The petition arises out of the consent decree passed on July 30, 1985 by Sub-Judge, Hattian, in favour of Azizur Rehman, against Mst. Zahida Begum, whereby Mst. Zahida Begum was declared lawful wife of Azizur Rehman.
2. Muhammad Siddique, petitioner, claimed Mst. Zahida Begum as his wife and filed a suit for the restitution of conjugal rights and perpetual injunction against Mst. Zahida Begum, Azizur Rehman and others, on December 13, 1982. It was everred that their marriage took place at Karachi on October 25, 1977 and a sum of Rs.10,000 was fixed as dower. He was serving at Karachi and sent Mst. Zahida Begum to the village to look after her old parents. During her stay with parents, it was alleged that the parents of Mst. Zahida Begum conspired to give her in marriage to Azizur Rehman.
It was stated that in presence of' marriage bond of plaintiff and Mst. Zahida Begum, second marriage was illegal, as such perpetual injunction to restrain the defendants from taking proposed action, was asked for. The claim of Muhammad Siddique was repudiated by Mat. Zahida Begum, Azizur Rehman and others. In support of his claim, Muhammad Siddique produced his entire evidence and the same was concluded on May 29, 1985 when defendant---respondents were ordered to lead their evidence. On June 25, Mst. Zahida Begum furnished a list of witnesses and deposited necessary diet money and travelling expenses. The list of witnesses was furnished by Ghulam Muhammad, her father who acted as her attorney and it was also signed by her counsel.
The trial Court adjourned the hearing to July 16 for evidence of Mst. Zahida Begum. On that date, no progress could be made as the witnesses were not served. The case was adjourned to July 29.
Meanwhile, on July 18, 1985, Azizur Rehman and Mst. Zahida Begum connived to defeat the suit of Muhammad Siddique, as a result, on July 18, Azizur Rehman brought a suit for the restitution of conjugal rights and perpetual injunction. In his suit, he arrayed Mst. Zahida Begum and Ghulam Muhammad, her father, as defendants. Muhammad Siddique was not impleaded in the second suit. In his pleadings, Azizur Rehman averred that he married Mst. Zahida Begum on December 7 , 1982. Here, it is relevant to mention that in 1983, a criminal case was registered against Azizur Rehman and Mst. Zahida Begum on the charge of abduction and Zina. On getting release on bail, Mst. Zahida Begum, under the orders of the Court, resided with her father. In his pleadings, Azizur Rehman averred that in 1983 on a false report a criminal case was registered against him and Mst.
Zahida Begum and on securing bail, Ghulam Muhammad, surety, took Mst. Zahida Begum to his house and thereafter refused to allow her to live with Azizur Rehman, to discharge marital obligations. He also sought reli^f of perpetual injunction against Ghulam Muhammad. In the second suit, the trial Court summoned the defendants for appearance for July 31 but in pursuance of their collaboration, Azizur Rehman moved an application on July 30, a day earlier to the date fixed for hearing in the suit, for restoration of his suit and its decision in the light of compromise arrived at between the parties. Mst. Zahida Begum also present in the Court, admitted the suit of Azizur Rehman and prayed for passing of the decree accordingly. It appears that Ghulam Muhammad was not a willing party to the consent decree, as such, an application was moved on the same day to strike off his name as defendant. The trial Court allowed the application by striking off the name of Ghulam Muhammad from the suit. Thus, in view of admission of Mst. Zahida Begum, the decree for declaration and restitution of conjugal rights was passed forthwith. This order is the subject of dispute in the present petition.
3. Another relevant aspect of the case is that Muhammad Siddique, petitioner, instituted a suit to set aside the aforesaid decree, in the Court of Sub-Judge on September 18, 1985. Subsequent to this suit, it appears that on a better advice, it was considered that- the suit was not efficacious and adequate remedy, as such the impugned decree was sought to be set aside by invoking revisional jurisdiction of this Court. The petition was, therefore, moved on January 6, 1986.
4. Mr. Manzoor Hassan Gilani, the learned counsel for the respondents, opposed the petition and argued that the impugned decree being appealable, cannot be reversed in exercise of revisional powers under section 115, C.P.C. Mr. Muhammad Ishaque Zafar who joined at subsequent stage, also raised an objection in the manner that in presence of a suit for setting aside the decree, revision was not maintainable.
5. Section 115, C . P. C . , prescribes that the High Court may call for setting aside the decree, revision was not maintainable.
5. Section 115, C . P. C . , prescribes that the High Court may call for the record of any case decided by subordinate Court in which no appeal lies thereto, if it appears:--
(a) that the subordinate Court exercised a jurisdiction not vested in it by law, or
(b) failed to exercise a jurisdiction so vested, or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity, or
(d) caused failure of justice, The High Court in presence of all or any one of above-listed conditions, was empowered to make a suitable order to meet the ends of justice. The operative part of this section precludes a case suffering from one of the defects listed above when an order passed in such case is subject to an appeal. The revisional power cannot be invoked in a case against which an appeal lies to a subordinate Court or the High Court. This was a condition precedent but in all other cases, on satisfaction of the High Court that the order suffers from one of the aforelisted defects, it is empowered to make such orders as it thinks fit. The test laid down by law manifests that when an order is appealable, it cannot be set aside in exercise of revisional powers. Nevertheless, this rule is not inflexible as primarily the object to introduce revisional jurisdiction is to rectify a mistake resulting in miscarriage of justice. The law primarily holds banner of justice. It is for this reason that in fit cases, the condition of appeal prescribed under this section is disregarded.
6. It is noticed that in Azad Jammu and Kashmir under clause (d) of section. 115, C . P. Cthe High Court is empowered to exercise its discretion in any case where it is satisfied that an action of the subordinate Court has caused failure of justice. This clause provides a safeguard to meet the ends of justice in a case brought to the notice of the High Court. In addition to this, the High Court is clothed with supplementary power of superintendence and control over the orders and actions of the Courts subordinate to it, under the provisions of Courts and Laws Code Act, 1949. One of such provisions is prescribed under section 35 of the Act. The discretion conferred on the High Court under section 115, C.P.C., coupled with provisions of Courts and Laws Act, particularly section 35 of the said Act, empowers it to rectify an error or mistake arising out of the decision or order of any subordinate Court, notwithstanding the right of an appeal against such order. This is so as the fundamental duty of the Court is to administer justice and not to allow perpetuation of injustice on technical grounds.
7. In Muhammad Yusuf's case PLD 1972 Azad J a K 90, the Full Bench of this Court examined the scope of jurisdiction of High Court under section 115, C.P. C. , in order to set aside a decree of the subordinate Court having been passed without jurisdiction. In that case, the civil Court passed a decree for declaration in respect of evacuee property. Muhammad Yusuf who was neither a party to the decree nor otherwise interested in its result, brought it to the notice of the Court that the Civil Court passed a decree in respect of evacuee property without jurisdiction and the same was liable to be set aside. An objection was raised on behalf of the decree-holder that the decree being appealable, it could not be set aside in exercise of powers under section 115. C.P.C. In another objection, it was contended that only of trial Court is liable to further delay likely to occur at various stages of appeal. In view of the peculiar circumstances of the case, in my estimation, no other remedy except the one available in exercise of revisional jurisdiction, can meet the ends of justice.
11. In Ghulam Nabi's case PLD 1970 Azad J & K 62, an identical, though in a different manner, proposition was raised before this Court. In that case, Ghulam Nabi in connivance with Mst. Nazir Fatima, brought a suit for restitution of conjugal rights and perpetual injunction. In addition to Mst.
Nazir Fatima, he impleaded Abdul Rahim, a counter-claimant, as husband of Mst. Nazir Fatima. Mst.
Nazir Fatima, in her written statement, admitted the suit of Ghulam Nabi. Her statement was recorded in support of such admission forthwith. Abdul Rahim, in his written statement, repudiated the 'Nikah' of Ghulam Nabi and asserted his own claim of 'Nikah' with Mst. Nazir Fatima. He further pleaded that the suit of Ghulam Nabi was collusive. On this, Ghulam Nabi filed an application for striking off the name of Abdul Rahim and requested the Court to announce the judgment on the basis of admission of Mst. Nazir Fatima, forthwith. The application was opposed. The trial Court instead of striking out the name of Abdul Rahim, recorded statements of the parties for framing issues. Mst. Nazir Fatima, at that stage, changed her position and admitted the counter-claim of Abdul Rahim by admitting herself as his wife. She denied her previous admission made in her written statement and stated that her thumb-impression was procured by fraud. These proceedings were challenged in High Court through a revision. Among various objections, it was argued on behalf of petitioner Ghulam Nabi that the trial Court should have passed the decree on the oasis of admission by striking out the name of Abdul Rahim; co-defendant. The objection was overruled. Mr. Justice Muhammad Yusuf Saraf observed that the 'Nikah' of Mst. Nazir Fatima being in dispute, the trial Court could not pass a decree on her admission. According to the learned Judge, suppose it was decided thaS Mst. Nazir Fatima was the wife of Abdul Rahim and that the consent decree was collusive, it would have drought disastrous results. It was held that to ignore the allegation of collusion by declining to pronounce the judgment upon the rival claim, and passing of consent decree by resort to Order I, Rule 10, C.P.C., would have constituted fraud on the statute. The term "abuse of the process of the Court", could, perhaps, nowhere be more aptly used as in such a situation. The learned Judge was of the opinion that decree in such a case, would amount to a licence for immorality. In present case, an identical situation has arisen. Not only that the suit previously instituted by Muhammad Siddique, claiming restitution of conjugal rights is likely to be affected, the impugned decree is equally shown a deliberate attempt to defeat the criminal trial and direction of this Court given in bail order. Under present situation, Mst. Zahida Begum and Azizur Rehman are living together in utter disregard of ultimate fate of the case. Such an anomalous state of relationship cannot be allowed to prevail. Any concession prior to the decision of real 'Nika tentamount to an aid in immorality.
12. The parties are Muslims. The question of their marriage is tee be settled in the spirit of Muslim Law of marriage. In Islam, marriage cannot be contracted in absence of witnesses and other relevant conditions. In present case, apart from satisfaction of other conditions which are not in dispute here, it is not proved that the alleged marriage of the parties was contracted by fulfilment of condition of presence of witnesses. Even if it is disclosed that the marriage was contracted in presence of the witnesses qualified as such, unless such witnesses appear in the Court and testify in support of marriage, decree cannot be passed merely on admission of such marriage by the parties. In Hedaya, Volume I, page 26, the relevant proposition has been enunciated as:-_ "Marriage. -- where both the parties are Mussulmans, cannot be contracted but in the presence of two male witnesses, or of one man and two women, who are sane, adult and Mussulmans; whether they be of established integrity of character or otherwise, or may ever have suffered punishment as slanderers. The compiler of this work observes that evidence is an essential condition of marriage, the Prophet having declared "no marriage is good without evidence."
13. Order XII, Rule 6, C.P. C. , applicable to judgment on admissions postulates that any patty may, at any stage of a suit, where admissions of facts have been made either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and Court may upon such application make such order, or give such judgment, as it may think- fit. The word "may" used in the operative part and at the concluding part, of the Rule reflects that party in whose favour admission is made, may seek pronouncement of judgment forthwith and the Court may also announce its judgment, on an admission of facts. The power of the Court under the rule is discretionary and not obligatory. Word "may" in this rule is used objectively to attain a fair and lawful decision by virtue of admissions, as unless it was left to the discretion of the Court, intended result could not be achieved. It is undenied that in absence of discretion of Court, unscrupulous persons as found in day to day life, may not hesitate to bring collusive suit even to defeat the statute. As a safeguard, to have decisions on admission of facts, strictly fair and according to law, the Legislature conferred complete discretion on the Court to decide a case in a just and legal fashion. In present case, unless the requisite conditions of a valid Muslim marriage were not satisfied, decree on admission contemplated under Order XII, Rule 6, C.P.C., could not be passed.
The impugned decree, by this test, is totally a nullity.
14. It is a settled rule of law that where a common subject of claim is in dispute in counter-suits, both suits are consolidated and decided together. This rule is made imperative in order to avoid conflicting decisions. The rule was completely ignored by trial Court as it failed to decide the question of 'Nikah' of Mst. Zahida Begum, agitated by rival claimants, together by consolidation of the suits.
15. The facts listed above, undoubtedly, lead to an inference that the impugned decree rested on fraud. This is so as the respondents who very well-knew that the suit of Muhammad Siddique was pending and evidence was being recorded in it, adopted a short-cut by bringing a collusive suit.
This deliberate and calculated attempt on their part cannot be lightly ignored. In addition to that, the learned Presiding Officer seized with the suit of Muhammad Siddique and his ministeria staff are unlikely to escape the liability of their contribution in passing the impugned decree. It is noticed that a day prior to the institution of the suit of Azizur Rehman, date of hearing was fixed in the counter-suit. Both the parties were recorded present in the previous suit a day earlier to the passing of decree. It is unbelievable that the Reader, Incharge of Civil Cause and the Presiding Officer, could not have known the presence of previous suit on the file. Be as it may, the fact remains that the impugned decree is clearly deceptive, as such illegal.
16. The reasons counted above, obviously, persuade to set aside the decree in question in exercise of revisional powers coupled with powers conferred under the Courts and Laws Code Act, to meet the ends of justice in the present case. The other remedies, in well--considered view of. This Court, are not found adequate and efficacious. 1 An application for withdrawal of the suit in set aside the impugned decree, is moved by the petitioners. Order XXIII, Rule 1(1), C.P.C., postulates that plaintiff may, at any time after the institution of a suit, withdraw his suit or abandon part of his claim as against all or any of the defendants. As the law authorises the plaintiff to withdraw his suit at any stage, this Court cannot decline the prayer, particularly in presence of the facts mentioned above.
The request is allowed.
16. In the light of aforesaid reasons, the petition is accepted; decree is set aside with costs and the suit filed by Azizur Rehman is restored to the file of Sub-Judge, Hattian, so that both suits are consolidated and disposed of together.