P L D 2003 Lahore 27
Before Syed Zuhid Hussain, J
SAZIA SULTANA‑‑‑Petitioner
Versus
RAZIA BEGUM‑‑‑Respondent
Civil Revision No. 1558 of 1999, decided on 12th November
2002.
(a) Civil Procedure
Code (V of 1908)‑‑‑
---O. XLI, Rr. 30 & 17‑‑‑Judgment in appeal‑‑‑Default by appellants‑‑Neither the counsel for the appellants was present or heard nor
the counsel for respondents was in a position to argue the case‑‑‑Decision of appeal by District Judge on
merits in view of direction by the Member, Inspection cam of the High Court to
the effect that the appeal be decided by as of specified date‑‑‑‑Validity‑‑‑‑Held, remedy of appeal, in particular, the first appeal. is a right
which a suitor is entitled to avail under the law i.e. Civil Procedure Code
itself‑‑‑When an
appeal is preferred by a party an indefensible right of hearing vests in
him, which cannot be stultified or transgressed except in accordance with law‑‑‑Direction of the nature, issued by the
Member. Inspection Team of the High Court, which was at the most administrative
in nature could not be made a basis for denying the appellants the right
of hearing as envisaged by O.XLI, R.30, C.P.C.‑‑‑Court which is charged with onerous duty and responsibility of
administering justice is expected to maintain a balance so that neither the
matter is delayed unnecessarily nor its disposal is effected in such a
hasty manner as may be violative of the law and fairness‑‑‑Judicial power or jurisdiction to administer justice in accordance
with law cannot be abdicated merely to honour any executive or administrative
instruction or directive‑‑‑Court, in
order to keep the streams of justice clean and unpolluted, is expected to shun
every extraneous instruction/direction and act purely in accordance with law‑‑Direction of the Member, Inspection Team
of the High Court can only be regarded as directory, enabling the Court
to expedite the hearing/decision, but in no case can be given supremacy over
the explicit legal provisions‑‑‑If the
counsel for appellants was not in a position to advance arguments on the date
fixed due to his engagements before High Court the case could be adjourned to
the next day even on payment of costs in order to compensate tote other side
for any inconvenience‑‑‑Appeal,
thus, could not be dismissed by the District Judge on merits, which
exercise undertaken by him was futile and 'violative of law.
(b) Administration of
justice‑‑
‑‑‑‑‑Justice delayed is
justice denied‑‑‑Justice
rushed is justice crushed‑‑‑Court which is charged with onerous duty and responsibility of
administering justice is expected to maintain a balance so that neither
the matter is delayed unnecessarily nor its disposal is made in such a hasty
manner as may be violative of the law and fairness‑‑‑Judicial power or jurisdiction to administer Justice in accordance with
law cannot be abdicated merely to honour any executive or administrative
instruction or directive‑‑‑Court, .in
order to keep the streams of justice clean and unpolluted, is expected to shun
every extraneous instruction/direction and act purely in accordance with
law.
(c) Constitution of
Pakistan (1973)‑‑‑
‑‑‑‑Art. 203‑‑‑Object, rationale and underlying idea
discernible from Art‑203 of the
Constitution‑‑‑Word
"control" occurring in Art.203‑‑‑Connotation.
The object, rationale and underlying idea discernible from
the reading of Article 203 of Constitution of Islamic Republic of Pakistan,
1973 appears to be to secure judicial independence by making subordinate Courts
completely free from executive and extraneous control. It has vested in the
superior Court in the hierarchy i.e. High Court, the supervision and control Of
the Courts subordinate to it. The word "control" is comprehensive
enough to include the general superintendence of the working and administrative
control over the members of the subordinate judiciary. Such a control and
supervision should be aimed at the advancement of the judicial independence and
by no means to impede or frustrate the very object and purpose.
Article 203 of the Constitution merely empowers the High
Courts to supervise and control all Courts subordinate to it. The power is
meant to enable the High Court to discharge its duties as a superior Curt
towards fair and proper administration of justice. The High Court has the
authority to check and prevent dereliction of duty and to stop as well as correct
violations of law. "Superintendence" includes the power to guide,
advise and encourage Judges of the subordinate Courts. Supervision and control
is for making and keeping the administration of justice pure and not to help
any particular party. It is not contemplated in the terms of the Article that
the High Court should issue an order against a party to a cause as such.
The High Court under this Article is concerned with its
lower Courts only and has to keep an eye on them so that they may not fail to
do their own duties apart from the problems and interests of the parties, such
duties are to attend the Courts regularly and punctually; to hear and decide
those cases only which fall within their jurisdiction and not to hear and
decide those which may be ousting their jurisdiction; to obey legitimate
directions of their superior authorities; to know the law and to conduct
themselves like judicial officers. Their judicial orders and judgments are
subject to scrutiny, on appeal or revision, in accordance with the provisions
that confer those jurisdictions on Courts of various grades.
Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169; Emperor
v. Tarapore AIR 1940 Sindh 230; Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar.
164; Sharafat Afaridi and 3 others v. The Federation of Islamic Republic of
Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 and
Government of Sindh through Chef Secretary to Government of Sindh, Karachi and
others v. Sharaf Faridi and others PLD 1994 SC 105 ref.
(d) Civil Procedure
Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, Rr.17, 19
& 30‑‑‑Dismissal
of appeal on appellant's default‑‑Procedure‑‑‑If the
Court does not choose to dismiss the appeal, the same has to be adjourned, but
R.17, O.XLI, C.P.C. nowhere empowers the Court to render a decision on merits
in the absence of the appellant‑‑‑Decree on merits is envisaged by O.XLI, R.30 and hearing of both the
sides is the condition precedent for such a decree.
Options legally available to the Court under provisions of
Rule 17 of Order XLI, C.P.C. are clear by themselves, which only enable the
Court to dismiss the appeal in default. If after admission of the appeal for
regular hearing, on the adjourned date of hearing, the appellant is absent,
under Order XLI, Rule 17, a discretion is conferred on the Court to dismiss the
appeal. The exercise of such power under Order XLI, Rule 17, C.P.C. is not
intended to be imperative but is discretionary. The dismissal for want of
prosecution under Order XLI, Rule 17, C.P.C. is not a decision on merits, and
under Order XLI, Rule 19, on application of the appellant, the Court can re‑admit the appeal on such terms as to
costs or otherwise as the Court thinks tit, provided the appellant shows
sufficient cause for his non‑appearance. On the other hand, if the appellant appears and the
respondent does not appear, the appeal may be heard ex pane. If the Court does
not choose to dismiss the appeal, it has to be adjourned, but Order XLI, Rule
17, C.P.C. nowhere empowers the Court to render a decision on merits in the
absence of the appellant. A decree on merits is envisaged by Order XLI, Rule 30
and hearing of both the sides is the condition precedent for such a
decree.
M. Muhammad Sadiq and another v. Punjab Road Transport Board
through its Managing Director 1991 SCMR 2321: Manager, Jammu and Kashmir State
Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678: S.M. Abdullah
& Sons, v. Pakistan Mercantile Corporation Ltd. and another PLD 1976 Kar.
268; Muhammad Tufail and 5 others v. Din Muhammad through his Legal
Representatives PLD 1992 Lah. 152; Prince Sheikh Abdul Qadir v. Nawab Sheikh
Nasiruddin and 7 others PLD 1993 Kar. 216 and Malik Muhammad Ahsan and others
v. Mst. Hameeda Begum 1999 MLD 1941 ref.
Barkat Ullah v. The State 1997 SCMR 274 distinguished.
Qazi Zahid Hussain for Petitioner.
Syed Kazim Bokhari for Respondent.
Date of hearing: 12th November, 2002.
JUDGMENT
A suit instituted by respondent No. 1 under section 39 of
the Specific Relief Act, 1877 for the cancellation of sale‑deed dated 10‑3‑1979 was decreed by the learned Civil Judge, Lahore on 28‑4‑1998, where against the appeal preferred by the petitioners was
dismissed by the learned Additional. District Judge, Lahore on 30‑9‑1999. This is revision petition there against.
2. The judgment of the learned Appellate. Court is sought to
be assail inter alia on the ground that on 30‑9‑1999 the
same was rendered without hearing the petitioners/appellants as their
counsel was not available at that time due to engagements before the High Court
and request for adjournment was declined by the Court in view of a directive
issued by the Member Inspection Team of this Court dated 26‑7‑1999. The learned counsel for the petitioners had referred to certain
portions of the judgment of the learned appellate Court to demonstrate that as
a consequence of such a hasty decision by the learned Additional District
Judge, the petitioners have been condemned unheard. It is contended that
in any case the appeal could not be dismissed on merits and course open to the
Court under Order 41, Rule 17, C.P.C. could at the most be adopted. Reference
has also been made to Rule 30 of Order 41, C.P.C. to contend that the learned
Appellate Court acted illegally in the matter. In support of his contentions
reference has been made to M. Muhammad Sadiq and another v. Punjab Road
Transport Board through its Managing Director (1991 SCMR 2321). Thakur Sukhpal
Singh v. Thakur Kalyan Singh and another (AIR) 963 SC 146) and Karim Bakhsh v.
Mst. Mubarik Jan (PLD 1970 Peshawar 169). The learned counsel for the
respondents supports the judgment of the learned Additional District Judge and
contends that number of adjournments had been sought by the petitioners and it
was thus necessary for the Appellate Court to decide the appeal to avoid
further prolongation thereof. It, is contended that the instructions issued by
the Member, Inspection Team of this Court could not be ignored by the Court
below who thus acted legally in deciding the appeal before the target date i.e.
the end September of 1999. He has relied upon Jeewan Bakhsh and others v. Fazal
Ahmad and 52 others (1996 CLC 2016), Barak Ullah v. The State (1997 SCMR 274),
Abdullah and another v. Mian Tafa2zul Hussain and another (PLD 1961 Baghdad‑ul‑Jadid 58) and Babu Ram v. Bhagwan Din and another (AIR 1966 Allahabad
1).
3. In order to comprehend the circumstances in which the
appeal was decided by the learned Appellate Court paragraph 6 of the judgment
of the learned Additional District Judge, which in itself contains the events
of that date may be reproduced hereunder:‑‑
"In this appeal Hon'ble High Court was pleased to issue
a direction that the appeal be disposed of up till 30‑9‑1999. The
respondents in this appeal avoided to argue the case and sought‑for adjournments on one pretext or the
other, as the order sheet would show in this regard. I adjourned the matter
with the warning of last opportunity for arguments but even on the said
date learned counsel for the appellants could not appear due to his occupation
in other Courts. Another opportunity was granted but in vain. Ultimately
respondent filed an application for transfer of this case to the learned
District Judge, Lahore. This application was dismissed vide order dated 28‑9‑1999 and parties were directed to appear before this Court at 2‑00 p.m. on the same date, keeping in view
the direction of the Hon'ble High Court for disposal of this appeal up
till 30‑9‑1999. Learned counsel for the respondent
was present, but original counsel for the appellant was not present. However,
Mr. Muhammad Afzal Loan appeared on his behalf: The case was adjourned for 29‑9‑1999 and a it was specified that the arguments would be heard
at 11‑30 p.m. On
29‑9‑1999 counsel for the respondent was
present but none appeared from the appellants side at 11‑30 a.m. The case was kept in waiting with
the direction that would come up at 12‑30 p.m. At 1‑30 p.m. Mr.
Afzal Loan appeared on behalf of counsel for the appellants. Counsel for
the respondent was also present, it was requested by Mr. Afzal Loan that an
adjournment may be granted for filing a transfer application before the Hon'ble
High Court. As there is direction of the Hon'ble High Court for disposal of
this case up till 30‑9‑1999 hence the request was turned down.
Mr. Afzal Loan was intimated accordingly and he was intimated that the
arguments would be heard at 1‑30 p.m. therefore, original counsel for the appellant should appear.
At 1‑30 p.m. Mr.
Afzal Loan stated that counsel for the appellant was busy in the High Court and
requested for adjournment. Learned counsel for the respondent stated that he
was unable to argue in this case as he had to reply to the arguments of the
appellant which were not being advanced. In the circumstances of the case as
the target date for disposal of this peal is 30‑9‑1999, the
case was adjourned for 30‑9‑1999 for
Perusal of the appeal and for orders." (Portions underlined in view of
their relevance in the context of the controversy).
The perusal of above shows that neither the learned counsel
for the appellants was present or heard nor the learned counsel for the
respondents was in a position to argue the case, yet the learned Additional
District Judge proceeded to decide the same by himself on merits. This was
understandably in view of the direction by the Member, Inspection Team that the
appeal be decided before the end of September, 1999.
4. Two points of some importance arise as to whether the
direction issued by the Member, Inspection Team was of such a mandatory nature
that the case could not be adjourned even for a day to enable the learned
counsel for the appellants to argue the same; and could the appeal be dismissed
on merits. It may be stated at the outset that the remedy of appeal, in
particular the first appeal, is as of right which a suitor is entitled to avail
under the law i.e. the Code of Civil Procedure itself. When an appeal is
preferred by a party an indefeasible right of hearing vests in him, which
cannot be stultified or transgressed except in accordance with law. A direction
of the nature issued by the Member, Inspection Team of this Court, which was at
the most administrative in nature could not be made a basis for denying the
appellant the right of hearing as envisaged by Rule 30 of Order 41 C.P.C.
Needless to observe that judicial power or jurisdiction to administer justice
in accordance with law cannot be abdicated merely to honour any executive or
administrative instruction or directive. In order to keep the streams of
justice clean and unpolluted the Court is expected to shun every extraneous
instruction/direction and act purely in accordance with law. Such a direction
of the Member, Inspection Team could only be regarded as directory, enabling
the Court to expedite the hearing/decision, but in no case could be given
supremacy over the explicit legal provisions. The possible source for the
issuance of such a direction by the Member, Inspection Team of the Court is
Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, which
reads as under:‑‑
"203. High Court to superintend subordinate Courts.‑‑‑Each High Court shall supervise and
control all Courts subordinate to it."
There were identical provisions in the predecessor
Constitutions as, well. Article 102 of the Constitution of 1962 was similarly
worded, which had received judicial interpretation. In Karim Bakhsh v. Mst.
Mubarik Jan (PLD 1970 Peshawar 169), a Division Bench of the West Pakistan High
Court while considering the same observed "Article 102 of the Constitution
on the contrary merely empowers the High Courts to supervise and control all
Courts subordinate to it. The power is meant to enable the High Court to
discharge its duties as a superior Court towards fair and proper administration
of justice. The High Court has the authority to check and prevent dereliction
of duty and to stop as well as correct violations of law. As observed in
Emperor v. Tarapore (AIR 1940 Sindh 230) "superintendence" includes
the power to guide, advise and encourage Judges of the subordinate Courts".
It was observed that "supervision and control is for making and keeping
the administration of justice pure and not to help any particular party."
It was further observed that: "It is not contemplated in the terms of
Article 102, that the High Court should issue an order against a party to a
cause as such. "In Abdul Rehmati v. Mst. Chaman Ara (PLD 1972 Karachi
164), the Full Bench of the High Court of Sindh while considering Article 102
of the 1962 Constitution, observed that "The High Court is under this Article
concerned with its lower Courts only and has to keep an eye on them so that
they may not fail to do their own duties apart from the problems and interests
of the parties. Such duties are to attend the Courts regularly and punctually;
to hear and decide those cases only which fall within their jurisdiction and
not to hear and decide those which may be; ousting their jurisdiction; to obey
legitimate directions of their superior authorities; to know the law and to
conduct themselves like judicial officer. Their judicial orders and judgments
are subject to scrutiny, on appeal or revision, in accordance with the
provisions that confer those jurisdictions on Courts of various grades".
The view taken in the above cases was adopted in a later Full 'Bench case
Sharafat Faridi and 3 others v. The Federation of Islamic Republic of Pakistan
through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) which was
upheld by the Hon'ble Supreme Court in Government of Sindh through Chief
Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and
others (PLD 1994 SC 105). That is the import of .Article 203 and extent of
supervisory control as highlighted in the above precedents.
5. The object, rationale and underlying idea discernible
from the reading of Article 203 of Constitution of Islamic Republic of
Pakistan, 1973 appears to be to secure judicial independence by making
subordinate Courts completely free from executive and extraneous control. It
has vested in the superior Court in the hierarchy i.e. High Court, the
supervision and control of the Courts subordinate to it. The word
"control" is comprehensive enough to include the general
superintendence of the working and administrative control over the members of
the subordinate judiciary. Such a control and supervision should be aimed at to
advance the judicial independence and by no means impede or frustrate the very
object and purpose.
6. As to the options legally available to the Court it may
be mentioned that provisions of Rule 17 of Order 41 are clear by themselves,
which only enable the Court to dismiss the appeal in default. The legal
position in this respect is quite consistent. In M. Muhammad Sadiq and another
(supra), it was clearly laid down by their Lordships that "if after admission
of the appeal for regular hearing, on the adjourned date of hearing, the
appellant is absent, under Order 41, rule 17, a discretion is conferred on the
Court to dismiss the appeal. The exercise of such power under Order 41, rule
17, C.P.C. is not intended to the imperative but is discretionary. The
dismissal for want of prosecution under this rule is not a decision on merits,
and under Order 41, rule 19 on application of the appellant the Court can re‑admit the appeal on such terms as to
costs or otherwise as the Court thinks fit, provided the appellant shows
sufficient cause for his non‑appearance. On the other hand, if the appellant appears and the
respondent does not appear, the appeal may be heard ex parte. If the Court does
not choose to dismiss the appeal, it has to be adjourned, but this rule nowhere
empowers the Court to render a decision on merits in the absence of the
appellant. A decree on merits is envisaged by Order 41, rule 30 and hearing of
both the sides is the condition precedent for such a decree. "The same had
been the position in the past and also till now. Reference may be made to
Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another
(PLD 1975 SC 678), S.M. Abdullah & Sons v. Pakistan Mercantile Corporation
Ltd. and another (PLD 1976 Kar. 268), Muhammad Tufail and 5 others v. Din
Muhammad through his Legal Representatives (PLD 1992 Lahore 152)., Prince
Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others (PLD 1993 Karachi
216) and Malik Muhammad Ahsan and others v. Mst. Hameeda Begum (1999 MLD 1941).
Reference made to Barkat Ullah v. The State (1997 SCMR 274) by the learned
counsel for the respondents is inapt inasmuch as the precedent case related to
a criminal appeal and it was section 423 of Criminal Procedure Code; that was
considered by the Court, which in view of its scope and content had totally
different ramifications.
7. Now adverting to the facts of the instant case if the
learned counsel for the petitioners/appellants was not in a position of advance
arguments on 29‑9‑1999 due to his engagements before this
Court, the case could be adjourned to the next day even on payment of costs
in order to compensate the other side for any inconvenience. The contents of
paragraph 6 of the judgment of the learned Appellate Court, however, indicate
that even the learned counsel for the respondents had expressed his inability
to argue the case. A day's adjournment would not have made much difference but
in a zeal to dispose of the appeal the same day, the relevant provisions of law
were overlooked which has certainly resulted in not only inconvenience to the
parties but also has delayed the disposal of the matter. There is no cavil nor
there can be two opinions that "justice delayed is justice dented",
but, at the same time it is also to be kept in view that some times
"justice rushed is justice crushed". The Court which is charged with
onerous duty and responsibility of administering justice is expected to
maintain a balance so that neither the matter is delayed unnecessarily nor its disposal
is, in such a hasty manner as may be violative of the law and fairness. In view
of the preponderance of the view taken in number of precedents the appeal could
not have been dismissed by the learned Additional District Judge, Lahore on
merits, which exercise undertaken by him was futile and violative of the law on
the subject.
As a result, the judgment dated 30‑9‑1999 is not
sustainable in law and is set aside. The apl.4al filed by the petitioners shall
be deemed pending before the learned District Judge, Lahore, who may if
possible hear and decide the same by himself in accordance with law. In order
to avoid further delay in disposal of the same the learned Appellate
Court may endeavour to decide the same expeditiously.
Let the parties cause appearance before the learned.
District Judge, Lahore on 2‑12‑2002. The petition is disposed of
accordingly. No order as to costs.
M.B.A./S‑550/L
Order accordingly.
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