MUHAMMAD YOUSAF and 3 others vs KHAN BAHADUR through Legal Heirs

1. ' WALI MUHAMMAD KHAN, J.---Muhammad Yousaf and others, through leave of the Court, have challenged the judgment dated 4-3-1991 passed by a learned Single Judge of the Peshawar High Court whereby the revision petition filed by the appellants against the judgment of the Additional District Judge, Abbottabad dated 22-9-1984 ordering the return of the plaint to the appellants, was dismissed as incompetent.

2. ' The admitted background of the case leading to the instant appeal is that the appellants filed a suit for declaration against Khan Bahadur, now dead, for declaration to the effect that they are owners of land measuring 1 Kanal 17 Marlas comprised in Khasra Nos. 481/329 and 482/329 situated in the area of Gojri, Tehsil Abbottabad and that the entries of the revenue record showing the defendant as in possession as `bila-lagan-batasawar-e-malkier are wrong, illegal and ineffective on their rights. Prayer for possession was also sought. The suit was contested by the deceased/defendant, necessary issues in the light of the pleadings of the parties framed, evidence led pro and contra thereon recorded and the learned trial Court vide judgment dated 31-1-1984 decreed the suit of the plaintiffs/appellants. However, the learned appellate Court, vide its judgment dated 22-9-1984, took a different view and held that the Civil Court had no jurisdiction in the matter and directed the return of the plaint to the plaintiffs/appellants for presentation to the proper forum, which according to the learned appellate Court, was the Revenue Officer under section 44 of the West Pakistan Land Revenue Act. This finding was questioned before the Peshawar High Court, Circuit Bench, Abbottabad through a revision petition by the appellants and a learned Single Judge after requisitioning the record and after going through it, vide his order dated 6-10-1985, observed that the question of jurisdiction is involved and the case requires reappraisal and, in consequence, admitted the revision petition for full hearing and ordered issue of notice to the opposite side. When the case was fixed for hearing according to its serial number, in the year 1989, notice was issued to the respondents which was returned unserved with the remarks that Khan Bahadur mentioned as respondent No,1 in the revision petition was dead. Asper the order sheet of the High Court file dated 23-4-1989, the counsel for the appellant was directed to bring on record the legal representatives of the deceased/respondent within a week and order for issue of notice to them was passed. In compliance thereof, an application for bringing on record legal representatives of the deceased was filed on 30-5-1989 and the L.Rs, were substituted for Khan Bahadur in the heading of the revision petition and necessary notices were issued to them.

3. ' On 1-10-1989 an application was filed by Muhammad Aslam, one of the L.Rs, of the deceased/respondent, under section 3 of the Limitation Act/151 and Order 22 of the C.P.C. For dismissal of the revision petition on the grounds that the same had been instituted against a dead person and that the legal representatives of the deceased Khan Bahadur had not been brought on record for about 4-1/2 years. This application was resisted by the appellants and it was alleged by them that they were unaware about the death of Khan Bahadur which admittedly occurred after the announcement of the judgment by the appellate Court. It appears that arguments were heard on this application and the learned Single Judge of the Peshawar High Court, on the acceptance of the application, dismissed the revision petition on the ground of laches.

4. ' We , have heard Syed Ashiq Hussain Gilani, Advocate, for the appellants; Mr. Abdul Hakeem Khan, Advocate, for the respondents; and have perused the record of the case.

5. ' The date of death of Khan. Bahadur defendant was disputed and the proper course for the learned High Court was to have determined this fact through recording of evidence but instead it placed reliance on the affidavit submitted in support of the application by the heirs of Khan Bahadur and photograph of epitaph of the grave of the deceased/defendant attached therewith, the date of death was held to be 19-12-1984 prior to the institution of the revision petition. Be that as it may, the matter could not be clinched against the appellants simply because a dead person had been named as a respondent in the revision petition.

6. ' Section 115 of the Civil Procedure Code provides for revision by the High Court and the same is being quoted below for ready reference:-- "115. Revision. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies threrein, and if such suboordinate 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 think fit: ' Provided that, where a person makes an application under this subsection he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.

(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."

(5) It nowhere provides that the High Court shall act only when an application is filed before it rather it confers jurisdiction upon the High Court to set right jurisdictional, or legal, or procedural errors committed by the subordinate Courts. Undoubtedly, a party to litigation has a right to bring such errors to the notice of the High Court through a revision petition and through the addition of proviso it has been made obligatory upon them to furnish copies of pleadings and other documents alongwith the petition so that the High Court may without sending for the record, be in a position to prima facie determine about the existence of the alleged jurisdictional/legal errors.

7. But any such application has not been equated with a suit so as to attract the mandatory provisions of the Civil Procdure Code regarding the filing of suits and other consequential provisions. The mention of Khan Bahadur who was allegedly dead at the time of institution of revision but admittedly alive at the time of the announcement of the judgment of the appellate Court, impugned before the High Court, was apparently a bona fide mistake and unless the rigour of procedural law had prevented it, the High Court was required to dispose of the same on merits.

8. There is no dearth of authorities on this proposition that law requires decision of disputes on merits and technicalities have to be avoided which hamper justice so far as possible. In this respect the illuminating judgment of this Court in case Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar (PLD 1975 Supreme Court 678) can be referred to with advantage and the relevant paragraph on page 691-2 is reproduced below for convenience:-- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in- the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the. Conflict between equity and law in judicial history.

9. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this. Development of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, Rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice."

10. ' Observations to the same effect were also made by Mr. Justice Kaikaus, Judge as he then was, in case Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382):-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."

11. It is by now well settled that the exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of the C.P.C. Itself. No period of limitation is, consequently, prescribed therefor under the law. No doubt, there are authorities on the point that the persons applying for exercise of revisional jurisdiction before the High Court have to submit their application within a certain time but that is not sacrosanct and the High Court can, in certain circumstances, ignore or either may condone the delay or exercise their jurisdiction suo motu.

12. ' The case in hand necessitated the exercise of revisional jurisdiction by the High Court on account of patent illegality committed by the appellate Court of which the learned High Court itself had taken cognizance vide its order dated 6-10-1985 and it is proper to reproduce it ex tenso:-- "C.R.No,2/85.

13. ' Present: Muhammad Ayub Khan, Advocate for the petitioner.

14. ' Record received. Courts below are at variance. Question of jurisdiction is involved. Case requires re-appraisal at this end. Admit. Notice.

15. (Sd.) JUDGE."

16. It is amply clear that the learned High Court on the perusal of the grounds of petition on 26-1-1985 felt the necessity of summoning the record of the case and on its perusal was, prima facie, convinced about the jurisdictional error committed by the appellate Court and, therefore, admitted the petition for reappraisal of the case and ordered issue of notice to the respondent. Once the High Court assumed the jurisdiction under section 115 of the Civil Procedure Code and formed an opinion that the question of jurisdiction was involved, it ought to have avoided technicalities coming in its way in its supervisory jurisdiction to correct jurisdictional/legal errors committed by the lower Courts and ought to have decided the matter on merit. The heirs of the deceased Khan Bahadur had already been brought on the record who were before it. Section 3. Of the Limitation Act was not applicable because the petition had been filed within the conventional period and as per the decision of even the High Court Order XXII had no application because Khan Bahadur deceased had not died during the pendency of the revision petition. There was no question of lathes either because the revisional jurisdiction of the High Court had been invoked with due haste.

17. Taking it from any angle, the impugned judgment of the High Court in accepting the application is not sustainable.

18. ' In the normal course we might have remanded the case to the High Court for decision of the revision petition on merit but since the only point involved is legal, relatable to the jurisdiction of the Civil Court to entertain the suit filed by the appellants, we have heard arguments on this point as well, of the learned counsel for the parties, in order to save the parties from financial loss and mental agony, and have decided to dispose of this question. The appellants sued the deceased/defendant Khan Bahadur for declaration of title and challenged the entries of the Revenue Record whereby he was recorded in possession as "bila-lagan-batasawaz-e-malkiet", and prayer for possession was also sought. The suits for declaration are provided for under section 42 of the Specific Relief. Act and for possession under section 8 of the same Act. The suit was admittedly of a civil nature and under section 9 of the Civil Procedure Code Civil Courts had the jurisdiction to try the same as the jurisdiction of the Civil Courts in respect of such suits is neither expressly or by implication barred by any law. The learned Appellate Court while returning the plaint for want of jurisdiction has referred to section 41 read with section 172 of the West Pakistan Land Revenue Act and came to the conclusion that the grievance of the appellants can be redressed by the revenue officers under section 44 of the Act ibid. We have anxiously considered the relevant provisions of West Pakistan Land Revenue Act. Section 172 barred the jurisdiction of the Civil Courts in certain matters exclusively within the competence of the revenue officers which have been enumerated in subsection (2). Section 44 relates to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI relating to record-of-rights and periodical record. But once the inquiry is made or the entries recorded in the Revenue Record, a presumption of truth is attached to it under section 52 of the Act ibid until the contrary is proved or the new entries are substituted therefor. To dislodge this presumption a remedy is provided under section 53 of the said Act which provides that if any person considers himself aggrieved by an entry in a record-of-rights or in periodical record as to any right of which he is in possession, he may institute a suit for declaration of his rights under section 42 of the Specific Relief Act, 1877 Act (I of 1877). Apparently, the jurisdiction of the Civil Courts is not ousted to question the correctness of the entries of revenue record, or declaration of title under the Specific Relief Act, or claiming relief of possession of immovable property, rather aggrieved party has been invested with a right to challenge the entries made in the Land Revenue Act through a suit for declaration in Civil Court. The learned appellate Court not only misinterpreted the provisions of West Pakistan Land Revenue Act but omitted to take into consideration the provision of section 53 of the Act ibid and legally erred in holding that the Civil Court had no jurisdiction in the matter and, in consequence, ordered the return of plaint.

19. In view of what has been stated above, we accept this appeal, set side the judgment of the High Court dated 4-3-1991 and that of the Appellate Court dated 22-9-1984 and remit the case back to the Appellate Court for decision of the appeal on merits. There is no order as to costs.