appeal, we find that while dismissing the appellant's application (Revision Petition) being barred by time, the High Court took no step to find out whether the legal command contained in the above-mentioned second proviso regarding supply of a copy of the decision in question within three days, had been complied with and if so, when was the said copy provided to the appellant. What also appears not to have been examined and considered by the High Court was that if the copy in question had not been supplied to the revision petitioner within the said prescribed time, then what was to be the effect thereof.
15. Resultantly, we allow this appeal; set aside the impugned judgment dated 14.4.2010 passed in Civil Revision No. 249 of 2004 and remand the matter back to the High Court where the said Revision Petition would be deemed to be pending which shall then be decided afresh in accordance with the principles and the law laid down hereinabove. No order as to costs.
16. But before we part with this judgment, we consider it necessary to reiterate that the Courts of law can never be a party to putting legal provisions to dis-use or to discard the same. It is one of the obligations of every Court to give effect to each and every provision of each and every law. Needless to add that the provisions of the two provisos added to Section 115 CPC were extra-ordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice. It was to avoid delays caused in the process of obtaining copies of decisions that the Courts were asked to provide such copies within three days. Summoning and retention of sub-ordinate Courts' record by the revisional Courts was another factor contributing towards such delays. As a cure, the applicants were ordered to furnish copies of the requisite record alongwith the applications submitted by them and the Courts were asked to decide these applications without calling for the sub-ordinate Court records unless the availability of such record with the revisional Court was indispensable on account of reasons to be recorded in writing. Fixing the outer limit of time for filing of applications invoking revisional jurisdiction and also fixing of time for final disposal of these applications, were also wrongs of the same ladder.
17. To show the required respect to these provisions by following them in letter and spirit, we direct that copies of this judgment shall be sent to the Registrars of all the High Courts who would place the same before the Hon'ble Chief Justices of the High Courts and also circulate them to all the learned Judges of the sub-ordinate Courts within their respective jurisdiction so that it is ensured:--
(a) that steps are taken, in accordance with law, to order the applicants under Section 115 CPC to supply copies of the pleadings and documents where these pending applications were not accompanied by the same;
(b) that steps are then taken, again in accordance with law, to return the records to the sub-ordinate Courts where the same had been summoned otherwise than through specific orders passed by the revisional Courts or where the same had been requisitioned not for indispensable reasons recorded in writing by the revisional Courts;
(c) that in future, no applications filed under Section 115 are entertained unless accompanied by copies of the commanded documents and record;
(d) that every sub-ordinate Court provides a copy of the decision sought to be revised to the person who so seeks, within the prescribed three days; and finally;
(e) that the revisional Courts decide such like applications within six months and do so without calling the sub-ordinate Court record unless it was indispensable to summon such a record.
(R.A.) Appeal allowed.
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Ghulam Rabbani & Khalil-ur-Rehman Ramday, JJ.
Mst. BANORI--Appellant
versus
JILANI (deceased) through Legal Heirs etc.--Respondents
Civil Appeal No. 511 of 2010, decided on 10.8.2010.
(On appeal from the judgment dated 14.4.2010 of the Peshawar High Court, D.I. Khan Bench, passed in C.R. No. 249 of 2004)
Limitation Act, 1908 (IX of 1908)--
----S. 12(2)--Civil Procedure Code, (V of 1908), S. 115--Constitution of Pakistan, 1973, Arts. 185(3)--Leave to appeal was granted to consider whether the benefits envisaged by provisions of S. 12(2) of Limitation Act, were available to a party filing an application u/S. 115 of CPC. [P. 898] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--Civil revision--Supervisory power to correct jurisdictional errors--Dispensation of justice--Revisional power--Limitation of time--Revisional power conferred on High Court was essentially a supervisory power to correct jurisdictional errors, illegalities and irregularities creeping into decisions of Courts sub-ordinate to High Court--Revisional power was meant to ensure dispensation of justice which was un-polluted by legal infirmities--High Court was commanded to exercise control and superintendence over the Courts sub-ordinate to it unfettered by an technicalities. [P. 898] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Delay in dispensation of justice--Interlocutory matters--Proceedings would then be called by High Court--Validity--When such revision petitions were filed with respect to decisions relating to interlocutory matters, proceedings in the suit also got stayed on account of summoning of record resulting in inordinate through avoidable delays in dispensation of justice. [P. 899] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Scope of--Added of provision--Revisional jurisdiction--To furnish copies of pleadings--Where information laid before High Court leading to exercise of revisional jurisdiction arose out of an application filed by some person then such person would be bound to furnish copies of pleadings of documents and order of sub-ordinate Court alongwith such an application that High Court would then decide the fate of such an application without calling for the record of sub-ordinate Court. [P. 899] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Scope of--(Amendment by Act of 1994)--No limitation of time, prescribed even through the proviso added in year 1980 within which an application could be filed in High Court--Application filed by a person seeking revision of decision would have to be filed in High Court within 90 days of making of decision sought to be revised and through further amendment introduced by Act (XIV of 1994) it was further provided in second proviso that sub-ordinate Court would provide a copy of decision sought to be revised within 3 days of the passing and finally that High Court would finally decide such an application within 6 months of making thereof. [P. 899] E
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--Revisional jurisdiction--Provisions prescribed the form of application to be filed--Document required to be furnished with such an application--Question to supply a copy--Period of time within which such an application could be made, the obligation of the Court making the decision to supply a copy--Period of time within which such a copy was to be supplied--Such an application to be decided without calling for the record of sub-ordinate Court except in exceptional situations and finally the period of time within which such an application was to be disposed. [P. 901] F
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i) Scope--Proviso was added through amendment made in year 1980--Second proviso was inserted in 1992 and portion in-question casting an obligation on sub-ordinate Court to provide a copy of decision within three days was added through an amendment in 1994--Duty of Courts of law--Effect to legal provisions and not to make ineffective--Useless and unworkable provision was not correct--Validity--Sub-ordinate Court may be passing tens of orders qualifying as revisable decisions every day involving tens of parties but then impression that every such Court was required to arrange copies of every such decision or case decided and then to run after all parties to provide them with irrespective of fact whether such party did or did not want to seek revision was misplaced. [P. 902] G
Civil Procedure Code, 1908 (V of 1908)--
----O. XX, R. 20--Entitlement of supply a copy within the prescribed time--Concept of Cr.P.C. which was alien to CPC--One drafting the obligation and ones introducing in second by proviso know that under the scheme envisaged CPC--Anyone desirous of obtaining a copy of a judgment was required to make an application for purpose and it was then that same was supplied to him at his expense--Court being obliged to supply a copy of a judgment to a party was a concept of Cr.P.C. which was alien to CPC. [P. 902] H
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & Scope of--Limitation Act, (IX of 1908)--S. 12(2)--High Court dismissed the application as being time barred by denying her the benefits of S. 12(2) of Limitation Act--No limitation of time was prescribed even through the proviso added in 1980 within which such an application could be filed in High Court--Question of, whether provisions of S. 12(2) of Limitation Act, were or were not attracted--Question casting an obligation on sub-ordinate Court to provide a copy of decision within three days was added through an amendment in the years 1994--Validity--High Court took no step to find out whether legal command contained in second proviso regarding supply of a copy of decision--Question within three days were complied--If copy had not been supplied to revision petitioner within prescribed time, then what was to be effect--Courts of law can never be a party to putting legal provisions to dis-use or to discard the same--It is one of obligations of every Court to give effect to each and every provision of each and every law--Provisions of two proviso added to S. 115, CPC were extra-ordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice--Appeal was allowed. [Pp. 903 & 904] I, J & K
Mr. Muhammad Younis Bhatti, ASC. for Appellant
Mr. Shah Khawar, ASC and Mr. M. S. Khattak, AOR for Respondents.
Date of hearing: 10.08.2010.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--A suit filed by Mst. Banori appellant pre-empting the sale of a piece of land was decreed by the trial Court through a judgment dated 30.9.2002. However, the appeal filed by the vendee was accepted by a learned Additional District Judge at Bannu as a consequence whereof the said suit filed by Mst. Banori was dismissed. The said pre-emptor then approached the Peshawar High Court through an application filed under Section 115 of the CPC seeking revision of the said appellate judgment dated 21.5.2004. The High Court through an order dated 14.4.2010 dismissed the said application (Revision Petition) as being time-barred by denying her the benefits of sub-section (2) of Section 12 of the Limitation Act.
2. This revisional order passed by D.I. Khan Bench of the Peshawar High Court was impugned before this Court through Civil Petition No. 1209 of 2010 which petition was allowed through an order dated 15.7.2010 granting leave to Mst. Banori petitioner to consider whether the said benefits envisaged by the said provisions of Section 12(2) of the Limitation Act, 1908 were available to a party filing an application under Section 115 of the Code of Civil Procedure. Hence this appeal.
3. The provisions of Section 115 of the Code of Civil Procedure, 1908, as originally enacted, read as under:--
"115. The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto, and if such sub-ordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
the High Court may make such order in the case as it thinks fit."
From these provisions, it transpires that this revisional power conferred on the High Court was essentially a supervisory power to correct jurisdictional errors, illegalities and irregularities creeping into the decisions of the Courts sub-ordinate to the High Courts. It would also be noticed that since this revisional power was meant to ensure dispensation of justice which was un-polluted by legal infirmities, therefore, the High Court was commanded to exercise control and superintendence over the Courts sub-ordinate to it unfettered by any technicalities e.g. some aggrieved person approaching the Court for the purpose or even by constraints of limitation of time.
4. As has been mentioned above, the power under Section 115 of the CPC was basically a power exercisable suo moto. Therefore, no restriction whatsoever was placed on the sources from which the information regarding any error, illegality or irregularity of the kind mentioned in the said Section 115 could reach the High Court. Resultantly, nothing stopped even the parties to a lis from laying any
such information before the High Court and this is then what permitted even private persons from filing applications in the High Courts which gradually came to be known as REVISION PETITIONS. And since no limitation of time regulated the said matter, therefore, such a revision petition could, in theory, be filed even after months and years of a decision taken by a sub-ordinate Court. The record of the proceedings in question would then be called by the High Court and, not infrequently, when such revision petitions were filed with respect to decisions relating to interlocutory matters, the proceedings in the main suit also got stayed on account of summoning of record resulting in inordinate though avoidable delays in dispensation of justice.
5. It was to eliminate such-like delays that through the Ordinance No. X of 1980, a proviso was added to the above-quoted provisions of Section 115 of the CPC which provisions had been, through the Law Reforms Ordinance No. XII of 1972 re-numbered as sub-section (1) because three other sub-sections were also added to the said Section 115 CPC which sub-sections are, however, not relevant for the purposes of the present case. The said proviso which then became the proviso to sub-section (1) of Section 115 CPC provided that where information laid before the High Court leading to the exercise of revisional jurisdiction arose out of an application filed by some person, then such person would be bound to furnish copies of the pleadings, of the documents and the order of the sub-ordinate Court alongwith such an application and further that the High Court would then decide the fate of such an application without calling for the record of the concerned sub-ordinate Court.
6. No limitation of time was, however, prescribed even through the said proviso added in the year 1980 within which such an application could be filed in the High Court.
7. A further effort was made in the year 1992 to avoid delays in the decision of civil cases and it was through Act VI of 1992 that a further proviso was added which finally prescribed that any such application filed by a person seeking revision of some decision would have to be filed in the High Court within 90 days of the making of the decision sought to be revised and through a further amendment introduced by Act XIV of 1994 it was further provided in the said second proviso that the concerned sub-ordinate Court would provide a copy of the decision sought to be revised within 3 days of the passing of the same and finally that the High Court would finally decide such an application within 6 months of the making thereof.
8. The above noticed provisions of sub-section (1) of Section 115 as they stand now after the above-noticed amendments, read as under:--
"115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court and in which no appeal lies thereto, and if such sub-ordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegality or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the sub-ordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the sub-ordinate Court:
Provided further that such application shall be made within 90 days of the decision of sub-ordinate Court which shall provide copy of such decision within three days thereof and High Court shall dispose such application within six months."
A perusal of the said provisions would reveal as under:--
(a) that the jurisdiction conferred by Section 115 CPC is essentially a supervisory jurisdiction of superintendence and control meant to ensure correction of illegalities and irregularities found in the decisions of the Courts sub-ordinate to the revisional Court;
(b) that in the discharge of its said obligation, the revisional Court had not been placed at the mercy of the parties to a lis or of some other person and was required to act even suo-moto;
(c) that no law prescribed any limit of time for such a Court within which such an error could be rectified;
(d) that there was, however, no bar on any person, laying, through an application any information before the revisional Court about any such error, illegality or irregularity in any of the decisions of the sub-ordinate Courts and seeking correction thereof;
(e) that a person making such an application had, however, been bound to do so within ninety days of the decision sought to be revised;
(f) that such a person was required to furnish, alongwith the said application, copies of the pleadings and other documents and of course a copy of the order being questioned;
(g) that the sub-ordinate Court making the decision which is sought to be revised, was bound to supply a copy thereof within three days of the making of the same;
(h) that the revisional Court was then required to dispose such an application within six months and that also, except in exceptional cases, without calling for the record.
9. These provisions of Section 115 CPC thus appear to be a complete code vis-a-vis the invoking and exercise of revisional jurisdiction. Confining ourselves to the facts of the present case i.e. to the matter of applications seeking exercise of revisional power, suffice it to say that the said provisions prescribe the form of application to be filed; the documents required to be furnished with such an application; the period of time within which such an application could be made; the obligation of the Court making the decision in question to supply a copy thereof; the period of time within which such a copy was to be supplied; such an application to be decided without calling for the record of the sub-ordinate Court except in exceptional situations and finally the period of time within which such an application was to be disposed.
10. The provisions of Section 115 CPC, after the addition of the two provisos, give us a complete scheme including the time limits prescribed for various steps in the matter of applications which could be filed invoking the revisional jurisdiction. Therefore, the question whether the provisions of Section 12(2) of the Limitation Act, 1908 were or were not attracted in the case of such applications, was not relevant. While we are on the subject, we may state here that we could not persuade ourselves to approve some of the observations of a learned Division Bench of the Lahore High Court made in the case of Punjab Road Transport Corporation vs. Muhammad Iqbal Lodhi (2003 CLC 1539) vis-a-vis the obligations of the sub-ordinate Courts to provide copies of the relevant decisions within three days. The relevant part of the said judgment reads as under:
"16. The second contention of the learned counsel for the petitioners that the limitation of 90 days would only start running if a copy of such decision is supplied by the sub-ordinate Court within 3 days, is not of much substance because this direction and the further direction in the same proviso for disposal of such application by High Court within 3 months, appears to be of regulatory nature. It is also to be seen that there can be many orders passed by the trial Court, which may fall within the category of "decision" or "case decided". It is not necessary for the trial Court to provide copy of each such order to the aggrieved party. At the same time, it is also not necessary that every such order would necessarily be challenged under Section 115, C.P.C. Thus, the period of 90 days' limitation cannot be attached with this condition of supply of copy within 3 days."
11. As has been noticed above, the first proviso to Section 115 CPC was added through an amendment made in the year 1980. The second proviso was inserted in the year 1992 and the portion in question casting an obligation on the sub-ordinate Court to provide a copy of the decision in question within three days was added through an amendment in the year 1994. This command was thus a conscious and a considered insertion in the said provision and brushing the same aside as an unwanted surplusage and in fact annulling and rendering the same as futile and nugatory, was, to say the least, doing offence to the said legal provision. The duty of the Courts of law, inter-alia, was to give effect to the legal provisions and not to make them ineffective. The impression that the said was a useless and an unworkable provision was also not correct. It is true that a sub-ordinate Court may be passing tens of orders qualifying as revisable decisions everyday involving tens of parties but then the impression that every such Court was required to arrange copies of every such decision or case decided and then to run after all the parties to provide them with the same irrespective of the fact whether such a party did or did not want to seek revision thereof, was misplaced. A bare reading of the said two provisos would demonstrate that it would be a person aggrieved of such a decision who would make an application questioning the same and it would thus only be such a person who would be entitled to be supplied with a copy thereof within the said prescribed time.
12. A conscious imposition of such a burden on a sub-ordinate Court would be further evident from another circumstance available in law. A perusal of the provisions of rule 20 of Order XX of the CPC would demonstrate that the one drafting the said obligation and the ones introducing the same in the said second proviso knew that under the scheme envisaged by the CPC, anyone desirous of obtaining a copy of a judgment was required to make an application for the purpose and it was then that the same was supplied to him at his expense. And that the Court being obliged to supply a copy of a judgment to a party was a concept of the Criminal Procedure Code which was alien to the C.P.C.. Reference may be made to the provisions of Section 371 Cr.P.C. Importing a concept foreign to the CPC and adding the same to it, could not have been without a purpose nor could the same have been an un-considered act on the part of the law-maker. The same, therefore, deserves the respect which would be due to it.
13. Having thus examined all aspects of the matter and having also considered a judgment delivered by a learned two Member Bench of this Court in the case of Province of Punjab vs. Muhammad Farooq (PLD 2010 SC 582), we hold as under:--
"(a) that any person seeking revision of a decision made by a sub-ordinate Court could do so through an application to be filed by him for the purpose;
(b) that such an application was required to be accompanied by the copies of the pleadings, other documents and by a copy of the order sought to be revised;
(c) that such an application was to be filed within ninety days of the decision in question;
(d) that it was the obligation of the concerned sub-ordinate Court to provide a copy of such a decision to such a person within three days of the making of the said decision;
(e) that since no one could be allowed to suffer on account of an act of a Court, therefore, the time taken by the concerned Court in providing such a copy to such a person after being informed for the purpose would be excluded from the said period of ninety days;
(f) that the revisional Court was expected not to call for the record of the sub-ordinate Court for the disposal of the matter except in exceptional cases for reasons to be recorded in writing;
(g) that the revisional Court was then required to dispose the matter within six months; and finally
(h) that the requisite respect was required to be shown to the said legal obligations and effect was required to be given to them.
14. Reverting now to the facts and merits of this appeal, we find that while dismissing the appellant's application (Revision Petition) being barred by time, the High Court took no step to find out whether the legal command contained in the above-mentioned second proviso regarding supply of a copy of the decision in question within three days, had been complied with and if so, when was the said copy provided to the appellant. What also appears not to have been examined and considered by the High Court was that if the copy in question had not been supplied to the revision petitioner within the said prescribed time, then what was to be the effect thereof.
15. Resultantly, we allow this appeal; set aside the impugned judgment dated 14.4.2010 passed in Civil Revision No. 249 of 2004 and remand the matter back to the High Court where the said Revision Petition would be deemed to be pending which shall then be decided afresh in accordance with the principles and the law laid down hereinabove. No order as to costs.
16. But before we part with this judgment, we consider it necessary to reiterate that the Courts of law can never be a party to putting legal provisions to dis-use or to discard the same. It is one of the obligations of every Court to give effect to each and every provision of each and every law. Needless to add that the provisions of the two provisos added to Section 115 CPC were extra-ordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice. It was to avoid delays caused in the process of obtaining copies of decisions that the Courts were asked to provide such copies within three days. Summoning and retention of sub-ordinate Courts' record by the revisional Courts was another factor contributing towards such delays. As a cure, the applicants were ordered to furnish copies of the requisite record alongwith the applications submitted by them and the Courts were asked to decide these applications without calling for the sub-ordinate Court records unless the availability of such record with the revisional Court was indispensable on account of reasons to be recorded in writing. Fixing the outer limit of time for filing of applications invoking revisional jurisdiction and also fixing of time for final disposal of these applications, were also wrongs of the same ladder.
17. To show the required respect to these provisions by following them in letter and spirit, we direct that copies of this judgment shall be sent to the Registrars of all the High Courts who would place the same before the Hon'ble Chief Justices of the High Courts and also circulate them to all the learned Judges of the sub-ordinate Courts within their respective jurisdiction so that it is ensured:--
(a) that steps are taken, in accordance with law, to order the applicants under Section 115 CPC to supply copies of the pleadings and documents where these pending applications were not accompanied by the same;
(b) that steps are then taken, again in accordance with law, to return the records to the sub-ordinate Courts where the same had been summoned otherwise than through specific orders passed by the revisional Courts or where the same had been requisitioned not for indispensable reasons recorded in writing by the revisional Courts;
(c) that in future, no applications filed under Section 115 are entertained unless accompanied by copies of the commanded documents and record;
(d) that every sub-ordinate Court provides a copy of the decision sought to be revised to the person who so seeks, within the prescribed three days; and finally;
(e) that the revisional Courts decide such like applications within six months and do so without calling the sub-ordinate Court record unless it was indispensable to summon such a record.
(R.A.) Appeal allowed.
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