SYED SAJJAD HASSAN SHAH, J.---The Chief Executive, WAPDA House and four others have challenged the judgment and order dated 8-11-2008 passed by learned Additional District Judge- IX, Peshawar, whereby, the revision petition filed by respondents against the judgment and order dated 1-12-2007 was accepted.
1. Brief facts of the case are that:- The respondent/plaintiff No,1 has filed a suit, seeking decree for declaration, perpetual injunction and in alternate, the prayer made for replacement of defective Meter No,3503904 of 162 KW load, on account of mechanical defect the consumption of electric supply has also been effected, as such claimed the exaggerated amount of electricity consumption, vide Letter No,1071 dated 20-3- 2006 by the defendants/petitioners, challenged as being illegal oppressive, liable to be cancelled, the plaintiffs/respondents further prayed for the recovery of excess amount of electricity bills received by the respondents.
The defendants/petitioners appeared before the trial Court, they were provided numerous opportunities for filing the written statement, however, failed to file the same, eventually, the right of defence was struck off. The learned counsel for defendants/petitioners filed an application to review the order dated 27-7-2006, striking off the defence, again the defendants/petitioners not actively and diligently participated in the proceedings, therefore, the review petition was dismissed in default on 27-6-2007.
It is noteworthy that defendants/petitioners have failed to challenge the order dated 27-7-2006 by way of appeal, again they have not challenged the dismissal of review petition by filing the application for its restoration, later on an application under Order IX, Rule 13 read with section 151 of the C.P.C. Was filed on 20-10-2007, for setting aside the ex parte proceedings against the defendants/petitioneRs, The learned trial Court, in view of the principle that the cases should always be decided on merits in the best interest of justice, accepted the application on payment of cost as Rs,500. The learned trial Court permitted the defendants/petitioners to file the written statement. However, the order was challenged by way of revision petition, learned revisional court accepted the same and set-aside the impugned order. The defendants/petitioners now have challenged the vires of order passed in revision petition by way of instant writ petition.
2. The learned counsel for the petitioners contended that learned revisional court while exercising its jurisdiction committed material illegality and irregularity effecting ultimate decision of the case as the record of the case has not been gone through. He admitted that there are lapses on the part of the defendants/petitioners but those are not to be considered while deciding the present petition. He prayed for the acceptance of the instant petition, by setting aside the impugned judgment and order.
3. The learned counsel appearing on behalf of respondents refuted the arguments advanced by learned counsel for the petitioners and contended that the petitioners are not entitled to any concession or latitude in view of their conduct reflected from the available record. He further argued that the suit was instituted on 4-3-2006 and remained pending for filing written statement by the defendants/petitioners for a sufficient long time, but despite, availing numerous opportunities failed to file written statement, therefore, their defence was rightly struck off. The review petition was also dismissed in default. And they have again entered into the arena of litigation by filing an application under Order IX, Rule 13 read with section 151, C.P.C. Seeking for setting aside the ex parte proceedings but learned trial Court while deciding the application without any lawful cause and legal backing permitted to file the written statement to contest the suit. Notwithstanding, that in the application no such prayer was made. The said order was assailed in revisional jurisdiction and the learned revisional court was legally justified to set-aside the order passed by the learned trial Court. He prayed for dismissal of the instant petition.
4. Arguments heard and record carefully perused.
5. It is evident from perusal of the record that conduct of the defendants/petitioners throughout the proceedings of the case was contumacious and negligent as they were directed by the learned trial Court to file the written statement but after having been permitted sufficient opportunity for filing of written statement, persistently have failed to comply with the order of the court, thus, the learned trial Court was constrained to pass the order, striking off the defence of the defendants/petitioners under Order VIII, Rule 10 of the C.P.C.
6. The order so passed was an appealable order, had there been any grievance suffered by the defendants/petitioners, they had ample opportunity to invoke the jurisdiction of the appellate court, to seek their redressal, but they have relinquished their remedy of appeal, however, filed the review petition, was also not competent as the order passed not falling within the purview of section 114 read with Order XLVII, C.P.C., thus was not enter tainable, but again on account of their lack of interest, met the same fate. After about passage of one year, the defendants/petitioners have once again jumped into the proceedings by moving an application under Order IX, Rule 13 read with section 151 of the C.P.C., wherein, prayed for setting aside the ex parte proceedings. It is strange to note that the learned trial Court while deciding the said application without there being any prayer by the defendants/petitioners, accepted the application and granted the permission to the defendants/ petitioners to file the written statement. The order so passed does not enjoy the blessing of any law, rather the same is derogatory and violatory to the relevant provisions of law, as at an early stage of proceedings filing of written statement was declined whereof the defence of the petitioners/tenants was struck off. Moreso, the learned trial Court while accepting the application and permitting the filing of written statement disregarded its own order earlier passed in this respect, the learned trial Court under section 151 of the C.P.C. Enjoying no power to exercise, when other adequate remedies were available, thus, permission to file the written statement in the wake of the provisions of section 151 of the C.P.C. Not warranted under the law, therefore, D exercise of powers under this section was illegal, without jurisdiction and coram non judice.
7. The provisions enshrined in section 151, C.P.C., are not intended to he applicable to the facts of instant case, as section 151 is enabling provision, intent and purpose of the law maker was that inherent powers only to be exercised when there is no express provision of law applicable, the court is empowered to resort the powers for advancement of cause of justice, therefore, under this section omnibus and indiscriminate exercise of powers by a court of law in adjudication of lis not permissible, amounts the violation and over stepping of prescribed parameters of the law, not only amounts misuse of powers but thereby promoting, facilitating and encouraging an indolent party to suit, who has failed to exhaust the remedies provided under the law. The defendants/petitioners have failed to abide by the dictates of the norms of law and justice in proceedings conducted by the court of law, whereby the court had to adjudicate his valuable rights. We are constrained not to approve such exercise of powers by the learned trial Court in the wake of the provisions of section 151, C.P.C.
8, There is age-old adage of law, whereby the guidance can be derived that the "act must be done in the manner as provided under the law or not at all" and yet another principle that "if doing of an act is made lawful in a particular manner, if performed in any other manner not provided under the law would be unlawful."
9. 'Section 151 of C.P.C. Improperly and unlawfully made applicable to the facts of the instant case, the provisions reproduced as under:-- "S.151. Saving of inherent powers of Court.-- Nothing in this code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".
10. The learned trial Court while exercising the inherent powers indeed, rescued the defendants/petitioners and invariably circumvented the provisions contained in the Code of Civil Procedure respecting the filing of appeals against orders and if the order or judgment not appealed against, deemed to have been attained finality for all practical purposes. The learned trial Court was not empowered to pass such an order, sitting on its own order as an appellate court. In this respect, guidance can be taken from a case titled "Muhammad Farid versus Mst.
Shahnaz Begum and 5 others" reported as PLD 1987 AJK 44, Para-25:--- The proposition that the principle object to observe the legal formalities to safeguard the paramount interest of justice can hardly be disputed. While considering the importance of technicalities of law and the rules of procedure in the administration of justice it is inevitable to recall the various revolutionary stages in the process from the justice imported in ancient society without formation of the rules, to the justice in the modern society being administered in accordance with the rules of procedure. The man by experience realized his decisions on any one point should be uniformed, certain and consisted so as to avoid confine and infuse confidence in the society, hence it was felt that their should be framed rules of procedure for administration of justice, ensure certainty, consistency, regularity and fair play and to save arbitrariness, faults of individuals judgment and mala fide in the decision of the courts. It is equally important to bear in mind that the equity follows the law and where the law is applicable in all clarity, it is to be given the effect to, however, harsh its application may result into. Para-26:--- Keeping in view the spirit of maxim "ubi jus ibi remedium" the legislature has provided remedy to the aggrieved person for every conceivable right but to accept the fact that the knowledge. Of the men is limited and imperfect also provided inherent powers to the court to be used in a case where the wronged person has a right but has no remedy to enforce it, therefore, the inherent powers as contemplated in section 151, C.P.C., can only be pressed into service when no other remedy is available to, a party to seek the redress to a wrong done to it.
11. In the above referred case the appellant had a remedy to seek restoration of the suit and annulment of the ex parte decree by filing application within a period of one month from the date of the dismissal of suit in default showing that they were prevented by sufficient cause to appear in the Court on the relevant day but failed to file any such application, within the prescribed period of limitation, thus, the powers have not been exercised under section 151 of the C.P.C.
12. There seems no logic and justifications for exercising the inherent poweRs, Time and again, it has been reiterated by the superior courts that while exercising the powers under section 151, C.P.C., the Court must be at guard that the powers exercised for furtherance of cause of justice, not misused or causing injustice to other party or having the overriding effect over the express provisions contained in law, no order can be passed while exercising such inherent powers whenever there is other remedy available to the party to redress the wrong so suffered.
13. In this respect, in similar circumstances, the august Supreme Court in a case titled M/s. Conforce Limited v. Syed Ali Shah and others reported as PLD 1997 Supreme Court 599, in head note C, reproduced as under:-- "Mr. Akram, however, relied on the fact that the petitioner had repeated its application for vacating the trial Court's order of 1-12-1975 and according to the affidavit in support of this second application it would appear that this second application was filed on 1-12-1976 the delay in filing the second application does not indicate that the petitioner was prosecuting its remedies with diligence. Be that as it may, the second application was not maintainable but as the petitioner had also invoked the provisions of section 151 of the C.P.C., we would clarify that provisions of this section cannot be invoked to defeat the provisions of civil procedure code nor can they be invoked to further injustice or to condone gross negligence. Therefore, this second application was only fit to be dismissed and was dismissed, and no exception can be taken to the order of the High Court in dismissing the revision petition".
Our view point is also supported by another Judgment of august Supreme Court titled MRs, Mehar Sultan Jung v. Qurban Hussain, reported as 1972 SCMR 73.
Civil Procedure Code (V of 1908)---S.151 & O.XL, R.1---Code providing procedure for a particular purpose, provisions of section 151 not available in such circumstance. Similar principle laid down in a case titled Mardan Shah v. Sttara and others, reported as PLD 1954 Lahore 87.
"Section 151 does not confer any power but only indicates that there is a power to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the court. There is no room for the application of inherent power where there is an express provision negativing the claim of the petitioner. Since the relief asked for by the petitioner could not be granted according to law, as admitted by his counsel, he cannot benefit by provision of section 151, C.P.C. A decree can be altered in appeal, review or revision but neither section 141 nor section 151, C.P.C. Can be utilized for this purpose".
As mentioned in earlier part of this judgment that the law prescribed certain procedure, same might he observed, in this respect reference can be made to a case titled Qayum Nawaz and 128 others v. The State and 5 others reported as PLD 2002 Peshawar 36. "It is observed in paragraph 4 of the judgment needless to mention that it is well established principle of law that when an action is required to be taken in a particular manner, that can only be taken in that way".
Likewise, another Division Bench Judgment of this court reported as PLD 2002 Peshawar 50, wherein, it is held that "it is well settled that a thing required to be done in a particular manner must be done in that manner or not at all and doing some thing which is in conflict with that would be not only unlawful but mala fide, whereby rendering it as without jurisdiction."
14. The nutshell of the above discussion is that the learned trial Court has already exercised the powers at early stage of same proceedings, striking off the defence of defendant/respondent by invoking its jurisdiction under Order VIII, rule 10 and subsequently dismissing the review petition, no further remedy has been sought by the defendants/petitioners, the learned court probably not realized that the fresh application under Order IX, rule 13 read with section 151, C.P.C. Was moved for setting aside the ex parte proceedings but without looking into the application the learned trial Court has granted the permission to the defendants/petitioners to file the written statement, which amounts to sheer violation of law and perpetuating the injustice and abuse of the process of the court, therefore, judgment and order of learned revisional court is in accordance with law, judgment and order passed by learned trial Court was suffering from illegality, irregularity and jurisdictional defect, therefore, rightly set at naught by the learned revisional court.
15. This writ petition is, hereby, dismissed, as being without any substance and legal force. No order as to costs.