' RAJA MUHAMMAD KHURSHID KHAN, ACIG. C. J.-This appeal by leave seeks to impeach the judgment of a learned Single Judge of the High Court recorded on 14-7-1979. It arises out of the suit for dissolution of marriage filed by Mst. Nishadar Jan, respondent herein, against Muhammad Farash Khan, her husband-the appellant to this appeal.
2. A little after the marriage which was contracted on the 11th of May, 1970, the appellant it is established and to a great extent admitted, left for Karachi where he took a second wife from whom he has children; but he has no issue from his first wife.
3. The respondent sued her husband for dissolution of marriage in 1976. The parties resided within the territorial jurisdiction of Sub-Judge, Bagh. She, however, for her father's house, where he resided in those days comparatively nearer to the court of Sub-Judge, Rawalakot, moved an application before the District Judge, Poonch (Rawalakot), to allow her to file the suit in the court of Sub-Judge, Rawalakot, instead of Sub-Judge, Bagh. The application was accompanied by the plaint. The learned District Judge, Poonch, made over the plaint to Sub-Judge, Rawalakot and, allowed the trial of the suit by him whereat after completion of trial, she was granted a decree for dissolution of marriage on 31-5-1977.
4. The District Judge, on first appeal, without touching the merits of the case which were, of course, not debated at the bar, found that the decree was void ab initio and was necessarily to be recalled as the learned Sub-Judge, Rawalakot, lacked jurisdiction to hear and dispose of the case and that the illegal order of the learned District Judge could not give such a jurisdiction to the Judge.
5. In second appeal moved by the respondent, a learned Single Judge of the High Court, on 14th July, 1979, after discussing a host of case-law on the point, felt advised to discharge the finding of the learned District Judge. His view is that the learned District Judge, under section 24 of the Code of Civil Procedure, was competent to make over the case to the learned Sub-Judge, Rawalakot, who had competently disposed it off. It was also found that the case of the respondent, on merits, also stands proved.
6. Petition for leave to appeal moved by the appellant was allowed to consider the following points :-
(i) Whether section 24 of the Code of Civil Procedure allowed the District Judge to transfer a suit without its institution in the court of competent jurisdiction?
(ii) Whether notice before transfer of the suit, as stipulated under section 24 of the Code of Civil Procedure, is a must and omission to do so fatally affects transfer order made by the District Judge?
(iii) Whether order of remand to the District Judge was only justified to have his wisdom on the merits of the case and the learned Judge in the High Court fell in error to decide the case himself on merits? And
(iv) Whether appreciation of evidence has been made by the High Court in accordance with the safe administration of justice in cases of civil nature?
7. Mr. B. A. Farooqi, the learned counsel for the appellant, abandoned point No, (iv) and half- heartedly touched point No, (iii). Therefore, it would be an exercise in futility to discuss these issues again. The judgment of. The High Court, therefore, remains unaffected on these issues. The points, even otherwise, do not merit to be considered and we are satisfied that the learned Judge in the High Court has recorded a correct finding on these issues and there is nothing to differ with the learned Judge. However, the learned counsel extensively focused his arguments on points Nos. (i) and (ii) reflected above.
8. After giving or considered thought to the arguments advanced at the bar, the following points call for determination
(i) Whether section 24 of the Code of Civil Procedure gives competence to the Distriet Judge to make over the civil case to Sub-Judge, Rawalakot, who obviously had no territorial jurisdiction over the matter?
(ii) If No, (i) is answered in negative whether, as stipulated under section 21 of the Code of Civil Procedure, the disposal of the case by the Sub-Judge, Rawalakot, as contended, had occasioned failure of justice justifying the reversal of the decree passed on merits? And
(iii) If both the points listed under Nos. (i) and (ii) above are answered in negative whether the Supreme Court, under Order XLIII, rules 4 and 5 of the Azad Jammu & Kashmir Supreme Court Rules, 1978 read with section 42-A of the Azad Jammu & Kashmir Interim Constitution Act, 1974, has the jurisdiction to ratify the wrong or undo the abuse of the process of the court if circumstances so warrant and whether any such circumstances exist in this case to attract these provisions?
9. We propose to dispose the points seriatim. Let us take up issue No, (i) first. The relevant part of section 24 of the Code of Civil Procedure is reproduced below :- "(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.
(b) .
(underlining is ours)
The reading of the above provision would show that if a suit, appeal or other proceeding, is pending in the High Court or the District Court, it can transfer the same to any subordinate court competent to try and dispose it of but not otherwise.
10. Let us see whether any such situation existed in the present case. In the instant case although the suit was addressed to the Sub-Judge, Bagh, nevertheless it made little difference as in effect it was filed in the court of District Judge with the prayer to transfer it to the court of B Sub-Judge, Rawalakot. Thus in the first instance, it would be said that the suit was pending before the District Judge for disposal at the time the transfer order was made. The word "pending" used in this section does not mean any particular stage of proceedings.
' On the point it was held by Jessel, Mr. R. In 20 Ch. D 637, that :- "A case is said to be pending in a court of justice, when any proceeding can be taken in it. That is the test. If you can take any proceeding, it is pending." (Aiyer's Manual of Law Terms and Phrases, page 513)."
' Schultz, J. A. Defined it in "Garnham v. Tessieir" (1), as :-- "Any legal proceeding suit or action remaining undecided or awaiting decision or settlement."
(Words and Phrases Legally Defined by John B. Saunders, Vol. 4, page 100).
11. It is also significant that unlike section 14 of the Code of Civil Procedure the corresponding section of the earlier Code of 1882 stipulated that a District Judge had no power to transfer a case to a subordinate court pending before himself.
12. Let us determine the issue from another angle. Assuming that no suit was pending before the District Judge as it was required to be filed before the Sub-Judge, Bagh; would in that case the authority of the District Judge to transfer the suit be fatally affected. The District Judge, despite this, in or view, had authority to transfer the suit to the file of Sub-Judge, Rawalakot. The reason is simple and no laboured argument is required to hold so because section 24 of the Code of Civil Procedure also visualises the transfer of any "proceeding" pending before the District Judge which c would, in or view, is comprehensive enough to include a suit incompetently instituted in the Court of District Judge which can well be considered to be a 'proceeding' for disposal. The Legislature does not use any word without any reason and this proposition admits of no exception. It would, therefore, be only right to give to the word "proceedings" a comprehensive meaning so as to include within it all matters coming up for judicial adjudication {FOONOTE}}
(1) (1959) 27 W W R 682 (Here in italics) ' and not to confine it to suits and appeals alone. This expression, used under section 24 of the Code of Civil Procedure, is not a term of art which has acquired a definite meaning.
13. On its general acceptation, the term "proceeding" means the form in which the action is brought or defended and the mode of deciding issues. It follows that the expression "civil proceeding" must be interpreted to mean the form of proceedings in the exercise of its civil jurisdiction.
14. The "proceeding", in fact, is a very general term. It is not limited to proceedings connected with the civil suits. However, when applying to suits that might be used to mean the suit as a whole or that might be used, and often was used to express the separate steps taken in the course of suit, the aggregate of which made up the suit. On the point in Yusuf Ali Khan, Bar-at-Law v. Muhammad laved lybal .Cheema, Additional District Judge Lyallpur and others' (1), it has been held :- "What is exactly meant by the 'proceedings' giving rise to the constitution petition under Article 199 of the Constitution in the context of this proviso. This term has been construed in. a general sense differently in different contexts. In Deb Narain Dutt v. Narandra Krishna I L R 16 Cal. 267, it was observed that the word 'proceedings' was a very general one, that was not limited to proceedings connected with civil suits, but included proceedings other than civil proceedings, and civil proceedings other than suits. When applied to suits, that might be used to mean the suit as a whole, or that might be used, and often was used, to express the separate steps taken in the course of a suit the aggregate of which made up the suit."
(underlining is ours)
15. 'Proceeding' is a comprehensive term and, generally speaking, means a prescribed course of action for enforcing a legal right and hence it necessarily F embraces the requisite steps by which a judicial action is invoked. 'Messrs K. J. Lingan & A. V. Mahayalam v. Jt. Commercial Tax Officer' (2) fortifies or view.
Similarly in 'Firm Ratanchand Darbarilal Saina and others v. Rajendra Kumar Khobchand and others' (3), it has been held :- "The word `proceeding' in a general sense means 'the form and manner of conducting judicial business before a Court of Judicial Officer' (Black's Law Dictionary, p. 1368)."
16. That being so a suit, appeal or second appeal can all be described as proceeding. The word, therefore, is, as held in 'Ram Narain v. Director of Consolidation' (4), wider than the word 'case' and it may also include administrative proceedings. `Satyahari Choudhry v. State (5), also owns this view which says :- "The words 'proceedings before a Court' are used in wider sense and not in the restricted sense of judicial proceedings alone."
' Therefore, we are of the view that the word 'proceeding' used in section 24 of the Code of Civil Procedure, is wide enough to cover any {FOONOTE}}
(1) PLD 1975 Lah. 1339 (2) AIR 1968 Mad. 76
(3) AIR 1970 Madh. Pra. 1 (4) AIR 1965 All. 172
(5) AIR 1953 Cal. 661 (Hore in italics) proceedings of civil nature and is used to include all civil proceedings of any nature and, in fact, is meant to meet eventuality of the nature before us and all eventualities of alike nature.
17. Let us proceed to determine as to whether section 15 of the Code of Civil Procedure, which provides :- "Every suit shall be instituted in the Court of the lowest grade competent to try it." creates any bar for the District Judge to entertain a civil suit which ought to have been instituted in the court of lowest grade? Our answer is in negative. This point has very ably been met by the learned Judge in the High Court with the observations :- "The point has been agitated in several decisions and except for two earlier decisions of the Madras High Court, it has been held that section 15 is merely a direction to the litigant and is intended to regulate practice but does not take away the right of a superior Court having jurisdiction, to entertain a suit and try the same. The first leading case on the point is 7 All. 230, F. B.
(1884) decided by 5 Judges who included Mr. Justice Mahmood. It was held by Sir Petheram, C. J. :- `Section 15 of the C. P. C. Is a provision to those sections. The word `shall' in that section is imperative on the suitor. The word is used for the purpose of protecting the court. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the court of the higher grade shall not be over-crowded with suits. Whenever an Act confers a benefit, the donee may exercise the same or not at his pleasure. The proviso is in the benefit of the court of the higher grade and it is not bound to take advantage of it. If it wishes to entertain the suit in its court, it may do so, it is not bound to refuse to entertain.
' Mr. Justice Mahmood has brought home two important points which would be apparent from the following brief quotations :- `The Legislature intended that the jurisdiction of the subordinate Judges should begin where that of the Munsif ceases. . . .
The language of section 15 seems to me to contemplate that the court-. Competent, i,e, having jurisdiction-to try the suit may be of more than one grade, because the whole object of the section is to provide that the suit should be instituted in the court of the lowest grade-a phrase which would not have been employed if there were not a higher court possessing jurisdiction to try the suit; in other words, if the jurisdiction were possessed by only one court. Section 15 of the C. P. C. Is a rule of procedure, not of jurisdiction; and whilst it lays down that a suit shall be instituted in the court of lowest grade, it does not oust the jurisdiction of any court of a higher grade.
' Brodhurst, J., returning the same opinion has cited two earlier rulings, Russick Chunder Mohunt v.
Ram Lal Shahe (1), decided by a D. B. In which a similar provision in an earlier enactment was held to be 'a provision intended to regulate the practice of the courts' and 'not intended to take away {FOONOTE}}
(1) 22 W R 301 ' jurisdiction' and Sufoo-ool-lah Sircar v. Begum Bibi (1), decided by Garth, C. J. And Birch, J., in which it was held :- ' The subordinate Judge is empowered by section 19 of Act VI of 1871 to try cases of any value, although he might very properly, if he had found the subject-matter of the suit to be under rupees one thousand, have sent it to the Munsif's Court to be tried there; he had clear jurisdiction to try it himself and the fact that he did so try it, is no ground of assault in special appeal.'
' Almost the same view was taken in 17 Cal. 155 (1889) by a D. B. Of the Calcutta High Court. In AIR 1951 Mad. 93 a Full Bench took the same view and held :- 'The object of section 15, C. P. C. Is to prevent superior Courts being flooded or over-crowded with suits triable by courts of inferior grade. The section merely regulates procedure and not jurisdiction.
It does not deprive courts of superior pecuniary grade and their jurisdiction to try suits which should ordinarily be tried by courts of inferior grades.
' The same view was taken in AIR 1958 Andh. Pra.
28. A contrary view was taken in 13 Mad. 25 and 13 Mad.
273. The suits had been brought in the courts of higher grades. The objection was upheld in the High Court, the decrees were set aside and the plaints were ordered to be returned for presentation in the proper courts. However, a departure was made soon afterwards, in 15 Mad. 241 (1892). The suit was brought in the District Court whereas it should have been brought in the subordinate court.
A Division Bench overruled the objection and relying upon 7 All. 230 and 17 Cal. 155, held that the District Court did have the jurisdiction to try the suit. It may be pointed out that the earlier Madras cases were decided on 29th March, and 20th December, 1889 while the Allahabad case, was decided on 13th July, 1884 and the Calcutta case, on 22nd July, 1889. The Allahabad case which must have been published by March, 1889, was not brought to the notice of the learned Judges."
18. We have nothing to differ with the finding of the learned Judge of the High Court on this point.
Therefore, as nothing stood in the way of its institution in the court of the District Judge, Poonch, its presentation in the said court and consequent transfer to the court of Sub-Judge, Rawalakot, would, for all practical purposes, be deemed as if the suit was instituted in the court of the District Judge and was then transferred to the court of Sub-Judge.
19. Apart from the above under section 31 of the Courts and Laws Code Act, 1949, which reads :- "(1) The court of the District Judge shall have unlimited jurisdiction in original suits. "the court of District Judge in Azad Kashmir enjoys unlimited jurisdiction to entertain the original suits on its original side. The reading of the section makes it abundantly clear that irrespective of the pecuniary limits of the jurisdiction of different classes of Sub-Judges, the District Judge is competent to transfer any suit to any court of subordinate jurisdiction, having pecuniary jurisdiction. It is thus legitimate to say that under section 31 of {FOONOTE}}
(1) 25 W R 219 ' the Courts and Laws Code Act, 1949 there is no bar for the District Judge to hear any case which even falls short of his pecuniary jurisdiction.
20. A short reference here may also be made to section 35(4) of the Courts and Laws Code Act, 1949. It reads : "Notwithstanding anything contrary in the Code of Civil Procedure, every District Judge, may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: ' Provided that no direction issued under this section shall empower any Court to exercise any power or deal with any business beyond the limits of its jurisdiction."
' We have made reference to this section because it may be argued that proviso to this section ousts the jurisdiction of the District Judge to transfer a case to a Court who had no jurisdiction to entertain the same. In' or view the bar to the jurisdiction only pertains to the pecuniary jurisdiction and not territorial. If the interpretation can be extended to territorial jurisdiction also, then section 24 of the Code of Civil Procedure would lose all importance which empowers the District Judge or the High Court to transfer a case from a Court of subordinate jurisdiction to another Court of parallel jurisdiction exercising the powers within their specified territorial areas. This point was also concluded by the High Court with the observations :- "It was next contended that the case 'could be transferred only to a Court which was 'competent to try' it and that 'competency' also included territorial competency of the transferee Court. This view has, of course, been taken in two cases, AIR 1920 Pat. 29 and A 1 R 1933 All. 178 (1). The Division Bench which decided the latter case, also included Mr. Justice Sir Shah Muhammad Sulaiman. In a large number of other cases, the word has been interpreted to mean only the pecuniary jurisdiction of the transferee Court. Reference may be made to AIR 1933 Lah. 671, AIR 1932 All. 660, AIR 1933 Oudh 154, AIR 1940 Rang. 133, AIR 1956 Raj. 192 and AIR (?) Andh. Pra.
218. The argument advanced in the latter cases is that it would otherwise render the transfer powers nugatory as there is normally only one District Judge or Sub-Judge in a territorial unit to hear such cases. It was held in AIR 1932 Born. 486 that the bar of trying such a suit as envisaged in section 17 of the Small Causes Courts Act by a Sub-Judge, was overridden by section 24 of the C. P.
C.
' The AIR 1920 Pat. 29 is a D. B. Case. It was the Chief Justice Dawson Miller who stated that he saw no ground to give the word `competent' a restricted meaning as not to include local jurisdiction.
The other learned member of the Bench, Das J, agreeing with his Lordship in the order proposed, expressly reserved his opinion about the meaning of the word 'competent'. His Lordship pointed out that the transferee court lacked even the pecuniary jurisdiction. The Allahabad case 'Ram Das v.
Habibullah; reported as AIR 1933 All. 178 (1) was actually decided on 16th April, 1931 and had been already overruled (when reported) by Kishore Lal v. Balkishen AIR 1932 All.
660. It was decided on 16th June, 1932 and the D. B. Included.
' Mr. Justice Sir Shah Muhammad Sulaiman who has written the judgment.
' A perusal of AIR 1932 All. 660 shows that in the 1882 Code, section 25 empowered the High Court and the District Judge to transfer a suit to a subordinate Court 'competent to try the same in respect of the nature and the amount or value of the subject-matter. . . In the 1908 Code these words were substituted by the words 'competent to try or dispose of the same'. In his latter judgment, Mr. Justice Sulaiman stated: 'I am satisfied that the words have been deleted because they were considered redundant or unnecessary by the Legislature.'
' The reasoning which persuaded Sir Sulaiman to dissent from his own earlier view, is as follows :- `Cases of concurrent jurisdiction where two Courts have both pecuniary and territorial jurisdiction to try a suit are dealt with in section 22. The same words 'competent to try the suit' occur in section 11, C. P. C. As also in section 15. It is quite clear that for purposes of res judicata it is not necessary that the two Courts must have concurrent territorial jurisdiction which depends entirely on the subject-matter in dispute. The provision in section 15 would point to the same conclusion. It may also be pointed out that a distinction has been drawn in the Code as regards territorial jurisdiction, and section 21 provides that no objection as to the place of suing shall be allowed, unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.'
' Now, although section 25 of the 1882 Code didn't expressly say that local jurisdiction of transferee court was not necessary, it was interpreted to mean so, even by that great Judge Syed Mahmood in 7 All. 230 :- `It is not that the act of transferring a suit confers jurisdiction; but the existence of jurisdiction with reference to the nature and value of the the suit is a condition precedent to the exercise of the power of transfer.'
' Now, suppose for the sake of argument that the suit was not pending in the court of the District Judge, that the order passed by him was not within the for walls of section 24 and that the Rawalakot trial Court lacked local jurisdiction to hear it, even then, the decree passed by it is protected by section 21 of Civil Procedure Code. The section reads :- `No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.'
' It means that an objection regarding territorial jurisdiction cannot be upheld by an appellate or revisional Court :-
(1) if it has not been taken in the trial Court at the earliest possible opportunity, at the time or before the settlement of issues; and
(2) if there has not been a consequent failure of justice.
' The section has been interpreted to mean that if a case has been decided on merits, after rejecting an objection about local jurisdiction unless it is shown that there was a consequent failure of justice, the judgment and decree passed by the trial Court cannot be set aside. There is a plethora of case-law on the point. The first case after the Code was enacted in its present form in 1908 is AIR 1914 Lah. 385 decided by a D. B. Including Shadi Lal J. The case was tried at Lyalipur instead of at Karachi. Although the plaintiff failed to show that the Lyalipur Court had territorial Jurisdiction, the decree was not set aside and the learned Judges remarked :- ' The object of the Legislature in enacting-this salutary principle of law is that when the Court of first instance, after giving an affirmative finding on jurisdiction, takes proceedings on the merits of the case, the latter should not be rendered abortive_ and all the time and labour spent thereon should not be wasted simply by reason of the fact that the higher court comes to a contrary finding on the preliminary point of jurisdiction.'
' This view has since been confirmed in AIR 1921 All. 66, AIR 1934 Lah. 233, AIR 1924 Mad. 697, AIR 1924 Pat. 527, AIR. 1930 Lab. 1016, AIR 1931 Lah. 742, AIR 1962 SC 199 and in a host of other cases. It was also held in AIR 1924 Mad. 697 that the party raising the question of the absence of local jurisdiction in an appellate Court must also plead prejudice and prove the same. The same view was taken in AIR 1924 Pat.
527. In AIR 1930 Lah. 1016, the defendant raised an objection about the absence of local jurisdiction in the trial Court which was rejected. The Court proceeded to decide the case on merits and asked the defendant to produce evidence which he refused to do and the case was decided on merits. It was held by Jai Lal, J. That the defendant had no right to refuse to produce evidence and his appeal was rejected. In AIR 1931 Lah. 142 which is on all fours with the present case, and which was a suit for dissolution of partnership and rendition of accounts, the defendant objected to the local jurisdiction of the court at Ludhiana. A preliminary issue was struck and the court decided it in favour of the plaintiff. Ultimately, a preliminary decree dissolving the partnership and ordering accounts to be r taken was passed. The defendant went in appeal to the District Judge and one of the grounds taken was that the trial Court had no territorial jurisdiction. The plea was accepted and the suit was dismissed. On appeal by the plaintiff, the High Court restored the decree of the trial Court. The D. B. Held :- ' The learned District Judge has overlooked the last ten words of section 21, Civil P. C. That section clearly forbids any objection as to the place of suing unless there has been a consequent failure of justice. No such failure of justice was even alleged in the grounds of appeal preferred, to the District Judge nor has the learned counsel for the respondents been able to show us any reason for supposing that such failure of justice has occurred.'
' The test to be applied by an appellate Court has been laid down by a D. B. In AIR 1921 All.
66. The learned Judges laid down :- ' There is, in other words, a clear provision of the law with reservations that if the first court, even though it had no territoral jurisdiction, has tried out the case upon the merits in such a way, (1) that all the available evidence which either party to call has been called.
(2) that the hearing and trial was satisfactory as a matter of procedure, and (3) that the decision appears to be right in fact, the question of territorial jurisdiction is delegated to the obscurity."
The High Court's finding is based on well reasoned out analysis of facts and law and we have nothing to differ with it.
21. It is correct that section 24 of the Code of Civil Procedure stipulates a notice to the other party before transferring a case. The question, therefore, which falls for determination is whether this omission fatally affects the decision made by the Sub-Judge, Rawalakot. No doubt a view prevailed/ prevails with some of the superior courts that the provision as to notice is imperative and an order of transfer without notice is bad in law. But we are of the view that the want of notice is an irregularity which does not invalidate the transfer if it does not prejudice the opposite side. If the omission to serve notice prejudices the case of the opposite-party on merits the failure of notice, of course, may be fatal to the decision made but not otherwise. Therefore, section 24 of the Code of Civil Procedure, though requires notice to the opposite-party when transfer of a case is intended on the application of a party yet failure to do so is merely an irregularity; when no prejudice is proved and transfer is made (as the case is before us) to suit the convenience of both the parties.
22. On the point we may here with advantage quote the learned Judge in the High Court. He says "As the learned commentators (Chitaley C. P. C. p. 420) have rightly stated, the section gives the District Judge jurisdiction to transfer a case suo motu, even without notice which shows that the question of notice cannot be a question of jurisdiction. This view was taken in AIR 1916 Nag. 123 and AIR 1932 Cal.
265. While a notice is a normal procedure and is also desirable so that the opposite-party is able to place its point of view before the Court, if it has any real objection, an order passed without such notice which also, prima facie, seems to suit the convenience of both the parties equally, as in this case and no prejudice is even alleged, much less to have been established, as a result of the transfer without notice, I think the order of transfer does not suffer from any inherent fatality. I think, in interpreting the procedural law on points such as the one before me, the objective ought to be to make it workable and prevent its employment for frustrating the ends of justice, by a resort to technicalities."
' It would appear that the learned Judge has given very plausible reasons and we have no reason to disagree with him that failure to give notice to the opposite-party would not necessarily vitiate the proceedings unless, of course, prejudice to the opposite-party is not shown.
' Viewing the matter from any angle, it is thus manifest that the order of the District Judge in making over the case to the reamed Sub-Judge, Rawalakot, was competently made.
23. Before we proceed further, let us suppose that the order of the District Judge was illegal and that the learned Sub-Judge, Rawalakot, was incompetent to hear and dispose of the suit. Would this fact make the decree a nullity? The answer is in negative. In this respect section 21 of the Code of Civil Procedure provides a complete answer. Section 21 of the Code of Civil Procedure says :- "No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there had been a consequent failure of justice."
24. In this case the objection had been made at the earliest opportunity which was disallowed.
However, we are convinced that no failure of justice has occasioned in this case. No judgment can be disturbed unless the trial in the wrong Court had led to a failure of justice. In order to ascertain whether there has been failure of justice the appellate Court must go into the merits of the case and formal opinion of the justice or otherwise of the decision of the first Court.
25. In the present case, we have looked into the evidence and totall agree with the learned Judge in the High Court that it is a case in which respondent had to face cruelty and maltreatment at the hands of the appellant. It also needs notice that no argument to refute the finding of the learned Sub-Judge was raised on the merits of the dissolution claim in the court o District Judge, the High Court or in this court. On the contrary the evidence has established that the appellant deserted the respondent soon after his marriage and took the second wife at Karachi who has not only been living with him but from her he had also children. He did not return to his home for six years till after the institution of the suit for dissolution. The respondent was completely neglected during all this long period of youth and play. It is also admitted before us that the respondent, Mst. Nishadar Jan, has remarried and there are children out of this wedlock. Therefore, we are of the view that no injustice, whatsoever, has been caused to the parties.
26. Before we part with the case, we may state that the Supreme Court even otherwise is also competent to pass any order to secure the ends of justice under Order XLIII, rules 4 and 5 of the Azad Jammu Kashmir Supreme Court Rules, 1978 read with section 42-A (I) of the Azad Jammu & Kashmir Interim Constitution Act, 1974.. Order XLIII, rules 4 and 5 of the Supreme Court Rules, 1978, read :- "(4) The court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection.
(5) Nothing in these Rules 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."
Section 42-A (1) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, reads :- "The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order, for the purpose of securing the attendance of any person or the discovery or production of any document."
27. The reading of the provisions of the Supreme Court Rules and Constitution makes us to believe that in a fit case, like the present one the Supreme Court is competent to pass any order to meet the ends of justice. We are seized with the matter and the evidence of both the parties is on the record, whose scrutiny and appreciation convince us that the appellant deserted the respondent when she was at the prime of her youth and took the second wife and deprived her of all the marital happiness and if there is any case of cruelty and maltreatment, to us, this case is one of them and even if the District Judge had no competency to transfer the case and even if the learned Sub-Judge, Rawalakot, lacked the jurisdiction to hear the case, as the evidence of both the parties had come on the record, this Court, we hold, is competent to pass any order to undo the abuse of the process of the Court in the interest of justice.
' For the reasons stated above, we disallow this appeal with costs.