' RAJA MUHAMMAD KHURSHID KHAN, C.J.--Sardar Muhammad Ibrahim Khan, the appellant herein, was sworn in as the President of Azad Jammu and Kashmir for a period of five years on 5th of June, 1975, which period under the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be called the Constitution Act), was to 'expire on 5th of June, 1980. The Legislative Assembly elected was also to remain in office for five years. At that time the Peoples Party Government held the power in Pakistan.
2. In consequence of Pakistan National Alliance's agitation following the general elections in March, 1977, the Army dismissed the Government of Mr. Zulfiqar Ali Bhutto and took over the power in Pakistan. In Azad Kashmir, at that time, Peoples Party occupied the Government. As Martial Law did cast its shadows in Azad Kashmir too, an agreement was arrived at on 27th of July, 1977, between the major political parties' Presidents, for the dissolution of Azad Kashmir Assembly and the Azad Jammu and Kashmir Council. The agreement reads as under: "(1) The elections to the Legislative Assembly of Azad Jammu and Kashmir shall be held in October, 1977 within 10 days after the elections of Pakistan, and shall be conducted under the rules/conditions similar to those in Pakistan.
(2) the existing Azad Jammu and Kashmir Council and the Legislative Assembly of Azad Jammu and Kashmir shall be dissolved.
(3) The present President of Azad Jammu and Kashmir, Sardar Muhammad Ibrahim Khan, shall continue as interim President provided he does not seek election for any office. In case he does, he shall resign and the powers of the President shall devolve on the Chief Executive mentioned in para 5.
(4) The Prime Minister, the Ministers, the Advisors and the Speaker of the Legislative Assembly of Azad Jammu and Kashmir and the Advisors of Azad Jammu and Kashmir Council shall cease to hold office.
(5) Major-General (Retired) Abdul Rehman shall be appointed as Chief Executive of Azad Jammu and Kashmir and shall exercise all the powers conferred by the Interim Constitution Act, 1974 on the Prime Minister.
(6) The executive authority of the Council shall be exercised by the Chief Executive of the Government of Pakistan.
(7) The new Assembly and Government shall be inducted within a week after the announcement of results of elections.
(8) Justice Muhammad Gul shall be the Chief Election Commissioner who will conduct elections on the basis of existing electoral rolls, after updating them to the extent possible under the circumstnaces.
(9) The signatory parties underake to get the interim Constitution and other relevant laws amended through the prescribed proceduce by 6th August, 1977, to incorporate arrangements outlined in paras 1-8 and matters connected therewith."
3. In the agreement, the appointment of Chief Executive was also agreed upon. The Chief Martial Law Administrator of the time, General Muhammad Zia-ul-Haq, countersigned the agreement as Chief of the Staff. Consequently, Maj.-Gen. (Retd.) Abdul Rehman took oath of office as Chief Executive of Azad Kashmir on 11th of November, 1977. Later on Brig. Muhammad Hayat Khan (now Maj.-Gen. Retired) was appointed as Chief Executive in place of Maj. Gen.(Retd.) Abdul Rehman.
4. On 16th October, 1978, General Muhammad Zia-ul-Haq, the President of Pakistan and Chief Martial Law Administrator, who also exercised the powers of the Prime Minister of Pakistan in which capacity he was the Chairman of the Azad Jammu and Kashmir Council, issued an order (proclamation) removing Sardar Muhammad Ibrahim Khan from the office of the President of Azad Kashmir. Brig. Muhammad Hayat Khan, Chief Executive of the time, was appointed in his place. He was also required to continue as Chief Executive of Azad Kashmir.
5. The proclamation was issued under section 56 of the Constitution Act which refers to the responsibilities of the Government of Pakistan in relation to Azad Jammu and Kashmir under the UNCIP Resolutions. Section 56 of the Constitution Act reads as under:-- "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."
' The proclamation also speaks of all other enabling powers that Pakistan Government has in relation to Azad Kashmir.
6. Sardar Muhammad Ibrahim Khan, under section 44 of the Constitution Act, moved a writ petition in the High Court challenging the constitutional validity of the said proclamation, published on 31st of October, 1978, and contended that in law he still continued to be the President of Azad Jammu and Kashmir. On the above ground, he prayed that the proclamation be declared null and void as, in his view, it was ultra vires of the Constitution Act. He also prayed for writ to be issued against Brig.
Muhammad Hayat Khan to restrain him from performing the functions of the President and so on.
7. It may be noted here that in the writ petition General Muhammad Ziaul-Haq, Chairman of the Azad Jammu and Kashmir Council (hereinafter to be called as the Council) and Brig. Muhammad Hayat Khan, Chief Executive/ President of Azad Jammu and Kashmir, were impleaded by the appellant as respondents, but while admitting the petition for regular hearing, the Full Bench of the High Court ordered the deletion of the names of General Muhammad Ziaul-Haq and Brig.
Muhammad Hayat Khan from the writ petition and Azad Kashmir Government was ordered to be impleaded in their place. It was also held that this would neither affect the merits of the case nor the relief sought by the appellant. On the basis of the above finding, a notice was issued to the Azad Kashmir Government to file written statement etc. In the matter which was accordingly done.
The Government, it may be observed, contested the matter upto the Supreme Court.
8. It would appear that the appellant, inter alia, claimed that he entered upon the office of 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, for five years and the term of his office was still to expire, when he was illegally and unconstitutionally removed from the office of President. His removal, it was averred, was the outcome of a reference made to the Supreme Court of Azad Jammu and Kashmir under the provisions of section 46-A of the Constitution Act for its opinion about the legality of the appointment of Brig. Muhammad Hayat Khan as Chief Executive of Azad Kashmir by General Zia-ulHaq, the President of Pakistan. In this context, the appellant's case is and was that he was required by Gen. Zia-ul-Haq to withdraw the said reference but he declined to do so and thereafter General Zia-ul-Haq, to wreak vengeance, hatched a conspiracy to remove him in execution of which the impugned proclamation was made on 16-10-1978 and published by the Law Secretary of the Government of Azad Kashmir on 31-10-1978. According to the appellant, the proclamation was tainted with mala fide intention. Even otherwise, it was claimed, the proclamation was ultra vires of the Constitution Act inasmuch as the Chairman of the Council had no power or authority to issue any such proclamation under any of the provisions of the Constitution Act including the one under which it was issued.
9. This case, carrying important constitutional issues, had to see a chequered history spreading over eleven years which need not be repeated here. Suffice it to say that it does not reflect a happy reading for the judiciary; justice delayed is justice denied, is the time honoured golden principle and judiciary should always honour it in letter and spirit.
10. Finally, the case was decided by way of impugned judgment passed on 6-4-1989. The matter was concluded by a Division Bench of the High Court consisting of Mr. Justice Sardar Muhammad Ashraf Khan, Acting Chief Justice and Mr. Justice Sher Zaman Chaudhry, the puisne Judge. The learned Judges differed in their decisions. Mr. Justice Sher Zaman Chaudhry held that since the Council, who had passed the order, was not impleaded as a party, the writ petition was incompetent. On the other hand, Mr. Justice Muhammad Ashraf Khan found that since the order of removal of Sardar Muhammad Ibrahim Khan had been issued by the Government of Azad Jammu and Kashmir and that since the Government had continuously been contesting the writ petition and since the Full Bench of the High Court had deleted the name of General Zia-ul-Haq, Chairman of the Council, vide order dated 13-12-1978 which order had attained finality, there was, therefore, no need or occasion for the Council to be impleaded as a party. This omission, thus, was not fatal to the entertainment of the writ petition by the High Court. The matter was concluded by Mr. Justice Sardar Ashraf in holding that the impugned proclamation made by the Chairman of the Council on 16-10-1978 and published on 31-10-1978 by the Law Secretary of the Azad Kashmir Government for general information by virtue of which the appellant was relieved of his responsibilities of the office of President and Major-General (Retd.) Muhammad Hayat Khan was appointed in his place as President, being ultra vires of the Constitution Act, was unlawful and of no legal effect and Sardar Muhammad Ibrahim Khan continued as President of Azad Kashmir for the period stipulated under the Constitution Act. This appeal, by leave, seeks reversal of both the orders of the learned Judges of the High Court.
11. It may be observed that the learned Judge, Mr. Justice Sardar Ashraf, however, in para 25 of the judgment, despite the above finding, observed that he is fully conscious of the fact that the relief allowed is not of any substantial benefit and value to the appellant in view of the complete change having taken place after his removal. He, thus, opined that relief is granted in the interest of justice and broader public interest with a view to providing the appellant at least the satisfaction of his legal title making the legal position clear with regard to the constitutional points involved.
12. Besides other objections to be referred at the proper place, the appellant has serious objections to the above observation (in para 25) in the judgment of the High Court which, according to him, is not only illegal but is also uncalled for and amounts to adding something in law which is not permissible. The observation, the appellant's grievance is, deprives him to have the fruit flowing out of the relief granted to him. According to the appellant, the above observation makes the relief ineffective which can never be the intent and purpose of law.
13. It would, thus, appear that the learned Judges differed mainly with regard to maintainability of the writ petition; Mr. Justice Sardar Ashraf is of the view that the writ petition is tenable and the proclamation is also unconstitutional while Mr. Justice Sher Zaman Chaudhry opines that the writ petition, in the absence of Azad Jammu and Kashimr Council, is not competent. Mr. Justice Sher Zaman, however, declined to decide the writ petition on merits.
14. It has been argued by the appellant:--
(1) that Mr. Justice Sher Zaman Chaudhry erroneously held that the writ petition is not competent due to the absence of the Azad Jammu and Kashimr Council as a party;
(ii) that if in the opinion of the learned Judge the presence of Azad Jammu and Kashmir Council was essential as a respondent, the appellant ought to have been ordered to implead the Council and in the event the appellant failed to do so, then only writ petition could be dismissed. Since this has not been done, the order passed by Mr. Justice Sher Zaman is not tenable.
(iii) that since the Full Bench in the High Court had already opined vide order dated 13-12-1978 that the Azad Kashmir Government for all practical purposes is the proper party to meet the claim of the appellant, the learned Single Judge Mr. Justice Sher Zaman was incompetent to undo the order as the order passed by the Full Bench cannot be annulled by a Single Bench or Division Bench.
(iv) that the judgment of Mr. Justice Sardar Muhammad Ashraf Khan is correct to the extent that the proclamation was unconstitutional but it needs to be recalled when it decides that no relief can be granted to the appellant;
(v) that under Order VII rule 7 read with section 151, Code of Civil Procedure, the emoluments etc. To the appellant to the date the new President entered into the office on October 31, 1985, were to be awarded to the appellant to avoid all further litigation which had already consumed considerable time. The High Court was competent to grant such relief as it was in consonance to averments made in the writ petition, but omission of the High Court to allow emoluments etc. To the appellant is an erroneous approach to the controversy;
(vi) that since at the time the writ petition was moved the tenure of appellant as President still remained unexpired, reinstatement in recalling the unconstitutional proclamation could only be claimed;
(vii) that at the most the High Court was required to declare the proclamation as unconstitutional, but the High Court transgressed its powers in observing that no relief, after declaring the proclamation to be unconstitutional, can be granted to the appellant. The consequences should have been allowed to flow from the relief granted; (viii)that since the Supreme Court is entitled to grant all those reliefs which can legally be granted by the High Court, the appellant may be allowed emoluments, privileges etc. To the date the new President was sworn in as the President of Azad Kashmir;
(ix) In elaboration Sardar Muhammad Ibrahim Khan has contended that the Supreme Court, in exercise of its inherent powers, should give him the relief in the shape of emoluments etc. Upto 1985 when Sardar Muhammad Abdul Qayyum Khan, the present President, was sworn in. In this respect he has referred us to section 5(5) of the Constitution Act which reads: "Subject to the provisions of this Act, the President shall hold office for a period of five years from the date on which he enters upon his office and shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office."
15. As against this, Mr. Manzoor Hussain Gillani, the learned Advocate-General, has argued:
(i) that under the Courts and Laws Code Act, 1949, (hereinafter to be called as Courts and Laws Code Act) read with Azad Jammu and Kashmir High Court Procedure Rules, 1984 (hereinafter to be referred as High Court Rules), the appeal before this Court is not competent inasmuch as under the said Code and Rules, where there is a difference of opinion between two learned Judges of the High Court (as happened in this case), the matter was necessarily required to be referred by the Chief Justice to a third Judge for his decision and the decision of the third Judge, owning the view point of one of the Judges, would have formed the judgment of the Court; since this has not been done, in his view, at present we have no judgment but only "opinions" of two Judges which cannot be equated with judgment or order and since the "opinions" do not admit of an appeal, the appeal, in his view, is incompetent. In support of his argument, he has referred to an amendment made in section 24(1) of the Courts and Laws Code Act in the year 1975 which is to the effect that in the event of difference of opinion, "the case shall be referred to a third Judge and his opinion shall prevail". He has also relied on identical provisions of sub-rules (2) and (3) of Rule 21 of the High Court Rules.
(ii) that without impleading the Council whose proclamation was sought to be avoided, the writ petition before the High Court was incompetent. In his view, the deletion of the names of General Zia-ul-Haq and Major-General (Retd.) Muhammad Hayat Khan by the Full Bench of the High Court can in no way make the writ petition competent, if it is otherwise incompetent for want of proper parties;
(iii) He however conceded that the Chairman of the Council was incompetent to remove the appellant and his act in doing so being unconstitutional and illegal has and had no legal backing and is to be ignored provided there is a valid appeal before us;
(iv) The learned Advocate General, however, agreed that the Supreme Court in exercise, of its inherent powers is competent to pass an order which can be passed by the High Court, if the matter can be considered to be pending in appeal before this Court and not otherwise. In his view since there is no appeal, the question of exercise of inherent powers does not arise at all.
16. In support of his objections, listed under Nos. (i) and (ii) above, he has cited Distributors (Bardoa) Pvt. Ltd. v. Union of India (1986 PSC 143, In re: Reference No, 1 of 1977 by President of Azad J&K PLD 1978 SC (AJK) 34 and Ayr's Manual of Law, Terms and Phrases, 7th Edition, 1972, p.
648.
17. We have looked into the above case-law. The case-law cited does not cover the controversial points involved in the present case. It will thus be a futile exercise to have a critical survey of the above cases.
18. As said earlier, the learned Advocate-General concedes that the Chairman of the Council was not competent to remove the President in his capacity as Chairman. He even wanted us to hold further that the Government of Pakistan is also not competent to remove the President or the Prime Minister under any of the provisions of the Constitution Act and especially under section 56 of the Constitution Act. In his written arguments too, the learned Advocate-General showed complete agreement with the appellant that the Chairman of the Council, under no provisions of the Constitution Act, is clothed with the authority to remove the Prime Minister or the President of Azad Kashmir. In the circumstances, the removal of the appellant, under the aforesaid proclamation which was published in Official Gazette on 31-10-1978, in his estimation, is violative of the provisions of the Constitution Act and the appellant, but for this proclamation, was entitled to occupy the office of President till 5th of June, 1980, when his tenure as President was to terminate. The learned Advocate-General, however, does not agree that the appellant, as contended, was legally entitled to continue as President upto 31st October, 1985, when the present President, Sardar Muhammad Abdul Qayyum Khan, was sworn in as President.
19. Arguing the matter further, the learned Advocate-General submitted that despite the above position of law, the following factors create hurdle in granting the relief agreed upon and prayed for:-- There is no order, judgment or decree of the High Court against which a valid appeal lay before the Supreme Court. The views expressed by the learned Judges comprising the Bench in the High Court, he contended, are only expressions of their "opinions" over the subject-matter. The "opinions", being divided, they cannot be termed as judgments, orders or decrees of the Court, appealable; and
(ii) The opinions of the learned Judges being divided, the case was to be referred to one or more of the other Judges designated for the purpose by the Chief Justice. On hearing the case by the Judge or Judges to whom it was so referred, the majority opinion would have formed a valid judgment and if the difference still existed, in the event it was referred to two Judges who also differed in their views, and two Judges originally hearing the case also differed, the opinion of the senior most Judge out of the four Judges would have been considered to be the order of the Court.
' Elaborating his submissions on the subject, the learned Advocate-General, in the first instance, has referred to sub-rules (2) and (3) of Rule 21 of the High Court Rules, which read as under:- "(1 ) ......................................................
(2) If the Judges composing the Bench are equally divided on any point they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges designated for the purpose by the Chief Justice and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the case including those who first heard it.
(3) If there is no such majority, then the decision shall be in accordance with the decision of the Senior Judge except in the case of an appeal from a decree where such decree shall be confirmed."
' Additionally the learned Advocate-General also relied heavily on section 24(1) of the Courts and Laws Code Act. It says:- "Any function which is hereby directed to be performed by the High Court, may be performed by any Judge or by any Division Court appointed or constituted for the purpose by the Chief Justice. In case of a Division Court, if the Judges are divided in opinion on any point, the opinion of the majority, but if the Judges be equally divided then the case shall be referred to a Third Judge and his opinion shall prevail."
' On the basis of the above provisions of the High Court Rules and Courts and Laws Code Act, the learned Advocate-General sought to contend that it was mandatory for the learned Judges to refer the matter to a third Judge, which has not been done. Unless the point of difference is not referred to and resolved by the third Judge, the orders made by the learned Judges, in his view, are to be considered only as "opinions" of the Judges and not a decision of the Court--appealable.
20. On the above premises of reasoning, the learned Advocate-General contended that the "opinion" of a Judge or Judges cannot validly form the subject-matter of an appeal in this Court.
He, thus, seeks dismissal of appeal on this short ground. He also submitted that non-availability of the third Judge at the time the "opinions" were formed by the two learned Judges of the High Court, would make no difference as the learned Chief Justice could move the Government or President for appointment of a Judge for meeting the requirements of law and rules. In his view, the matter should have been kept pending till such appointment. In support of his argument, he has referred to a case titled Sardar Khan v. Sh. Attaullah 1989 CLC 1845 wherein it has been held:-- "It follows from the above-cited case-law that if the vacancy of a Judge of the Superior Court falls vacant for one reason or the other and thus the number of Judges falls short of the minimum number prescribed under law, the constitution of the High Court would not be adversely affected and the remaining Judges or Judge, as the case may be, would be competent to perform their functions under law."
21. The above case, we believe, does not decide or cover the controversial point before us. In this case constitution of the High Court was only under discussion and it was decided that two Judges of the High Court would be considered to be a valid High Court within the meaning of the words "High Court".
22. On the above premises of reasoning, the learned Advocate-General sought to argue that since there is no judgment or order of the High Court, the appeal is incompetent and liable to be dismissed. Alternatively, he submitted that assuming (but not conceding) that the "opinions" of the learned judges can be considered to be judgments or orders, the question agitated in this appeal with respect to the relief of emoluments etc., being inconsistent and alien to the case as set up in the High Court, cannot be granted in exercise of the inherent powers of this Court, as contended by the appellant. In elaboration, the learned Advocate-General submitted that since pay etc. Was neither claimed, agitated or discussed in the orders of the High Court, these issues cannot be allowed to be taken up for the first time before the Supreme Court. A party, the learned Advocate- General contended, cannot be allowed to build a new case for the first time before the Supreme Court.
23. The analysis of the above facts and the arguments advanced at the Bar would show that the parties, inter alia, are in agreement:-
(i) that the proclamation issued by the Law Secretary on 31-10-1978 was ultra vires of the Azad Kashmir Constitution Act; and
(ii) that the removal of Sardar Muhammad Ibrahim Khan, thus, was unconstitutional as General Zia-ul-Haq as Chairman of the Council had no authority or power to remove him under any of the provisions of the Constitution Act.
24. Here we may be permitted to say that no controversy had either arisen or discussed in the High Court as to whether the Government of Pakistan, under section 56 of the Constitution Act, was competent to remove the President or the Prime Minister. The controversial point in the High Court and before us is as to whether the Chairman of the Council and not the Government of Pakistan was competent to remove the President of Azad Kashmir, the appellant herein. Therefore, we decline to decide this issue as argued by the learned Advocate-General and leave it to be resolved where its decision is absolutely necessary for the disposal of a matter.
25. As said earlier, despite the above agreed field, the learned Advocate-General has also contended that without impleading the Council who made the proclamation (without prejudice to the validity of the argument advanced with regard to the competency of the appeal), the writ, being incompetent, was untenable and liable to be refused on this solitary ground. Thus, according to the learned Advocate-General, the Council was the necessary party and in its absence no effective order could be passed in the matter.
26. Now we propose to deal with the first important question argued and posed: as to whether the appeal before this Court is competent and in the event the answer is in affirmative, whether the remand of the case to the High Court to refer the matter to a third Judge is the only remedy or this Court can decide the matter in exercise of its inherent powers?
27. For the reasons to be stated, we have taken the view that since the appeal is tenable, we are competent to decide the matter. Even otherwise, when the matter has come before us for consideration, we (the Supreme Court) even without a valid appeal, have power to decide the issue involved in exercise of the inherent powers which we possess under the Constitution Act and the Supreme Court Rules. Somewhat similar statement of law, though in different context, we find in Miss Asma Gillani v. The Government of the Punjab PLD 1972 SC 139.
28. What the High Court should have done when there existed difference of opinion between the two learned Judges? On the subject, it would be of interest to look into the relevant rules and law.
The relevant High Court Rules (Rule 21, sub-rules 2 and 3) run as under:- "(2) If the Judges composing the Bench arc equally divided on any point they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges designated for the purpose by the Chief Justice and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the case including those who first heard it.
(3) If there is no such majority, then the decision shall be in accordance with the decision of the Senior Judge except in the case of an appeal from a decree where such decree shall be confirmed."
' Section 24(1) of the Courts and Laws Code Act is worded in the following manner:-- "Any function which is hereby directed to be performed by the High Court, may be performed by any Judge or by any Division Court appointed or constituted for the purpose by the Chief Justice. In case of a Division Court, if the Judges are divided in opinion on any point, the opinion of the majority, but if the Judges be equally divided then the case shall be referred to a Third Judge and his opinion shall prevail."
29. The combined reading of the above provisions leaves no doubt that when there is a difference of opinion between the two Judges in a case pending in the High Court, it needs to be referred to a third Judge. Sardar Muhammad Yasin Khan, the learned counsel for the appellant, in his written arguments admits this position. The learned Advocate, however, prayed for deciding the matter ourselves in exercise of our inherent powers because when the lis was decided by the High Court, no other Judge was available to refer the matter to him and since no other Judge even now is available for the purpose, it would be a futile exercise to remand the case. Sardar Muhammad Yasin Khan also submits that the decisions of both the learned Judges would be considered as "orders" appealable before this Court.
30. Here we may, with advantage, refer to the concluding order of the learned Judges. The concluding order of the learned Judges runs as under:- "In view of this decision being not unanimous, it shall be deemed to have been made in terms of the relevant law and rules."
31. The reading of the order would show that the order is not happily worded. It shows in no way that due to the difference of opinion between the two learned Judges, the matter is or would be referred to a third Judge for his decision or opinion. It only says that the order "shall be deemed to have been made in terms of the relevant law and rules".
32. What are those rules and law and whether under them, the orders would be considered to be final or to resolve the difference, the case was to be referred to a third Judge; the order is silent about it. In the circumstances despite the profound respect which we have for the learned Judges of the High Court, we feel obliged to say that the impugned order, being ambiguous in nature, leaves everything to be adjudged by the parties as to the nature of the order. The phraseology used in the order is such that even a skilled man is apt to be misled and consider the order to be a final one as nothing suggesting otherwise is available in the phraseology employed. We feel that even the learned Judges of the High Court were not sure as to what was next required when they differed; they also seem to have treated the order as a final order in accordance with the decision of the senior Judge. In these circumstances, we feel that the appellant cannot be blamed for lodging this appeal under an erroneous impression that the order is a final one.
33. A document, it is settled law of interpretation, is always to be interpreted in a way as to avoid any mischief created by such like ambiguities. In the circumstances, the appellant is not to be punished for the failure on the part of the Court to record a self-speaking and express order, if possible.
34. Despite the above position, the questions which would require our thought are:--
(i) Whether the decisions recorded by both the learned Judges of the High Court can be construed to be judgments or orders appealable without having the decision of a third Judge on the controversial issue as stipulated under the provisions of Courts and laws Code Act and the High Court Rules referred to above;
(ii) If the answer to the above query is in negative, whether we (the Supreme Court), in exercise of our inherent powers, could and should decide the matter or remand of the case to the High Court to refer the controversial issue to a third Judge for his opinion is necessary? And
(iii) If the Supreme Court is competent to decide the matter, whether the circumstances exist justifying an order by us in exercise of our inherent powers instead of remanding the case to the High Court to fulfil the requirements of law and rules?
35. We now proceed to decide the above questions. In the first instance it needs to be resolved as to whether the decisions recorded by the learned Judges can be construed as judgments, orders--- appealable-- or they are mere "opinions" admitting of no appeal as contended by the learned Advocate-General.
36. There cannot be two views that ordinarily the decisions given by the Courts of law can be either judgments, orders or decrees. Ahmed Musaji Saleji v. Hashim Ebrahim Saleji AIR 1915 P.C. 116 impliedly owns this view. It has been held in this case:-- "The Code makes no provision for something which is neither a decree nor an order, nor for anything which is both, neither does it provide that one adjudication by the Court can be resolved into diverse elements, some of which are decrees and some orders."
37. To have a correct view of the issue, it would be necessary to find and determine the meanings of the words "judgment", "order" and "decree". "Judgment" under section 2(9) of the Code of Civil Procedure means "the statement given by a Judge of the grounds of a decree or order". So, broadly speaking every statement of grounds can be considered as a judgment, if such a decision can result in a decree or order. "Order" under section 2(14) of the Code of Civil Procedure means "final expression of any decision of a Civil Court which is not a decree". Thus, the term "order" means and connotes a decision of a Court or Judge short of decree. According to Shorter Oxford Dictionary, in law, the word "order" means "decision of a Court or Judge made or entered in writing". According to the same dictionary, the meaning of the word "judgment" is "a judicial decision or order in Court".
However, the importance of a decree lies in the fact that ordinarily an appeal lies from every decree. "Orders" on the other hand are appealable only if so provided by section 104 read with Order XLII of the Code of Civil Procedure or under the Supreme Court Rules or under the Constitution Act. A vital difference, however, is that a decree ordinarily conclusively determines the rights of the parties whilst the order does not necessarily do so. This view we have in Mt. Chauli v.
Mt. Meghoo AIR 1945 All.
268.
38. Thus, it would be legitimate to say that in civil matters we have three kinds of pronouncements: One being judgment, the second being decree which flows from the judgment; and the third are the "orders" under which rights of the parties may not have necessarily been conclusively determined until something more is not done.
39. Coming to the present case, in the peculiar circumstances of the case, we are unable to persuade ourselves to subscribe to the submissions made by the learned Advocate-General that the orders made by the learned Judges are simply "opinions" not appealable. We feel that in the circumstances of this case, these are "orders" for all practical purposes. We are of the view that in the present case, both the decisions made by the learned Judges are orders--though interlocutory in nature. Of course, the orders necessitated a reference to a third Judge for a final order in owning one of the reports of the Judges but since the same has not been done either due to misapprehensions arising out of rules and law or for the reason that no other Judge was available at the time the orders were made, they can rightly be considered as interlocutory orders calling for a final order. However, "orders" are always opinions expressed by a Judge. Therefore, even if we term the orders of the learned Judges as "opinions", they would still be termed as orders of interlocutory nature and it would make no difference that they fail to determine the rights of the parties finally and conclusively.
40. In fact the "decision" in the broader sense includes "order" and "judgment" and having this meaning in mind, it is safe to say that both the learned Judges have made the decisions which can be termed as orders of interlocutory character.
41. In view of the above discussion, we are of the considered view that in view of the definition of the word "order" which means "formal expression or any decision of Civil Court which is not a decree" and which may not have ordinarily determined the rights of the parties, the decisions recorded by both the learned Judges in this case in the circumstances of the case, are orders of the Court or Judges though of interlocutory nature.
42. Let us now proceed to determine the next question as to whether appeal against the above interlocutory orders, before the Supreme Court, is competent?
Under section 42(11) of the Constitution Act, which reads:- "An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir." an appeal to this Court is competent against a final order and not orders of interlocutory nature.
43. Contrary to the provisions of section 42(11), the phraseology used in subsection (12) of section 42 of the Constitution Act is different. It reads:-- "An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence to which subsection (11) does not apply shall lie only if the Supreme Court of Azad Jammu and Kashmir grants leave to appeal."
It would appear that this provision does not envisage that leave can be granted only against final orders. The word "order" in the aforesaid provision has not been qualified by the word "final". The phraseology employed, thus, cannot be construed as to envisage that leave can be granted only against a final order. It is to be noted that corresponding Articles from all the Constitutional instruments of Pakistan, i.e,, Constitutions of 1956, 1962 and 1973 and Indian Constitution show that more or less identical phraseology has been used in the relevant Articles and the word "order" appearing in the Constitutions has not been qualified by the word "final".
44. We may here, for comparative study, reproduce the relevant provisions of Azad Kashmir Constitution Act, Constitution of Pakistan, 1973, and the Indian Constitution.
The provisions contained in our Constitution Act are embodied in section 42(12) which reads as under:- "An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of the High Court in a case to which subsection (11) does not apply shall lie ,only if the Supreme Court of Azad Jammu and Kashmir grants leave to appeal."
' Identical provision is contained in corresponding Article 185(3) of the Pakistan Constitution of 1973 which is couched in the following manner:- "An appeal to the Supreme Court from a judgment, decree, order or sentence of the High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."
' The corresponding provision in the Indian Constitution is contained in Article 136(1) which reads:- "Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any High Court or tribunal in the territory of India."
45. The comparative study of the relevant Articles contained in the aforesaid Constitutional instruments of different countries would show that in the relevant Articles or sections the word "order" has nowhere been qualified by the word "final" and there is, therefore, hardly any room for the argument that leave cannot be granted on the ground that order is not a final one and is of interlocutory nature. Reference may also be made to the commentary of Article 136 of the Indian Constitution by V.N. Shukla, 7th edition, wherein while dealing with the scope of Article 136, the learned author has observed at page 321 that there is no condition that the order of the Court be a "final order" and the appeal against an "interlocutory order" is not permissible. Identical view was expressed in the commentary on Indian Constitution by Basu, 6th Edition, Vol. 'G', at page 307.
46. Therefore, it admits of no doubt that the power to grant leave to appeal under subsection (12) of section 42 of the Constitution Act may be exercised with respect to interlocutory orders as well.
47. It appears that the Legislature being fully alive to such like unforeseen situation, couched the above subsection in a very comprehensive way to give powers to the Supreme Court to rectify such wrongs which shock the conscience of the Court. This is why it is implicit in the reserve powers that interference is always justified when it appears that there is disregard to the forms of legal process or some violation of the principles of natural justice or otherwise substantial and grave injustice is established.
48. It is, thus, plain and admits of no ambiguity that when the Supreme Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court has not given a fair deal to a litigant then no technical hurdle of any kind can be allowed to stand in the way of the exercise of this power. The above statement of law has lot of wisdom; it would be unjust to allow justice to be sacrificed at the altar of technicalities. Technicalities are after all technicalities and the omissions to follow them are to be ignored especially when none of the parties stands to lose.
49. Subsection (12) of section 42 of the Constitution Act, which is identical to Article 185(3) of the Pakistan Constitution and Article 136(1) of the Indian Constitution, in view of the above, undoubtedly vests wide discretionary powers in the Supreme Court of Azad Jammu and Kashmir to grant leave to appeal against an interlocutory order even. Of course, such power is required to be exercised in exceptional cases and under exceptional circumstances. Be that as it may, by virtue of this subsection the Supreme Court, in its discretion, undoubtedly has power to grant leave to appeal against any order even of interlocutory nature. The only uniform standard that can be laid down regarding these variety of cases is that the power shall be exercised sparingly and only where special circumstances exist. In case the Bharat Bank, Ltd., Delhi v. The Employees of the Bharat Bank, Ltd., Delhi AIR 1950 SC 188, it has been observed by Mr. Justice Mahajan:-- "It is clear, therefore; that the power to grant special leave under this Article against an order of a Court could be exercised with respect to interlocutory orders also."
50. The sum total of what has been discussed above is that: the discretionary powers conferred by subsection (12) of section 42 of the Constitution Act can be exercised by the Supreme Court though sparingly and under special circumstances; but certainly this power knows of no limitation unless such limitation is created by constitutional amendment. The discretion, as said earlier, can be exercised in allowing leave to appeal against interlocutory orders etc. The section, in fact, contains overriding provisions and it is entirely in the discretion of the Supreme Court to grant leave to appeal. Thus, when in a matter leave is sought to question the validity of a judgment, decree, order or sentence of the High Court, the order may not necessarily be a final one.
51. However, the question in what cases this Court will grant leave is essentially a different question from the one where it has the jurisdiction to grant leave if it be of the opinion that such leave should be given. It is important to observe that the section imposes no restriction whatsoever even with regard to 0 the persons who may apply for leave to appeal or as to the grounds on which leave to appeal may be prayed for. It all leaves to the discretion of the Court.
52. The plain meaning of this Constitutional provision [section 42(12)] appears to us to be that if the Court is of the view that there exist special grounds for giving leave to appeal from any judgment, decree or order, it has jurisdiction to do so and there are no fetters in its way.
53. It is correct that generally the Supreme Courts in India, Pakistan and Azad Kashmir are reluctant to grant petition for leave to appeal against an order of interlocutory nature but in proper cases leave may be granted. This, of course, as said earlier, is left entirely to the discretion of the Supreme Court. It is to be noticed that unlike subsection (11), subsection (12) of section 42 of the Constitution Act does not confer any right to appeal upon the party but vests the discretion in the Supreme Court to interfere in the exceptional cases. The Supreme Court, therefore, has unfettered powers to grant leave'to appeal against an order even though the same is not final, if the facts of the case so demand.
54. In the circumstances, we feel no hesitation in saying that the Supreme Court is all competent under the Constitutional provisions to grant leave to appeal and interfere in any matter etc. And the Court will have no hesitation to do so where the circumstances indicate that there has been a grave miscarriage of justice by some disregard of the forms of legal process or some violation of the principles of natural justice is evident.
55. Therefore, when leave to appeal has been granted (as has been done in the present case) and the matter is properly before the Court, the Court is competent to decide it and no technicality can overcome in its way.
56. In the instant case, it is abundantly clear that there is a clear disregard of the forms of legal process. The case should have been referred to a third Judge, which has not been done either through mistake or for the non-availability of a third Judge. To examine the orders, under the circumstances, the Supreme Court has the discretion and jurisdiction under section 42(12) of the Constitution Act, to grant leave to appeal which discretion has been rightly exercised as none of the parties stands prejudiced.
57. It is, in fact, unprecedented in the legal history that a Court has ever been faced with such trying circumstances of peculiar character and challenge with which we are faced. We face obstacles that are stupendous by any standard. It is to be observed that even in cases decided in all the civilized countries, we are unable to lay our hands on a case of the nature with which we are faced.
It is unthinkable to conceive a situation where a Judge is not available in a High Court for referring the matter to him within the meaning of law and rules. In the circumstances, it is our duty to resolve the controversial issue ourselves, if law allows it.
58. It admits of no argument that the Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are the judges of their own jurisdiction. This is a right which has consistently been claimed by the Supreme Court and other Courts of superior jurisdictions in all civilized countries and we have no hesitation to claim I so.
59. The learned Advocate-General also, it goes to his credit, does not seriously dispute the correctness of the proposition that "judicial power" is different from "jurisdiction" and so far as "judicial power" is concerned, it must exist in Courts as long as the Courts have and must have the powers to determine all questions of their own jurisdiction. It is a proposition so well settled that no one can challenge it. In fact, the learned Advocate-General has been bold enough and we admire him for his boldness in admitting that the Supreme Court is competent to decide the matter under its inherent powers.
60. In view of the above, the conclusion to which we arrive at: is that the powers of the Supreme Court under section 42(12) of the Constitution Act are in the nature of residuary powers which are exercisable outside the purview of ordinary law. It would therefore, appear that the powers given to Azad Kashmir Supreme Court by section 42(12), which are part materia with the powers enjoyed by the Supreme Courts of Pakistan and India, are in the nature of special or residuary powers which are exercisable outside the purview of the ordinary law relating to appeals and cases, where needs of justice demand the interference by the Supreme Court. Section 42(12) of the Constitution Act is worded in the IX widest terms. The phraseology used makes it abundantly clear that the section vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing the appeals by granting leave against any kind of judgment or order made by the High Court or any other relevant Court in a cause or matter. This power can be exercised irrespective of the specific provisions for appeal contained in the earlier subsection, namely, subsection II of section 42 of the Constitution Act or other laws and allows remedy by way of appeal by leave against any order Including an interlocutory order. The Constitution Act does not, for the best of reasons, choose to fetter or circumscribe the powers exercisable under this section in any way.
61. It is correct that the power is not to be exercised as an ordinary power of appeal; nevertheless the subsection confers power which is to be exercised under exceptional circumstances. It is implicit in the reverve power that it cannot be exhaustively defined. However, we believe that interference is advisable when we find disregard to the forms of legal process or some violation of principles of natural justice or otherwise substantial and grave injustice appears to have been done. A case titled Sanwat Singh v. State of Rajasthan (AIR 1961 SC 715) carries identical statement of law. In this case at page 722 it has been observed:-- ' Article 136 of the Constitution confers a wide discretionary power on this Court to entertain appeals in suitable cases not otherwise provided for by the Constitution. It is implicit in the reserve power that it cannot be exhaustively defined, but decided cases do not permit interference unless `by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done'. Though Art. 136 is couched in widest terms, the practice of this Court is not to interfere on questions of fact except in exceptional cases when the finding is such that it shocks the conscience of the Court."
' The cases reported as Durga Shankar Mehta v. Raghuraj Singh (AIR 1954 SC 520), M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Their Employees (AIR 1959 SC 633). The State of Bombay v.
Rusy Mistry (AIR 1960 SC 391), Tarapore & Madras v. Tractorexpert, Moscow (AIR 1970 SC 891), Subedar v. The State of U.P. (AIR 1978 SC 484) and Union of India v. Swadeshi Cotton Mills Co. Ltd.
(AIR 1978 SC 1818) carry identical statement of law.
' In Durga Shankar Mehta v. Raghuraj Singh (AIR 1954 SC 520) it has been observed:-- "It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself.
The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way."
' In M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Their Employees (AIR 1959 SC 633) it was held:-- "Article 136 of the Constitution does not confer a right of appeal to any party from the decision of any tribunal, but it confers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the territory of India. It is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot obviously be so construed as to confer a right to a party where he has none under the law."
' In the State of Bombay v. Rusy Mistry (AIR 1960 SC 391) it has been observed:-- "Article 136 of the Constitution does not confer a right of appeal on any party from the decision of a Court; but it confers a discretionary power on the Supreme Court to interfere in suitable cases. It is implicit in the descretionary power that it cannot be exhaustively defined. It cannot obviously be so construed as to confer a right on a party where he has one under the law. The practice of the Privy Council and that followed by the Federal Court and the Supreme Court is not to interfere on questions of fact except in exceptional cases, when the finding is such that 'it shocks the conscience of the Court' or by disregard to the forms of legal process or some violation of the principles of natural justice or otherwise substantial and grave injustice has been done."
' In M/s. Tarapore & Madras v. Tractorexpert, Moscow (AIR 1970 SC 891) it has been observed that ordinarily the Supreme Court does not interfere with the interim orders but where the legal principles of great importance affecting international trade are involved and the orders of the Court if allowed to stand are bound to have their repercussions on international trade, the Supreme Court would interefere with the relevant interim order.
' In M/s. Ganesh Trading Co. v. Moji Ram (AIR 1978 SC 484), it has been observed that the Supreme Court will not interfere as a general rule with order of interlocutory nature but in proper cases the Court will interfere to prevent the failure of justice.
' In Union of India v. Swadeshi Cotton Mills Co. Ltd. (AIR 1978 SC 1818), it has been observed that although the usual practice of the Supreme Court is to hesitate to interfere with an interlocutory order but where repercussions are incalculable such order can be interfered with .
62. Therefore, it would be legitimate to say that under section 42(12) of the Constitution Act, even if the orders are of interlocutory nature, the Supreme Court shall exercise the power to grant leave to appeal in exceptional cases and there are no fetters in the way of the Supreme Court to do so. Even otherwise the Supreme Court has power to pass any order to do complete justice in any matter in exercise of its inherent powers.
63. Let us now proceed to determine the extent and scope of the inherent powers of the Supreme Court. Section 42-A(1) of the Constitution Act deals with such powers. It reads as under:- "The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document."
64. It is important to note that the words "doing complete justice in any case or matter pending before it occurring in section 42-A(1) are used with the intention to invest the Supreme Court with the widest possible powers for the dispensation of complete justice which must be understood in a sense extending beyond the mere resolution of the rights inter se of the parties before the Supreme Court in any cause. Besides, the employment of the expression "matter" is not without significance.
It positively has a reference to all judiciable matters and, therefore, possesses a scope far exceeding than the word "cause" which is limited by the sense it carries, i.e,, a grievance coming to notice at the instance of a party against another.
65. The words "doing complete justice" and "matter" occurring in section 42-A(1) of the Constitution Act are the key words which furnish the clue. When read in conjunction with the words "judgment", "order" or "decree", under section 42(12) of the Constitution Act, it leads to the inference that the intention of the law-makers in using the word "matter" in section 41-A(1) was to extend the jurisdiction of the Supreme Court to look into the entire controversy unfettered by any consideration stipulated under section 42(11) and (12) of the Constitution Act. The word "matter", in Black's Law Dictionary, is defined as "the subject-matter of controversy" or substantial facts forming the basis of a claim or defence.
66. It, thus, admits of no doubt that by virtue of section 42-A(1), the Supreme Court has ample powers to issue such orders as may be necessary for doing complete justice in any case or matter pending before it. The word "matter" is comprehensive enough to include any form of matter upon which the Court has applied its mind. It, thus, may include "opinions", "orders" etc. This provides complete answer to the grievance of the learned Advocate-General that the opinions of the Judges cannot be looked into by the Supreme Court.
67. The Supreme Court is also all competent to pass any order to secure the ends of justice under Order XLIII, rules 4 and 5 of the Supreme Court Rules which read as under:-- "4. The Court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may he exercised by the Court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
5. ' Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
' The combined reading of the provisions of the Supreme Court Rules and Constitution Act leaves no room for doubt that in a fit case or matter pending in the Supreme Court, the Supreme Court is competent to pass any order to meet the ends of justice. There are no fetters to do so. The "matter", as discussed, is comprehensive to include any "matter" even short of judgment, order or decree. It was observed in Muhammad Farash Khan v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43:- - "Before we part with the case, we may state that the Supreme Court even otherwise is also competent to pass any order to secure the ends of justice under Order XLIII, rules 4 and 5 of the Azad Jammu & Kashmir Supreme Court Rules, 1978 read with section 42-A(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974....
' The reading of the provisions of the Supreme Court Rules and Constitution makes us to believe that in a fit case, like the present one, the Supreme Court is competent to pass any order to meet the ends of justice."
68. There, thus, remains no ambiguity that under the provisions of Azad Kashmir Constitution Act read with Supreme Court Rules, referred to above, this Court is competent to pass any order as may be necessary for doing complete justice in any case or matter pending before it and such powers may be exercised by the Court notwithstanding that the appeal is lodged only to the part of the decree or order and it may be exercised in favour of all or any of the respondents or party although such respondents or party may not have lodged any appeal or objections. Identical view was also owned in Riaz Ahmad v. Amin Baig. (PLD 1977 SC (AJ&K) 22) wherein it was held:-- " In short the Supreme Court has ample powers to pass such decree or order as may be necessary for doing complete justice and may finally dispose of a case itself or may remand a fit case to the lower Court for re-hearing of the same according to law and for resolution of the points inadvertently omitted by that Court."
69. It is to be noticed that the jurisdiction and powers of the Supreme Court of Azad Jammu and Kashmir are identical and at par with the powers of the Supreme Court of Pakistan. This view we have in Muhammad Khan v. The State !PLD 1978 SC (AJ&K) 1). It was observed in this case:-- "The powers of the Supreme Court of Pakistan and Supreme Court of Azad Jammu and Kashmir derived from the respective Constitutions of Pakistan and Azad Kashmir are identical. Under the provisions of subjection (10) of section 42 of the Interim Constitution Act, 1974, the Supreme Court of Azad Jammu and Kashmir is fully constituted Court for hearing criminal appeals from the judgments and orders passed by the High. Court. The Supreme Court of Pakistan derives its powers from the Constitution of the Islamic Republic of Pakistan, 1973, which has identical provision in the matter."
70. On a careful examination of all the relevant facts and the law, we feel convinced that it is our (Supreme Court's) solemn duty to do full and complete justice and correct, so far as lies within our powers, any injury that we find to have been done to the very means and instrument by which justice is dispensed at the highest level. Here the injury to the parties, we believe, has been done by the operative order of the High Court, which is and was misleading. On the basis of the difference of opinion of the two Judges, the matter was to be referred to the third Judge by the Chief Justice but it was not so done. So it is legitimate to say that the injury has been done to the very means and instrument by which justice is dispensed at the highest level. This fact had occasioned legal injury not only to the appellant but also to the respondent. From Pakistan jurisdiction in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC (Pak.) 51), it was observed:-- "On a careful examintion of all relevant matters, and bearing in mind the solemn duty resting upon us, while doing full and complete justice in this case, also to consider and correct, so far as lies in our power, any injury that we find to have been done to the very means and instrument by which justice is dispensed at the highest level."
71. Therefore, the conclusion to which we reach is: that in cases where there are compelling reasons, the Supreme Court should not hesitate to exercise its inherent powers to decide the case itself, especially, when it would affect none of the parties adversely. In such circumstances, the technicalities, in order to do substantial justice, are to be ignored and if the Court comes to the conclusion that some injustice has been done to a party and the case warrants a review of the decision appealed against, the power would be exercised to undo the mistake.
72. Identical powers we find with the Supreme Court of India under Article 142(1) of the Indian Constitution, which reads:- "The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe."
Provisions alike to the Indian Constitution we find in Article 187(1) of the Constitution of Pakistan of 1973 which says:-- "Subject to clause (2) of Article 175 the Supreme Court shall have power to issue such directions, orders or decrees as may he necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document."
73. Under the aforesaid Articles, the Supreme Courts of Pakistan and India, both, in any case or matter seized with, felt always free to pass any order as may be necessary for doing complete justice. The words "doing complete justice" and "matter", we believe, empower the Supreme Court to make any order as may be necessary for doing complete justice in any case or matter pending before it and it contains no word of limitation.
74. We are also of the view that even orders of the learned Judges of the High Court can well be termed under section 42-A(1) of the Constitution Act as "matters" which can be scrutinized by this Court. It also goes without saying that if for the sake of "doing complete justice" in a matter, it becomes necessary for the Supreme Court even to examine its own record for the purpose of dilating upon the matter before it, it will not allow itself to be deterred in the performance of that duty, by any considerations of its own dignity or of the sanctity of its records. This statement of law was found in a case entitled Fazal Ellahi v. The Crown (PLD 1953 FC 35).
75. Therefore, it is our considered view that while considering the circumstances of a particular case, if this Court considers it to be necessary in the interest of justice to interfere, it has competence to do so in any matter in exercise of its inherent powers. In the instant case we note that the learned Judges in making the operative part of the impugned judgment, failed to exercise the jurisdiction in omitting to send the case to a third Judge for his view on the controversial point.
We think that in the circumstances the case for our interference is made out.
76. It also requires to be taken note of that our jurisdiction to grant the relief claimed by the appellant, when we are seized with the matter, especially in view of the provisions of section 42- A(1) of the Constitution Act, would be considered as concurrent with that of the High Court. The learned Advocate-General accepts this position.
77. The conclusion to which we arrive is that:--
(i) under the provisions of section 42(12) of the Constitution Act, there would he no bar to our entertaining the appeal by leave which we have rightly allowed in this case to consider the controversy; and
(ii) apart from the provisions of section 42(12), even otherwise, the Supreme Court has ample powers to look into the propriety of any order, decree, sentence or matter pending before it in exercise of its inherent powers which the Supreme Court possesses. In the circumstances of the case we should not be blamed as to be discourteous to the High Court in deciding the matter ourselves without having the view point of the referring Judge as we have substantial reasons to do so.
78. As said earlier, we believe that "orders" in cases ought to be interfered with where there are exceptional and unusual features justifying such interference. A case titled Nagendra Nath Bora v.
Commissioner of Hills Division and Appeals, Assam (AIR 1958 SC 398) owns this view and also carries somewhat identical facts. In this case the High Court of India in an application under Article 226 brought by the respondent made an interim order on 10-6-1957 that status quo ante be maintained. By misapprehension of this order the Excise Commissioner directed that possession should be recovered from the appellant and given to the respondent. The appellant moved the High Court for quashment of this order of the Excise Commissioner which was palpably wrong. The High Court issued the rule but refused to grant ad interim stay of the order directing possession to be given. The petitioner went on moving petitions for vacating the order of possession but the High Court could not hear these petitions until after the long vacation in September, 1957, because no Division Bench could be constituted for want of a Judge. The Supreme Court found that the order directing the appellant to be dispossessed was without any authority of law and also found that there was no merit in the case made by the respondent in the application under Art. 226 itself where the interlocutoryorder was quashed.
' In the aforesaid case the application for vacating the order of possession could be gone into by the Division Bench but since the other Judge was not available, no Division Bench could be constituted for want of a Judge to hear the petitions and the petitions had been posted until after the long vacation in September, 1957.
' The Supreme Court, having in view the extraordinary nature of the case, found that since the order to be vacated was bad in law, being without any authority of law, they vacated the order without waiting for the appointment of a Judge to constitute the Division Bench.
79. More or less that case carried identical features. In the case before us, no Judge was available to whom the case could be referred by the Chief Justice and one knows not when more Judges or Judge would be appointed.
80. It is accepted principle of law that when law is to be interpreted, it is to be interpreted in a way as to suppress the mischief and advance the remedy. We LL cannot, therefore, allow the litigants to remain in a lurch in undergoing the agony spreading over years, especially when we can rectify the wrong in exercise of our inherent powers available to the Supreme Court under section 42-A(1) of the Constitution Act. It may he observed that there can be no cavil against the MM proposition that the jurisdiction of superior Courts cannot be taken away except by express words or necessary implication.
81. If we view the case from another aspect, we have the same conclusion. No doubt, as said elsewhere, the case was to be referred by the Chief Justice to a third Judge who was not available at the time when the orders by both the learned Judges were made. What would be the effect of the failure of the relevant authorities to appoint a third Judge for referring the case to him is an important question to be answered.
82. It is matter of common sense that if under a certain Act and Rules a thing is to be done in a particular way, and no machniery is provided for giving effect to its provisions, then it should be considered as a dead letter unless it is declared with certainty that omission to provide the machinery would not have any legal effect. As no steps for a considerable long time were taken to appoint a NN Judge or Judges of the High Court to meet the requirement of law and rules, it is to be presumed that the Legislature and the Azad Kashmir Government were not serious for giving effect to the provisions of the Courts and Laws Code Act and the High Court Rules. This being the case, we cannot treat the orders made by the learned Judges as "opinions" simply on the ground that these orders were not referred by the Chief Justice to a third Judge who was not available for the purpose. In the compelling circumstances and reasons, the appellant had lodged a petition for leave to appeal before the Supreme Court. In the circumstances, we feel that we have all powers to decide the matter in the same way in which it should have been decided by the High Court in accordance with the provisions of Courts and Laws Code Act read with High Court Rules, especially, when no party would be prejudiced by this act. Somewhat identical view was expressed in Mir Alain v. Abdullah Khan (PLD 1953 Azad J & K 13). To us this solitary ground is sufficient to hear the appeal on merits and decide the same.
83. In the circumstances of this case, to be highlighted, we feel advised to decide the case ourselves on the belief that leave was properly granted to scrutinize the orders under appeal passed by the learned Judges of the High Court.
84. Before we take up the exercise to advance the reasons to decide the case ourselves, it would be but proper to determine as to whether, as argued by the learned Advocate-General, the Council was a necessary party in the writ petition?
85. So far the impleadment of parties in the writ petitions is concerned, it is not possible to formulate or follow a rigid formula; circumstances may vary to attract the provisions of the Code of Civil Procedure governing the impleadment of parties. It is true that ordinarily the authority or the officer whose action is sought to be reviewed in a writ petition is to be made a party to it but it is not a rule inflexible. Its application depends upon the circumstances of each case. Probably that is the reason that there is no statute or rule, which lays down that any particular party must necessarily be impleaded as a respondent to a writ petition under section 44 of the Constitution Act; nor is there a provision that the Court must dismiss a petition under the said section if a party whom the Court considers necessary has not been impleaded as a respondent by the petitioner.
The Court is not 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 when 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 respondent in the case. On the issue in a case reported as Zubair v. Bashir (PLD 1963 (W.P.) Lah. 178) the principle of misjoinder or non-joinder of parties to the writ petitions has very ably been narrated by Mr. Justice Manzur 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 that the Court must dismiss a petition under the said Article 98 or the said 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."
86. The procedure as regards non-joinder and misjoinder is stipulated under the provisions of rule 9 of Order I of the Code of Civil Procedure which says:-- "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it."
'The rule makes it clear that misjoinder or non-joinder would not be fatal to the suit provided the suit was of such a nature that the rights and interests of the parties before the Court could effectively be disposed of. In the instant case, the Azad Kashmir Government has taken such a posture and stand that one can safely say that the Government has virtually substituted itself for the Council and taken upon its shoulders to act and defend the cause as the agent of the Council.
We, thus, do not find any legal flaw to decide the controversial issue in the absence of the Council which even otherwise, we believe, is only a proper and not a necessary party.
87. In the instant case, the persual of the writ petition would show that the proclamation made on 16th of October, 1978, and published on 31st of October, 1978, was questioned by the appellant in the writ petition as to be illegal. The proclamation was published in the Government Gazette on 31-10- 1978 by Sardar Aftab Ahmad Khan, the Law Secretary of the Azad Government of the State of Jammu and Kashmir. It would be important to note that the publication of the proclamation by the Law Secretary in the Government Gazette has not been denied by the Azad Kashmir Government in the written statement; rather it impliedly stands admitted. It is also averred in para. 3 of the written objection, that the proclamation published on 31-10-1978 was a bona tide act done in good faith. It is further claimed in para. 4 that the proclamation is not ultra vires of the Constitution Act and is perfectly legal and constitutional.
88. It would, thus, appear that the Government's stand at the time the written statement was submitted, was that the proclamation was a legal one and so it was rightly published in the Gazette. This clearly suggests that the Government defended the Council's action without any reservation, presumably under the directions of the Council.
89. It is also significant to note that the Council and the Azad Kashmir Government have separate entity; they have got separate budgets. They have separate departments to run. They have separate secretariat. The formation of Azad Kashmir Government and the Council is also two separate independent organizations. In the circumstances, it is doubtful as to whether the Azad Kashmir Government or its Law Secretary was at all competent to publish and notify the proclamation in Government Gazette of Azad Kashmir in consequence of which the appellant was ousted of the office of the President. But it admits of no doubt that in the event the publication of proclamation is considered to be without authority, then it would place the appellant on a stronger footing as the ouster of the appellant in such event would be considered as non-existence in law and ad initio void. The parties are in agreement that, but for the publication of the proclamation in the official Gazette by the Law Secretary of the Azad Kashmir Government, the appellant would have retained the office of the President till 5th June, 1980. Therefore, it would be legitimate to say that the right of action and cause of action, both, accrued to the appellant against the Azad Kashmir Government by the act of the Azad Kashmir Government in publishing the proclamation in its Government Gazette which fact had occasioned the ouster of the appellant from the office of the President. Therefore, it would be the Azad Kashmir Government who would be considered as a necessary party for the purpose of section 44 of the Constitution Act. In the circumstances, we think that the Council would only be termed as a proper party but surely not a necessary party. The reason is simple. The proclamation made by the Chairman of the Council was published by the Law Secretary on behalf of Azad Kashmir Government which publication had created the effect of the proclamation. Additionally the Government also owned it in its written statement.
90. We are not oblivious of the fact that in a proper case a defect of necessary party may be seriously taken note of by the Court but in our view the present is not such a case. It has not even been suggested that in the absence of the Council whose order has been published by Azad Kashmir Government, the Council is prejudiced in any way. In the writ petition, the respondent took all the defences which could possibly be taken by the Council.
91. Under the procedural provisions prevailing in this country no suit can fail for the reason of non- joinder or misjoinder of parties vide order I rule 9 of the Code of Civil Procedure. Under these procedural provisions the Courts in this country have power to order any other person to be substituted or added as plaintiff or defendant on such terms as they may think fit and proper. It is also clear from the provisions of rule 13 of Order I of the said Code that such objections as misjoinder or non-joinder of the parties must be taken at the earliest possible opportunity either before or at least at the time of the settlement of issues.
92. Let us adjudge the issue from another angle. As has been said in the earlier part of the judgment, the appellant in the writ petition did implead General Zia-ul-Haq and Brig. Muhammad Hayat Khan who were then the Chairman of the Council and Chief Executive and President of Azad Kashmir respectively. But it was in accordance with the order of the Full Bench of the High Court that their names were struck off as respondents and they were substituted by Azad Kashmir Government as a sole respondent. To have clarity let us reproduce the relevant portion of the order of the High Court. It reads:-- "The petitioner has impleaded General Muhammad Zia-ul-Haq, President of Pakistan and Chairman of the Azad Jummu 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 Jammu and Kashmir or the Chairman of the Azad Jammu and Kashmir Council. This question was considered in depth in `Ghulam Hussain Punjabi versus Sardar Muhammad Abdul Qayyum Khan and others' in 1974, as Constitutional writ in which Sardar Muhammad Abdul Qayyum Khan, then President of Azad Jammu and 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-Haq, 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."
93. The above order of the High Court would show that the Full Bench, while interpreting the provisions of section 52 of the Constitution Act, struck off the names of the original respondents and substituted the present respondent in their place on the ground that no process could be issued against them under the aforesaid provisions of the Constitution Act. This decision impliedly meant that the writ petition did not lie against them. In view of the provisions contained in section 52 of the Constitution Act the aforesaid orders of the High Court, whereby the names of General Zia-ul-Haq and Major-General (Retd.) Muhammad Hayat Khan were deleted from the line of the respondents, are open to no exception. The respondent (Government), in its written statement, did not specifically object that the aforesaid names were incorrectly deleted from the line of the respondents. The High Court granted the appellant a certificate of fitness to appeal to the Supreme Court wihtout any request but neither the appellant nor the respondent (Government) assailed the aforesaid order by way of an appeal to this Court. It may be observed here that subsequently the writ petition of the appellant was dismissed by the High Court on technical grounds and an appeal was preferred by the appellant to this Court which was accepted and the case was remanded to the High Court. The respondent (Government) contested the said appeal on merits but did not take the stand that the appeal was incompetent because the Council was not made a party in the appeal. The conduct of the respondent (Government) impliedly shows that it assumed the responsibility to contest the said appeal without institing that the Azad Jammu and Kashmir Council was a necessary party and, thus, the appeal was incompetent. It implies that the Government was not serious about the objection regarding nonimpleadment of the Council in the proceedings.
94. The appellant prayed for a writ of quo warranto in terms calling upon Major-General (Retd).
Muhammad Hayat Khan, as envisaged under section 44(b)(ii) of the Constitution Act, to show under what authority of law he was holding the office of the President. Thus, it was for Major- General (Retd.) Muhammad Hayat Khan to show the authority of law under which he validly claimed to hold the office of the President. As no process could be issued against the President, Major-General (Retd.) Muhammad Hayat Khan, under section 52 of the Constitution Act, it was for the Government (this office was also occupied by Major-General (Retd.) Muhammad Hayat Khan) to show the authority of law, i.e,, the legality of the impugned proclamation. Thus, it was the Azad Kashmir Government which was necessry party and not the Council. Therefore, the contention of the learned Advocate-General that Azad Kashmir Council was necessary party in the proceedings, has no substance in it and is hereby repelled. The mere fact that the proclamation in question purported to have been issued by the Council does not render the Council as necessary party. The necessary party is only that party in whose absence no effective adjudication can be made on the controversial issues. No such eventuality exists in the instant case.
95. Apart from the above reasons, the objection of the learned counsel for the respondent about the writ petition being incompetent in absence of the Chairman of the Council being party to it is not tenable even on other grounds. The writ petition has been filed under section 44 of the Constitution Act which confers upon the High Court the jurisdiction among other things, 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.
96. It would appear that under the above provisions of the Constitution Act the High Court is fully empowered to grant some of the reliefs prayed for by the appellant in the writ, notwithstanding the fact that the Chairman of the Council or the President were not party to it because, as agreed upon by the parties, it was outside the ambit of the powers of the Chairman of the Council to issue proclamation as the Chairman had no nexus, whatsoever, with the exercise of the powers under section 56 of the Constitution Act. Thus, it was the Azad Kashmir Government which in law, was and is answerable to justify the appointment of Brig. Muhammad Hayat Khan as President in place of the appellant. The appellant, in fact, was aggrieved by the action of the Government (respondent) taken by it in relation thereto. Thus, the writ was tenable on this ground too and it was the Azad Kashmir Government who was to justify the appointment of Brig. Muhammad Hayat Khan as President. It is significant that Brig. Hayat enjoyed two offices, the office of the Chief Executive and the office of the President, simultaneously and thus the Government can well be considered to include the Chief Executive and President of Azad Kashmir as both the offices were occupied by the same person, i.e,, Maj.-Gen. (Retd.) Muhammad Hayat Khan.
97. It admits of no argument that the 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 (Government) who had got published the impugned proclamation as Chief Executive alleged to have been issued by the Chairman of the Council, as would appear from its notification dated 31-10-1978 which runs as under:- "No 3620-22/SL/78. The following 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 Resolution 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 appoint 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 Ahmad Khan) Secretary Law."
98. It is, thus, manifest that the respondent (Azad Kashmir Government) had not only notified the impugned proclamation but had also enforced it by publishing it, which had the effect of relieving the appellant of his duties and functions of the office of President and inducting into said office M4- Gen. (Retd.) Muhammad Hayat Khan, in addition to his duties as Chief Executive of the Azad Kashmir Government. It was, therefore, after the issuance of the above notification by the respondent that the appellant was made to cease to function as President and in his place a person who held the office of the Chief Executive of Azad Kashmir, was declared and sworn in as President. The impugned proclamation by the Chairman of the Council is alleged to have been made on 16-10-1978, whereas the same was notified and published by the respondent on 31-10- 1978. The appellant continued to hold the office of the President till the latter 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.
99. It, thus, admits of no doubt that had the impugned notification not been published by the respondent, it would not have seen the light of the day or been acted upon and the appellant 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 Act and Maj.-Gen. (Retd.) Muhammad Hayat Khan would have remained only as Chief Executive of the Government.
100. In view of the above circumstances, the fundamental question, as said earlier, that falls for determination in the 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 appellant of the office of the President and installing Maj.-Gen. (Retd.) Muhammad Hayat Khan thereto. If 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 appellant in exercise of the writ jurisdiction, but since adjudication of this question, in view of admission made by the learned Advocate-General that the proclamation made by the Chairman of the Council in ousting Sardar Muhammad Ibrahim Khan from the office of the President is ultra vires of the Constitution Act, is not necessary, therefore, we refrain to express ourselves on this point.
101. Similarly, when in the 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 Maj.-Gen. (Retd.)
Muhammad Hayat Khan, the Chief Executive of the time, and prayer had been made to restrain him from functioning as such and making law by way of Ordinances, the Government only was required to be made respondent in view of the provisions of section 52 of the Constitution Act which provides immunity to the President from being answerable to any Court or tribunal for the exercise of powers 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.
102. In view of the above legal position, the writ did lie against the respondent (Azad Kashmir Government) inasmuch as it calls in question the appointment of Major Generl (Retd.) Muhammad Hayat Khan as President in place of the appellant through the impugned proclamation published by the Government in Official Gazette.
103. The sum total of the above discussion is that the objection of the learned counsel for the respondent (Government) about the incompetency of the writ petition, in view of the peculiar facts and circumstances of the case detailed above, is not sustainable. Additionally the order of the Full Bench of the High Court dated 13-12-1978 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 Government was substituted in their place as respondent with the further observation that this would neither affect the merits of the case nor the relief sought by the appellant thereby meaning that the writ petition is competent in presence of the Government as the sole respondent without the original respondents being party to it, has become final, conclusive and binding on the parties to the case; 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 Act. For the above reasons, the objection about the writ petition being incompetent stands repelled.
104. The conduct of the Azad Kashmir Government in contesting the matter on all grounds on which it could possibly be contested by the Council also makes us to believe that the Azad Kashmir Government was duly instructed by the Council to contest the writ petition. This factor also lends support to our conclusion that non-impleadment of the Council had in no way adversely affected the Council as its functions had totally and honestly been carried by the Government while contesting the writ petition in the High Court and the earlier appeal before this Court.
105. We are also of the view that it was rightly held by Mr. Justice Sardar Ashraf that there was even no ground to review the orders under Order XLVII Rule 1 of the Code of Civil Procedure suo moto. The scope of the review for the judgment or order of the High Court is limited to the grounds contemplated under Order XLVII, Rule 1 of the Code, 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 a party or could not be produced by such party at the time of making the order or some mistake or error apparent on the face of the record or any other sufficient cause is established. There appears no such infirmity in the aforesaid order. The order by the Full Bench in substituting the Azad Kashmir Government as respondent by striking off the names of the original respondents was made on the basis of interpretation and exposition of the provisions of the Constitution Act and as such it does not admit of any review merely on the ground that it has proceeded on incorrect exposition of law. In Sir. Hari Sankar Pal, v. Anath Nath Mitter AIR 1949 FC 106, the learned Judges of the Federal Court of India observed: "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 0.47, R.1, Civil P.C."
' The above rule was also relied upon and quoted in a case reported as Vasant Jaiwantrao Mahajan v. Tukaram Mahadaji Patil AIR 1960 Bom.
485. In this case it was held:- "Where a relevant provision of law, in this instance 0. 9, R.13 Proviso, has not been considered at the time of passing an order, such an order can be reviewed, if necessary, by the Judge who passes that order or by his successor."
' Similarly in Chhajju Ram v. Neki (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 Kamta Chaudhry v. Lal Chandra Mool Pratap Bahadur Pal AIR 1945 All.
284 and Mian Abdul Aziz v. Dr. C.A. Chisty, Managing Director Katarhand & Co. PLD 1959 (W.P.) Lah.
31.
' In Kamta Chaudhry v. Lal Chandra Mool Pratap Bahadur Pal AIR 1945 All. 284, it has been held:- ' I quite agree that a Court cannot admit an application for review merely upon the ground that it has made a mistake in law, but I think if the mistake is an obvious one due to failure to notice particular section of an Act, or part of such a section, it would be too much to say that the obvious error could not be corrected by the Court. In any case the power of this Court to interfere in revision is discretionary and I do not think that I should interfere to perpetuate an obvious mistake."
' In Mian Abdul Aziz v. Dr.C.A. Chisty PLD 1959 (W.P.) Lah. 31, it was observed: "With all respects I see no justification for applying the words 'allowed by this Code' to the decree or order. 'Allowed by this Code' applies only to the appeal, i.e,, where an appeal is provided by the Code against the decree or order of which review is sought."
' This Court also in a case reported as Mst.Nargis Bihi v. Muhammad Ibrahim 1983 CLC 370 propounded identical statement of law with respect to review. It was observed in this case:- " It, therefore, constitutes no ground for grant of a review. The petition is merely an effort to re- canvass some points arising in the earlier case. I am not prepared to re-open the case to afford a re-hearing to the learned counsel for the petitioners especially when no effect, muchless than error apparent on the face of the record, is disclosed in the impugned judgment."
106.Before parting with the issue, we would also like to refer to the order made by Mr.Justice Sher Zaman Chaudhry who is of the view that without implicating the Council the writ was incompetent.
The learned Judge opined that since it had never been the case of the appellant that the proclamation was issued by the Azad Kashmir Government, the proclamation could not be interpreted as having been issued by the respondent (Government). According to the learned Judge the Council was the necessary party in whose absence no valid adjudication can he given.
107.We have considered the reasoning advanced by the learned Judge. The learned Judge omitted to take note of the fact that the mischief of ouster of the appellant from the office of the President was the outcome of the publication of the proclamation by the Law Secretary and that in writ petitions stringent provisions of the Code of Civil Procedure do not apply and each case varies in accordance with the circumstances attending such cases. But for this publication, the appellant, as said elsewhere, was to continue in office till 1980 and thus, Azad Kashmir Government was the only necessary party. Therefore, the approach to the issue made by the learned Judge is an erroneous one and cannot be accepted.
108. So far as the order made by the Full Bench of the High Court to the effect that the deletion of the names of General Zia-ul-Haq, Chairman of the Council, and Major-General (Reid.) Muhammad Hayat Khan, Chief Executive of the Azad Kashmir Government, is concerned, the learned Judge is of the view that the order being of interlocutory nature and procedural in characteristics can be recalled or modified at any time before the final disposal of the case by the Court in exercise of its inherent powers under section 151 of the Code of Civil Procedure.
109. With utmost respect which we have for the learned Judge, we cannot agree with him. The order made by the Full Bench had attained finality in so far as it clearly lays down that it would not affect the merits of the case and the Azad Kashmir Government can properly defend it.
Additionally, this order passed by the Full Bench, under the provisions of Rule 18 of the High Court Rules, we believe, cannot be recalled by a single Bench or Division Bench.
110. All rules or procedures, it is to be noticed, are meant for the advancement of justice and not to impede it. The judicial proceedings may, at times, give way to situation and circumstances needing action for doing justice, which may not necessarily be covered by any express provision of the Code. The Courts are then to act in accordance with justice, equity and good conscience.
111. Apart from the above, we are of the view that the Council, as said earlier, was not a necessary party and it was not necessary to implead the Council as a party. The case-law cited by the learned Judge, to us, is distinguishable and, thus, needs no scrutiny. The reasoning advanced in the earlier part of the order would also be read into this part of the order.
112. The upshot of whole discussion is that the Council was not the necessary party and in the circumstances of the case, writ was competent in presence of Azad Kashmir Government as a respondent.
113. Now we deem it proper to advance reasons which prompted us to decide the matter ourselves instead of remanding the case:-
(a) Whether there should be a remand in a matter is always a judicious discretion of the Court which is to be exercised in accordance with the dictates of justice. The nature of the error committed, magnitude of the possibility and extent of prejudice to the person affected are all relevant factors to be duly weighed for a remand. This Court, in a case entitled Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu & Kashmir PLD 1988 SC (AJ&K) 53 owned this view. We feel that remand will not be a judicious act as it would not in any way improve the position of the parties in any way.
(b) The appellant and the respondent (Government) are in agreement that the removal of the appellant as President by the Chairman of the Council was unconstitutional; the appellant as well as the Azad Kashmir Government is one on the point that the Chairman of the Council was not competent to order the removal of the appellant under the provisions of section 56 of the Constitution Act. In the circumstances, remand of the case would be an exercise in futility.
(c) Suppose, after remand the matter is referred to a third Judge, what then would be the result, is a vital question to be answered. If the matter is referred to a third Judge, the third Judge would either agree with Mr.Justice Sardar Muhammad Ashraf Khan or Mr.Justice Sher Zaman Chaudhry. In both the events it would make no difference to either of the parties; if the third Judge agrees with Mr.Justice Ashraf, the appellant would he aggrieved of the judgment of the High Court exactly in the fashion he now feels aggrieved. Likewise, if the reference Judge subscribes to the view of Mr.Justice Sher Zaman Chaudhry that the writ petition is incompetent for non-implcading the Council, then also it would hardly make any difference to the appellant as the appellant will still feel aggrieved exactly in the way in which he is now dissatisfied. Therefore, under all circumstances, the appellant would feel aggrieved in identical fashion of the judgment of the High Court even after remand if it is expressed in terms of majority after referring it to the third Judge. In the circumstances remand would not be justified.
' In the circumstances, we feel that it would serve no useful purpose to send hack the case to the High Court for referring the same to a third Judge because even when the third Judge agrees with any one of the two Judges, it would hardly make any difference either to the appellant or to the respondent (Government).
(d) The decision of the case by this Court would not adversely affect either of the parties, the appellant or the respondent (Government). The appellant and the respondent (Government) arc in agreement that the proclamation was unconstitutional. The grievance of the Government (respondent), however, is that due to the absence of the Council, the writ petition was incompetent for non-impleadment of the Council. If we are satisfied of the validity of the argument, the appellant would not be entitled to any relief and the appeal and the writ petition both would fail.
This position was made clear to the learned Advocate General and the learned Advocate-General advanced full dressed arguments on the point.
(e) In a matter of the nature even the inherent powers of the Supreme Court stipulated under section 42-A(1) of the Constitution Act read with Order XLIII, Rules 4 and 5 of the Supreme Court Rules, may be exercised to undo the injustice created by such mischief. Therefore, once the Supreme Court comes to the conclusion that a litigant has not been given a fair deal the extraordinary powers of the Supreme Court must come into play and the technicalities must yield to such powers. We feel this case is visited by such eventualities.
(f) It may he observed that at the time when the judgment of the High Court was recorded, no third Judge was available for referring the case to him. No doubt, at present Mr.Justice Abdul Majeed Mallick, the learned Chief Justice, is available but it would not look desirable to remand the case for his opinion because he was the member of the Court in the Supreme Court who granted, leave to appeal after applying our mind to all the controversial issues.
(g) The decision of the case made by this Court, as said earlier, would, in no way, be prejudicial to either of the parties, the appellant or the respondent (Government). In the event the case is remanded to, the High Court, it would in no way better the position either of the appellant or the respondent. It would rather create further delay in disposal of the case which we think would be unjudicious and unreasonable. Therefore, we do not feel inclined to remand the case to the High Court to be referred to a third Judge. The case has already consumed more than eleven years and it would not look proper to remand the case to see further years in the High Court.
(h) In case carrying exceptional circumstances interlocutory orders are subject to scrutiny by the Supreme Court by granting leave to appeal.
114.There is also an objection raised by the learned Advocate General that a new question of law cannot be agitated before the Supreme Court. We regret we A cannot agree with it. Ordinarily, a question of law is always permissible to be A raised before the Supreme Court even though such a question was not taken in A the High Court. We have host of case-law owning this view point.
115.For the aforesaid reasons, the impugned proclamation issued by the Chairman of the Council on 16-10-19'78 relieving the appellant of the responsibilities of the office of the President and appointing Major-General (Retd.) Muhammad Hayat Khan in his place and the notification of the respondent (Government) dated 31-10-1978 publishing the same for general information and giving effect to it are declared to be ultra vires of the Constitution Act and unlawful and ineffective.
This position is admitted by the learned Advocate-General.
116.On the premises of discussion made above, we hold:-
(i) that the writ petition without impleading the Council, as held by Mr. Justice Sardar Muhammad Ashraf Khan, was competent before the High Court. We also find that the Council was only a proper party and in the circumstances of the case, the Azad Kashmir Government was the necessary party to defend the proclamation which was issued in the Official Gazette by the Law Secretary of the Azad Kashmir Government. Thus, the order recorded by Mr.Justice Sher Zaman Chaudhry to the effect that the writ petition, without impleading the Council, is incompetent, cannot sustain and stands recalled.
(ii) that the appellant, Sardar Muhammad Ibrahim Khan's removal from the B office of the President of Azad Kashmir by virtue of proclamation made B by General Zia-ul-Haq on 16-10-1978 as Chairman of the Council and published by the Law Secretary of Azad Kashmir Government on 31- 10-1978 being unconstitutional stands recalled. This position is even accepted by the learned Advocate-General;
(iii) that, but for the publication of the proclamation in the Azad Kashmir Official Gazette on 31-10- 1978 Sardar Muhammad Ibrahim Khan, appellant, was entitled to function as President upto 5th of June, 1980;
(iv) that the finding to the effect that the removal of the appellant, Sardar Muhammad Ibrahim Khan, as President of Azad Kashmir, by the Chairman of the Council on 16-10-1978 was ultra vires of the Constitutional provisions, undoubtedly creates entitlement for the appellant for his pay etc. For the unexpired period of his tenure as President which would have, but for the proclamation, expired under the Constitutions Act on 5th of June, 1980. This relief automatically flows from the fact that the proclamation in question has been declared as a nullity. Therefore, since it has been declared that the proclamation issued by Gen. Zia-ul-Haq as Chairman of the Council was ultra vires of the Constitution, naturally the effects created by this proclamation automatically vanish and stand recalled. This fact itself creates entitlement to the appellant for the emoluments etc. Attached to the office of the President for the unexpired period of his tenure. However, since the appellant, in the circumstances of the case, could not retain the office of the President after 5th of June, 1980, we sec no force, legal or moral, in his submission to claim the pay etc. Till 1985 when Sardar Muhammad Abdul Quyyum Khan, the present President, was sworn in as. President of Azad Kashmir. To this extent the prayer, therefore, stands refused.
117. Before parting with the case, we would like to make it 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 in pursuance of the impugned proclamation. This finding was even agreed upon by the appellant and the respondent.
' Therefore, while accepting the appeal against the orders made by the learned Judges of the High Court on 6-4-1989, we modify the order made by MrJustice Sardar Muhammad Ashraf Khan to the extent indicated above and set aside the order passed by Mr.Justice Sher Zaman Chaudhry whcreunder it was decided that writ petition, without impleading the Council was incompetent.
Resultantly, the orders made by the learned Judges of the High Court are modified/reversed in the way indicated above. The appeal, thus, succeeds with costs in the fashion stated above.