Azra bibi Versus Fazakat Hussain

8. Review of orders by the Board. (1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record [or for any other sufficient reason] desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.

18. Power to convert and or treat one kind of proceeding into another is derived from authority to do ex debito justitiae, which always existed and have always been exercised by the Court not only to advance the cause of justice but also to prevent the injustice. No fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceeding into another and proceed to decide the matter either itself provided it has jurisdiction over the lis that has fallen on its lap for adjudication in exercise of another jurisdiction vested in the very Court or may remit the lis to the court/forum/authority of competent jurisdiction for decision of the lis on its own merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. In the case of Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555), C.M.A. under section 151, C.P.C. filed in the High Court, was treated as cross objection. In the case of Capital Development Authority v. Khuda Bakhsh and 5 others (1994 SCMR 771), where the High Court converted the C.M.A. filed in a disposed off Writ Petition as a separate Writ Petition and decided the same accordingly, this Court held if the High Court was satisfied that circumstances of the case justified conversion of Miscellaneous Application filed by the Respondent in a disposed off case into proceedings under Article 199 of the Constitution of Pakistan, there is no legal bar to such conversion of proceedings. Even objection as to non-issuance of notice before such conversion, was not considered fatal by this Court. Even time consumed pursuing remedy before a wrong forum or jurisdiction in appropriate cases is condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135). In a case cited as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539); eligibility for consideration of promotion; was successfully challenged in writ jurisdiction of the High Court. On appeal, this Court came to a conclusion that such question falls within the competence of Service Tribunal, therefore, writ is not maintainable. Consequently impugned judgment passed by the High Court in exercise of writ jurisdiction was set aside and in paragraph 16 of the judgment supra this Court treated the Writ Petition as Service Appeal pending before the Service Tribunal with direction to decide the same after notice to the parties concerned in accordance with law. In similar circumstances in a judgment recently reported as Province of Sindh and another v. Muhammad Ilyas and others (2016 SCMR 189) dismissal from service order was challenged before the learned Sindh High Court through Constitution Petition. The Constitutional Petition was treated by the High Court as service appeal and sent to the Service Tribunal; which was decided by the Service Tribunal on merit and this Court declined leave in the matter. Similar course was followed by the learned Division Bench of Peshawar High Court in a case reported as Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others (2015 PLC (C.S.) 215). In the cases reported as The Thal Engineering Industries. Ltd. v. The Bank of Bahawalpur Ltd. and another (1979 SCMR 32), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139) and Capital Development Authority (Supra) similar course was followed.

9. Besides, the High Court has the power to convert and treat one type of proceeding into another type. After doing so, it can proceed to decide the matter itself, provided it has jurisdiction over the issue, or it may remit the matter to the competent authority, forum, or court for a decision on its merits. Reference in this regard may be made to the cases of Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56); Sher Alam Khan v. Abdul Munim and others (PLD 2018 Supreme Court 449); and the Commissioner of Income Tax (Legal) RTO, Abbottabad v. Messrs Ed-Zublin AG Germany and another (2020 SCMR 500).

6. In the case of Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56), an identical controversy was dilated upon by this Court and it was held that no fetters or bar could be placed on the High Court and/or this Court to convert and treat one type of proceedings into another type into another and proceed to decide the matter either itself, provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very Court or may remit the lis to the competent authority/forum or Court for decision on merits. It was further held that once the Writ Petition which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as departmental appeal, that too where the limitation by then had not run out as noted above, therefore the learned Punjab Services Tribunal had fallen into error to dismiss the Appeal before it on the ground of limitation alone, without adverting to the merits of the case and as a consequence of these findings, this Court had set aside the Punjab Services Tribunal order and remanded the matter with the direction to decide the pending appeal on merits. In the next case of Abdul Qadoos v. Commandant Frontier Constabulary, KPK, Peshawar and another (2023 SCMR 334), a similar controversy was adverted to by this Court keeping in mind the doctrine of ex debito justitiae which refers to the remedies to which a person is entitled to as of right, as opposed to a remedy which is discretionary. Every Court has the power to rectify ex debito justitiae its judgment and order to prevent abuse of process and severe patent oversights and mistakes. This power is an inherent power of the Court to fix the procedural errors if arising from the Court's own omission or oversight which resulted in a violation of the principles of natural justice or due process. In this case also the High Court, in order to avoid a grave injustice and the rigors of technicalities, remitted the matter to the FST but the FST dismissed the appeal on the ground of limitation and in similar circumstances, the matter was remanded back to the Service Tribunal to decide the appeal on merits. This Court in the case of Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others (2022 SCMR 25), held that the lexicons of law provide the definition of the legal maxim "Ex Debito Justitiae" (Latin) "as a matter of right or what a person is entitled to as of right". This maxim applies to the remedies that the court is bound to give when they are claimed as distinct from those that it has discretion to grant and no doubt the power of a court to act ex debito justitiae is an inherent power of courts to fix the procedural errors if arising from courts own omission or oversight which resulted violation of the principle of natural justice or due process.