PLJ 2011 Peshawar 257
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Syed Sajjad Hassan Shah, J.
ABDUL LATIF--Appellant/Defendant
versus
ABDUL HAMEED &
others--Respondents/Plaintiff
C.R. No. 25 of 2006, decided on 20.5.2011.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 23--Suit for correction of
parentage in revenue record and in mutation--Plea of legitimacy in plaint--Suit
was dismissed--Case was remanded by First Appellate Court--Order of remanding--Validity--Where
a suit had been disposed of upon a preliminary point and decree was reversed in
appeal, then appellate Court can remand the case with further direction of
framing issue and trial of the case--No provision in O. 41, Rule 23, CPC that
Appellate Court cannot exercise such powers in the interest of
justice--Appellate Court had power to set aside the judgment and decree while
exercising its inherent powers to direct trial Court to amend the plaint, frame
issue, record evidence of the parties and then decide the matter Appellate
Court exercised powers vested in it to meet ends of justice. [Pp. 259 & 260] A & D
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 107, 151 & O. XLI, R.
33--Power of Appellate Court--Dispensation of justice--Scope of--All powers
vested in trial Court--Validity--In order to meet eventualities which cannot be
catered with by any existing provision of law, it can exercise power u/S. 107,
r/w. S. 151 and Order XLI, R. 33 of CPC as these are enabling provisions which
cover those situations causing insurmountable difficulties in dispension of justice--Even Appellate Court can act as ex debito justiatiac to supply
omission in procedure and can adopt methodology to effectively carry out
purpose in view--Appellate Court was equipped with powers and duties possessed
by trial Court--Petition was dismissed. [P.
260] B & C
Mr. Karim Khan Marwat, Advocate for Appellant/Defendant.
Sh. Iftikhar-ul-Haq,
Advocate for Respondent/Plaintiff.
Date of hearing: 20.5.2011.
Judgment
This revision petition calls in question
the judgment and decree passed by the learned District Judge, Tank dated
29.10.2005, whereby the appeal filed against the judgment and decree of the
Senior Civil Judge, Tank dated 29.10.2003 was accepted and the case was remanded
to the learned trial Court with the direction to allow the plaintiff to file
amended plaint and to implead all the legal heirs of
deceased Mehr Khan and to include the plea of his
legitimacy in the plaint.
2.
Briefly stated the facts are that the respondent-plaintiff filed a suit
seeking the decree for perpetual injunction for correction of his name instead
of Qutab Khan as Mehr Khan
in the revenue record and in Mutation No. 2311 attested on 09.12.1999. He
averred in the plaint that the name of his father was in fact Mehr Khan alias Qutab Khan who was the resident of Ghorazai,
Tehsil Tank which is entered in the revenue record of
the said village. At the time of issuance of his national identity card, the
name of his father is shown as alias Qutab Khan and
same is incorporated in the revenue record. The respondent applied to Defendant
No. 2 for correction of his name and issuance of fresh identity card showing
correct parentage as Mehr Khan by substituting Qutab Khan which was mentioned in addition to the name of Mehr Khan. The Petitioner-Defendant No. 1 and 2 were placed
exparte whereas Abdul Latif
petitioner-defendant arrayed as party in the panel of defendants contested the
suit by filing his written statement. The learned trial Court framed issues out
of divergent pleadings of the parties and provided ample opportunity to both
the parties to adduce evidence and after hearing the arguments, dismissed the
suit of the respondent-plaintiff.
3.
Feeling aggrieved from the judgment and decree of the learned trial
Court, the respondent-plaintiff filed appeal which was accepted and the matter
was remanded to the learned trial Court as mentioned above. Hence, the instant
revision petition by Abdul Latif
petitioner-defendant.
4.
The learned counsel for the petitioner-defendant contended that this was
not the case of remand, as provision of Rule 23 of Order XLI,
C.P.C. is not applicable to the facts and circumstances of the case because the
remand would not serve any purpose without the amendment of the plaint. He
further contended that the parties cannot travel beyond the parameter of
pleadings and cannot be permitted to lead evidence beyond the averments. He
made the reference of Order II, Rule 3 and Order VI, Rule 17 C.P.C.
5.
The learned counsel for the respondent-plaintiff contended that the bone
of contention between the parties is as to whether the respondent-plaintiff is
the son of Mehr Khan or not. Simplest correction of
name would hardly serve the purpose of the respondent-plaintiff. The learned
appellate Court comprehended the controversy between the parties, thus,
permitted the respondent-plaintiff to seek amendment in the plaint and then to
proceed with the case. He further contended that in essence it is the case of legitimacy, therefore, the order of remand is in accordance
with law and suffers from no legal infirmity.
6.
I have considered the submissions of learned counsel for the parties and
carefully perused the record.
7.
It is discernable from the record that the respondent-plaintiff has sought
the decree for correction of his parentage. However, the petitioner-defendant
in his written statement, categorically denied the
claim of the respondent-plaintiff and asserted that he is not the son of Mehr Khan and being son of Qutab
Khan, the respondent-plaintiff cannot claim the correction of the record of the
property owned by the predecessor of the respondent-plaintiff as mentioned in
the plaint. He further agitated in the written statement that the
respondent-plaintiff in wake of the instant suit intended to disturb the
gemological table of the petitioner-defendant without having any entitlement.
He termed the claim of the respondent-plaintiff as baseless. In such
eventuality, it has become essential for the respondent-plaintiff to plead the
facts as per requirement of law and to bring his plaint in its proper form and
then to lead evidence in support of his claim.
8.
There is no cavil to the proposition of law that the provision contained
in Rule 23 of Order XLI C.P.C deals with the remand where a suit has been
disposed of upon a preliminary point and the decree is reversed in appeal, then
the appellate Court can remand the case with further direction of framing issue
and trial of the case. There is no provision contained in the Rule ibid or anywhere
in relevant Rules that the appellate Court cannot exercise such powers in the
interest of justice. The appellate Court has ample power to set-aside the
impugned judgment and decree while exercising its inherent powers to direct the
trial Court to amend the plaint, frame issues, record evidence of both the
parties and then decide the matter. It is not out of place to say that the
learned appellate Court even otherwise can exercise such powers as vested in it
under Section 107 C.P.C falling in the chapter of General provisions relating
to appeals which reads as under:--
"107.
Powers of appellate Court. (1) Subject to such conditions and limitations as may be
prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to
be taken.
(2)
Subject as aforesaid, the Appellate Court shall have the same powers and
shall perform as nearly as may be the same duties as are conferred and imposed
by this Code on Courts of original jurisdiction in respect of suits instituted
therein."
9.
It is abundantly clear from the above mentioned provisions of law that
the appellate Court enjoys all the powers vested in the trial Court. In order
to meet some eventualities which cannot be catered with by any existing
provision of law, it can exercise powers under Section 107 read with Section
151 and Order XLI, Rule 33 of C.P.C as these are enabling provisions which
cover those situations causing insurmountable difficulties in dispensation of
justice. Even the appellate Court can act as ex debito
justitiae to supply the omission in the procedure and
can adopt the methodology to effectively carry out the purpose in view. When we
read all the above mentioned provisions in juxtaposition, we would definitely
reach to the conclusion that the appellate Court enjoys plenary powers to
proceed in the matter. These provisions have been introduced in the Code of
Civil Procedure to fill in the gaps wherever found in the procedure. In such
circumstances, the appellate Court is equipped with the powers and duties
possessed by the trial Court. The provisions contained in above noted Sections
do not abridge or in any manner override the other provisions of law relating
to disposal of appeals.
10.
For the reasons mentioned above, I am of the view that the learned
appellate Court has exercised the powers vested in it to meet the ends of
justice. There is no illegality or material irregularity in the impugned order
of the learned appellate Court calling for interference by this Court in
exercise of its revisional jurisdiction. The revision
petition being without substance is hereby dismissed, leaving the parties to
bear their own costs.
(R.A.) Petition
dismissed.
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