1. ' GHULAM MUSTAFA MUGHAL, C J.---This appeal is filed against the judgment and decree passed by the learned District Judge, Bagh on May 31, 2006.
2. ' The necessary facts, forming the background of this appeal, are that respondents, herein, brought a pauper suit for recovery of Rs,6,36,500 in the Court of District Judge, Bagh, under Order XXXIII of Code of Civil Procedure on June 28, 2004. The learned District Judge, Bagh, without following the procedure visualized by the said order, received the written statement and framed issues on December, 9, 2004. After closing the evidence of the plaintiffs on August, 17, 2005, the defendants were asked to lead evidence. The case remained pending A for evidence of the defendants and ultimately on March 7, 2006, defendants' evidence was close and they were also proceeded ex parte on the same date. On April 12, 2006, an application, for setting aside ex parte proceedings, was made by the defendants. The plaintiffs filed objections to this application on April, 29, 2006 and the learned District Judge rejected the application vide his order dated May 30, 2006. After hearing ex parte arguments, the learned Judge decreed the suit to the tune of Rs,6,36,500, vide his judgment dated May 31, 2006.
3. ' The appellants have filed this appeal on January 17, 2007 on the ground that they have not been served with any notice of the judgment and decree, therefore, the appeal is within limitation from the date of knowledge i.e, November 28, 2006. In alternative, it is prayed that as the judgment and decree is ab initio void and has been handed down in violation of the mandatory procedure of law, therefore, the appeal may be treated as revision petition.
4. ' Raja Muhammad Hanif Khan, the learned Advocate for the appellants, inter alia, argued that the impugned judgment and decree has been passed on the basis of insufficient and inadmissible evidence, hence, is not sustainable. He further argued that plaintiffs-respondents may institute a pauper suit under Order XXXIII of Code of Civil Procedure; but the learned District Judge has not followed the procedure prescribed by the said order, hence, the whole proceedings are coram non judice.
5. ' On the other hand, Sardar Muhammad Reaz Khan, while controverting the arguments submitted that appeal is hopelessly time barred and conversion of the appeal into revision petition would not be in the interest of justice, because the appellants have not prosecuted the case diligently.
6. ' I have heard the learned Advocates for the parties and gone through the record with my utmost care.
7. A perusal of the record reveals that a pauper suit was filed by the respondents, herein, for recovery of Rs,6,36,500 under Order XXXIII of C.P.C.
8. ' A perusal of the plaint further reveals that the Court has not followed the procedure visualized by Order XXXIII of C.P.C. Where in was complete scheme is provided for institution and disposal of the pauper suits.
9. ' Rules 2 to 5 of Order XXXIII being utmost relevant in the case in hand, are usefully reproduced below:-- "2. Contents of application.---Every application for permission to sue as, a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto, and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings."
3. Presentation of application.---Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.
4. Examination of applicant.--(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.
10. If presented by agent, Court may order applicant to the examined by commission.---(2) Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.
5. Rejection of application.---The Court shall reject an application for permission to sue as a pauper---
(a) Where it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) Where the applicant is not a pauper, or
(c) Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or
(d) Where his applications do not show a cause of action , or
(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter."
11. A perusal of the above reproduced provisions of law would show that under rule 2 of Order XXXIII it is obligatory for a plaintiff firstly to seek permission to sue as a pauper. It is further directed that the application must contain the particulars required in regard to plaints in suits, a schedule of any movable or immovable property belonging to the applicant. The estimated value thereof is to be annexed thereto. It is further stated that such statement shall be signed and verified in the manner prescribed for signing and verification of the pleadings. Under rule 4 of Order XXXIII, the Court has to examine the applicant and if it does not satisfy the requirements of rules 2 and 3, the same shall be rejected under rule 5, of the said Order.
12. ' In the case in had the learned District Judge has not even bothered to go through the provisions of Order XXXIII of C.P.C. The proceedings have been conducted without application of judicial mind which is duty of every Judicial Officer. The provisions of the said rule are mandatory and departure is not condonable. Failure of the learned District Judge to adopt the relevant procedure has rendered the whole proceedings a nullity in the eye of law. By now law is well-settled that where special procedure is provided for performance of an act the same should be performed in the prescribed manner or not at all. It has rightly been contended by the learned Advocate for the respondents that appeal is time-barred; but this Court is vested with the powers of superintendence and control over the subordinate judiciary under section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and cannot shut its eyes when some illegality is otherwise noticed while perusing the record of a subordinate Court rather it is the duty of this Court to rectify the wrongs 1991 CLC 360, therefore, I am inclined to treat this appeal as revision and decide the same as such. In this regard reliance can be placed on the following cases:--
(1) Khawaja Abdul Dadir v. Abdul Majid PLD 1984 SC (AJ&K) 166 and
(2) AKLASC v. M/s. Muhammad Farid Khan and Company PLD 1986 AJK 228.
13. ' In Abdul Dadir's case, the apex Court, while resolving an identical proposition observed as under:-- "We are thus of the view that the High Court, when confronted with such a situation, where a subordinate Court has exercised jurisdiction not vested in him, has ample powers under the Interim Constitution Act, 1974, and Azad Jammu and Kashmir Courts and laws Code, Act to redress the wrong in removing the illegality in the interest of justice as supervising authority."
14. In Muhammad Farid Khan's case it has observed as under:-- "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. On coming to the conclusion that the ex parte decree was in contravention to law, it is to be determined as to whether such a decree can be set aside in exercise of revisional powers of the High Court or not. My answer to the question is yes, High Court in exercise of its revisional jurisdiction conferred under section 115 of the Civil Procedure Code coupled with section 39 of the Courts and laws Code, is competent to set aside such a decree. The revisional power of the High Court, ordinarily can be invoked when it appears that the subordinate Court seized jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted illegally or with material irregularity. In presence of any of these conditions, High Court is conferred power to review such an order of the subordinate Court. In Azad Jammu and Kashmir, clause (d) is added to section 115 of the Civil Procedure Code which further empowers the High Court to revise an order of a subordinate Court to meet the ends of justice. Thus the scope of revisional powers conferred on Azad Jammu and Kashmir High Court is more vast. In addition to that, section 39 of the Courts and laws Code, Act further empowers the High Court to rectify any error, illegality, irregularity or mistake of a subordinate Court to meet the ends of justice. It is already noticed that the ex parte decree passed by the subordinate Court is patently illegal as it is in clear contravention to provisions of Order XX, Rule 4, sub-rule (2), Civil Procedure Code. The decree in the present shape is not at all helpful to satisfy the claim of the plaintiff as the real claim is yet to be determined."
15. In view of what has been discussed above, this appeal is accepted and the judgment and decree, passed by the Court below on May 31, 2006, is hereby set at naught. The case is remanded to the trial Court with the direction to proceed with the case in accordance with the procedure provided for the purpose.