Muhammad Azam Khan, J.--This appeal, by leave of the Court, arises out of the judgment of Azad Jammu and Kashmir High Court passed on 24.5.2008, whereby Revision Petition No, 01/2007 has been dismissed.
2. The appellant filed a declaratory suit along with permanent injunction in the Court of Senior Civil Judge Mirpur on 4.10.2004. After obtaining the written statement and framing the issues the Court ordered the appellant to produce the evidence. The evidence of the plaintiff/appellant was closed by the trial Court on 7.12.2006. A revision petition was filed in the High Court of AJ&K, whereby orders dated 14.11.2006, 27.11.2006 and 7.12.2006 were challenged. A learned single Judge in the High Court dismissed the revision petition on the ground that copies of the pleadings and documents have not been filed with the revision petition, the filing of these documents is mandatory under proviso
(1) of Section 115 of the Code of Civil Procedure.
3. The learned counsel for the appellant argued that the learned Judge in the High Court has dismissed the revision on technical ground. When the revision petition was presented before the Court at the time of preliminary hearing the Court issued the notice for summoning the respondents and also sent for the record of the subordinate Court. After summoning the record from the trial Court the High Court shall have to, decide the revision petition on merits. He contended that proviso (1) to Section 115 of the Civil Procedure Code is not mandatory. It has been incorporated in the section through an amendment. The very purpose of this proviso was to dispose of the revision petition expeditiously, so that no unnecessary delay shall be caused in trial of the suit.
4. While controverting the arguments of the learned counsel for the appellant, Mr. Muhammad Riaz Tabassum, Advocate, representing Respondents No, 3 and 4 argued that the proviso is mandatory.
The appellant failed to comply with the requirement of the proviso (1) to Section 115 C.P.C., therefore, the judgment of the High Court is perfectly legal and appeal is liable to be dismissed.
5. We have heard the learned counsel for the parties and gone through the record. The learned Judge in the High Court has dismissed the revision petition on the ground that copies of the pleadings and documents have not been filed with the revision petition, therefore, the same is not competent. Section 115 C.P.0 applies to the cases where the lower Court has illegally assumed jurisdiction, irregularly exercised or refused to exercise the jurisdiction vested in it or committed an error of law. The powers vested in the High Court under Section 115 C.P.C. is purely discretionary one and can be exercised on the principles upon which such discretionary orders are passed. While exercising revisional jurisdiction if the High Court comes to the conclusion that the lower Court has exercised such jurisdiction which is not vested in it by law or has failed to exercise or declined to assume the jurisdiction vested in it under law or exercised discretion in an illegal manner or has adapted such procedure the result of which puts a party in an advantageous position as against the other, than, the revisional powers must be exercised. If it is of the opinion that no violation of the above mentioned matters is on record than, it shall decline to exercise the revisional jurisdiction.
The proviso to subsection (1) of Section 115 C.P.C. was incorporated through Law Reforms Ordinance No, X of 1980 in Pakistan. This provision was adapted in Azad Jammu & Kashmir vide the amending Act No, IV of 2003. It will be useful to reproduce Section 115 C.P.C.
"115. Revision.--[(1) 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 thereto, and if such subordinate 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 thinks fit.] [Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, document 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....
Before the incorporation of proviso (1) it was general practice that the record of the lower Court was summoned, due to which unnecessary delay was caused in the disposal of the cases. A perusal of proviso (1) reveals that it has been introduced to avoid unnecessary delay in the disposal of the cases. If the copies of the documents and pleadings along with the order of the lower Court are appended with the revision petition then, it is not necessary to summon the record of the lower Court, so that the revisional Court can decide the same without staying the proceedings in the lower Court.
In a case titled Riasat Ali v. Muhammad Jaffar Khan and 2 others [1991 SCM R 496] it was held as under:-- "5. The main question that arises is whether the rule contained in the proviso is mandatory and its initial violation is fatal to the petitioner's case. No such intention can be gathered from the proviso.
The proviso is a mix between a strict rule of discipline, which compel the Court to dispose of the revision petition without calling for the record of the lower Courts and a discretion which may, in a genuine case, influence it not to so dispose of the petition, but to call for the record itself before doing so. If the court can call for the record itself, there is no bar to the Court adopting the more easier and speedy option of directing the party to make good certain copies of the pleadings, documents or orders which are relevant and have not been so filed. The rule is any case is not founded in terrorism, to be visited invariably with the dismissal of the revision petition at the very first hearing on the slightest violation of the rule by the party filing the petition.
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10.The background in which the proviso in Section 115 of he Code of Civil Procedure came to be added indicates that it was primarily for the purpose of avoidance of delay in the trial of the suits.....
6. The High Court has powers of superintendence and control over the Courts subordinate to it.
Apart from Section 115 it has powers of superintendence and control over the Courts subordinate to it under Section 46 of the AJ&K Interim Constitution Act, 1974. The powers of superintendence and control includes the powers of correction of jurisdictional errors or material irregularities committed by the subordinate Courts during the judicial proceedings. The rules of procedure and technicalities cannot obstruct the exercise of these powers. Rules are meant to promote the ends of justice and not to defeat it.
In a case titled Karamat Hussain and others v. Muhammad Zaman and others [PLD 1987 SC 139] it was observed as under: The question can be examined by the High Court whether the Court subordinate to it has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoys; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of Section 115 of the C.P.C. confer on every person who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of course, it may be certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as whether the petitioner has approached the Court, without reasonable case, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him form relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege In the case titled Haji Muhammad Latif Khan v. Muhammad Hanif [2007 SCR 125] it was held in the following manner:-- "6. Section 46 of the AJ&K Interim Constitution Act, 1974 contains that the High Court shall superintend and control all the Courts which are subordinate to it. The basic object of both the provisions is to confer jurisdiction upon the High Court with the purpose that no injustice should be done to any person. Any error in the decision of trial Court as to its jurisdiction is open to revision.
The High Court can exercise even suo motu revisional power, where it is found that the order passed by the subordinate Court is contrary to statutory provision and/or the same is without jurisdiction. In such like circumstances the Constitutional provision of superintendence and control of High Court can also be invoked for correcting the jurisdictional error.
It was observed in a case titled Muhammad Resham Khan and 2 others v. Rtd. Subedar Muhammad Amir Khan [2000 SCR 589] as under:-- "This constitutional provision gives wide powers to the High Court to exercise the power of superintendence and control over all the Courts subordinate to it whether appeal lies to it or not.
We are very clear in our mind that the aforesaid provision contained in the Constitution gives wide powers to High Court to pass appropriate orders in suitable cases. It has 'also been brought to our notice that Section 35 of the Azad Kashmir Courts and Laws Code 1P49 has been repealed vide the Azad Kashmir Courts and Laws Code (Amendment) Act, 1992, dated 29th Aug. 1992, therefore there remains no power of superintendence and control to be exercised by the High Court over the Courts subordinate to it. Despite the deletion of powers under Section 35 of the Azad Kashmir Courts and Laws Code, 1949 the High Court cannot be refused to exercise its powers which are vested to it under Section 46 of the AJ&K Interim Constitution Act, 1974, which is the supreme law of the land.
It was further observed in a case titled Khawaja Abdul Qadir v. Abdul Majid [PLD 1984 SC (AJ&K)
166]:-- "15. We may here refer to Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and Section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act which invest the High Court with authority of superintendence and control over the Courts subordinate to it Section 46 reads:-- "(1) The High Court shall superintend and control all other Courts that are subordinate to it.
(2) There shall, in addition to the Supreme Court of Azad Jammu and Kashmir and the High Court, be such other Courts as are established by law.
(3) A Court so established shall have such jurisdiction as is conferred on it by law.
(4) No Court shall have any jurisdiction which is not conferred on it by this Act or by or under any other law."
Section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act of 1949 also confers powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. This section squarely covers the present case. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice."
16. The prerogative and privilege of the High Court to superintend and control subordinated Courts is quite independent and in addition to the powers of a High Court under Section 115, C.P.C. The right of superintendence and control imposes a corresponding duty to sec that Courts subordinate to it or subject to its appellate and revisional jurisdiction do not invade vested rights of citizens by usurping jurisdiction...
7. There is another aspect of the case, when the revision petition was filed it was admitted for regular hearing. The High Court summoned the record of the subordinate Court, which shows that the condition of filing the copies of pleadings and documents has impliedly been condoned. The Court was not justified in dismissing the petition after a period of more than a year of summoning the record on technical ground. It was incumbent upon the High Court to decide the revision petition on merit.
In a case titled Azad Kashmir Logging and Saw Mill Corporation Ltd. u. Messrs Muhammad Farid Khan & Company Brothers, Contractors AKLASC [PLD 1986 AJ&K 228], it was held as under:-- Section 115, Civil Procedure Code, which governs the revisional jurisdiction of High Court, postulates that High Court may call for record of any case which has been decided by any Court subordinate to it and may make such order in the case as it thinks fit. In present case, record of the subordinate Court was called much earlier than the appointment of Mr. Gilani as Advocate-General. It was during the pendency of the petition that status of Mr. Gilani was changed from an Advocate to Advocate-General. Therefore, once this Court has called for the record of the subordinate Court and is seized with the case, the petition is not to be thrown out merely for non-appearance of the petitioners or due to disability incurred by the counsel in the meantime. The petition instead of being thrown out on technical ground developed during its pendency is to be decided on merits.
Keeping in view the norms of administration of justice."
From the survey of the case law it can safely be held that filing of copies of pleadings and documents with the revision petition is not mandatory.
8. It may be observed that if the High Court or the District Judge feels that it is not necessary to call for the record of subordinate Court, while, exercising revisional jurisdiction, the Court can direct the petitioner to furnish the copies of pleadings, relevant documents and orders, so that it can decide the revision petition expeditiously.
The result, of above discussion is that we accept the appeal, set aside the order passed by the High Court and remand the case to the High Court with the direction, that it shall decide the case on merits with no order as to the costs.