SHAFIUR RAHMAN, .J.---This judgment disposes of the two appeals referred to above. There was a third (Civil Appeal No.308/87) which was required to be heard alongwith these two. It has been separated as a question of limitation had also to be decided in that case, for which necessary explanation has yet to be furnished.
2. Leave to appeal was granted in these two separate matters to examine the full effect of proviso added to section 115 of the Code of Civil Procedure by C.P.C. Amendment Ordinance No. X of 1980.
3. In Civil Appeal No.250 of 1987, the facts are that the appellant Riasat Ali had obtained from Sardar Muhammad Jahangir Khan, the predecessor-in---interest of the respondents, land measuring 1-3/4 kanals in the estate of Khushab on 20 years' lease under an agreement dated 16- 2-1961 for constructing a Cinema House. According to the terms of the lease, the appellant had the option, within the period of the lease, to purchase the property at Rs.400 per marla. Sardar Muhammad Jahangir Khan died in 1973. A dispute arose over its sale, whereupon on 3-1-1981, the appellant instituted a civil suit seeking specific performance of the agreement whereby the land measuring 1-3/4 kanals had to be sold to him. This suit was contested. A number of issues were framed and after recording evidence, the Trial Court decided all the material issues in favour of the plaintiff and decreed his suit for specific performance on payment of Rs.12,000 which was ordered to be deposited in Court. On appeal, the Additional District Judge reversed the judgment and decree. Some of the findings recorded by the Additional District Judge and the reasons in support of it would appear from the following conclusions:- "(i) Perusal of lease agreement dated 16-2-1961 EX. Pl, receipts dated 23-6-1961 Ex.P10, EXS.P11, P12, P13 and P14 lead to an irresistible conclusion that signatures of predecessor-in-interest of appellants are also distinctly dissimilar with one another. Second part of Ex.P.13 is distinctive of fact that narration is a subsequent addition and likewise signature of Sardat Mohammad Tahangir Khan on Ex.P14, over the name of alleged executants is also indicative of manoeuvrability of plaintiff/respondent.
(ii) Falsity and fabrication of alleged undertaking of Sardar Muhammad Jahangir Khan procured by plaintiff/respondent is evident from fact that documents are obtained either on very ordinary unstamped paper or on letter head of Taj Mahal Cinema -which is a concern of plaintiff/respondent.
(iii) The learned trial Court after conscious, judicial, application of mind should have also come to conclusion that the alleged lease-deed being unregistered, a subsequent receipts P.10 dated 23- 6-1961 and P.11 dated 2-1-1962 being patently contradictory to each other were not sufficient to constitute cause of action in favour of plaintiff/respondent against defendants/appellants but were sufficient for rejection of plaint under Order VII, Rule 11, C.P.C.
(iv) As the said Lease-Deed is a fake document due to subsequent tampering, therefore, suit of plaintiff/respondent was not maintainable. Basic document Ex. P. l being legally defective and in the event of receipt Exs.P.15 and P.17 which is indicating plaintiff/respondent as lessee, the learned trial Court should have rejected plaint of plaintiff/respondent and his suit should have been dismissed."
The relief granted by the Additional District Judge was in the following words:-- "The upshot of the above discussion is that I allow this appeal, set aside judgment and decree passed by Hafiz Mohammad Akbar Chughtai, the learned Senior Civil Judge, Khushab, reject the plaint/dismiss suit of plaintiff/respondent as being incompetent according to law, with costs throughout:"
This order of the Additional District Judge is dated 15-5-1985.
4. A Revision Petition was filed by the appellant in the High Court on 27-5-1985. Copies of the judgment of the Additional District Judge and that of the Senior Civil Judge, the two decree-sheets and copy of the plaint were filed alongwith the Revision Petition. A stay application was also filed seeking the suspension of operation of the judgment of the Additional District Judge dated 15-5- 1985. It came up before the learned Judge on 29-5-1985. The learned Judge observed as hereunder with regard to the controversy before him in Revision Petition:- "Main ground taken, in different forms, in the revision petition and also desired to be argued at the Bar, is that the conclusions reached by the learned Additional District Judge are not justified on the record. Although reproduction of issue No.9-A in the judgment of the learned Additional District Judge is not quite correct because it carries wrong dates, yet, his conclusions and the reasons therefore relate to questions of pure fact and their soundness can be tested only by referring to the evidence but, for reasons better known to the petitioner and his counsel, copies of the documents and evidence led in the suit have not been placed on the record of this civil revision which is accompanied only by the copies of pleadings and judgments and decrees passed by the two Courts below. The omission to place copies of the documents and evidence on this record not only renders the petitioner's objection unsustainable but is also fatal for this Revision Petition which is liable to be decided on its own` record (without sending for the trial Court's file) under the proviso to subsection (1) of section 115, C.P.C., inserted by Ordinance X of 1980, which reads:-- `Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: The learned Judge found that the controverted questions of fact had been decided by the Additional District Judge and no infirmity was visible. However, before concluding, the Court remarked as hereunder:- "Before parting with this file it may also be observed that learned Additional District Judge does not appear to have been mindful of the distinction between a rejection of plaint and dismissal of suit in so far as he has simultaneously employed both the expressions. They are by no means synonymous and cannot be used interchangably in one and the same situation:"
5. The contention of the learned counsel for the appellant which prevailed at the time of the leave granting order was that at the stage of the hearing of the Revision Petition, the appellant wanted to place on record the copies of the evidence in order to establish the grounds of revision, but he was not allowed to do so by the learned Judge, nor was the evidence otherwise taken into consideration or the records called for.
6. In the other Appeal Civil Appeal No.86 19881,the trial Court had passed an order removing an Arbitrator. The order was passed by the trial Court on 25-1-1988. A revision Petition was filed on 1-3- 1958. There was an application (C.M.No.1084-C/1988) praying as hereunder:- "Application under section 151, C.P.C. For the grant of exemption to file the certified copies of the documents.
Respectfully sheweth:
(1) That the petitioner has filed the above-titled revision petition in this Hon'ble Court alongwith which he has filed uncertified copies of certain documents.
(2) That the petitioner undertakes to bring on record the certified copies of the documents as and when made available to him: It is, therefore, most respectfully prayed that the revision of the petitioner may kindly be accommodated for regular hearing and the filing of the certified copies of the documents exempted for the time being."
The documents which were filed alongwith the Revision Petition were; the application filed in the trial Court under sections 8, 9 and 20 of the Arbitration Act followed by the copy of application under sections 11 and 12 of the Arbitration Act, the Objections filed by the Appellant to those applications and the order passed by the trial Court on 25-1-1988. A copy of the contract was also placed on record.
7. The Revision Petition came up for hearing alongwith C.M.No.1084/C of 1988 before the learned Judge on 2-3-1988. The learned Judge made the following observations while dealing with C.M.No.1084/C of 1988:- "Neither have the relevant documents been specified in the petition nor has any ground been stated to claim dispensation of production of the certified copies which cannot be granted merely in routine inasmuch as it can be allowed only in appropriate cases upon show of suf6cicr.f cause with regard to each particular document. Much-less is there any reason shown for even making an assumption about any reason for which the petitioner may not have been able to get any of the desired copies and since it has not been alleged even that any application may ever have been made for the grant of the relevant certified copies, therefore, it is more probable that thus far he may not have at all applied for the grant of any of the required certified copies. In these circumstances, the C. M is rejected.
(2) Whether or not an applicant for dispensation of production of certified copies is able to make out an appropriate case for the purpose and even if he succeeds in obtaining an order in that behalf; there cannot be any occasion to put in private reproductions of judicial records on the files of Civil Appeals and Revisions instituted in this Court of Records because such reproductions, even if they are authenticated by a counsel of high eminence, do not come to acquire any legal status to be able to serve as a substitute for the certified copies and, hence, they cannot be brought under consideration in Civil Appeals and Revisions. Actually, there cannot be any nexus between the prayer for dispensation and submission of private reproductions in their place so that the one does not seem; capable of giving rise to a justification for the other inasmuch as it cannot be urged with any amount of reason that since an applicant for revision has reproduced private reproductions of judicial records, therefore, their p certified copies may be dispensed with and, similarly, it cannot be asserted even that since the production of certified copies has been dispensed with, therefore, private reproductions of judicial records may be accepted by way of their substitute. Thus, in either event, there does not arise any occasion for placing private reproductions of judicial records on the files pf Civil Appeals and Revisions instituted in this Court.
Actually, this practice of filing private reproductions of judicial records seems to have been borrowed from the one prevailing in writ petitions wherein liberty on the point is available on account of absence of statutory requirements for their documentation like those existing in Order XLI and section 115 of the C.P.C. Respectively regarding Civil Appeals and Revisions which cannot be lightly ignored.
Requests for dispensation of production of certified copies are frequently made in Civil Revisions, although mostly in absence of a proper justification, yet, without realising its consequence and the dangers with which the acceptance of such a prayer may be fraught. One rational consequence of an appropriately secured order of dispensation of production of certified copy of any particular document, upon showing sufficient cause for the purpose, can be that the applicant may stand debarred at all subsequent stages to rely upon such a document:'
After rejecting the application, the learned Judge proceeded to dispose of the Revision Petition in the following words:-- "Even after the rejection of his prayer for dispensation, learned counsel has insisted upon the Revision Petition being heard on the existing record. He has been heard accordingly. The proviso to subsection (1) of section 115 of the C.P.C. Enjoins that the High Court shall, except for reasons to be recorded, decide the revision petition without calling for the record of the subordinate Court. There is not made out any reason for requisitioning of the said record and this Civil Revision, therefore, becomes liable to be decided on the basis essentially of its own record.
(4) Since a certified copy even of the relevant agreement does not exist on this record, therefore, there is no material available herein to shake the reasons given by the trial Court in support of its order dated 25-1-1988, impugned herein.
Thus, there cannot exist any sustainable plea. The Civil Revision is hence dismissed in limine
8. A common ground taken up in both the appeals is that the period of limitation as observed by the High Court in entertaining the Revision Petitions was still available when the two Revision Petitions were disposed of without waiting for the copies. In one case, the order of which revision was sought, was passed on 15-5-1955 and the Revision was filed on 27-5-1985. In the other, the trial Court order sought to be revised was dated 25-1-1988 and the Revision Petition was filed on 1-3- 1988. According to the learned counsel, in these two appeals undoubtedly under the proviso to section 115 of the Code of Civil Procedure, it was the responsibility of the appellants/revision petitioners in the High Court, to supply all these documents on which they relied or the Court considered necessary for the disposal of the petitions. Nevertheless, the Court after rejecting their applications for dispensing with the certified copies, should have called upon them to produce the certified copies or indicated the documents which would have been necessary for disposing of the Revision Petitions: The learned counsel for the appellants thereafter have taken us through the merits of the case in order to indicate the glaring jurisdictional errors committed by the Courts whose orders were sought to be revised and the manner in which those were not even noticed by the High Court, unduly impressed by the fact that the ~, relevant copies had not been filed alongwith the petitions. As these contentions concerning the merits are somewhat premature in these proceedings before us, we would not elaborate on them.
9. The power conferred by section 115 of the Code of Civil Procedure is exceptional but a necessary power intended to secure effective exercise of High Court's superintending and visitorial powers and correction of jurisdictional errors or material irregularities in proceedings of the subordinate Courts. Such a power should not be inhibited by technicalities of procedure or entirely by the conduct of the parties. Even the discretionary nature of the power does not justify introduction of such technicalities in its exercise. This Court has in the case of Karamat Hussain and others v.
Muhammad Zaman and others (PLD 1987 SC 139) pointed out as hereunder:-- "True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. Confer on every person who has litigated before Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of course, it may in certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege."
10. The background in which the proviso in section 115 of the Code of Civil Procedure came to be added indicates that it was primarily for the purpose of avoidance of delay in the trial of the suits.
This matter was attended to by the Indian Law Commission in its Fourteenth Report (1958), finding a place in Volume I of the Report in para 2 page 413, para 6 page 417, para 11 page 419 and para 30 page 429. The recommendations were summarised in para 30 at page 429 and the relevant portion is as hereunder:--.
"(3) The records of the lower Court should not be sent for, except when a stay order is passed.
(4) In other cases, if the Court requires the records, it should call upon the parties to file certified copies of the records necessary for disposing of the revision."
The matter was again attended by the Indian Law Commission in its twenty-seventh Report (1964) and the attention was mainly directed on revisions against interlocutory orders. The Law Reform Commission of Pakistan in its report 1967-70 in Chapter XVIII at page 387 discussed the concurrent enjoyment of the revisional power by the District Judge and the High Court and recommended that "the revisional powers of the High Court should remain unchanged but there should be no revision against the order of the District Judge passed by him in a revision petition."
11. The amendment introduced in section 115 of the Code of Civil Procedure was in the form of a proviso, reading as hereunder:- "Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court."
12. The Revision Petitions were well within time. The proper applications had been made. If the High Court considered that the non-filing of attested copies of certain documents could prove fatal to the case of the appellants, it should have, consistent with the language of the law as it stood after amendment, called upon the party to file those documents and waited till at least the period of limitation for dealing with the matter, unless of course, on examination of the grounds urged during the course of the arguments, it felt irresistibly that the jurisdictional aspects of the question raised, required examination and determination. To abstain from examining the jurisdictional aspects only because a party has not filed appropriate documents, without calling upon the party to make up the deficiency, would be a harshness and a technicality not visualized in exercising powers under section 115 of the Code of Civil Procedure.
13. Both the appeals are, therefore, allowed. The case is remanded to the High Court for disposal of the Revision Petition afresh. Records had been called for in this Court. They shall be sent to the High Court and remain available for hearing of the Revisions. No order is made as to costs.
RUSTAM S. SIDHWA, J.--I agree with the above judgment and final order proposed by my learned brother, but wish to add my separate views.
RUSTAM S. SIDHWA, J.--I agree with the view expressed by my learned brother with regard to the interpretation of the proviso to subsection (1) of section 115 of the Code of Civil Procedure and the final order proposed by him, but since I have a different perception with regard to the proviso under examination, I would like to express the same, which I do so herewith.
1. The question that arises for decision in this case is as regards the true interpretation to be given to the proviso to subsection (1) of section 115 of the Code of Civil Procedure. In order to understand its implications, the said section as it originally stood and that as it now stands after having undergone amendments by the Law Reforms Ordinance, XII of 1972, and the Code of Civil Procedure (Amendment) Ordinance, X of 1980, require to be reproduced here:-- BEFORE AMENDMENTS "115. Revision.--The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
AFTER AMENDMENTS "115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity: the High Court may make such order in the case as it think fit.
Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents, and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.
(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (1) by the District Court."
2. Section 115 of the Code of Civil Procedure basically declares the inherent powers which a High Court at the apex has in respect of superintendence over Courts subordinate to it, specially those which are subject to its appellate jurisdiction. Under the Charter Act of 1861 the High Courts in the Presidency towns of Bengal; Bombay and Madras were granted the powers of superintendence over subordinate Courts subject to their appellate jurisdiction Section 115 of the Code of Civil Procedure is the extension of that principle in respect of the High Courts not situated in the Presidency towns. With the amendment provided by the Law Reforms Ordinance, 1972, a similar power has been granted to the District Courts in respect of cases decided by Courts subordinate to such District Courts in which no appeals lie and the amount or the value of the subject-matter thereof do not exceed the limits of the appellate jurisdiction of such District Courts. In Pakistan, therefore, the supervisory power not only exists at the apex in the provinces with the High Courts, but also at the semi apex level in each of the districts with the District Courts.
3. Initially before the amendment, when a revision was filed in the High Court, it was the practice to merely file certified copies of the decree or order in respect of which such application was made and of the judgment on which such decree was founded and where the petition was filed in respect of a decree or order of an appellate Court, a certified copy of the judgment or order of the Court of the first instance was also riled, in terms of rule 7 of Part A(a) of Chapter 1 of the Lahore High Court Rules and Orders, Volume V, leaving it to the Judge hearing the case to call for the record of the case in order to determine other facts and matters, before deciding whether to dispose of the revision or not. However, by the Code of Civil Procedure (Amendment) Ordinance X of 1980, a proviso was added to subsection (1) of section 115 to place the whole burden on the party filing the revision to file copies of the pleadings, documents and orders of the subordinate Courts with the revision petition, so that the burden which previously lay with the Court of calling for the record of the lower Courts before disposing of the petition was basically dispensed with.
4. Before the amendment of 1980, a duty was cast on the High Court to call for the lower Court record where it considered it fit for the disposal of the case. With the proviso that has been added in 1980, though the initial duty has been reversed, the discretion of the High Court to call for the lower Court record in order to determine the same matter has in no way been compromised. The proviso only lays down a strict rule of procedure, which compels the party to ensure that copies of all pleadings, documents, orders, etc. Which are relevant for its case, are filed in the first instance, so that the learned Judge dealing with the case has all the material before him. In genuine cases, a party may consider that certain documents are not necessary for the determination of the matters in controversy arising in his revision and may not file them. In such a case if the Judge considers the counsel's assumption as correct, he may not hold the rule stated in the proviso as affecting his case. However, if the Judge, on a fair appraisal of the matter, were to consider otherwise, he could, if the un-prescribed period of limitation is still open, call upon the party to file the remaining documents within a reasonable time before dealing with the case or, where such period has expired, proceed to dispose of the petition. In certain cases where the visual inspection of certain documents may itself become necessary, even though copies of such documents may or may not have been filed by the party, the Judge would be compelled to call for the record in order to personally inspect the documents concerned. Such a situation would not relieve the Judge of his own duty to call for the record and determine the matter.
5. The main question that arises is whether the rule contained in the proviso is mandatory and its initial violation is fatal to the petitioner's case. No such intention can be gathered from the proviso.
The proviso is a mix between a strict rule of discipline, which complels the Court to dispose of the revision petition without calling for the record of the lower Courts and a discretion which may, in a genuine case, influence it not to so dispose of the petition, but to call for the record itself before doing so. If the Court can call for the record itself, there is no bar to the Court adopting the more easier and speedy option of directing the party to make good certain copies of the pleadings, documents or orders which are relevant and have not been so filed. The rule in any case is not founded in terrorem, to be visited invariably with the dismissal of the revision petition at the very first hearing on the slightest violation of the rule by the party filing the petition.
6. There is no period of limitation prescribed for the presentation of a revision petition in the Limitation Act. The Lahore High Court has for many years adopted a thumb rule of 90 days within which revision petitions should be filed, failing which the discretion may not be exercised in the petitioner's favour on grounds of unreasonable delay. However, this Court in Manager, Jammu & Kasmir State Property in Pakistan v. Khuda Yar (PLD 1975 S.C.678) has held that revision petitions even though riled beyond the period of 90 days can be entertained, if the Court is satisfied as to the reasons for the delay. It should not be forgotten that the scope of the revisional powers though hedged by conditions; is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make "such order in the case as it thinks fit'
7. On a fair interpretation, the object of the rule appears to be to place the initial burden of producing the copies of all relevant pleadings, documents, orders, etc. On the party seeking relief within the conventional though un-prescribed limitation period of ninety days and in cases where the same, for good and sufficient reasons, have not been filed and the said period of ninety days is still open, to permit the party to make good the deficiency within that period and, in cases of genuine difficulty, to call for the record itself. However, after the period of ninety days has expired, should the Court find that the party has been guilty of laches or negligence or a contumacious disregard of its orders, it need not grant any further time, but may dispose of the revision on the record as it stands. Since the scope of the revisional power is vast and the Court can also exercise this power suo motu, I would imagine that even in cases where the required documents have not been riled within the un-prescribed limitation period, the Court's power in special and rare cases to permit a party to make good the deficiency or to call for the record itself, where it proposes to act suo motu, cannot be entirely excluded.
8. Two side real questions arise out of this matter. First, whether copies of evidence stand deliberately excluded from the wording of the proviso and need not be filed. Second, whether copies of the pleadings, documents and orders of the subordinate Court refer to certified copies or ordinary copies duly attested by a counsel. As regards the first question, the omission of the word "evidence" from the proviso appears to me to be the result of inadvertence on the part of the legislative draftsman. However, whether it is accidental or deliberate, I would leave the advantage, if any arising out of the omission, secure, rather than disturb it and cause greater hardship to the litigant over a procedural matter. As regards the second question, the words "copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment as appearing in Order XLI, Rule 1(1) of the Code of Civil Procedure which relates to appeals, have all along been treated as certified copies, which interpretation over the years has assumed the force of law. In this connection an earlier ruling of the Lahore High Court, i.e. Riasat Ali Khan v. Mahfuz Ali Khan (AIR 1929 Lah. 771) still holds the field. On the same analogy, the copies referred to in the proviso to subsection (1) of section 115 of the Code can also be treated as referring to certified copies.
9. In extreme cases of urgency, or of delay in obtaining copies, uncertified copies may be filed, where certified copies have been applied for, but limitation is running out, with the prayer that some further time be granted to produce the certified copies, or where the report of the Copying.
Agency shows that the record cannot be traced, in which case dispensation thereof may be requested. How these cases will be dealt with, it is not possible to lay down any strict rule, but since there is no period of limitation provided for the riling of revision petitions in the Limitation Act, 1908, the scope of the Court in being liberal in appropriate cases in the matter of filing of certified copies, will always be there.