' HAFIZ ABDUL REHMAN ANSARI, J.---Through this writ petition petitioner Mst. Zakia Bibi daughter of Rab Nawaz seeks a direction to the learned trial Court, respondent No,1, to complete the recording of evidence of the petitioner first and decide the application under section 12(2), C.P.C. In the light of evidence, which is brought on record by the parties instead of deciding application first filed under Order VII Rule, 11, C.P.C.
2. Brief facts of the instant case are ' that the petitioner is respondent No,7 in the application under section 12(2), C.P.C. Filed by. Mst. Sharm Bibi and others assailing the decree dated 8-12-1987 allegedly to have been obtained through fraud; that Mst. Sharm Bibi before the trial Court got recorded her statement in the application under section 12(2), C.P.C. One Nawaz also sworn an affidavit that he never got his statement recorded in the suit. Respondents Mst. Manzooran Bibi and others filed their reply in the application under section 12(2), C.P.C. And she simultaneously submitted an application under Order VII Rule 11 of C.P.C. For rejecting the said application filed under section 12(2), C.P.C.
3. Learned counsel for the petitioner submits that the petitioner and others also filed reply of the said application. The learned trial Court vide order dated 17-2-2010 passed the following order:-- "Learned counsel for the parties. Arguments heard, record perused.
(2) Mst. Mumtaz Begum filed an application for setting aside the order and decree dated 8-12-1987, which has been vehemently contested by the respondent/decree holders. The grounds raised in the application need consideration which requires evidence in detail. Therefore, in order to arrive at a just decision, evidence of parties is necessary..."
' From the divergent pleadings of the parties, following issues were framed by the trial Court:--
(1) Whether the impugned order and decree dated 8-12-1987 is based upon fraud and misrepresentation and the same is liable to be set aside? OPA.
(2) Whether the instant petition is not maintainable in its present form? OPR.
(3) Whether the petitioner has no cause of action to file this petition? OPR.
(4) Relief.
4. The case was fixed for recording of evidence of the petitioner for 12-3-2010. Subsequently the case was adjourned to 17-3-2010 and then 5-4-2010 was fixed for cross-examination and further it was adjourned to 15-4-2010. The learned trial Court instead of completing the evidence, passed an order that first the application under Order VII, Rule 11, C.P.C. Would be decided, and fixed the same for arguments vide order dated 15-4-2010. The learned counsel seeks a direction to the trial Court that instead of deciding the application filed under Order VII, Rule 11, C.P.C. It should first complete the evidence of the parties. He further prayed that the trial Court be directed to complete the evidence at the earliest. Placed reliance on the cases reported as Abdul Rehman v. Mst. Chaman Ara PLD 1972 Karachi 164, Iftikhar Ahmad v. The Muslim Commercial Bank Limited and another PLD 1984 Lahore 69 and Mrs. Anis Haider and others v. S.Amir Haider and others 2008 SCMR 236.
Learned counsel for the petitioner contended that this Court under Article 203 of the Constitution has ample power to issue direction to the trial.
5. I have heard the learned counsel for the petitioner at length. Through this petition the learned trial Court cannot be directed to go in accordance with the wishes of the petitioner. The trial Court is independent to adopt its own course. It is the prerogative of the trial Court to first decide the application under Order VII, rule 11, C.P.C. Or A record evidence. Through this Constitutional petition, this Court cannot interfere in the proceedings of the learned trial Court. The case law cited by the learned counsel for the petitioner does not advance his case. Even the conclusions arrived at in the said referred cases are against the petitioner. In the case of Iftikhar Ahmad v. The Muslim Commercial Bank Limited and another PLD 1984 Lahore 69 the Banking Court had passed a decree for ascertaining the amount and the judgment-debtor was allowed to pay the decretal amount in installments; later on paying of instalments was stopped therefore the learned Banking Court directed to the Collector to attach property of the judgment-debtor and recover the amount in lump sum through sale. The petitioner challenged this order and prayed for suspension/vacation of that order. The learned Judge, Banking Court allowed the request and withdrew the attachment warrants. He, however, asked him to pay the entire amount in lump sum as committed by him. The said order was assailed in Constitutional petition under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 read with Provisional Constitution Order, 1981 with the prayer that the previous order of instalments, on yearly basis, be restored, but the learned Judge of this Court refused to exercise powers under Article 203 of the Constitution and the petition was dismissed.
6. Similarly in the present writ petition, the petitioner assailed the order passed by the learned trial Court to decide the application filed under Order VII, rule 11, C.P.C. First and then to proceed further, which order has been assailed in the instant petition before this Court, as having supervisory control over the trial Court under Article 203 of the Constitution, seeking a direction to the trial Court to complete recording of evidence first and then to decide the application.
7. In another case reported as. Abdul Rehman v. Mst. Chaman Ara PLD 1972 Karachi 164, a Division Bench observed that, "Orders and judgments of lower Courts could not be interfered with in respect of merits of cases; that powers of hearing appeals and revisions are creation of law and such powers, where not created, cannot and should not be exercised in order to give relief to aggrieved party by way of supervision and control of subordinate Courts."
8. In the case of Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236, the honourable Supreme Court, in almost similar circumstances and facts, observed that, "Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of Order VII, Rule 11, C.P.C. Such application could not be decided on mere reply/written statement by respondent without recording of evidence."
9. In the case in hand, the petitioner seeks a direction from this Court, exercising supervisory powers under Article 203 of the Constitution, to the trial Court to first record the evidence of the parties. Such like direction cannot be issued to the trial Court under Article 203 of the Constitution according to whims and wishes of the petitioner, as it is not permissible under the law. The contention of the learned counsel that this Court under Article 203 of the Constitution has ample power to supervise, control and correct the faults in the proceedings and can revise the same for proper administration of Justice as a Superior Court. Such a notion was turned down by this Court in the case reported as Abdul Rehman v. Mst. Chaman Ara PLD 1972 Karachi 164. In the said case prayer was made by the petitioner that the Court can call for the record of the case and set aside the judgment and decree in exercise of the powers vested in it under Article 102 of the Constitution.
Article 102 of the Constitution of the Islamic Republic of Pakistan, 1962 was analogous to Article 203 of the Constitution of Pakistan, 1973. The Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided. This power has nothing to do with the grievances of the parties or with doing justice to them. The High Court under this Article concerns with the lower Courts only and has to keep eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties. Section 151, C.P.C.
Gives overall powers to High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct themselves rightly as Courts. If a party applies to the High Court under this Article it merely brings the failures, faults or derelictions of duty to the notice of the High Court and if the High Court takes action on such an applications it does so for, keeping the administration of Justice pure. It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceeding.
10. I am not inclined to interfere in the order dated 15-4-2010 passed by the learned trial Court by which application under Order VII, Rule 11, C.P.C. Is fixed for arguments. Resultantly, this writ petition having no merits, the same is dismissed in limine.