' S.M. ASHRAF KHAN, C.J.--Through this writ petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred to as Constitution), the petitioner, Sardar Muhammad Ibrahim Khan has challenged the validity of the proclamation alleged to have been issued by the Chairman of the Azad Jammu and Kashmir Council (hereinafter referred to as Council) on 31-10-1978, whereby he (petitioner) was relieved of his responsibility of the Office of President of the Azad Jammu and Kashmir (hereinafter referred to as the President) and in his place Brigadier Muhammad Hayat Khan was appointed as President, in addition to his duties as Chief Executive of the Azad Government of the State of Jammu and Kashmir (hereinafter referred to as Government). In this writ petition, General Muhammad Zia-ul-Haq,Chairman of the Council and Brigadier Muhammad Hayat Khan, Chief Executive of the Government, were impleaded respondents but the Full Bench of this Court headed by its then Chief Justice, while admitting it for regular hearing, struck off their names as respondents from it and issued notice to the Government to file its written statement, affidavit and documents on the next date of hearing on the ground that under Section 52 of the Constitution, the Courts are debarred from issuing process against the Chairman of the Council and the President, as a result of which the Government through its Chief Secretary was substituted as respondent in the writ in place of the above-named original respondents.
2. The Government/respondent contested this writ petition both on legal grounds as well as on merits by filing the written statement alleging therein that the writ petition was not maintainable by reason of the respondent having not issued the impugned proclamation and the Chairman of the Council issuing the same being not party to it and that the impugned proclamation was perfectly lawful having been issued by the competent authority.
3. The Full Bench of this Court after rejecting the request of the Counsel for the parties for adjournment of the case for arguments, had dismissed this petition vide its order passed on May 2, 1985 but on appeal, the Supreme Court vide its judgment dated 28-6-1986, set aside the above order of dismissal and remanded the case back with the direction to decide it according to lawn after giving the parties fair opportunity of being heard.
4. Briefly stated, the case of the petitioner, as per allegations in this writ petition, is that he entered upon the Office of the President on June 5, 1975 after having been elected to the said office in the general elections held in Azad Jammu and Kashmir in the month of May, 1975 and while he was functioning as such, Martial Law was promulgated in Pakistan on July 5, 1977 in consequence whereof General Muhammad Zia-ul-Haq assumed the powers of Chief Martial Law Administrator and Chief Executive of Pakistan. A meeting of the heads of the Political parties, including All Jammu and Kahmir Muslim Conference, Azad Jammu and Kashmir People's party and Azad Jummu and Kashmir Muslim Conference, was held on 11th and 12th of August, 1977 at the Martial Law Headquarters Rawalpindi in Pakistan, in which, among other things, it was decided and agreed upon that:-
(i) The existing Council and the Azad Jammu and Kashmir Legislative Assembly shall be dissolved.
(ii) The Prime Minister, the Ministers, the Advisers and the Speakers of the Azad Jammu and Kashmir Legislative Assembly and the Advisers of the Council shall cease to hold office. (iii) The President, the petitioner, shall continue as Interim President provided he does not seek election for any office. (iv) Major General (Retd) Abdul Rehman shall be appointed as Chief Executive of Azad Jammu & Kashmir and shall exercise all the powers conferred on the Prime Minister.
' The above agreement was signed by the heads of all the above-named political parties and countersigned by the Chief Martial Law Administrator, in pursuance whereof and giving effect thereto, an amendment in the Constitution was made by virtue of which Section 53-A was added which, among other things, empowered the President to issue proclamation to make provisions for dissolving the Assembly before expiration of its term, cessation of elected members of the Council and appointment of a person as Chief Executive of. Azad Jammu and Kashmir, in exercise of which power, the Council and the Assembly were dissolved and Maj. Gen. (Rtd.) Abdul Rehman was appointed as Chief Executive of Azad Jammu and Kashmir to perform the functions of and exercise the powers vested in the Government under the Constitution. The above-named Chief Executive later resigned and in his place, Brigadier Muhammad Hayat Khan was appointed as Chief Executive of Azad Jammu and Kashmir. The petitioner questioning the legality of the above appointment, made a reference under Section 46-A of the Constitution to the Supreme Court for its opinion about its validity or otherwise, on which the petitioner was urged by General Muhammad Zia-ul-Haq and Brigadier Muhammad Hayat Khan to withdraw the said reference and on his declining to do so, they were terribly annoyed and displeased with him and hatched a conspiracy to remove him from his position, in execution of which and by way of vendetta, the impugned proclamation relieving him of the responsibility of the Office of President and appointing Brigadier Muhammad Hayat Khan in his place, was issued on 31-10-1978, with male fides and in bad faith which even otherwise is unlawful and ultra vires of the Constitution inasmuch as the Chairman of the Council has no power to issue any kind of proclamation under any provision of the Constitution including its section 56, which only makes a provision for enabling the Government of Pakistan to take action with respect to matters mentioned in subsection (3) of Section 31 of the Constitution which do not include the administrative matter of any kind such as the appointment and removal of the President.
5. The following reliefs have been claimed by the petitioner in this writ petition:-
(i) That the proclamation dated 31st October, 1978, issued by the Chairman of the Council, respondent No,1, be declared null and void in toot and it be declared that the petitioner is still holding the office of the President.
(ii) That this proclamation be declared as ultra vires the Constitution hence of no legal effect, as beyond the jurisdiction and powers of the Council. iii) That it be declared as mala fide and as a result of revenge and vendetta.
(iv) This proclamation is against the fundamental rights of the people of Jammu and Kashmir State and is tantamount to breaking the Constitution.
(v) That respondent No,2 be asked to refrain from acting on this proclamation and restrained from performance of any functions connected with the Office of President.
(vi) That respondent No,2 be asked to restrain from issuing any Ordinances as President of Azad Jammu and Kashmir nor exercise any authority nor powers vested in the President under the Constitution.
6. We have heard the learned Counsel for the parties and have also gone through the record of the case and the law applicable to it. The learned Counsel for the respondent has raised a preliminary objection as to the maintainability of this petition by contending that the petitioner was removed as President by virtue of a proclamation issued by the Chairman of the Council and the respondent had nothing to do with his above removal and as such this petition is incompetent in the absence of Chairman of the Council being party to it on which account alone it is liable to be dismissed.
7. In reply to the above preliminary objection, the petitioner has contended that he had impleaded the. Chairman of the Council and Brigadier Muhammad Hayat Khan (now Major-General Rtd.), Chief Executive of Azad Jammu and Kashmir, as respondents in the original writ petition but it was by the order of Full Bench of this Court seized with the hearing of the case that their names were struc out as respondents and in their place the Azad Government of the State of Jammu and Kashmir was substituted as respondent and directed to file the written statement and other documents in that capacity. It is, thus, contended by the petitioner that there was no fault or lapse on his part not to implead the Chairman of the Council as respondent in his writ petition and he should not be made to suffer for the acts of the Court over which he had no control. It is further contended by him that the impugned order was implemented by the respondent who also had been contesting this writ petition for the last ten years not only in this Court but also before the Supreme Court and thus by its above conduct, it does not lie in its mouth to raise the above objection with respect to the competency of this writ petition and it is estopped from doing so.
8. We have given our due consideration to the above respective contentions of the learned Counsel for the respondent and the petitioner, regarding the above preliminary objection, after which we have reached the conclusion that the same has not much substance in it and this petition in its present form can proceed and be decided on merits, without the Chairman of the Council being party to it. We, of course, agree with the general principle that the authority or the officer whose action is sought to be reviewed in a writ petition, should be made party to it but it is not an inflexible rule of procedure and its application depends upon the circumstances of each else. In a case entitled 'Zubair v. Bashir' (PLD 1963 Lahore 17b) the principle of misjoinder or non- joinder to a writ petition has very aptly and concisely been laid down by Mr. Justice Manzoor Qadir, the then Chief Justice, in the following words:- "While it is not possible to disagree with the principle that omission to make parties those officers whose action is to be reviewed, and who are interested therein and affected thereby, goes to the very root of the relief sought by a writ petition, in relation to law as it exists at present, the principle is applicable not as an inflexible rule of procedure but as one to be adjusted to the circumstances of each case. There is no statute or rule which lays down that any particular party must necessarily be impleaded as a respondent to a petition under Article 98 of the Constitution (1962) or a petition under Article 170 of the Constitution (1956). Nor is there a provision B that the Court must dismiss a petition under Article 98 or Article 170, if a party, that it considers necessary, has not been impleaded as a respondent by the petitioner, and is precluded from sending for that party itself or from permitting the petitioner to amend his petition. In law, the Court is free to determine in relation to each case whether the order it proposes to make can be made without violating the essence of the principle even though a particular officer was not technically impleaded as a respondent in the case."
9. In view of the peculiar facts and circumstances of this case to be mentioned hereinafter, this writ petition would not fail merely by reason of absence of the Chairman of the Council as respondent to it. As has been said in the early part of this judgment, the petitioner in this writ petition did implead General Muhammad Zia-ul-Haq and Brigadier Muhammad Hayat Khan who were then Chairman of the Council and Chief Executive and President, respectively but it was in accordance with the order of the Full Bench of this Court made while admitting it for regular hearing that their names were struck off as respondents and in their place the Azad Jammu and Kashmir Government was substituted as the sole respondent. It would be advantageous to reproduce the relevant portion of the order of the Full Bench of this Court: "The petitioner has impleaded General Muhammad Zia-ul-Haque, President of Pakistan and Chairman of the Azad Jammu and Kashmir Council as well as Brigadier Muhammad Hayat Khan, President, Azad Jammu and Kashmir as defendants. Under section 52 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, the Courts are debarred from issuing process, in any case whatsoever, against the President of Azad Kashmir or the Chairman of the Azad Jammu and Kashmir Council. This question was considered in depth in "Ghulam Hussain Punjabi v. Sardar Muhammad Abdul Qaiyum Khan and others" in 1974, a Constitutional writ in which Sardar Muhammad Abdul Qaiyum Khan, then President of Azad Kashmir, had been impleaded as a defendant. The judgment of the Court was written by me. It was held in the case that no process could be issued against him while he was President and on a combined reading of all subsections of Section 52, his name was struck off as a defendant. This is not the case only in Azad Kashmir but also in Pakistan, India and all such countries where written constitutions are in existence. Thus there is nothing new or queer about it. Therefore, the names of General Muhammad Zia-ul-Haque, Chairman Azad Jammu & Kashmir Council and Brigadier Muhammad Hayat Khan, President Azad Kashmir are hereby struck off from the writ petition.
' This neither affects the merits of the case nor the relief sought by the petitioner."
10. From the perusal of the extract of the order reproduced above, it becomes quite clear that the Full Bench seized with the case at the relevant time, had, after considering and interpreting the provisions of Section 52 of the Constitution, struck off the names of the original respondents in the writ petition and substituted the present respondent, in their place, on the ground that no process could be issued against them under the above provisions of the Constitution which decision, in other words, impliedly meant that this writ petition did not lie against them. Perhaps being conscious of the objection being taken to the maintainability of the writ petition in the absence of the original respondents being party to it and with a view to removing any future confusion and doubt about such an objection, the Full Bench in its order, had also made it clear that striking off their names neither affects the merits of the case nor the relief sought by the petitioner and by way of further caution, it had granted the petitioner a certificate of fitness for appeal to the Supreme Court without any request having been made for the purpose, against its order striking off the names of the original respondents. But neither the petitioner nor the original respondents or the present one challenged the above order before the Supreme Court in appeal.
11. After the narration of the above facts, it needs hardly mention that in this writ petition it is not a case of non-impleadment of the Chairman of the Council and the President of the time as party to it by the petitioner and no omission or negligence can be attributed to him on this score, but it was the action of the Court seized with the hearing of the case which resulted in the striking off the names of the original respondents and substituting them by the present one. It is a settled principle of law that no party to the case should be made to suffer for the acts of the Court over which, obviously, it has no control.
12. The previous order of this Court referred to above having not been appealed against by any of the above parties affected thereby, has attained finality which cannot be either set aside, varied or altered by the Bench hearing this petition presently, as the same being a decision of Full Bench is binding on the Division Bench in view of the provisions of Rule 18 of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, according to which every decision of the Full Bench shall be binding on all Division and Single Benches, upon a point of law or usage having the force of law determined by a Full Bench unless it is subsequently reversed by a Full Bench of equal or larger strength. As said earlier, the order of the Full Bench under consideration, striking off the names of the original respondents from the writ petition was made on the basis of the interpretation and exposition of the provisions of the Constitution as contained in its Section 52 and thus, being a decision on a point of law, it is binding so far as this Bench is concerned.
13. Apart from the above order of the Full Bench being conclusive and final on the above ground, it would hold the field and be operative unless it is set aside or altered by way of review. This Court, of course, possesses the powers of review of its judgments and orders under Rule 43 of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, subject to the limitations mentioned in the said rule, the relevant portion of which is to the effect that the Court may review its judgments and orders but no application for review shall be entertained except on the grounds mentioned in Order 47, Rule 1, C.P.C. In this connection, it may be stated at the first place that no application for review of the order under discussion was made by either of the parties to this writ petition or the aforenamed original respondents. As regards its review suo motu by this Bench, we are of the opinion that no ground, whatsoever, exists on which its review is permissible under the above rule.
The scope of the review' of the judgment or order of this Court is limited to the grounds enumerated in Order 47, Rule 1, C.P.C., i.e, on the ground of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by such party at the time of making the order or some mistake or error apparent an the face of the record or any other sufficient reason. There appears no mistake or error apparent on the face of the record or any other sufficient reason to review the order of the Full Bench striking off the names of the original respondents to this writ petition and substituting the respondent in their place. It is now a settled law that in a case where the order is erroneous on merits or based on wrong interpretation or exposition of law, it cannot be held that there is a mistake or error apparent on the face of the record and such an order is not reviewable even if a different view on the question of such law is possible, because a Court of law having jurisdiction can decide rightly or wrongly and this can be a ground for appeal and not for review. The other sufficient reasons for which an order is made reviewable by the above provision of the Civil Procedure Code are interpreted by the superior courts to be the reasons at least analogous to the other grounds specified in Order 47, Rule 1, C.P.C. When the question of reviewing suo motu the above order of the Full Bench is considered in the light of the above principle of law, no difficulty is faced in coming to the conclusion that it is not reviewable. We cannot help repeating here that the order of the Full Bench substituting the Azad Kashmir Government as respondent by striking off the names of the original respondents was founded on the interpretation and exposition of provisions of the Constitution and, as such, it does not admit of any review merely on the ground that it has proceeded on an incorrect exposition of law. The learned Judges of the Federal Court of India held in A.I.R. 1949 F.C. 106 that: "That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1, C P C "
' The above ruling was also relied upon and quoted in A.I.R. 1960 Bombay 485. Similarly, in "Chhajju Ram v. Neki and others" (I.L.R. 3 Lah. 127), while exhaustively examining the scope of review, the learned Judges observed: "Order XLVII, Rule 1, must be read as in itself definitive of the limits within which review of a decree or order is now permitted, and words 'any other sufficient reason' mean the reason sufficient on grounds at best analogous to those specified immediately previously. A Court hearing an application for a review of the decree made on appeal has therefore, no power to order a review upon the ground that the decision was wrong on the merits."
' A similar view was taken in A.I.R. 1945 Allahabad 284, P.L.D. 1959 Lahore 31 and P.L.D.1954 Karachi
333. The order of the Full Bench under consideration being final and binding on the parties to the case, has, in our view, set at naught the controversy as to the maintainability or otherwise of this writ petition on account of the absence of the Chairman of the Council as a party to it, inasmuch as it had not only struck off the names of the original respondents in the writ and substituted the Government as respondent in their place but had also held that its above action neither affects the nerits of the case nor the relief sought by the petitioner, which in other words means that this petition is competent without the Chairman of the Council and the President being party to it. In view of the above decision of this Court with regard to the competency of this writ petition, it cannot be contended now by any of the parties to the case that it entails dismissal by reason of absence of the aforenamed persons as party to it.
14. Besidea the above reasons, the preliminary objection of the learned Counsel for the respondent about the writ petition being ,incompetent against the respondent in absence of the Chairman of the Council being party to it, is not tenable even on other grounds. This writ petition has been filed under Section 44 of the Constitution which confers upon the High Court the jurisdiction, among other thing, on an application of an aggrieved party to declare that the act done or proceedings, taken by a person performing the functions in connection with the affairs of the State or the local authority, has been done or taken without lawful authority and is of no legal effect or, on the application of any person, require a person holding or purporting to hold a public office in connection with the affairs of the Azad Jammu and Kashmir, to show under what authority of law he claims to hold that office. Under the above provisions of the Constitution, this Court is fully empowered to grant some of the reliefs prayed for by the petitioner in this writ, notwithstanding the fact that the Chairman of the Council or the President is not party to it, as we are of the view that firstly, the Chairman of the Council for reasons to be recorded later on at the appropriate place of this judgment, the issuance of the impugned proclamation was outside the ambit of the powers of the Chairman of the Council who had no nexus, whatsoever, with the exercise of the powers under Section 56 of the Constitution and the petitioner, in fact, was aggrieved by the action of the respondent taken by it in relation thereto and, secondly, that a person who assumed the office of the President under the impugned proclamation, could be called upon to show under what authority of law he claimed to hold that office. It was the respondent which had published the impugned proclamation alleged to have been issued by the Chairman of the Council, as would appear from its Notification dated 31-10-1978:- "No, 3620-22/SL/78.--The dfollowing Proclamation issued by the Chairman of the Azad Jammu and Kashmir Council on the 16th day of October, 1978 is hereby published for general information:- "Whereas section 56 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, provides that nothing in the said Act shall derogate from the responsibilities of the government of Pakistan under the UNCIP Resolutions or prevent the government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities.
' And whereas, the Government of Pakistan is satisfied that it is necessary for the better government and administration of Azad Jammu and Kashmir to relieve the person holding, immediately before the issue of this Proclamation, the office of President of Azad Jammu and Kashmir of his responsibilities as such and to appoint another person in his place: ' Now, therefore, in the discharge of the aforesaid responsibilities of the government of Pakistan, and in exercise of all powers enabling him in that behalf, the Chairman of the Azad Jammu and Kashmir Council is pleased to relieve Sardar Muhammad Ibrahim Khan of his office of President of Azad Jammu and Kashmir and appont Brigadier Muhammad Hayat Khan, to be the President of Azad Jammu and Kashmir in addition to his duties as Chief Executive of Azad jammu and Kashmir."
General (M. Zia-ul-Haq)
(Sd.)
(Sardar Aftab Ahmed Khan)
Secretary Law."
' Not only that the respondent had notified the impugned proclamation but had also enforced it by relieving the petitioner of his duties and functions of the office of President and inducting into said office Brigadier Muhammad Hayat Khan, in addition to his duties as its Chief Executive. It was, therefore, after the issuance of the above Notification by the respondent that the petitioner was made to cease to function as President and in his place a person who was no other than its own Chief Executive, was declared and sworn in as President. The impugned proclamation by the Chairman of the Council is alleged to have been issued on 16-10-1978, whereas the same was notified by the respondent on 31-10-1978. The petitioner continued to hold the office of the President till the later date and, as said earlier, it was on the publication of the impugned Notification by the respondent that he was relieved of his responsibilities as President. Had the impugned Notification not been published by the respondent, it would not have seen the light of the day and acted upon and the petitioner would have continued, under the ordinary circumstances, to hold the office of the President till the expiration of his term of office, in accordance with the relevant provisions of the Constitution and Maj. Gen. (Rtd) Muhammad Hayat Khan had remained only Chief Executive of the. Government. Thus, the fundamental question that also falls for determination in this writ petition, is as to whether or not the Government had the power and authority to notify the proclamation issued by the Chairman of the Council and to implement it by relieving the petitioner of the office of the President and installing Brigadier Muhamamd Hayat Khan thereto. If the answer to the above question is found in the negative, then the above act of the respondent can be declared by this Court to have been done without lawful authority and of no legal effect and the relief flowing from such declaration can be granted to the petitioner in exercise of its writ jurisdiction. Similarly, when in this writ petition a challenge has been thrown to the legality of the assumption of office of the President by virtue of the impugned proclamation by Brigadier Muhammad Hayat Khan and a prayer had been made to restrain him from functioning as such and making law by way of Ordinance, the Government was to be made respondent in view of the provisions of section 52 of the Constitution which provided immunity to the President from being answerable to any Court or Tribunal for the exercise of powers or the performance of the duties of his office or for any act done or purporting to be done by him in exercise of those powers or in the performance of those duties without prejudice to the right of any aggrieved party, to bring the appropriate proceedings against the Government. In view of the above legal position, the writ did lie against the respondent, inasmuch as it, as said earlier, calls in question the appointment of Brigadier Muhammad Hayat Khan as President in place of the petitioner through the impugned proclamation and his holding the said office and performing duties and functions of the same.
15. The sum total of the above discussion is that the preliminary objection of the learned Counsel for the respondent about the incompetency of this writ petition is not sustainable in view of the peculiar facts and circumstances of the case detailed above and the order of the Full Bench of this Court dated 13-2-1978 referred to above whereby the names of the Chairman of the Council and the President were struck off from the array of the respondents and the Governrrient was substituted in their place as the respondent, with the further observation that this would neither affect the merits of the case nor the relief sought by the petitioner thereby meaning that this petition is competent in presence of the GoVernment as the sole respondc.t and without the original respondents being party to it and which has become conclusive and binding on the parties to the case and the original respondents in it as well as the present Division Bench seized with its hearing because, firstly, despite being appealable, no appeal was preferred by either the present parties or the original respondents against it and, secondly, even otherwise it is not reviewable under law having been based on the interpretation and exposition of the provisions of the Constitution. For all the above reasons, the preliminary objection about this writ petition being incompetent stands repelled.
16. After disposing of the preliminary objection of the learned Counsel for the respondent by holding that this writ petition is competent in its present form and the petitioner can be granted appropriate relief to the extent the circumstances of the case may demand, we now proceed to consider the case on its merits.
17. The petitioner who is also enrolled as an advocate of this Court, has contended that his impugned removal from the office of the President was unlawful and ultra vires of the Constitution, inasmuch as, in the first place, Section 56 of the Constitution under which the impugned proclamation relieving the petitioner of the responsibility of the office of the President and appointing in his place Brig. Muhammad Hayat Khan, is purported to have been issued, does not confer any power on the Chairman of the Council to make any order or take any action which only empowers the Government of Pakistan to take such action as it may consider necessary and expedient for the effective discharge of its responsibilities in relation to the matters mentioned in Section 31 (3) of the Constitution and, secondly, the above section even does not empower the Government of Pakistan either to appoint any person to or remove from the office of the President, as no such responsibility had been assigned to it under the UNCIP Resolutions and referred to in clause (a) of subsection (3) of Section 31 of the Constitution and as a matter of fact, the Government of Pakistan is burdened with no responsibility with regard to the matters concerning the administration of the Azad Jammu and Kashmir under the said resolutions which only envisages the administration of the said territory by local authority i.e, Azad Jammu and Kashmir Government, under the surveillance of the Commission. It is, thus, contended that the responsibilities of the Government of Pakistan referred to in the above provisions of the Constitution are only fictions having no foundation, whatsoever. It is further contended by the petitioner that but for his impugned unlawful removal from the office of the President he would have continued to hold the said office till the election of the new President under the provisions of the Constitution.
18. The learned Counsel for the resopondent has unhesitatingly conceded that the Chairman of the Council has no power to make any order, issue any proclamation or take any action under the provisions of section 56 of the Constitution. For the appreciation of the above contention of the petitioner, it appears appropriate to reproduce the sections 56 and 31(3) of the Constitution:- "56. Act not to derogate from responsibilities of Pakistan.--Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specified in subsection
(3) of section 31 or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities . "
"31(1) xx xx xx xx xx xx xx xx xx xx xx (2) xx xx xx xx xx xx xx xx xx xx
(3) Neither the Council nor the Assembly shall have the power to make any law concerning--
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin or the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid."
19: The study of the above provisions of section 56 of the Constitution leaves no manner of doubt that the Chairman of the Council nowhere figures in them and cannot lay even a far-fetched claim to the exercise of his powers by virtue thereof and all that they contemplate, is that no provision of the Constitution shall preclude, stop or come in the way of Government of Pakistan to take such action as it may consider necessary or expedient for the effective discharge of its responsibilities with respect to the matters enumerated in Section 31(3) of the Constitution. As would be seen from the perusal of the provisions of section 31(3) of the Constitution, one of the matters referred to in it, is the responsibility of the Government of Pakistan under the UNCIP Resolutions in the purported exercise of which the impugned proclamation has been issued by the Chairman of the Council. But without entering into the inquiry as to the nature and scope of the responsibility of the Government of Pakistan under the UNCIP Resolutions and referred to in the above provisions of the Constitution and in the effective discharge of which it has been empowered to take action under section 56 of the Constitution, it can be said without fear of contradiction that at least the Chairman of the Council does not enjoy any power under the above last mentioned section of the Constitution to take any action or issue any proclamation of the nature like the one impugned in this writ petition.
In this view of the matter, by issuing the impugned proclamation, the Chairman of the Council has acted without jurisdiction and in violation of the provisions of the Constitution.
20. The question, however, may arise as to whether the impugned proclamation shall be deemed to have been issued by the President of Pakistan in his capacity as the Chief Executive of Pakistan.
We have considered this aspect of the case but the answer found is in the negative. It is, of course true that under subsection (14) of Section 21 of the Constitution, the person for the time being exercising the powers and performing the functions of the Chief Executive of Pakistan is the Chairman of the Council, but this fact by itself does not render an order made or action taken by the Chairman of the Council under the Constitution to have been made and taken by the Chief Executive of Pakistan. The office of the Chief Executive of Pakistan and that of the Chairman of the Council do not stand on the same footing and are quite distinct and separate offices. The Chief Executive of Pakistan while exercising the powers and performing the functions of the Chairman of the Council under the Constitution, shall not be deemed to be exercising the powers and performing the functions of the Chief Executive of Pakistan and similarly the Chairman of the Council while exercising the powers and performing the functions under the Constitution shall not be deemed to be exercising the powers and performing the functions of the Chief Executive of Pakistan. In short, in this case the Chairman of the Council and Chief Executive of Pakistan cannot be equated. The above proposition of law that if the same person performs the functions and exercises the powers in two different capacities, an order made or action taken by him in his specific capacity, shall not be deemed to have been made in his other capacity, finds support from a string of authorities of the superior Courts of India, Pakistan and Azad Kashmir, out of which AIR 1962 Allahabad 128,AIR 1947 Madras 400, AIR 1948 Madras 439, AIR 1949 Madras 787, AIR 1946 Bombay 64, PLD 1965 SC 459, PLD 1981 SC 112, PLD 1981 SC 359, PLD 1968 Lahore 987, PLD 1970 Lahore 641, PLD 1970 Karachi 33 and PLD 1983 SC (AJ&K) 204 may be mentioned. In AIR 1962 Allahabad 128, the orders, made by the Governor of Uttar Pradeah in his capacity as Chancellor of the Agra University were held not to have been passed by the Governor. In AIR 1947 Madras 400, AIR 1948 Madras 439 and AIR 1949 Madras 787, it has been held that the District Judges and subordinate Judges invested with the power of appellate authorities under Section 12 of the Madras Building Lease and Rent Control Act, function as persona designata and not as a Court subordinate to the High Court. In AIR 1946 Bombay 64, it was ruled that a Judge acting under Section 15 of the Bombay Municipal Boroughs Act, 1925 is not a Court but a persona designata and the High Court has, therefore, no jurisdiction to revise his orders under Section 115 of the C.P.C. In PLD 1965 SC 459, the question that arose for decision was whether the Civil Judge and District Judge performing the functions of Rent Controller and the appellate authority of the Rent Controller, respectively under the Rent Restriction Act are functioning as Civil courts subordinate to the High Court and, as such the Additional District Judge was competent to hear appeals against the orders of the Rent Controller. It was held that the Additional District Judge was not competent to hear appeal against the order of the Rent Controller as it was to be heard by the District Judge as a persona designata and not as a Civil appellate Court competent to hear appeal against the order of the subordinate civil Judge. The ruling in PLD 1981 SC 112 was to the effect that the Court of special Judge appointed under the Rent Restriction Ordinance and functioning as appellate Court in Rent matters even he be District Judge, cannot be deemed to be a Court subordinate to the High Court for the purposes of section 115, C.P.C. In PLD 1970 Lahore 641, the order passed under the Family Courts Act by the District Judge in his capacity as Family Court was held not to be revisable by the High Court on the ground that such a Court is not subordinate to the High Court. In PLD 1970 Karachi 33, it was held that the Industrial Court created by the Industrial Disputes Ordinance, 1959 despite being invested with power of Magistrate 1st Class, is not an inferior criminal Court within the meaning of section 435, Cr.P.C. And, as such, no revision is maintainable against its order under the Criminal Procedure Code. In PLD 1983 SC (AJ&K) 204, the Supreme Court of Azad Jammu and Kashmir has taken a similar view and held that the District Judge while acting as appellate authority under the Azad Jammu and Kashmir Rent Restriction Ordinance, 1980, does not act in ordinary judicial capacity as the Presiding Officer of his Court and, as such, his order cannot be assailed before the High Court in revision under Section 115 of the Civil Procedure Code as, such a Court is not subordinate to the High Court. In view of the authorities cited above, the impugned proclamation cannot be treated to have been passed by the Chief Executive of Pakistan.
21. The impugned order having been found to have been issued without lawful authority, the respondent by publishing the same through its notification and implementing it by way of relieving the petitioner of the Office of the President and inducting into it its own Chief Executive, has acted unlawfully and without jurisdiction and cannot defend his above action behind the plea that it has nothing to do with the removal of the petitioner from the said office. As said before, it was the above action of the respondent which had deprived the petitioner of his right vested in him under the Constitution to complete his term of the Office of the President in accordance with the relevant provisions of the Constitution. If the respondent carries out and enforces an illegal order of a person not authorised to make it and thereby deprives another person of his some legal right or position, it cannot escape its responsibility of his such unlawful act by pleading that the order which resulted in the loss of such office to a person, has not been made by it. Befor acting upon such an order, it is under legal obligation to see as to whether it has been competently issued and whether it has the power to give effect to it. If the impugned proclamation lacked a legal sanction behind it, the respondent ought not to have either published it through its notification nor enforced it by relieving the petitioner as President and sworn in its Chief Executive as such.
22. Even otherwise, the respondent has no power or authority to publish a proclamation issued by the Chairman of the Council either under any provision of the Constitution, law or its rules of business. The Council has its own fullfledged Secretariat and the orders made or actions taken by its Chairman are obviously, to be published by its own secretariat and not by the respondent. In this view of the matter, the above actions of the respondent having published the impugned notification and giving effect to it, can also be declared as having been taken without lawful authority.
23. So far as the next contention of the petitioner that even the Government of Pakistan had no authority or power to issue the impugned proclamation. Under section 56 of the Constitution as under the UNCIP Resolutions, no responsibility, whatsoever, including that of administering the Azad Jammu and Kashmir territory has been assigned to it, is concerned, I am of the opinion that in the facts and circumstances of the case, it is neither necessary nor appropriate to consider it and give decision thereon. The impugned proclamation, as held earlier, has not been issued by the Government of Pakistan. It was neither made party by the petitioner in this writ petition originally filed by him nor is presently party to it and, therefore, it does not look proper to embark upon an inquiry as to the scope of the powers of the Government of Pakistan under Section 56 of the Constitution.
24. For the aforesaid reasons, the impugned proclamation issued by the Chairman of the Council on 16-10-1978 relieving the petitioner of his responsibilities of the office of the President and appointing Brigadier Muhammad Hayat Khan in his place and the notification of the respondent dated 31-10-1978 publishing the same for general information and giving effect to it, are declared to be ultra-wires of the Constitution, unlawful and of no legal effect.
25. The other reliefs sought by the petitioner in this writ petition, such as declaring him to be still holding the office of President and restraining Brigadier Muhammad Hayat Khan from performing the functions and duties of President and making any law including the promulgation of ordinances, cannot be granted under the changed circumstances. The general elections were held in Azad Jammu and Kashmir in the month of May, 1985 and the Assembly elected as a result thereof has elected Prime Minister of the Government and the President in accordance with the provisions of the Constitution. Similarly, Brigadier Muhammad Hayat Khan has ceased to be the President of Azad Jammu and Kashmir since long. For the above reasons, the petitioner does not become entitled to the grant of reliefs other than the one already granted. It may be stated here that I am fully conscious of the fact that even the above relief allowed in this writ petition may not be of any substantial benefit and value to the petitioner in view of the complete change having taken place in the complexion of the circumstances and much water having flown under the Domel bridge since the filing of this writ petition but despite that, I thought it necessary to grant it in the interest of justice and broader' public interest with a view to providing the petitioner at least the satisfaction of his legal title and position having been vindicated and making legal position clear with regard to the constitutional point at issue in my anxiety to safeguard against any possibility of such like inroads being made in the Constitution in future.
26. Before parting with the case, in order to safeguard against any possibility of this judgment being misinterpreted and to remove all doubts in this respect, it may be made clear that this.
Judgment shall .Not, in any way, prejudicially or adversely affect the validity and the legality of the acts done, actions taken, appointments made and the laws framed, including the issuance of Ordinances, by the person holding the office of President on or after the date, the petitioner was relieved of his duties and functions as President in pursuance of the impugned proclamation. In this connection, it may be pointed out that the petitioner has not challenged any of the above actions and asked for any relief in respect thereof in his writ petition but if any such relief is deemed to have been impliedly sought, it is refused.
' In the circumstances of the case, the parties are left to bear their own costs.
' S.Z. CHAUDHRI,J.--I have the advantage of going through the 'judgment written by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan,Chief Justice, and am unable to agree with it for the following reasons: ' Facts as claimed by the petitioner, leading upto the present controversy, briefly stated, are that having been elected in the general elections held in the month of May, 1975, the petitioner Sardar Muhammad Ibrahim Khan was sworn in as President of Azad Jammu and Kashmir on 5-6-1975. It may be stated here that at the time it was People's Party Government in Pakistan headed by late Mr. Zulfiqar All Bhutto as the Prime Minister while the Government after the general elections of 1975 in Azad Kashmir that came into power was also that of People's Party.
2. On 5-7-1977, civilian Government .Headed by Mr.Zulfiqar Ali Bhutto as a Prime Minister was yanked out of office by the Army and Martial Law was declared in Pakistan. General Muhammad Zia-ul-Haq assumed the powers of Chief Martial Law Administrator and Chief Executive of Pakistan.
A meeting of top leaders of various parties of Azad Kashmir was held on 11-12-1977 in Pakistan wherein various steps including the dissolution of Azad Kashmir Goverment, holding of fresh elections and introduction of Section 53-A in the Interim Constitution Act of 1974 (hereinafter to be called the Act) were agreed upon. This agreement was signed by the leaders of the Political Parties of Azad Kashmir (petitioner included and countersigned by the Chief Martial Law Administrator.
3. To carry out the purposes of this agreement a new Section 53-A under section 6 of the Azad Jammu and Kashmir Interim Constitution (Fifth Amendment) Act, 1977 was temporarily inserted in the Act. A proclamation under the newly-introduced Section of the Act was thereafter issued by the petitioner as President whereby the Azad Kashmir Assembly and the Council alongwith Advisers stood dissolved and Major-General Abdur Rehman was appointed as Chief Executive of the Azad Jammu and Kashmir. After his resignation Brigadier Muhammad Hayat Khan was appointed as Chief Executive. After having been sworn in office on 5-6-1975, the petitioner continued as President of Azad Kashmir till 30-10-1978.
4. Through a proclamation issued on 16-10-1978 by the Chairman, Azad Jammu and Kashmir Council and published on 31-10-1978, the petitioner was relieved of his office and instead Brigadier Muhammad Hayat Khan was appointed to be President of Azad Jammu and Kashmir in addition to his duties as Chief Executive of Azad Jammu and Kashmir. A copy of this proclamation marked as Annexure 'A' is at page 70 of this Court's file.
5. Feeling aggrieved by his removal from the office of the President of. Azad Jammu and Kashmir, the petitioner challenged the validity of proclamation through this writ petition filed on 21-11-1978 inter alia on the grounds-
(a) that the impugned proclamation for having been issued by the Chairman, Azad Jammu and Kashmir Council without jurisdictional competence was of no legal effect and void; and
(b) That the Chairman, Council had no authority whatsoever under any of the provisions contained in the Act to issue any kind of proclamation. Appointment and removal of the President of .Azad Jammu and Kashmir was the matter wholly outside the realm of authority given to him under the provisions contained in the Act. The impugned proclamation thus issued by him was flagrantly violative and ultra vires of the Act.
6. In the petition General Muhammad Zia-ul-Haq, Chairman Council of Azad Jammu and Kashmir and Brigadier Muhammad Hayat Khan, Chief Executive of Azad Jammu and Kashmir were impleaded as respondents in the writ petition. Since the petition raised points of very vital legal importance relating to the interpretation of the Constitutional provisions, it was heard and admitted for regular hearing by the Full Bench of this Court on 13-12-1978. While admitting the petition for regular hearing the Court however ordered the. Deletion of the names Of General Muhammad Zia-ul-Haq and Brigadier Muhammad Hayat Khan from the writ petition. The relevant part of the order reads as "Thus there is nothing new or queer about it. Therefore, the names of General Muhammad Zia-ul-Haque, Chairman Azad Jammu and Kashmir Council and Brigadier Muhammad Hayat Khan, President Azad Kashmir are hereby struck off from the writ petition. This neither affects the merits of the case nor the relief sought by the petitioner. A notice shall, therefore, issue to the Azad Kashmir Government". As is evident from the order, a notice was to be issued to the Azad Kashmir Government for filing written statement etc.
7. It may also be noted that the Full Bench that admitted the petition for regular hearing and ordered the deletion of the respondents originally impleaded as respondents in the petition comprised of Chief Justice and two Judges. The writ petition for number of reasons could not be finally disposed of during the past ten years. Meanwhile the Chief Justice retired and the learned Judges were appointed as Judges in the Supreme Court of Azad Jammu and Kashmir. Now when the writ petition has again come up for hearing this Court, at the moment consists of Acting chief Justice and only one Judge.
8. On 11-6-1988, when the petition was taken up for arguments, a preliminary objection was taken by the Advocate-General to the effect that after the deletion of the respondents originally impleaded as respondents in the petition no relief could possibly be granted to the petitioner in absence of the authority that issued the impugned proclamation. On request of the parties, adjournment was allowed to enable them to prepare themselves on the point. On 15-10-1988, petitioner moved an application for permission to implead Azad Jammu and Kashmir Council as respondent in the case. The learned Advocate-General on 4-12-1988 stated that he had no objection if the petition was allowed but then the petitioner took the stand that he no longer wished to implead the Council as respondent in the petition and instead wanted to,withdraw the application. He was asked whether it would legally be permissible for this Court to grant him the desired relief by way of declaring the impugned proclamation as of no legal consequence for having been issued without lawful authority and being ultra vires of the Act, without having the issuing authority as respondent in the petition and whether this Court could pass an order to this effect suo motu. In answer to this query put by the Court, petitioner submitted that in the first instance the relief sought for could be granted to him without Council having been impleaded as respondent and secondly a review by this Court of its previous order dated 13-12-1978 suo motu was legally not possibly because the question, according to him, s.Uod finally settled. Besides, this was not possible yet for another reason which is that the order dated 13-12-1978 for having been passed by a Full Bench was not open to review now by the Division Bench of this Court. He then argued the case on merit.
9. As against this Mr. Manzoor-ul-Hassan Gillani learned Advocate-General appearing for the respondent Government argued that since the impugned proclamation was not issued by the Azad Kashmir Government nor such a claim has been made by the petitioner himself, no relief against it could therefore possibly be given to the petitioner. As regards the impugned proclamation the desired declaration could not legally be made in absence of the authority that issued the same. The writ petition under the circumstances having no substance was liable to be dismissed, submitted the learned Advocate-General.
10. I have heard the learned Advocate-General and the petitioner and have given my careful consideration to the points canvassed. After the deletion of originally impleaded respondents from the writ petition here now remains Azad Kashmir Government as the only respondent in the petition. It has been contended on behalf of the respondent that as the impugned proclamation was not issued by the Azad Kashmir Government, it could neither be burdened with any responsibility for its issuance nor could any relief be given to the petitioner against it. The proposition that now therefore needs consideration is as to whether the impugned proclamation could be regarded to have been issued by the respondent-Government?
11. On careful consideration the document could not, in my view, be taken as having been issued, by the respondent for myriad reasons such as:
(a) That in none of the grounds listed in the writ petition such a claim has been made by the petitioner. The case of the petitioner as listed in clear terms in his writ petition and stated in unequivocal terms by him during the arguments, instead is that the document now under challenge was issued by General Muhammad Zia-ul-Haque, the Chairman Azad Jammu and Kashmir Council; and
(b) On careful perusal of the impugned document it becomes evident that its issuing authority is not the respondent but the Chairman; Azad Jammu and Kashmir Council. It has expressly been stated in the document itself that it has been issued by the Chairman, Azad Jammu and Kashmir Council. It is indeed correct that underneath the name of General Muhammad Zia-ul-Haque the document bears the writing "Aftab Ahmad, Secretary Law" and it is date lined "Muzaffarabad October 31, 1978." But then in no way does this mean that it has been issued by the Azad Kashmir Government. From the language employed in the document such an inference could not possibly be drawn. Powers to issue proclamation are available to the President Azad Jammu and Kashmir under Sections 53, 53-A, 54 and 55 of the Act. The impugned document, as is evident from its language, has not been issued by or in the name of President Azad Kashmir. It has not been issued in the name of Azad Kashmir Government either. Instead it has expressly been stated in the document itself that it has been issued by the Chairman, Azad Jammu and Kashmir Council.
12. , It is not and it has never been the case of petitioner at any stage of the proceedings spread over a period of ten years that the proclamation was issued by the Azad Kashmir Government. In his writ petition and during the arguments the claim of the petitioner was that Chairman, Azad Jammu and Kashmir Council issued the proclamation. The impugned document itself purports to have been issued by the Chairman. In this view of the matter, the impugned document could not be interpreted as having been issued by the respondent-Government. To hold otherwise would not only offend against the rules relating to interpretation of documents but would, in my view, be altogether a quixotic approach to the proposition and also against the rules of justice, equity and good conscience.
13. As has already been held, the impugned proclamation was not issued by the respondent- Government and there is now no other respondent in the petition. As a gerneral rule petitioner, in case found entitled to, could still not be allowed any relief in absence of issuing authority. In the present case the position however is different. The petitioner did implead the issuing authority as respondent in the writ petition but on order of the Court passed on 13-12-1978 his name was deleted from the petition, the question that now therefore arises is whether the order of this Court passed on 13-12-1978 could not now be recalled or modified because it had become final and was not open to review. Having given my deep thought to the points involved I am unable to agree with the petitioner on the point that the order dated 13-12-1978 could not be recalled or modified because, according to him, this Court was not competent to suo motu review its previous final order.
14. An order for deletion of improperly impleaded defendants/ respondents or for impleading necessary or proper party in the case under Order 1, Rule 10, sub-rule (2) of the Civil Procedure Code is, from its very nature, interlocutory and procedural in characteristic. It, being a matter of procedure pure and simple, can be recalled or modified at any time before the final disposal of the case by the Court, in exercise of its inherent powers available to it under section 151 of the Code. To have correct perception of the extent of powers made available to the Court, it will be useful to have a reference to the Section which reads:- ##ES## "151. Saving of inherent powers of Court.-- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power 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."
' For doing complete justice this Court, in my view, has the jurisdiction to recall or modify the order and the provision of Order XLVII contained in the Code could not come in the way. It is altogether a different matter if the petitioner does not wish the issuing authority of the impugned proclamation to be impleaded as respondent in the petition but to say that the Court has no powers to recall or modify Q its previous order, is not, in my view, a correct statement of law.
15. In Jamilur Rehman v. Muhammad Asghar and others, PLD 1968 Lahore 1076, the proposition came to be considered in the following circumstances. The plaintiff-pre-emptor filed a suit on the ground that he being a purchaser of a share in the disputed Khata had become a co-sharer and as such had a superior pre-emptive right. His share, on the basis of which he claimed superior preemptive right was purchased by him from Jamilur Rehman. During the pendency of the suit Jamilur Rehman applied to be impleaded as a party in the suit to deny the pre-emptor's claim as, according to him, the sale had been executed during his minority. His application was dismissed in default. His application for restoration was also dismissed on the ground that he was not a necessary party in the suit. After sometime vendee-defendant moved an application that Jamilur Rehman being a necessary party be impleaded in the case. This was so, as according to him, the sale-deed on the basis of which the plaintiff-pre-emptor claimed his superior right had been excuted by Jamilur Rehman during his minority and also for the reason that he too had got 1 marla of land in the disputed 'Khata' from Jamilur Rehman and as such had improved his status to defeat 4he pre-emptor's suit. Civil Judge allowed the application and placed Jamilur Rehman as defendant No,2 in the suit.
16. Respondent-Plaintiff thereafter applied for the transfer of the case on the ground that the vendee-defendant was a Senior Judge of the West Pakistan High Court, Peshawar Bench, and the Civil Judge Haripur, being within the administrative control of that Bench, was not likely to have a detached view of the suit. Application was allowed and the case was transferred to be heard in the High Court. After the transfer respondent-plaintiff again moved an application for striking out the name of newly-added defendant in the suit and also for deletion of a certain issue. The learned Single Judge in the High Court allowed the application and ordered the deletion of Jamilur Rehman as defendant from the suit. This order of deletion of his name from the suit was challenged by way of Letters Patent Appeal by the appellant inter alia on the ground "that the learned Single Judge had no jurisdiction to review the order of his predecessor in view of the provisions of Order XLVII Rule 2 of the Code". While considering the proposition Mr. Wahiduddin Chief Justice. Observed:- "This case is distinguishable for a number of reasons. It will be noticed that the order of the Civil Judge, Haripur, was of an interlocutory nature, relating merely to a procedural matter, namely, the impleading of the appellant as a party to the suit. We are of the view that in respect of such orders the Court has inherent power to review them under Section 151 of the Code. This view was taken by Kaikaus, J., as he then was, in Mst. Allah Rakhi v. Mst., Raj Bibi and others, P.L.D. 1957 Lahore 70. It was held by his Lordship that with respect to procedural matters there exists in the Court inherent, jurisdiction to review, alter or amend orders relating to them. It was further held that the grounds on which this inherent jurisdiction has to be exercised are similar to, those in Order XLVII, Rule 1, only the technicalities of Order XLVII will be excluded. This view is held on the following reasoning:- ' It is true, Order XLVII, rule 1, speaks of a decree or order which is not appealable or against which no appeal has been preferred, so, that, prima facie, the words should cover all orders. But it will at once strike one that it will be very difficult to accept the application of the stringest provisions of Order XLVII, to orders relating to mere procedure.A Court passes an order, directing that a witness who is to be examined on commission should be examined at a particular place. If it be intended to change the place of the examination, will the Court be powerless to do so unless the conditions as well as the procedure provided in Order XLVII is complied with? Will the Court first consider whether an application for review is to be admitted and if it is of the opinion that it should be admitted, than the application shall be registered in accordance with Order XLVII, rule 8, and then heard on the merits? One is inclined to assume with respect to procedural matters that there exists in the Court inherent jurisdiction to review, alter or amend orders relating to them."
' The above observations are very weighty and we are in respectful agreement with them.
17. The proposition may also be looked into from yet another angle. The fact that cannot be lost sight of is that the petitioner did implead the authority that issued the impugned proclamation as respondent in the writ petition though not quite properly. Since the impugned proclamation was allegedly passed by General Muhammad Zia-ul-Haq as Chairman, Azad Jammu and Kashmir Council, it would have been sufficient to implead the Azad Jammu and Kashmir Council instead of listing down also the name of General Muhammad Zia-ul-Haq The Court instead of ordering modification or part deletion of respondents No, 1 and 2 from the petition. The question therefore that naturally arises is; Could the petitioner be left to suffer, not on account of his act or omission but because of the act of the V Court? On careful consideration of the point involved I have no doubt in my mind that injustice if so done to a party must be remedied on the principle "actus curia neminem gravabit i.e, an act of the Court shall prejudice no person." All rules of procedure are meant for the advancement of justice and not to impede it. In judicial proceedings there always may arise situations and circumstances needing action for doing justice but are not covered by any express provision of the Code. The Court are then to act in accordance with justice, equity and good conscience.Lt is precisely the kind of situation this Court is faced with in the instant case wherein appropriate remedial order could be made by the Court in exercise of its inherent powers made available to it under Section 151, C.P.C.
18. In Dan Singh Bist v. Additional Collector. Bijnor and others, A.I.R. 1960 Allahabad 152, one Thakur Dan Singh Bist held Zamindari rights in two villages in District Bijnor. The State Government acquired his rights under the provisions of the Land Acquisition Act, but by certain orders released - cultivatory rights in his favour in respect of certain area in the two villages. He utilised this area as a modern farm. Subsequently the State-Government decided to evict him and to recover damages for its use and occupation. Proceedings were initiated against him under the U.P. Government Land (Eviction and Rent Recovery) Act. Four orders were passed by the Additional Collector of Bijnor directing his eviction from the area with a further direction for payment of certain amounts as damages. His appeals filed before the District Judge were dismissed. He thereafter challenged the legality of the orders passed against him by the Additional Collector through four writ petitions filed under Art. 226 of the Constitution against the State-Government and the officials concerned. The question that arose for consideration in that case was; as to whether or not the Additional Collector was the competent authority under the Act and had the jurisdiction to pass the impugned orders. A certain notification was brought to the notice of the Court by the learned Counsel for Thakur Dan Singh which declared the Collector of Bijnor as the competent authority for District Bijnor. Nothing to the contrary was brought to the notice of the Court. The learned Judge therefore by holding that the Additional Collector had no jurisdiction to pass the orders, quashed them. Fact of the matter however was that through a subsequent Notification the State-Government authorized the Additional Collector of Bijnor to perform the functions of competent authority in that district. This Notification was neither in the knowledge of the learned Counsel for the parties at the relevant time nor within the notice of the Court. On its discovery a Junior Standing Counsel on behalf of the State-Government filed four applications purported to be under Order XLVII and Section 151 C.P.C.
These applications were opposed on the ground that the order of quashment sought to be reviewed had the characteristic of finality and was open to no review. While considering the proposition Mr. B.R.James, J. Observed: "32. To sum up. Thakur Dan Singh instituted proceedings under Art.226 of the Constitution for enforcing or vindicating his civil rights in respect of some land. Through inadvertence, and in ignorance of a fact, viz. , the existence of a subsequent Notification, I passed an invalid order. This order has done a manifest injustice to the State Government and its agents. I am now asked to review and correct it. There is no statutory bar to my doing so; nevertheless I cannot make the necessary correction unless authorised to do so by some Law. The Constitution itself is not such a law, nor are our Rules of Court.But in passing the order I exercised my civil jurisdiction.
Consequently the proceedings before me must be governed by the Code of Civil Procedure. My wrong order can prima facie be reviewed under S. 114 and 0. XLVII, R.1, but the majority decision in ILR 53 All 535: (AIR 1931 All 244) (FB) stands in the way of my doing so. But although those provisions cannot be called in aid, I have not only the power under S. 151 to undo the injustice but I am bound to do so. No doubt the State-Government could have sought relief from the Court of appeal, nevertheless it is equally entitled to approach me under S. 151, and it becomes my duty to do that real and substantial justice for the administration of which alone my Court exists. This compels the recalling of my invalid order."
19. In Keshardeo v. Radha Kishen, AIR 1953 SC 23, on an adjourned date of hearing of an execution, the decree-holder again applied for time for giving instructions to his pleader for taking necessary steps in the execution but the application for time was refused and the execution case was dismissed by the very same order without formally calling for the execution case and without intimating the decision of the adjournment application to the decree-holder. The decree-holder then applied for the restoration of the case. The Court accepted the application and restored the case in exercise of its inherent powers. This order on revision was set aside by the High Court and the case was remanded to the executing Court for re-consideration and disposal in the light of the observations that whether the decree-holder's pleader could really take any step in aid of execution if he had been apprised of the order of the Court dismissing the adjournment application. The question that arose for condideration was whether the order for remand was without jurisdiction and whether the proceedings taken subsequent to the order of the executing Court reviewing the execution were void. It was held that in the circumstances of the case, the order dismissing the execution on part satisfaction was bad and the Court had the inherent powers to correct its own mistake made available to it under Section 151, C.P.C.
20. The principle enunciated in 'Satya Badi Pradan v. Kanhei Pradhan', A.I.R. 1930 Patna 72 is also supportive to the proposition. In "Small Singh v. Jhunkoo Singh", A.I.R. 1946 Oudh 210, Appellant Small Singh in that case filed a suit for partition of certain properties including Plot No,632 old 647 new.
The subject-matter of the suit was referred to arbitration of three persons. The arbitrators filed an award but somehow the plot in dispute was not allotted to any party. A preliminary decree was passed in accordance with the award which was made thereafter final in 1932. In the two decrees, the plot in question in contravention of the award entered, had been allotted to the appellant. In 1935, on an application for execution filed by the appellant, he prayed for possession of the property decreed and the prayer included the plot in dispute as well. Respondents took no objection to the execution and agreed that the possession may be delivered to the appellant.
Formal possession was also delivered. It appeared however that he did not get the mutation in respect of the said plot in the suit uptill 1940. The respondents then filed an application in 1941 under section 47 C.P.C. Read with sections 144 and 151 C.P.C. With the prayer that the plot in dispute had not been allotted to the appellant by the award and the decree that followed wrongly included it.
The fault thus committed by the Court in passing a decree was sought to be corrected and the possession to be restored to the respondents. The application was allowed and possession restored. On appeal it was contended that the application for execution was time-barred. It was held that if an injury through an order made wrongly and through the mistake or default committed by the Court is done to a party and the right of third party has not intervened, then it is the duty of the Court to redress the wrong so done to the party by it and the power to correct the mistake was available under Section 151, P.P.C.
21. Again in 'All India Reporters v. Moghe' A.I.R. 1950 Nagpur 110, the point came to be considered in that case in the following circumstances. In suit filed against the defendant, plaintiff claimed to be the owner of Law Journal known as "All India Reporters" and all the copy rights in the headnotes appearing in the Journal. Defendant was Author of the Law Digest known as The Moghe Annual Digest, 1946 and the defendant No,2 was the Publisher of it. The claim of the respondent was that the Digest constituted an infringement of the copy right which the plaintiff had in the head notes of All India Reporter. The claim was contested by the defendant on various grounds. After, framing of the issues, defendant No,2 filed a list of witnesses and in the list included the name of the learned Counsel for the plaintiff. The application was moved on behalf of the plaintiffs for striking off the name of their Counsel from the list of witnesses filed by the defendants. The point was contested and the trial Judge finally passed an order to the effect "Whether the Counsel should or should not be permitted to continue as an Advocate of the plaintiff can be decided after hearing the evidence of the learned Counsel and the point thereafter to be decided at a later stage when the evidence had been recorded". Subsequent to that another application was moved by defendant No,2 objecting to the continuance of Shir R.K Monohar as Plaintiff's counsel on the ground that he was a material witness. The Court after hearing the parties ordered the learned Counsel to withdraw from the case as a Counsel. This order was challenged through a revision petition inter alia on the ground that the Court had no jurisdiction to revise its previously recorded order. It was held that the Court has inherent jurisdiction to review or modify its order while it is still seized of a case and retains jurisdiction.
22. It has also been contended by the petitioner that order of deletion dated 13-12-1978 for having been passed by a Full Bench of this Court was not legally open to review now by the Division Bench.
On careful consideration, the argument is found to have no substance. In order to have a correct perception of the point involved and for its proper determination the fact that needs to be taken note of is that the mere fact that now the number of Judges on the Bench hearing the case is reduced tb two i.e, Chief Justice and a Judge does not mean that the Court that passed the previous order, in the present case had ceased to exist or that it was passed in some other case. It is the same Court and the same case which has not yet been finally disposed of. The Court in exercise of its inherent powers, can and if necessary should make orders for the ends of justice.
Whether the previous order can be recalled or modified while the case is still pending depends entirely on the circumstances of each case. In suitable cases the Court has the power and jurisdiction to re-call or modify its previous orders and it would make no difference whatsoever that the number of the Judges on the Bench now when the order is sought to be modified or re-called, for any reason has been reduced from three to two.
23. In 'Subodh Chandra v. Sudhir Kumar', AIR 1950 Calcutta 209, an application under section 174 of the bengal Tenancy Act for setting aside the sale when put up on 1-3-1947 was adjourned to 28th of April for orders awaiting receipt of record from the Appellate Court. After the case had been adjourned to 28-4-1947, the records having been received from the High Court were put up before the Munsif on 14-3-1947 and on that date Munsif passed the following order. 'Appellants are directed to take necessary steps for service of fresh notice upon opposite parties by 19-3-1947. Put up on that date for further orders.' On 19-3-1947 when the record was put up, the case was dismissed for the reason that no further steps had been taken by the applicants in compliance of the order passed on 14-3-1947. An application under section 151 C.P.C. Was filed by the applicants for restoration which was allowed on 12-6-1948 and the order of dismissal was set aside. Feeling aggrieved, the petitionernon-applicants challenged the order of restoration by way of revision petition in the High Court mainly on the ground that since the right of appeal available under section 174(5) of the Bengal Tenancy Act was not availed of, the Court had no jurisdiction to pass the impugned order in exercise of the powers made available under Section 151 C.P.C. And secondly that the Presiding Officer who passed the order of dismissal ceased to be a Presiding Officer, his successor in office was not competent to give relief under the provisions contained in Section 151, C.P.C.
24. While considering the proposition it was held that the fact that one officer had ceased to preside over a Court and is succeeded by another gentleman does not mean that the Court has ceased to exist or that the Court is another Court. It was further held that there seemed no reason as to why the powers given by the Legislature to the Court should be subjected to any limitation by laying down that it was only while the same Presiding Officer continued that an order already passed could be recalled or altered. While considering the plea taken in the revision petition Mr. Das Gupta, J. Observed: "In our opinion, whether a succeeding Presiding Officer can interfere with an order passed by his predecessor in office or not depends entirely on the circumstances of each case. The case may not be a suitable case for the exercise of powers under Section 151 C.P.C. At all; but if it is a suitable case the fact that there has been a change in the officer presiding over the Court would create no difficulty in his way. For, as we have already stated, the Court remains the same Court, though the presiding officer changes."
It was further. Observed: "It is also correct to say that ordinarily speaking the Court should not interfere under the provisions of Section 151, C.P.C. With orders against which the parties have other redress in law. Ordinarily, the exercise of inherent jurisdiction under section 151 C.P.C. Should be limited only to cases where the parties have no other redress in law. The circumstances in this case are, however, very peculiar.
Though the order dated 19-3-1947, purports to be an order of dismissal for default, what really 'happened was that the case was taken up by the Munsif on a date other than the date which had been fixed by him in the presence of the parties for the hearing of the case. It was really the mistake of the Court itself and a very serious mistake to take up a case for hearing on a date other than the date it has fixed in the presence of the parties. This can only be done where the alteration of the date is made with the knowledge and consent of the parties concerned. That was obviously not done in this case. It seems to me that in circumstances of 'this nature it is not only the right but the duty of the Court to try to correct its own mistake. That mistake consisted in taking up the case for hearing on a date other than the date fixed and dismissing the case on the 'mistaken view that the parties had not taken steps which they ought to have taken. The only way to correct that mistake was to set aside the order passed under this misapprehension by taking up the case on a wrong date and that was the order which was actually passed, under section 151, C.P.C. I think this a proper use of powers under section 151, C.P.C.
25. In the ultimate analysis I therefore hold that this Court in exercise of its inherent powers made available to it under section 151, C.P.C., can recall or modify its previous order. The point in the present case that however needs to be taken note of is that the petitioner, despite the fact that Advocate-General, as is evident from the interim order dated 4-12-1988, did not object, decided not to implead the Azad Jammu and Kashmir Council as respondent in the case. The application for the purpose that had been moved by the petitioner on 15-10-1988 was withdrawn by him on 4-12- 1968. He stated that he claimed no relief against the Azad Jammu and Kashmir Council and insisted that arguments be heard in the petition without having impleaded the Council as respondent. He then addressed lengthy arguments in support of his claim that the impugned proclamation for having been issued without lawful authority was of no legal consequence as it offended against the provisions contained in the Interim Constitution Act.
26. As already held in the earlier part of this judgment the impugned proclamation was not issued by the respondent-Government. It, could neither be burdened with any responsibility for its issuance nor could any relief therefore be granted against it to the petitioner. The question that now requires resolution is as to whether this Court could examine and decide the merits of the impugned proclamation without having the issuing authority before it as a party in the writ petition.
As already stated the petitioner has decided not to implead the Council as respondent in the case.
He not only opposed such an action by the Court suo motu but also stated while arguing his case that ha did not wish to claim any relief against the Council. In this view of the matter to examine and decide the merits of the impugned proclamation without petitioner having impleaded the issuing authority as a party in the case, would not, in my estimation, be permissible as it would tantamount to condemning, a party without affording an opportunity to be heard. To embark on such course would offend against the principle of natural justice.
27. For the aforestated reasons this Court is left with no option but to dismiss the petition. In view of the peculiar circumstances of this case, the parties are left to bear their own costs. The writ petition stands dismissed. ORDER OF THE COURT ' In view of this decision being not unanimous, it shall be deemed to have been made in terms of the relevant law and rules.