1. CH. RAHIM DAD KHAN, J.---This revision petition came up for hearing before a Single Bench of this Court and the Bench has referred the following two questions for determination by a Full Bench:-
(1) Whether the words 'No appeal lies thereto' occurring in section 115, C. P. C. Include second appeal and what is the effect of not filing the appeal before the District Judge?
(2) Whether the High Court can interfere suo moto in revision if no appeal has been filed before the District Judge?
2. The facts briefly are that on 13-6-19,51 Gul Muhammad non-petitioner filed a declaratory suit in the Court of the Sub-Judge, Rawalakot against Molo son of Masti Ramnon-Muslim alleging that the land in suit measuring 41 kanals and 12 marlas under Survey No. 216 situate in village Killan, Tehsil Pallandri was sold to him by Molo son of Masti Ram for a consideration of Rs. 675 under a registered sale deed dated 4 Sawan Samat 2004 Bk. The sale deed was submitted to Wazir Poonch by the Sub-Registrar, for his countersignature tinder the rules then prevailing. Before the delivery of the sale deed, after countersignature, the War of Liberation started and it was believed that the same had been lost. The plaintiff claimed title over the property on the basis of the sale deed and asked for a declaration to that effect.
3. On the summons that was issued against the defendant at the address given in the plaint it was reported by the Process-----Server that the defendant had gone to some unknown place since 4/5 years. Consequently, after recording statement of two witnesses, ex parte decree was passed in favour of the plaintiff on 30-10-1951.
4. It may be stated here that Muhammad Yusuf petitioner is not an aggrieved party in the decree sought to be revised. He is pro bono publico who has submitted this petition complaining that the decree passed by the Sub-Judge on 30-10-1951 relates to the evacuee property over which the jurisdiction of the Sub---Judge was specifically barred and as such the decree being without jurisdiction may be set aside by the High Court in exercise of its revisional jurisdiction.
5. The copy of the record-of-rights, which is at page 5 of the original file and which was filed by the non-petitioner (plaintiff) himself contains a note to the effect that it is an evacuee land. Thus it would appear from the copy of the record-of-rights that the property was treated as evacuee property. The war of Liberation started in 1947 and it can be inferred from the report of the Process- Server that the defendant had left the village during the War of Liberation.
6. Before proceeding further it would be proper to make here a brief reference to the different Legislation, regarding administ--ration of evacuee property, passed at different times in Azad Kashmir. Soon after the start of War of Liberation the Azad Kashmir Government was pleased to pass Baitulmal Property Act of 1948 which extended over the whole of the liberated territory whereby the Government assumed the control of the immovable property abandoned by the non- Muslims in the liberated area and the Government by virtue of that legislation stepped into the shoes of the non-Muslims evacuees. Sub--sequently in 1950 the Protection of Evacuee Property Act was passed in supersession of Baitulmal Act. Definition of the `Evacuee' given in the Protection of Evacuee Property Act is:- "(d) `Evacuee' means any person belonging to Jammu & Kashmir State who has been or is absenting himself from his normal place of residence owing to the War of Liberation or who is unable personally to occupy, supervise or take possession of his property in Azad Kashmir or in the case of a Corpora--tion, whose business or undertaking has ceased to operate wholly or partially owing to the said War of Liberation or an agent or a manager appointed after the 24th October 1947, whose appointment has not been approved by the Custodian."
7. Evacuee Property was defined as the property of any evacuee in Azad Kashmir or the property which vest in any evacuee under a trust. Section 11 of Protection of Evacuee Act which bars the jurisdiction of civil Courts may be reproduced as follows:- "(1) No Court shall entertain or adjudicate on a claim in any suit, appeal, execution application or other proceeding as to whether any property is or is not evacuee property or as to what interest, if any, an evacuee has in such property except in the case of a claimant who has been referred to the civil Court under section 17 of this Act for establishment of his title.
(iii) All property of which the Custodian has assumed pos--session or control under section 4 of this Act, shall be exempt from attachment or sale in execution of a decree of a civil Court or in pursuance of an order issued by Court."
8. Administration of Evacuee Property Act was passed in 1959 which is in force at present. Section 41 of Administration of Evacuee Property Act also bars the jurisdiction of the civil Courts.
9. Thus it would appear that when the suit was instituted and disposed of the jurisdiction of the Sub- Judge, in matter relating to evacuee property, was specifically barred by section 11 of the Protection of Evacuee Property Act and even now it is barred by the provision of section 41 of Administration of Evacuee Property Act.
10. On questions referred to us there has been considerable difference of juridical opinion. One view is that the words "no appeal lies thereto" occurring in section 115, C. P. C. Signify that in which no appeal lies to the High Court and that they do not exclude the revisional jurisdiction of the High Court if appeal lies to the first appellate Court and not to the High Court directly. The other view is that the wording 'No appeal' is not confined to first appeal but includes a second appeal as well.
11. Where, therefore, first appeal or second appeal lies to the High Court from the case sought to be revised, the High Court, according to the second view, has no jurisdiction to interfere in revision petition. Our High Court adhered to the first view in Mst. Gulnara Begum v. Qalandar Khan (PLD 1959 Azad J & K 5), wherein it was observed by the learned Single Judge of this Court that "the High Court can interfere in revision with the order passed by a subordinate Court where an appeal lies to a Court subordinate to the High Court such as the Court of District Judge". The revision petition in that case was accepted though the aggrieved party had a right of appeal in the Appellate Court.
12. There were also three decisions in support of first view of three learned Judges of the West Pakistan High Court sitting singly in the following cases:-
(1) S. Ghulam Shahbaz Shah v. Ch. Muhammad Sadiq PLD 1959 B J 10.
(2) Abdul Wahid v. Allah Din P t, D 1960 Kar. 472.
(3) Abdur Rashid v. Abdur Rahim PLD 1959 Lah. 806.
13. In all these three cases the view taken was that the words "in which no appeal lies thereto" occurring in section 115, C. P. C. Mean that the appeal must lie directly to the High Court. If an appeal lay to the District Judge and only a second appeal lay to the High Court, then the High Court would not be incom--petent to entertain a revision from the order of the trial Court direct 'where no appeal, has been filed before the District Judge'. These decisions were overruled by a subsequent decision by Supreme Court of Pakistan in Municipal Committee v. Aziz Ellahi (PLD 1970 SC 506).
14. The facts of that case were that one Aziz Ellahi respondent, who was a retired Chief Sanitary Inspector of the Municipal Committee, obtained a decree for recovery of Rs. 10,718-8-0 on account of the difference of the way actually paid to him and salary promised to him at the time of his appointment. The suit was contested by the Municipal Committee and after fram--ing the issues and recording the evidence the trial Court decreed the suit on 9th November 1964. The Municipal Committee failed to file an appeal against the judgment and decree within the prescribed period of limitation, but after the expiry of the period of limitation a revision petition was filed in the High Court. The learned Judge deciding the case thought that the expression 'no appeal' includes all sort of appeals, and, therefore, if an appeal does not lie in the first instance, but eventually lies to the High Court as a second appeal it cannot be said that no appeal lies to the High Court. The revision was accordingly, dismissed but leave was granted because of the difference of opinion on is question in the West Pakistan High Court. The learned Chief Justice of the Supreme Court Mr. Hamoodur Rahman who wrote the main judgment, after examining the Full Bench Decisions Radha Ram Datt v. Abbas Ali Biswa s and others (AIR 1931 All. 294), Maharaja Bahadur Ram Ran Bijay Prashad Singh v. Kishun Singh and others (AIR 1944 Pat. 54), B. Manmohan Lal and others v. B. Rat Kumar Lal and others (AIR 1946 All. 89), Paruchusu Satyanarayanacharyulu v. Yannava Ramalingam (AIR 1952 Mad. 86), Swarupnarain v. Gopinath and others (AIR 1953 Raj. 137), The Custodian of Evacuee Property, New Delhi v. Nasiraddin and others (AIR 1962 Pb. 218) and Venkatagiri v. The Hindu Religion Endowments Board, Madris (AIR 1949 P C 156), came to the conclusion that:- "From the above analysis I have come to the conclusion that the trend of judicial opinion is now to the effect that if a decree or an order, which is in that nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code then, whether the appeal lies immediately to the High Court or only after another appeal has beer taken before the District Judge, the revision would not be competent."
15. 'To support his conclusion he gave further reasons which are reproduced as follows:-- "I am of the opinion that this view is also sound on general principles, for, if the framers of section 115 of the Code of Civil Procedure had been of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word 'from' and not 'in' before the words 'which no appeal lies'. To hold other--wise would indeed as observed by the learned Judge in the judgment under appeal, lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordi--nary procedure laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time, as was actually done in the case under consideration. I also see no reason why the word 'appeal' used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The voids `no appeal lies thereto' are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an 'appeal' is held to include a second appeal, then no difficulty is created by the word 'thereto'.
16. On principle also I can see no valid reason for barring the revisional jurisdiction only where an appeal lies directly to the High Court. To adopt such a narrow interpretation would lead to the result that a party aggrieved from a decree or order from which an appeal lies to the District Judge would try to short circuit the procedure prescribed by the Code and come direct to the High Court.
17. There is, of course, nothing in the Code to justify this nor am I, in the absence of clear and express words, inclined to adopt a construction which is likely to result in complexity rather than simplicity of procedure"
18. Thus it would appear that the reasoning adopted by the learned Chief Justice is very convincing and based on sound legal principle. It should, therefore, settle the controversy as regard to the interpretation of the phrase 'in which no appeal lies thereto occurring in section 115, C. P. C. The Civil Pro--cedure Code, in force in Azad Kashmir, is in the same terms and on the same line as in Pakistan. The wordings occurring in section 115, C. P. C. Have been authoritatively construed by the Supreme Court of Pakistan. We, therefore, respectfully agreeing with their interpretation, hold that the words 'No appeal lies thereto' include those cases as well in which an appeal would eventually lie to the High Court and a revision in such cases would not lie to the High Court under the provisions of section 115, C. P. C.
19. With great respect and due humility we wish to state that it seems that the Supreme Court in the above-mentioned judgment had made observations on the basis of facts of a particular case in which the question of the powers of the High Court to call for the record was restricted only to the interpretation of the provisions of section 115, C. P. C. And it was held that the powers of the revisions under that section are not available to the High Court, in decided cases where first or second appeal under the Code of Civil Procedure, lay to the High Court. The question, whether the High Court under any other provisions of law can quash the proceedings which are null and void was neither involved in that case nor determined. In this connection we are definitely of the opinion that, an High Court confronted with such a situation, where a subordinate Court by usurping juris-- diction, that was specifically barred by enactment resorted to the use of the machinery at its disposal, for invading the vested rights of the subject, is not helpless, or bound by the authority cited above interpreting the provision of section 115, C. P. C. Alone but is invested with ample powers under Government Act of 1970 and Azad Jammu & Kashmir Courts and Laws Code Act, to redress the wrong, in the interest of Justice as supervising authority. In this respect we may quote section 25(d) of Government Act and section 35 of Azad Jammu & Kashmir Courts and Laws Code Act which invest the High Court with authority of superintendence and control over the Courts sub-- ordinate to it. Section 25 (d) of the Government Act reads as follows:- "High Court to superintend and control all Courts subordinate to it.-(1) The Azad Jammu and Kashmir High Court shall superintend and control all other Courts that are subordinate to it.
(2) There shall in addition to the Judicial Board and the High Court, be such other Courts as are established by law.
(3) A Court so established shall have such jurisdiction as is conferred on it by law and shall not have any jurisdiction which is not conferred on it by this Act or by or under any other law."
20. Section 35 of the Azad Jammu, & Kashmir Courts and Laws Code Act of 1949 also confers powers of superintendence and control over all Courts subject to the appellate and revi--sional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administra--tion of justice.
21. The prerogative and privilege of the High Court to super--intend and control subordinate Courts is quite independent and in addition to the powers of a High Court under section 115, C. P. C. The right to superintend and control imposes a corresponding duty to see that Courts subordinate to it do not invade invested rights of subject by usurping jurisdiction. This view is supported by authorities as well, some of which may be referred here.
22. In AIR 1920 Cal. 131 it was observed:- "it is an elementary principle that where a Court has no juris--diction over the subject-matter of the action in which an order is made such order is wholly void, for jurisdiction cannot be conferred by consent of the party, and no waiver of acquies--cence on their part can make up for the lack or defect of jurisdiction."
23. This view was based on decisions in (i) 12 I C 464; (ii) 1 I C 913 and (111) 16 I C 940.
24. In AIR 1920 Pat. 568 it was observed:- "It is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further proceedings to be taken as justice may require.
25. If the record is not before the High Court, but sufficient materials are before it to induce it to send for the record to correct a gross error apparent on the face of the record, ft should accede to the application in exercise of the powers conferred upon it, not under section 115, Civil P. C. But under the wider and larger powers conferred upon it under section 107, Government of India Act."
26. In that case ex parte decree was passed against the petitioner who applied to the subordinate Judge under Order 1X, rule 13 to set aside an ex parte decree. It was found that the summons were duly served on the defendant, therefore, the application for setting aside the ex parte decree which was moved after the period of limitation, was dismissed. An appeal by the petitioner was rejected; consequently he moved a revision petition before the High Court which was also rejected but the High Court found that there vas gross error on the face of the record. The subordinate Judge in assessing the mesne profits proceeded on an erroneous principle which was totally wrong and amounted to want of fair trial of the issue as to mesne profit. Thereupon the High Court exercising its powers of superintendence and control vested in it under Government of India Act set aside the order of the Sub-Judge as regard to mesne profit, though the order with regard to the recovery of the possession of the holding in the suit was maintained and the case was remanded.
27. In AIR 1923 Cal. 619 it was found that the sale was without jurisdiction. Considering the effect of such a sale it was remarked that the sale was a nullity. It was observed at page 621:- "It is an elementary principle of law that if a Court has no jurisdiction over the subject-matter, its judgments and orders are mere nullities, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they are presented. If a Court has no jurisdiction its judgment is not merely voidable but void and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been, if it has no power to hear and determine the cause, its authority is wholly usurped and its judgment and orders are the exercise of arbitrary power under the forms but without the sanction of the law.
28. These principles apply not only to original Courts but also to Courts of Appeal. Accordingly where an appellate Court does not possess jurisdiction to review the action of the Court below.
29. Jurisdiction cannot be conferred upon ft by consent of the parties; and any waiver on their part cannot make up for the lack or defect of jurisdiction. This view has been recognised by the Judicial Committee in 13 I A 134 and 14 1 A 160."
30. In AIR 1926 Bom. 1 the whole of the property in a suit based on mortgage, was found outside the local limits of tire original jurisdiction of the High Court and the defendant was also residing outside the jurisdiction. It was held:- "It is an elementary principle of law that if a Court has no jurisdiction over the subject-matter its judgments and orders are mere nullities and might not only be set aside at any time by the Court in which they are rendered, but be declared void in every Court in which they are presented. Bat this principle is not applicable to Courts of superior juris--diction as it is too wide. Their orders and judgments can only be challenged in the ways provided by law."
31. In AIR 1933 Pat. 161 following AIR 1920 Pat. 568 it was held:- "It is the privilege and prerogative of the High Court once a record is before it and it is found that the order passed is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its power of superintendence to revise such order or set it aside and direct such further proceedings to be taken as justice may require."
32. Now it is to be determined whether the facts of the instant case necessitate the interference under the powers to super--intend and control vested in the High Court under the Government Act and Azad Jammu and Kashmir Courts and Laws Code Act.
33. The question involved in the instant case in our judgment is an exercise of a jurisdiction by the Sub- Judge, Rawalakot in a matter where his jurisdiction as Sub-Judge was clearly barred by the provision of section 11 of Protection of Evacuee Pro--perty Act. No jurisdiction was conferred by the Custodian :under section 17 of the said Act on the Sub-Judge in exercise of which he could entertain the suit or determine the claim involved in the suit. Therefore, he could not pass a decree in proceedings started on a declaratory suit.
34. There can be no question of an appeal in such cases as the power of a first appellate Court as well as of that of a High Court are same as those of a lower Court and if the law bars the jurisdiction of the civil Courts to entertain and determine any suit relating to the evacuee property then the tower of a first appellate Court as well as that of a High Court to hear appeal in such cases is also affected. Not only that but section 11 of Protection of Evacuee Property Act specifically places a bar on Courts to entertain or adjudicate any appeal as well.
35. The proceeding before us is quite distinct from those where a decree is passed by a Court of competent jurisdiction and the petitioner who moves the High Court for exercise of its revisional jurisdiction is an aggrieved person. The petitioner in the revision before us is not a party. As stated above he has brought this application in the interest of justice. The right of appeal if any was available only to the defendant non-Muslim who due to the war of liberation had migrated to occupied Kashmir and is unable to manage his property in Azad Kashmir. The Government stepped into the shoes of the non-Muslim in the beginning under Baitulmal Act and now the evacuee property is being administered by the Custodian. The petitioner has no right of appeal in this case as not being an aggrieved party.
36. It is an ex parte decree and in the case of ex parte decree four remedies are available to a person against whom such decree is passed. They are:-
(1) An application under Order IX, rule 13, C. P. C.
(2) An appeal under section 96, C. P. C.
(3) An application for review under Order XLVII, C. P. C.
(4) Suit on ground of fraud.
37. All these remedies are available to a party to the suit. As general rule no one can appeal from a decree unless he was a party to the action or was treated as such or is a legal repre--sentative of a party or unless his right in the estate or title or interest is apparent on the face of the record. The petitioner--s pro bono publico has no interest whatsoever in the suit. Thus he could avail of none of the above-mentioned remedies. For the satisfaction of his conscience he could bring the illegality to the notice of the High Court which has a supervising power over the subordinate Courts. He could, of course, move the Custodian but he chose the farmer course. Now to drive him to establish the justness of his assertion for public interest before other Court would involve unnecessary delay and addi--tional expenditure.
38. For the exercise of the revisional powers, vested in the High Court, any one can move it to quash proceedings which are null and void. High Court even suo moto can take action fn proper cases. 1t has been the practice of this Court not to entertain revision petitions if they are moved after 90 days but the High Court under its Inherent powers can take action sub moto to redress the wrong.
39. As such we are of the opinion that the determination of the question by the Court whose jurisdiction was barred by the law, over the subject-matter of the litigation, its judgment and order even accurately expressed and technically correct (which in the present case are not so) are mere nullitles. They are invalid docu--ments not only voidable but void and are not binding on any one.
40. They have no effect either as estoppel or otherwise and do not create any right. They are in operative and may not only be set aside at any time by the Court in which they are rendered but may be declared void by any Court in which they are presented. The order passed and all proceedings taken by the Sub-Judge deserve to be quashed for the simple reason that there was a legal bar of jurisdiction. The High Court as a supervising authority is under an obligation to annul such orders as and when they are brought to its notice.
41. Legislature has conferred upon the Custodian exclusive jurisdiction and imposed upon him the duty to decide whether a certain property 9s or is not evacuee property. The proprietary rights vested in the person who has fled to India fall within the ambit of the expression 'evacuee property' and the power to decide the question as to the nature of the property vest ex--clusively in the Custodian. The Sub-Judge had no jurisdiction to adjudicate or to pass a decree of title in favour of non---petitioner-plaintiff and thereby to extinguish the vested rights of evacuee in the property.
42. Thus it would appear that the decree of the learned Sub-Judge, Rawalakot being without juris-- diction is illegal and void.
43. For the foregoing reasons out answer to the questions referred for determination of this Bench is that the words "no l appeal lies thereto" are not confined to first appeal but include a second appeal as well. The revisional jurisdiction of the High Court under section 115, C. P. C. Is limited to those cases only where under the Code of Civil Procedure no appeal either in B the first instance or eventually would lie to the High Court and if no appeal has been filed before a District Judge in such a case, High Court would be incompetent to exercise its revisional jurisdiction under that section, either on an application o sub moto. But a High Court, in exercise of general powers of superintendence and control, conferred on ft under Govern--ment Act, and Courts and Laws Code Act, which powers are much wider and larger and more comprehensive as compared to the powers of a High Court under section 115, C. P. C., can C revise sub moto or otherwise, such order where there is a gross error on the face of record or an erroneous order amounting to injustice or usurpation of jurisdiction that is specifically barred by an enactment, and set aside such order or direct further proceedings to be taken as ends of justice may require.
44. Being of the opinion that although constitutionally not a part of Pakistan, the Law as enunciated by the Supreme Court must be followed in Azad Kashmir, I agree with the judgment written by my learned brother. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.