NORTHWEST FRONTIER PROVINCE GOVERNMENT, PESHAWAR through Collector, Abbottabad and another vs ABDUL GHAFOOR KHAN through Legal Heirs and 2 others

' MUHAMMAD AFZAL LONE, J.--The facts, in brief, are that during the pendency of an appeal by the N.-W.F.P. Government, the appellant herein, before a Division Bench of the Peshawar High Court, directed against the judgment dated 8-10-1980, rendered by the Additional District Judge, Haripur, under section 18 of the Land Acquisition Act, two applications were moved on behalf of the appellant, one for grant of permission to produce additional evidence and the other for amendment of the written statement. On the basis of the joint statement of the learned counsel for the parties, the appeal was kept pending and the appellants were permitted to move an application under section 12(2), C.P.C., before the trial Court within one month, for setting' aside of its decree impugned before the High Court on the ground that it was without jurisdiction and obtained by fraud, misrepresentation and suppression of facts. Both the applications were dismissed for the reason that the appellants would have an ample opportunity to produce all the necessary evidence in support of the application under section 12(2), C.P.C. The High Court's order in this behalf is dated 24-6-1986, under which the trial Court was directed to dispose of the application under section 12(2), C.P.C. As expeditiously as possible.

2. The appellants filed such an application before the learned Additional District Judge on 19-7- 1986, inter alia on the ground that "Fard Jamabandi" tendered in evidence by the respondents was a forged document, as the entries therein had been tampered with; that the land was "Shamilat Deh", as per para.10 of the Award, compensation in respect thereof had to be worked out according to the ratio of the land revenue and paid as per share of the respondents; that on such principle the respondents were entitled to market value for 12 Kanals, 11 Marlas, but fraudulently they claimed compensation for the land measuring 700 Kanals out of Shamilat Deh; that the Khasra Girdawari for the period from 1962 to 1975 reflected that the land in dispute was either "Banjar Qadeem Jangh Darakhtan" or "Banjar Qadeem". The respondents, however, privately hired the services of EA.DA.

Abbottabad, who without notice to the appellants allegedly inspected the spot on 6-9-1970 and 10 years later made a statement to the effect that the land was covered by orchard. The events which happened after the institution of this application, as disclosed in the leave grant order, are as under:- "....This application was seriously contested by the respondents who raised various pleas including limitation and maintainability. A separate application for decision of the preliminary legal objections was also submitted by the respondents before the trial Court for dismissal of the application under section 12(2), C.P.C. These objections were, however, rejected by the Court, whereupon a second similar application was moved which was also dismissed on 10th February, 1988. Against the said order a revision appplication was filed being Civil Revision No,49 of 1988 in the High Court but the same was withdrawn and dismissed as such vide order dated 6th November, 1988 leaving it open to the party to raise the same pleas in appeal/revision against the final order.

' The respondents once again moved the Court for dismissal of the application of the petitioner under section 12(2), C.P.C. On the ground that the final order passed by the learned Additional District Judge being sub judice before the High Court had not attained finality and was, therefore, not liable to be challenged under section 12(2), C.P.C. On this occasion the learned Additional District Judge accepted this application and dismissed the application under section 12(2), C.P.C.

By order, dated 24th January, 1990. The revision filed by the Government,... ... Failed vide judgment of the High Court, dated 2nd December, 1990."

3. The reasons which prevailed with the High Court in dismissing the revision are that the order of the Referee Judge, upon whom the fraud was said to have been practiced having been challenged in appeal, did not attain finality; it, therefore, could not be assailed through an application under section 12(2), C.P.C. The learned Judges of the High Court further observed that the order dated 246-1986 was founded on the consent given by the learned counsel for the parties, and made without adverting to the jurisdictional issue and, therefore, the respondents were not precluded from raising objection that the trial Court lacked jurisdiction to entertain the application in question. The fact that in appeal before the High Court (RFA. 57/81) the plea of fraud was raised which would fall for determination before the High Court, also influenced the decision of the learned Judges.

4. The relevant part of the leave grant order embodying the points for determination is reproduced below:-- ". . It appears to us that the respondents joined in the request before the High Court that the matter of fraud in regard to certain documents produced in the trial Court, be decided by means of an application under section 12(2), C.P.C. And having done so, they cannot be allowed to approbate and reprobate, in the same proceedings so as to turn round and challenge the competence of such proceedings which were initiated at their instance. Further, the order passed by the High Court in the F.R.A. Keeping it pending, while permitting the party to raise the question of fraud before the trial Court of its adjudication, seems prima facie to be permissible under the procedural law on the principles contained in Order XLI, Rule 25, C.P.C. In any case the question whether the High Court could pass an order inconsistent with its earlier order which tantamount to reviewing the order, dated 24th June, 1986, requires to be examined."

5. We do not feel persuaded to agree with the High Court. Even upon the argument that the Referee Judge's judgment, having been assailed in appeal, stood denuded of finality, there was no bar for the Appellate Court to have the allegation of fraud investigated through the trial Court or in this behalf allow the aggrieved party to initiate proceedings under section 12(2), C.P.C., before the latter.

Order XLI, C.P.C., governs the institution and hearing of the appeals. Its rule 25 lays down: if the Court from whose decree the appeal is filed, is found to have omitted to frame or try any issue or determine any question of act, the Appellate Court is vested with the power to formulate the issue and give a direction to the trial Court to record additional evidence and forward the same alongwith its finding to the Appellate Court. The latter, after obtaining objections from both sides, can adjudicate upon the controversy. The need to give such a direction to the trial Court may genuinely arise. If the trial Court's finding is not found safe or some additional facts having a strong bearing on the merits of the case, which had gone unnoticed by the trial Court, are unearthed before the Appellate Court. It is correct that Order XLI, Rule 25, C.P.C., upon its term is not applicable to the situation in hand, but the underlying principle and the procedure envisaged thereby regulating the way, for ascertaining the truth as to the factual aspect of the case, with reference to the evidence on the record, with necessary adoption, not forbidden by law, can well be applied to the instant case. It is to be remembered that the application of the existing law to the new situation, broadly covered by such law is within the interpretative power of the Court, as long as it does not travel beyond the object of the Statute.

Within this limitation there should be no bar to the exercise of such power if need be. It hardly needs any emphasis that the entire body of the procedural law is meant for advancement of the cause of justice and not to pose any technical difficulty in the way of the Court to unveil the truth and do complete justice between the litigating parties, for the administration of which alone it has been created. Not unsoften it has been noticed by the Courts that the provisions of Order XLI, C.P.C.

Are not exhaustive. Seemingly, to fill in the gap in the procedure, section 107(2) was enacted under which the Appellate Court has the same C powers and is burdened with the same duties, as conferred and imposed on the trial Court. Reference here may also be made to Order XLI, rule 33, C.P.C., which in order to prevent the ends of justice being defeated gives wide discretionary powers to the Appellate Court, to adjudge the rights of the parties, as the ends of justice may demand and pass such decree or order, as ought to have been passed. The Court has also inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which. C.P.C. Has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justice, supply the omission in the procedure, adopt methodology, for effectually carrying out the purpose in view. Reading of these provisions together would amply demonstrates that the Appellate Court enjoys plenary powers to proceed in the matter as it did in allowing the parties to apply to the trial Court under section 12(2) for investigation into the allegation of fraud and misrepresentation.

6. The fact that on filing of the appeal, the trial Court's judgment lost its frailty was not a bar to the procedure adopted by the High Court under its order dated 24-6-1986. The impugned order practically has the effect of reviewing the said order, for which there is no warrant in law. The High Court was also wrong importing the concept of jurisdiction into this case. By the term jurisdiction, is meant to take cognizance of a case, and to adjudicate upon the controversy between the parties to the suit. It cannot be said that the Court was not possessed of the jurisdiction to hear and decide the appeal or that the procedure followed by it was in conflict with any jurisdictional issue. Likewise, the respondents themselves having invited the order dated 24-6-1986 should not have been allowed to resile from the consent given by their learned counsel. In this view of the matter, no exception can be taken to the High Court's order in question. We may say and say so with respect that the learned Judges of the High Court failed to examine the case in correct perspective. The impugned judgment, therefore, cannot be sustained.

' For the foregoing reasons this appeal is accepted and the impugned judgment set aside. The appellants' application under section 12(2), C.P.C. Shall be treated as pending. The trial Court shall record evidence of both the parties on the subject-matter of the application; render its finding thereon and pass on the entire record to the High Court in four months from the receipt of order.

The High Court shall then proceed in the matter and dispose of the R.FA. In accordance with law.

' Any party desirous of moving an application for amendment of the pleadings shall do so within four days. If such an application is filed it shall be disposed of by a learned Judge of this Court in Chamber. The parties are left to bear their own costs.