1. CH. MUHAMMAD IBRAHIM ZIA, J.-- This appeal by leave of the Court has been directed against the judgment of the High Court dated 30.10.2014, whereby the writ petition filed by respondents Nos,1 to 4, herein, has been accepted.
2. The facts briefly stated are that Mst. Parveen Akhtar, respondent No,1, filed a suit for declaration and possession in respect of suit land against Muhammad Saleem in the Court of Senior Civil Judge Muzaffarabad on 16.04.2003. The suit was compromised, as a result whereof, a decree for declaration and possession-cum-perpetual injunction was granted in favour of Mst. Parveen Akhtar in respect of land measuring Khasra No,32 (old) renumbered as 237 min measuring 13 marlas 18 feet. Afterwards, Fazal-ur-Rehman, Muhammad Irfan and Habib-ur-Rehman sons of Mohib-Ullah filed a suit on 09.06.2004 for declaration and perpetual injunction as well as cancellation of compromise decree dated 02.05.2003 in the Court of Senior Civil Judge, Muzaffarabad. After hearing the parties, the learned Senior Civil Judge vide his order dated 05.09.2005 rejected the plaint. Feeling aggrieved, from the said judgment, Fazal-ur-Rehman and others, filed an appeal before the learned District Judge, Muzaffarabad on 02.12.2005. The learned District Judge vide order dated 11.10.2208 dismissed the appeal with the observation that the remedy of filing application under section 12(2), C.P.C. is available. The appellants filed application or 10.11.2008 under Section 12(2) of the Code of Civil Procedure and challenged the legality and propriety of the compromised decree dated 02.05.2003. The defendants moved an application for rejection of the same. The learned Civil judge Court No,1, Muzaffarabad vide judgment and order dated 31.01.2011 rejected the application under the provisions of Order VII, Rule 11, C.P.C. An appeal was filed before the District Judge, Muzaffarabad which was made over to the Additional District Judge who controverted the same into revision petition and decided the same as such vide judgment dated 13.02.2013. The revision petition was accepted by him and the case was remanded to the learned Civil Judge Court No,1, Muzaffarabad for disposal on merits. Respondents Nos,1 to 4 challenged the legality of judgment and order dated 13.02.2013 through a writ petition before the High Court. The learned High Court vide impugned judgment accepted the writ petition and declared the judgment and order dated 13.02.2013 to have been issued without lawful authority and of no legal effect. Resultantly, the order passed on the application under Section 12(2) of the Civil Procedure Code stood restored. Feeling aggrieved the appellants, herein, have now approached this Court through the instant petition for leave to appeal.
2. 3.Mr. Abdul Rashid Abbasi, Advocate, the counsel for the appellants after narration of necessary facts submitted that according to the admitted facts the learned Additional District Judge, through a very comprehensive judgment remanded the case to the trial Court with the direction of expeditious disposal of the case. The judgment was within its competence. Neither there was any lack of jurisdiction nor violation of law. As the case was remanded to the trial Court, thus, all other legal and factual aspects raised on both sides have yet to be attended and decided by the Civil Court. Admittedly, the Civil Court is vested with the vast powers whereas the writ jurisdiction is very limited which can only be exercised in absence of alternate remedy and when violation of law or principle of law is committed but in this case there is no such violation or lack of jurisdiction. The writ petition was not competent, specially, when all the matters have yet to be attended and decided by the trial Court which in all aspects of the matters is comprehensive available remedy.
3. According to the scheme of enforced law, after decision of the trial Court both the parties have statutory right of appeal upto this apex Court: whereas according to the celebrated principle of law writ jurisdiction cannot be exercised like appellate jurisdiction. Thus, the impugned judgment of the High Court is against the principle of law which is not maintainable.
4. 4.Conversely, Raja Amjad Ali Khan, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that the learned Additional District Judge while passing the order has violated the principle of law. When any Court or authority passes any order in violation of any law the writ is competent. According to the nature of the order no alternate remedy is available. The learned Additional District Judge has misinterpreted the statutory provisions of section 12(2) of Civil Procedure Code. The question of limitation is pure question of law.
5. The judgment of Additional District Judge on this question is patently against law, hence, writ jurisdiction has been rightly exercised to save the parties from unnecessary litigation. No alternate remedy is available, therefore, this appeal has no substance and the same is liable to be dismissed.
6. 5.We have considered the arguments of learned counsel for the parties and examined the record made available. According to record, the appellants, herein, through suit filed on 09.06.2004 challenged the propriety of comprise decree dated 02.05.2003 on the grounds of misrepresentation, concealment of facts and being void. According to the case history, the plaint was rejected under Order VII, Rule 11, C.P.C. being time barred but the appellate Court vide order dated 11.10.2008 opined that the remedy against such decree is not suit but application under section 12(2) of C.P.C. The appellants, within a month's time, filed an application as opined by the first appellate Court which was once again rejected by the trial Court under the provisions of Order VII, Rule 11, C.P.C. but the Additional District Judge while converting the appeal filed by the appellants into revision petition and vacating the rejection order, remanded the case for trial on merit. Through the impugned judgment the learned High Court in writ jurisdiction has set-aside the revisional order of the Additional District Judge mainly on the ground that the application under section 12(2), C.P.C. being time barred was not maintainable.
7. 6.In our opinion, regrettably, all the Courts below have neglected a very important aspect of the matter which has generated unnecessary litigation. According to the hereinabove stated facts, the suit was filed for cancellation of the decree in the Court which passed the compromise decree and before whom the application under section 12(2) has to be filed. In such like situation it is now almost settled that if the Court is competent to hear the matter, it may convert the appeal into revision, revision or appeal into writ petition or suit into application under section 12(2), C.P.C. Even the proposition of conversion of the suit into application under section 12(2) has already been resolved by the High Court of Azad Jammu and Kashmir in the case reported as Neelum Valley Development Board and another v. Muhammad Saddique and another 2009 CLC 763. The High Court in the almost identical proposition converted the suit into application under section 12(2), C.P.C. and remanded the case to the trial Court for proceeding with the matter according to law.
8. There is chain of the authorities that if for doing complete justice it appears to the Court that conversion of the lis from appeal into revision or suit into application is necessary for the ends of justice, even without request or application the Court should exercise these powers in the interest of justice. The apex Court of Pakistan while attending the identical proposition in the case reported as Noorul Amin and others v. Muhammad Hashim and others [1992 SCMR 1744] has handed down a very authoritative judgment in which the scope of application under section 12(2) and conversion of the suit into application has been discussed in detail in the following terms: "With respect to the learned Judge in Chamber we are unable to accept the above reasoning. It is well settled, that all procedural laws are meant for advancing the cause of justice and they cannot be made a vehicle of oppression to suppress the remedies. It is also well-accepted principle of law that Courts always lean in favour of adjudication on merit rather, than stifling proceedings on technicalities. A cursory reading of the plaint in Suit No,231 of 1986 instituted by the petitioners will show that it contained all the ingredients of section 12(2), C.P.C. Mere fact that it was described as a plaint and was registered as plaint could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C. if otherwise such jurisdiction was available to the Court under the law. It is now disputed before us that an application under section 12(2), C.P.C. could be filed for setting aside the decree in suit No,119/1 of 1983 on the grounds mentioned in the plaint in Suit No,231/1 of 1986. In these circumstances the learned District Judge, Peshawar, was absolutely right in treating the plaint in Suit No,231/1 of 1986 as an application under section 12(2) of C.P.C. and remanding it to the Civil Judge who passed the decree in Suit No,119/1 of 1983 for disposal according to law. The learned counsel for respondents Nos,1 to 5 is unable to point out any prejudice which could be caused to respondents by treating the plaint in Suit No,231/1 of 1986 as an application under section 12(2) of C.P.C. The Courts, in order to do justice between the parties, would generally allow treatment/conversion of proceedings of one kind into another, unless there exists some legal bar against such treatment/conversion. In the case of Safia Bibi v. Aisha Bibi 1982 SCMR 494 the application moved by the petitioner in that case before the Lahore High Court for recalling the order, dated 26.10.1980 was dismissed by the High Court on the grounds that the petitioner could take legal action against the attorney and resort to appropriate legal action for redress of grievances. This Court granted leave to appeal in the above case to consider whether the jurisdiction to recall the order in accordance with section 12(2) of C.P.C. which was recently introduced in the Code of Civil Procedure and finally allowed the appeal observing as follows:- "The aforequoted provisions were newly added by an amendment through an Ordinance in March, 1980. The High Court passed the first order in October, 1980. The amendment, it appears, was not published in the journals within reasonable time. Thus, it further appears, seems to be the reason why the learned counsel failed to bring it to the notice of the learned Judge when the application for recall of order, dated 26-10-1980 was disposed of. This supposition is strengthened by the fact that the provisions of the Civil Procedure Code (unamended) were mentioned in the application submitted by the appellant in the High Court. It cannot be denied that mention of wrong provision of law in an application would not deprive the Court of the power and jurisdiction if otherwise the same is available under the law."
9. Similarly, in the case of That Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32 this Court held that there is no bar in the law if once an appeal has been treated as revision to again treat the same as an appeal and dispose the same in accordance with law. In the above noted case this Court while dismissing the petition and repelling contention of the petitioner that the learned Judge of the Lahore High Court having once treated the appeal as revision could not again treat revision as appeal and decide it, observed as follows:-- "We, however, do not fully share his view that once having treated the appeal as a revision the same could not again be disposed of as an appeal. Once the appeal had been filed in time and on some mistaken advice a request was made to treat the same as revision, there does not appear to be any legal bar, on a proper appreciation of the law, in again treating it as an appeal. It is established law that Courts should lean in favour of adjudication rather than stifling a proceeding on technicalities."
10. The above principles have been reiterated by this Court in the case of Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139. The observations made by this Court in the above case were as follows: "Thus, if the second appeal that is brought before the High Court exhibits certain features which demonstrate that it fails within the scope of interference under section 115, C.P.C., the Court should exercise its jurisdiction under the said provision of law. It hardly needs saying that the Court will be a position to examine this aspect of the matter only if it considers the facts of each case and this can only be done if the appeals are treated as revisions where after 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."
11. We regret to note that before the learned Judge in Chamber case of Abdul Aziz v. Abdul Rahim PLD 1984 SC 164 was cited by the petitioner's counsel in support of contention that the treatment of the plaint in Suit No,231/i of 1986 as an application under section 12(2), C.P.C. was justified, but unfortunately instead of following the law laid in that case an attempt was made by the learned Judge to distinguish the same which was not the correct approach. We, accordingly, allow this appeal, set aside the order of Peshawar High Court and restore the order of District Judge, Peshawar dated 11-11-1990. The case will now go back to the Civil Judge, Peshawar, to whom the cased was remanded by the District Judge, Peshawar, for disposal in accordance with law. There will be no order as to cost."
12. This principle has been consistently followed by the Courts. In this regard, reliance may be placed on the judgment of the Azad Jammu and Kashmir referred hereinabove, the judgments of the Peshawar High Court reported as Latif-ur-Rehman v. Haji Farmanullah [PLD 2014 Peshawar 1] and Amir Muhammad and another v. Mst. Begum Jan and others [PLD 2011 Peshawar 224] and the judgment of Lahore High Court reported as Syed Sadaqat Sultan v. Bahadur and another [2007 YLR 2905].
7. In this state of affairs, the suit should have been initially converted into application under section 12(2). The trial Court failed to act according to law which generated unnecessary litigation.
13. Therefore, while exercising the constitutional powers vested in this Court, for doing complete justice, and applying the enunciated principle of law relating to main proposition involved in this case, the suit filed by the appellants on 09.06.2004 is converted into application under section 12(2) of the Civil Procedure Code.
14. 8.So far as the argument regarding the maintainability of the judgment of the High Court in writ jurisdiction is concerned, as we have decided the appeal on other ground, hence, detailed deliberation on this point is not required. However, for the interest of justice it is observed that the writ jurisdiction cannot be exercised like appeal or for preempting the jurisdiction of other Courts.
15. As the case was remanded to the trial Court where the parties have to raise their point of view, thus, in presence of such effective remedy exercise of writ jurisdiction appears to be unwarranted.
16. Our this view stands fortified from the cases reported as Rasib v. Mst. Maqsood Begum [2011 SCR 59], Ghulam Mustafa v. Azad Government and others [1996 MLD 355] and Nazir Ahmed and others v. Riaz Ahmed and others [2013 SCR 1069].
9. According to the hereinabove stated reasons the impugned judgment of the High Court is not sustainable which is recalled. Consequently, this appeal is accepted and in view of the observations made in paragraph 6 the suit filed by the appellants on 09.06.2004 is converted into application under section 12(2). The trial Court shall proceed with the matter according to law and decide the same on merit.
17. With these observations this appeal stands accepted. No order as to costs.