' MUHAMMAD AQIL MIRZA. J.--This order shall dispose of the following Intra-Court Appeals, as identical questions of law and facts are involved therein:--
(i) I.C.A. No,170/95, Metropolitan Corporation, Lahore v. Imtiaz Hussain Kazmi.
(ii) I.C.A. No,171/95, Metropolitan Corporation, Lahore v. Shaukat Ali.
(iii) I.C.A. No,172/95, Metropolitan Corporation, Lahore v. Zahid Razzaq.
(iv) I.C.A. No,173/95, Metropolitan Coporation, Lahore v. Muhammad Ayub Zahid.
(v) I.C.A. No,174/95, Metropolitan Coporation, Lahore v. Sardar Ali.
2. Four writ petitions forming subject-matter of the first four Intra-Court appeals referred to above, were decided by one consolidated judgment dated 20-3-1995 passed in Writ Petition No,10637 of 1994 while the last-mentioned intra-Court appeal was decided, subsequently by judgment dated 11-4-1995. The respondents in these appeals are the school teachers who were appointed under the orders of Mayor, Metropolitan Corporation, Lahore, respectively on 4-2-1993, 29-12-1992, 14-1- 1992, 14-12-1991 and 4-10-1991. Since after their appointments they have been performing their duties as school teachers under the appellant Metropolitan Corporation. Separate writ petitions were filed by the respondents by raising similar grievance that the salary has not been paid by the appellant to them despite the fact that they are continuously performing their duties as school teachers. Before the learned Single Judge, it was stated on behalf of the appellant that the salaries of the respondents have been withheld because their appointments were conditional and "till the lifting of the ban the salaries could not be paid". It was further stated that the case for regularization of their appointments had been sent to the Government of the Punjab but so far no effective step has been taken in the matter by the Government.
3. The learned Single Judge accepted the writ petitions filed by the respondents on the ground that they having been allowed to work and perform their duties as teachers in schools run by the Metropolitan Corporation without any hindrance, their salaries cannot be withheld. Resultantly, the appellant was directed to pay the salaries to the respondents before the end of April, 1995.
4. The first four of the abovementioned Intra-Court Appeals, namely, I.C.A. No,170/95, I.C.A. No,171/95, I.C.A. No,172/95 and I.C.A. No,173/95 are barred by time by ten days, as per calculation made by the office. The applications for condonation of delay (C.M. No,2 of 1995 in each case) have been separately made on the averments "that no official copy and information has been made available to the office of the Administrator, Metropolitan Corporation, Lahore" and that the delay is not intentional". The impugned order passed by the learned Single Judge, however, reflects a different factual position. The impugned judgment was passed in open Court in the presence of the Legal Advisor of the M.C.L., the Chief Corporation Officer, the Assistant Education Officer and the Superintendent-General of the M.C.L. Therefore, it cannot be urged on behalf of the appellant Corporation that the impugned order was not in the knowledge of the functionaries of the Corporation. The applications for condonation of delay do not reflect the date on which the factum of passing of the impugned order came to the knowledge of the Administrator of the M.C.L. In these circumstances, no sufficient cause can be said to have been shown for not preferring the appeals within the prescribed period of limitation, and hence the applications for condonation of delay in all the four appeals are dismissed. Resultantly, all the four aforesaid appeals are dismissed in limine, being barred by limitation. The fifth I.-C.A. No,205 of 1995 though filed within the period of limitation, is liable to be dismissed on merits for the reasons hereinafter appearing.
5. It is not denied on behalf of the Metropolitan Corporation, Lahore that the respondents are performing their duties as school teachers for the last several years in pursuance of letters of - appointment duly issued by the competent Authority. So long as an employee remains in service and performs his duty, it is not open to any employer to withhold his salary. This subject has been beautifully discussed by our learned brother Sharif Hussain Bokhari, J. In Mst. Zaibun Nisa v.
Government of Punjab 1995 CLC 1288 as under:-- "As observed, the petitioner has been performing duties as teacher in the schools maintained and controlled by the respondents, she is therefore, entitled to full emoluments in her grade and pay scale with all the admissible allowances, as there is no provision, neither the concept for service without salary under the relevant law. Under section 43 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) Local Council may, on prescribed terms and conditions employ such servant as are necessary for the efficient performance of its functions and under section 46 (ibid), Government may by Rules prescribe scale or grade of pay for the servants of local councils. The prescribed rules are the 'Punjab Municipal Committees Service Rules, 1969' as adopted under the said Ordinance.
' The present situation, where the petitioner, a local council servant, is made to work without payment of salary for more than two years is against Islam which envisages payment of wages before sweat of toil is dried up. The performance of duties under these circumstances may also amount to forced labour which is forbidden by our Constitution, Article 11 whereof states in unequivocal terms that "All forms of forced labour and traffic in human beings are prohibited".
' In terms of Article 29 of the Constitution of the Islamic Republic of Pakistan, 1973 the respondents are duty bound to act in accordance with the Principles of Policy set out in Chapter 2, Part II of the Constitution in so far as they relate to their functions. These principles include equitable adjustment of rights between employers and employees; to provide for all citizens facilities for work and adequate livelihood; to provide for all persons employed in the service of Pakistan or otherwise Social Security, to provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. The respondents,. By not paying salary to the petitioner for the past more than two years have acted contrary to these Principles of Policy. They exploited the situation and denied to the petitioner her valuable right to remuneration according to her grade which is also in violation of Article 3 of the Constitution, which casts duty on the State to eliminate all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work."
6. While respectfully agreeing with the afore quoted observations of Sharif Hussian Bokhari, J., we are further of the view that provisions of Articles 9 and 14 of the Constitution were also inviolable in the special circumstances of these cases. Article 9 of the Constitutions guarantees protection to life as a Fundamental Right. This article reads as follows:-- "No person shall be deprived of life or liberty. Save in accordance with law."
In the instant case it can he legitimately said that the right to life of the respondents employees of the Metropolitan Corporation stands seriously jeopardized. If an employee/servant is not paid his salary/wages for the work done by him for his employer, he is not expected to live a proper life. If he does not get his salary then how can he sustain himself and his family members. Even if he does not start and manages to keep his soul and body intact, his own life and those of his dependent members of the family are bound to heavily suffer in quality. The life as contemplated by Article 9 does not merely mean a vegetative life but it also includes a qualitative life which should ensure enjoyment of such other amenities and facilities as are enjoyed by a person born in a civilised society. The term 'life' used in Article 9 of the Constitution has been used in a wider sense, which means that a man should not be able only to sustain life but to enjoy it as well.
7. Similarly Article 14 of the Constitution which guarantees dignity of man is contravened when an employee/servant is denied his right to receive his salary/wages by him. Article 14, inter alia, commands "the dignity of man and, subject to law, the privacy of home, shall be inviolable". A man who is denied the fruit of the labour and work done by him is bound to live in a manner which will deprive him of his dignity. In order to save himself from starvation and keep himself alive, such a person will have to steal, beg or borrow. A person who is forced to do any such things must suffer in dignity. Similarly, to keep his dignity intact he must enjoy facilities and amenities of life of modest level according to his station in life. The respondents in these cases are the school teachers. By virtue of their status in society and requirement of their office they need clean clothings. They also require health, care, shelter and food for themselves and, their families. For all these things they ought to get their monthly salary in lieu of the duties they have been performing by teaching children in the school. The total effect of non-payment of salaries to the respondents is that they are suffering in honour and dignity and their quality of life is also adversely affected, and hence fundamental rights guaranteed under Articles 9 and 14 of the Constitution stand denied to them.
The Hon'ble Supreme Court in Shahla Zia v. WAPDA PLD 1994 SC 693 made the following observations with regard to Article 9 of the Constitution:-- "The word 'life' is very significant as it covers all facets of human existence. The word ' life' has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally."
8. With reference to the combined effect of Articles 9 and 14 of the Constitution, the Hon'ble Supreme Court in the case of Shahla Zia (supra) made the following observations:- "Under our Constitution Article 14 provides that the dignity of man and subject to law, the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the word. The Constitution guarantees the dignity of man and also right to life under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below their necessity like without proper food, clothing, shelter, education, health, care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involved in such specific questions."
9. We have considered the circumstances involved in the instant cases, viz. That the respondents have been for years together denied their lawful right to receive salaries, although they are being made to perform their duties as school teachers without hindrance; and find that these cases do provide apt example of contravention of the fundamental rights provided by Articles 9 and 14 of our Constitution.
10. The submission made on behalf of the appellant Metropolitan Corporation, that the salaries have not been paid to the respondent school teachers because of the ban on recruitments and failure of the Punjab Government to regularize the appointments despite several requests in that behalf, may now be attended to. Even if sanction of the Provincial Government was required for the purpose of regularisation of the appointments of the respondents who were continuously performing their duties for the past several years, the same be presumed to have been accorded in the absence of specific refusal by the Punjab Government to regularise the appointment in question. When the respondents are in service without hindrance and the concerned functionaries of the Government being cognizant of this fact had not specifically decided to refuse regularisation of the appointments, it could legitimately be presumed that they had no objection to the regularisation of these appointments. If they had intended to refuse the regularisation they could have taken a positive decision in that behalf within a reasonable period of time. That being not done, it will have to be presumed that the Government had no objection to the appointments of the respondents as school teachers in the Metropolitan Corporation. On this ground the Metropolitan Corporation has neither legal nor moral basis for withholding the salaries of low-paid school teachers for several years. To say the least, it was callous on the part of the functionaries of the Metropolitan Corporation to have adopted an unreasonable technical excuse for withholding the salaries of the respondents. It may be clarified here that the presumption we have raised is peculiar to the circumstances of the cases in hand and it is not of general application nor should it be a precedent for other cases.
11. Before parting with this case it may be observed that salary is no longer a bounty of the State.
The English theory of the bounty of the State. Was exploded long ago by our Supreme Court in Pakistan through General Manager, P.W.R., Lahore .v. Mrs. A.V. Issacs PLD 1970 SC 415.
Salaries/wages are the rightful dues which the employees/servants must get from the employers without delay.
12. For what has been discussed above, I.-C.A. No,205 of 1995 also stands dismissed in limine. In addition to the ground of limitation, the first four appeals are also liable to be dismissed on merits, as discussed above.
13. The salaries of the respondent school teachers have not been paid on account of suspension of the impugned orders of the learned Single Judge, on the motion of the Metropolitan Corporation in the above appeals. Therefore, it is directed that the Administrator of the Metropolitan Corporation, Lahore shall pay the salaries and other admissible allowances to the respondents in all the five appeals with all despatch. To be more precise, the salaries for the months of January to April, 1996 shall be paid before 10th of May, 1996 while the remaining arrears shall be paid by 30th of June, 1996.
Appeal dismissed.
1996 PLD Lahore 507 Before Malik Muhammad Qayyum, J Mst. HAMIDA BIBI and 4 others---Petitioners versus ABDUL MAJID and 3 others---Respondents Civil Revision No,1477-D of 1988, heard on 3rd March, 1996. Punjab Pre-emption Act (I of 1913)- ----S.15---Limitation Act (IX of 1908), Ss. 5 & 14---Civil Procedure Code (V of 1908), S.115---Filing of appeal in wrong forum---Effect on limitation---Entitlement to condonation of delay---Dismissal of pre-emption suit by Trial Court---Suit though valued at Rs,24,300 in plaint, plaintiff filing appeal against dismissal of suit in High Court instead of filing the same before District Judge on the wrong advice of his counsel---When appeal was filed in High Court, neither the office nor defendant raised objection to maintainability of appeal, which was heard and decided by High Court on merits in favour of plaintiff-pre-emptor---Order of High Court challenged in petition for leave to appeal before Supreme Court---Objection to competency of appeal before High Court was raised for the first time before Supreme Court ---Plaintiff, thus, could not be deemed to have acted mala fide or with contumacy---Where litigant had engaged counsel who had committed mistake due to carelessness by filing appeal before wrong forum, which was not attributable to any conduct of parties themselves, client could not be penalised---Plaintiff, on account of mistaken _advice of counsel had filed appeal before High Court and had paid court-fee on valuation of appeal; he had not derived any benefit out of such mistake but had suffered disadvantage inasmuch as if appeal had been valued at Rs,24,300 which was found by Supreme Court as correct value, no court-fee was required to be paid on appeal at all in view of exemption to pay court-fee on valuation of less than Rs,25,000---Judgment and decree of Appellate Court refusing to condone time spent in wrong forums in filing appeal was set aside and appeal was to be deemed to be pending before Appellate Court for decision afresh on merits.--[Counsel and client]. [p. 510, 511] A, B, C & D Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Mst. Mahmooda Begum and others v.
Major Muhammad Ishaq and others 1984 SCMR 890; Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 .Rel. Nazar Muhammad and others v. Mst.
Shahzada Begum and another PLD 1974 SC 22; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Mst.Mahmooda Begum and others v. Major Muhammad Ishaq and others 1984 SCMR 890; Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 ref. Muhammad Yaqoob Sindhu for Petitioners. Ata-ul-Mohsin Laic for Respondents. Date of hearing: 3rd March, 1996.
' This petition under section 115 of Code of Civil Procedure seeks revision of the judgment and decree dated 6-4-1988 of the learned Additional District Judge, Gujranwala whereby the appeal filed by the appellant against the judgment and decree of the learned trial Court dated 25-11-1980 was dismissed as being barred by time.
2. In order to appreciate the contentions of the learned counsel for the parties reference to certain facts is necessary which are that on 25-11-1975 a suit was filed by the present petitioner-. Seeking to pre-empt sale of land measuring 162 Kanals 2 Marlas situated in 'village' Naurozepur, Tehsil Hafizabad, District Gujranwala by Amer Hayat to the respondent ostensibly for a sum of Rs,90,000.
The suit was valued for the purposes of court-fee and jurisdiction at Rs,24,300 which was dismissed by the trial Court on 25-11-1980. Aggrieved by that decree an appeal was filed by the petitioner before this Court being R.F.A. No,47 of 1981 which was heard without any objection as to its competency the appeal was accepted by a Division Bench of this Court on 27-1-1985 .
3. The decision of this Court was challenged by the respondent by filing Civil Appeal No,25 of 1983 which was allowed by the Hon'ble Supreme Court on 2-5-1987 on the ground that as the valuation for the purposes of court-fee and jurisdiction had been fixed in the plaint at Rs,24,300 the appeal should have been filed in the District Court and as such the appeal filed by the petitioner in the High Court (R.F.A. No,47 of 1981) was not competent. As a consequence, the Supreme Court of Pakistan after setting aside the judgment and decree of this Court directed that the memorandum of appeal be returned to the present petitioner for presenting it before the appropriate Court.
4. Pursuant to that order the memorandum was returned to the petitioner who presented it before the District Court on 31-5-1987 along with an application, under sections 5 and 14 of Limitation Act, 1908, seeking exclusion for time spent by him in prosecuting the appeal before this Court, where it had been filed under a bona fide mistaken advice and with due indulgence. This application was rejected by the learned Additional District Judge on 6-4-1988 and the appeal was dismissed being barred by time.
5. In support of this petition Mr. Muhammad Yaqub Sindhu, Advocate has contended that R.F.A.
No,47 of 1981 was filed by the petitioner under a bona tide mistaken advice rendered by his counsel that the appeal would lie before this Court and as such the petitioner is entitled to the exclusion of time spent by him in prosecuting the matter before the High Court. He has relied upon pronouncement of Supreme Court of Pakistan in Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 as also on an earlier judgment of the Supreme Court in Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22.
6. In reply Mr. Ata-ul-Mohsin Lak, learned counsel representing the respondent argued that as in the plaint the petitioner himself had fixed the valuation for the purposes of jurisdiction at Rs,24,300 question of having bona fide mistaken impression does not arise and that the first appeal was filed in this Court without any jurisdiction and the petitioner having not acted bona fidely is not entitled to any indulgence. He pointed out that while filing the first appeal before this Court the petitioner , had fixed the valuation of the appeal at Rs,80,000 without any reason or justification. Learned counsel further mentioned that in any case at the time when the appeal was presented before the High Court, the limitation for filing it in District Court had expired and consequently also even if the- period spent in prosecuting the appeal before this Court is excluded the appeal would be barred by 11 days. Reliance has been placed by the learned counsel on Islam Din v. Allah Nawaz and others 1988 SCMR 2, Mst. Mahmooda Begum and others v. Major Muhammad Ishaq and others 1984 SCMR 890, Abdul Ghani v. Mst.. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.
7. Having heard the learned counsel for parties at length and perused the record as also going through the case-law I am of the view that in the circumstances of the case the learned Additional District Judge was clearly in error in refusing to condone the delay in filing the appeal.. The first thing to be noted in this behalf is that at the time when the appeal was filed in this Court no objection was raised by the office. Not only that but even subsequently at the time of hearing the respondent too did not object to the maintainability of the appeal but the two learned Judges of this Court heard the appeal and accepted it on merits. It was only for the first time before the Honourable Supreme Court that an objection to the competency of the first appeal before this Court was raised by the respondent which was allowed. In these circumstances it cannot be said that the appellant by filing the appeal before this Court had acted .Mala fidely or with contumacy.
8. It has been pointed out by the learned counsel for the petitioner on an objection raised by the respondent the trial Court while deciding the suit had held that the suit was not properly valued for the purpose of court-fee and jurisdiction. In these circumstances if the learned counsel representing the respondent has fixed the valuation of the appeal at Rs,80,000 that is the price at which according to the petitioner the respondent has purchased the property the learned counsel cannot be said to have acted in contumacious disregard of the law.
9. The question as to whether the mistaken advice rendered by a counsel constitutes sufficient cause for condonation of delay for such cause has been subject-matter of dispute before various Courts for a long period. Earlier the trend of authorities was that the mistaken advice of a counsel per se is not a ground for seeking condonation of delay, unless it is shown that the counsel has acted with the diligence and was misled into filing the appeal before the wrong forum on account of some confusion in law. The situation appears to have been dramatically changed by the judgment of the Supreme Court in Sherin's case supra where the Hon'ble Supreme Court has laid down that if the litigant engages a counsel who commits a mistake due to carelessness by filing the appeal before the wrong forum which is not attributed to any conduct of the parties themselves the client cannot be penalised. The following observation in Sherin's case was instructive and may be reproduced with advantage: "In the present case record showed that out of five appellants four were utterly illiterate. This was inferable from the factum of thumb-impressions put by them on the documents forming part of the trial Court's file. Fifth appellant was not an educated person and presumably could only write his name. In our system of law, what a litigant placed in the situation, as the appellants were, had to do for redress of his grievance, through a Court of law, was to engage a counsel. This the appellants did. It seems that they did not make contribution, in the institution of the appeal in the District Court. There was no allegation that they stood to gain thereby or were guilty of any mala fide conduct. The filing of appeal in the District Court, was entirely attributed to the carelessness of the appellant's counsel. He represented them in the trial Court, and was not unaware of the amount of the court-fee paid on the plaint by the respondents, on the objection of the appellants, which determined the forum of appeal. He also appeared for the appellants in the High Court. It seems that he was a Senior Advocate. Of late, Unfortunately. There has been a tendency of some decline in the proficiency of the members of this noble profession, practising at the Bar. It is high time that the Bar Councils in the country should take notice of it and adopt measure to arrest this tendency. If the law has to march with the changing time, some restraint needs to be exhibited by the Courts, in imposing too large a burden on a litigant, for the lapses of his counsel."
The position in the present case appears to be the same as the sole appellant before this Court in RFA No, 47 of 1981 an illiterate person. He engaged Mr.C.A. Rehman who is a senior counsel practising on the civil side. Due to his mistaken advice the appeal had been filed before the High Court and the appellant paid the court-fee on valuation of the appeal. The petitioners had not derived any benefit out of this mistake but on the other hand they appear to suffer a disadvantage inasmuch as if the appeal had been valued at Rs,24,300, which was found by the Supreme Court as correct value, no court-fee was required to be paid on the appeal at all in view of exemption to pay court-fee on valuation of less than Rs,25,000.
10. Learned counsel for the respondent has however, tried to distinguish Sherin's case on the ground that in that case at the time of filing the appeal wrongly before the District Court the limitation for filing it in this Court has not expired. While in the present case when the appeal was presented in this Court but the appeal if filed before the ' District Court would be barred by 11 days.
This distinction with respect is specious and hardly makes any difference. As the appellant was advised by the learned counsel that the appeal lay in the High Court he was well within his rights to assume that it could be filed within 90 days which is the limitation for filing appeal in the High Court. The rule laid down in Sherin's case is clearly applicable.
In view of what has been stated above, this revision petition is allowed. The judgment and decree of the District Judge, Gujranwala is set aside and the delay in filing of appeal before him is condoned. With the result that the appeal of the petitioner against the decree of the trial Court shall be deemed to be pending and shall be decided afresh.
' No order as to Lusts.
Case remanded.
1996 PLD Lahore 512 Before Mian Allah Nawaz, J Sardar FAROOQ AHMAD KHAN LEGHARI---Petitioner versus Mian MUHAMMAD NAWAZ SHARIF---Respondent C.M. Nos.23-C and 24-C of 1996 in civil Original No,4 of 1995, decided on 21st March 1996.
(a) Civil Procedure Code (V of 1908)- ----Ss. 11, 114, 0. XLVII, Rr. 1 & 2----------- Interlocutory order passed by Court in procedural matters---Power to review------------ General principles of res judicata--- Applicability to such orders---General principles of res judicata do not govern interlocutory/interim orders passed by Court, in procedural matters---Court although would discourage successive applications on suet ..- matters, yet it has inherent jurisdiction to amend/alter or change such orders after taking into consideration peculiar circumstance of each case---Courts in terms of S.114 and 0.XLVII, Rr.1 & 2, C.P.C. Have power to review such order. [P. 524] A Salima. Begum v.
Sardaran Bibi PLD 1995 SC 406; Mst. Allah Rakhi v. Mst. Raj Bibi PLD 1957 (W.P.) Lah. 70; Bashir Ullah Munshi v. Abdul Bari Bepari PLD 1969 Dacca 950; Muhammad Riaz. v. The State PLD 1979 Lah. 155; Muhammad Sharif v. Suleman PLD 1981 Lah. 321; Manager, Jammu and Kashmir State Property v.
Khuda Yar PLD 1975 SC 678: Ghulam Qadir v. Muhammad Sharif 1979 CLC 527; Mahadeo Mahto v.
Hiralal Verma AIR 1991 Pat. 235; Subodh Chandra v. Sudhir Kumar AIR 1950 Cal. 209; Arjun Singh v.
Mohindra Kumar AIR 1964 SC 993; K.A. Vish v. State of Maharashtra AIR 1971 SC 2256; Rama Reddy v.
V.V. Giri AIR 1971 SC 1162; Balabhadra v. Nirmala Sundari Devi AIR 1954 Orissa 23; Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat PLD 1976 Lah. 396; Rameshwar Singh v. Hitendra Singh AIR 1924 PC 202; Sourendra Mohan Sinha v. Hari Prasad Sinha AIR 1925 PC 280; Baldeo Dass v. Dharam Chand AIR 1944 Lah. 262: Ram Kirpul Shukul v. Mt. Rup Kauri (1884) 6 All. 269; Hook v. Administrator- General of Bengal (1921) 48 Cal. 499; Mahant Baldeo Dass v. Malik Dharem Chand AIR 1946 Lah. 462; Yusuf v. Abdullah Bhoy AIR 1930 Bom. 294; Halsbury:s Laws of England. Vols.
19. 26, para.570 Note (n) p.84; Anantharaju Shetty v. Appu Hegade AIR 1919 Mad. 244; Deen Dayal Puramanick v. Ram Coomar Chowdhry and others 10 Suth. WR 345; Haradhon Mookerjee v. Chunder Mohin Roy Special No, Weekly Reporter 66; Syed Lotf Ali Khan v. The Court of Wards on behalf of Maharaja of Durbhanga 6 Suth. WR 8 Cal. 63; Amanullah Khan and others v.
Khurshid Ahmad PLD 1963 (W.P.) Lah. 566 and Ghulam Qadar and others v. Muhammad Sharif and others 1979 CLC 527 ref.
(b) Administration of justice--- ----Proper place of procedure, in the administration of justice is to help and not to frustrate grants of right to litigants---All technicalities have to be avoided and calls for doing substantial justice between parties are to be heeded.--[Practice and procedure]. [p. 524] B Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 rel.
(c) Qanun-e-Shahadat (10 of 1984)--- ----Preamble---Object and scope of Qanun-e-Shahadat, being adjective law is compendium of rules of procedure/practices according to which Court is to record evidence of parties; it prescribes rules/methods with regard to recording of evidence of parties. [p. 524] C
(d) Qanun-e-Shahadat (10 of 1984)--- ----Arts.140 & 151---Previous statement of a witness---Underlying objective of Arts.140 & 151, Qanun-e-Shahadat,. 1984 with reference to previous statement of a witness stated.--[Witness].
The underlying objectives of Article 140, Qanun-e-Shahadat 1984, are two-fold: firstly, that the witness should be given opportunity to explain the inconsistency between statement in Court and his previous statement and secondly, it equips the other side to impeach the veracity of witness by showing that the person was not credible. Article 140, Qanun-e-Shahadat, 1984 pertains to cross- examination. This Article is to be read with Article 151(3) of the Qanun-e-Shahadat.
1984. Although, these two Articles cater for different aspects, yet the aims of both are overlapping.
Article 151(3), Qanun-e-Shahadat 1984 states that crecl't of witness may be impeached by proof of former statements which were inconsistent with any part of his statement in Court. The objective of Article 151. Qanun-e-Shahadat, 1984 is to demonstrate that the person in the witness-box is not cerditworthy. Article 151(3), Qanun-eShahadat, 1984, however, does not provide the manner of proof of earlier inconsistent statement, while Article 140 of the Qanun-e-Shahadat, 1984 provides such machinery. [p. 525].D Articles 140 and 151(3), Qanun-e-Shahadat, 1984 make it evident that a witness, who enters the witness-bo7, can be cross-examined as to his previous statement, made by him in writing or reduced into writing by the other side and that witness is to be given 3pportunity, after seeing the inconsistent statement, to explain the same. This is in all the purport and substance of Article 140, Qanune-Shahadat, 1984. [p. 526] E
(e) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 6 & 140----Unpublished privileged official record---Summoning of such record and concerned officials for purpose of putting them in crossexamination----Such documents not containing any statement in writing made by plaintiff as conceded by defendant's counsel--- Documents in question formed part of unpublished record of the State which had been prepared by concerned functionaries of State---Contents of such docUments could not be put. To plaintiff under Art.140, Qanun-e-Shahadat, 1984---Application for summoning such record and concerned officials, was, rejected in circumstances. [p. 526] F
(f) Qanun-e-Shahadat (10 of 1984)--- ----Arts.4 & 140---Unpublished privileged official record---Summoning of such record to contradict plaintiff---Plaintiff as Finance Minister had submitted summary which was sought to be summoned by defendant alongwith other documents---Summary submitted by plaintiff at relevant time pertained to part of unpublished record of State----Such material was clearly protected under Art. 6, Qanun-e-Shahadat, 1984, being privileged document, which could not be allowed to be put to plaintiff in cross-examination----Record pertaining to appointment of Acting Chief Justice, Judges, ad hoc Judges, Acting Judges, Additional Judges of superior judiciary being privileged documents could not be summoned and put in cross-examination to plaintiff---Record relating to Registrar of Commission of Enquiry into specified Bank being probed by very high commissicn, and its findings having not been published same was not allowed to be summoned in circumstances. [p. 526] G
(g) Qanun-e-Shahadat (10 of 1984)- --Arts. 6 & 140---Payments made to plaintiffs' by Bank during specified period----Such documents having some nexus with controversy in suit were allowed to be summoned although it was still to be determined whether those documents contained any statement which could be put to plaintiffs under Art.140, Qanun-e-Shahadat, 1984----Such documents were allowed to be summoned in the interest of justice. [pp. 527, 528] H & J
(h) Qanun-e-Shahadat (10 of 1984)--- ----Art. 140---Summoning of record of suit---Such application was misconceived----Record of suit forms part of judicial record---Documents sought to be summoned being public documents, defendant was entitled to get necessary/requisite copies from concerned copying agency--- Summoning of record was not necessary. [p. 527] I Muhammad Akram Sheikh and Sh. Asghar Hameed for Petitioner. Raja Muhammad Anwar and Shafqat Abbasi for Respondent.
' This order will dispose of C.M. Nos.23-C and 24-C of 1996. These civil miscellaneous applications have not a smooth history. These have come to this Court in following circumstances:-
2. On 11-1-1995, Sardar Farooq Ahmad Khan Leghari, President of Islamic Republic of Pakistan/herein respondent/plaintiff brought a suit for damages against Mian Muhammad Nawaz Sharif/herein petitioner/defendant in the Court of learned Senior Civil Judge, Islamabad. This suit was contested.
Necessary issues were framed. Some evidence of the plaintiff/respondent was recorded and the case was fixed for the statement of respondent/plaintiff on 14-12-1995. The petitioner filed four separate applications for the purpose of summoning of record mentioned therein and witnesses fully described therein. These applications were contested and rejected by learned Senior Civil Judge on 6-12-1995. Feeling dissatisfied, the petitioner filed three civil revision petitions No, 914, 915 and 916 of 1995 at the Principal Seat of Lahore High Court. These came up for hearing before my learned brother Munir A. Sheikh, J. On 10-12-1995 and were sent to my lord the Chief Justice of Lahore High Court, Lahore. In this way these petitions came up for hearing before my lord the Chief Justice on 13-12-1995. These petitions were returned to petitioner with a direction to file than at Rawalpindi Bench of this Court. This happened vide order dated 13-12-1995.
3. Pursuant to the above order, petitioner filed these petitions at Rawalpindi Bench which were numbered as 429, 430 and 431 of 1995. These petitions came up for hearing before a Division Bench of this Court comprising of my learned brothers Raja Abdul Aziz Bhatti and Muhammad Jaffar Hashmi, .JJ. On 9-1-1996. On that date, it is stated at Bar that, my learned brother Raja Abdul Aziz Bhatti, J. Had stated that since his Lordship had been the Public Prosecutor against the petitioner before elevation, therefore, it was not proper for him to sit in the Bench. In the context of above, the petitioner filed three applications for the transfer of afore stated revision petitions froni that Division Bench to another Division Bench at Principal Seat. These applications carried Nos.17-C, 18-C and 19- C of 1996. These came up before my Lord the Chief Justice on 11-1-1996. During the course of hearing, the learned counsel for the petitioner made a statement that he be permitted to convert revision petitions to applications for re-hearing/reconsideration/review and the matter be laid before me, as I was seized of the main suit in persuance of the order of transfer passed by my learned brother Munir A. Sheikh, J. Raja Muhammad Anwar, learned counsel for the respondent, at that juncture, stated that the transfer application, in view of the above statement, had been rendered. Infructuous. In that scenario of the case, my lord the Chief Justice passed the following order:-- "3. I have heard the learned counsel for the parties at some length and perused their statements.
As the case has been transferred to the original jurisdiction of the High Court by consent order dated 13-12-1995 passed in Transfer Application No,768/C/1995 whereby the parties agreed that the trial be concluded at the Rawalpindi Bench of this Court within three months, it is desirable to avoid technicalities in the interest of expeditious disposal of the suit. It is, therefore, directed that Revision Petitions Nos.429, 430 and 431 of 1995 and 431/95 pending before the Division Bench of the Rawalpindi Bench of this Court be laid before my learned brother Mian Allah Nawaz, J. At the Rawalpindi Bench on 16-1-1996 for appropriate orders, in the light of the statement made by Mr. Muhammad Akram Sheikh, Advocate, learned counsel for the defendant/petitioner."
' As a result of above orders, the Revision Petitions Nos.429, 430 and 431 of 1995 were laid before me on 16-1-1996. On the above facts, I formed the opinion that the Revision Petitions were still pending adjudication before the Division Bench and it was not proper for me to deal with them. These Revision Petitions were accordingly directed to be put before my .Lord Chief Justice for proper order. Pursuant to this, these Revision Petitions were laid before a Division Bench, comprising of my learned brother Munir A. Sheikh, J. And Mrs. Nasira Iqbal, J. After hearing the learned counsel for the parties and after going through the record of the case, the Division Bench came to the conclusion that C.M. 'Nos. 23-C and 24-C of 1996 have been filed before me and so the request of the learned counsel for the applicant/defendant for treatment of revision petitions as applications for re- consideration/review, have become infructuous. It will be appropriate to reproduce the operative part of the order passed by the Division Bench:-- "10. From the order dated 23-1-1996 passed by learned Single Judge portions of which have been reproduced above, on the two fresh applications made by the petitioner it is clear that the petitioner has already approached the Court in the suit. In this view of the matter, we are of the considered view that the request of the petitioner that the revision petitions may be treated as applications for reconsideration/review of the orders passed by the learned Senior Civil Judge impugned in the revision petitions and placed before the learned Single Judge as also the revision petitions themselves and the aforementioned civil miscellaneous application made under Order 23, rule 1 read with section 151, C.P.C. Have become infructuous. The learned Single Judge as observed by keeping in view the rule of property for these revision petitions were pending before the Division Bench. The said applications shall be decided by the learned Single Judge after hearing the learned counsel for the parties and any of the parties if would feel aggrieved, will be at liberty to seek remedy against the order passed by the learned Single Judge.
11. These revision petitions as also Civil Miscellaneous Application made under Order 23, Rule 1 read with section 151, C.P.C. And the request of learned counsel for treatment of the revision petitions as applications for re-consideration/review of the order impugned in the revision petitions are hereby disposed of in limine as having become infructuous."
' These C.Ms. Have, so, come up before me.
4. These applications were hotly debated. Mr. Muhammad Akram Sheikh, Senior Advocate of Supreme Court of Pakistan, appearing on behalf of applicant/defendant, opened the debate. He argued the case on 18th, 19th, while he was not feeling well on 20-3-1996 and therefore, the case was argued by Sheikh Asghar Hameed, the other learned counsel for the applicant/defendant. The arguments advanced by learned counsel for the applicant/defendant, can be summarised as below:-- Firstly: that the suit filed by respondent/plaintiff related to two Press Conferences addressed by Mian Muhammad Nawaz Sharif/defendant on 30-4-1994 and 31-5-1994. According to learned counsel, in these Press Conferences, there were some allegations with regard to purchase of cotton, Mehran Scandal and the purchase of land which was later on sold to Pakistan Civil Avidtion Authority. It was further argued that foundational basis of respondent's action was that respondent/plaintiff had been forefront in National Politics as National Leader with unblemished image of high integrity, rectitude and honesty. The case of the other side was otherwise and so the applicant/defendant was entitled to cross-examine him with regard to his character. According to the learned counsel, Article 140 of Qanun-e-Shahadat (No,10 of 1984) hereinafter referred to as the 'Order' empowered defendant to confront plaintiff with his earlier written statement, which could show that his stand before this Court was inconsistent. Strength was further sought from Article 151, clause (3) of Qanun-e-Shahadat to demonstrate that the testimony of the plaintiff was not credible. In order to show the above official documents enumerated in C.M. No,23-C of 1996 were relevant and were to be put to witness in cross-examination. According to learned counsel, these documents were in exclusive custody of the officials mentioned therein and were not within the reach of the applicant. On the strength of these circumstances, it was urged that it was necessary that these documents be summoned and be made available to him on the relevant date of cross- examination.
' Secondly: that in written statement, the allegations contained in para.3, 4 and 5 had been controverted, applicant was well within his right to prove his case and disprove the case of other side by proving the required documents by the medium of cross-examination.
' Thirdly: that our State is an Islamic Republic; that it was created on the basis of two nations theory; that our Constitution is based upon Islamic Ideology. It was further contended that the character of our Constitution is Federal with Parliamentary form of Government; that under this system, Leader of Opposition occupies a very high position and his Constitutional duty is to subject the persons, who are at the helm of affair to phenomena of perpetual accountability. On this view of the matter, it was suggested that no suit for recovery of damages could be filed against the applicant on the basis of Press Conferences addressed by him. According to learned counsel, Conferences were privileged.
' Fourthly: that the documents, mentioned in the applications, were aimed to prove the case set up in the written statement and the applicant/defendant was entitled to prove them within the term of Articles 140, 141, 142 and 143 read with Article 132 of the 'Order'.
' Fifthly: that the Division Bench had come to a conclusion that in view of the pendency of these applications, Revision Petitions Nos.129, 130 and 131 of 1995 have become infructuous and so this Court was well within its right to hear these applications and decide the same. Reliance was placed on Salima Begum v. Sardaran Bibi PLD 1995 SC 406, Mst. Allah Rakhi v. Mst. Raj Bibi PLD 1957 (W.P.) Lah. 70, Bashir-Ullah Munshi v. Abdul Bari Bepari PLD 1969 Dacca 950, MuhammadRiaz v. The State PLD 1979 Lah. 155, Muhammad Sharif v. Suleman PLD 1981 Lah. 321, Manager, Jammu and Kashmir, State Property v. Khuda Yar PLD 1975 SC 678, Ghulam Qadir v. Muhammad Sharif 1979 CLC 527, Mahadeo Mahto v. Hiralal Verma AIR 1991 Patna 235, Subodh Chandra v. Sudhir Kumar AIR 1950 Calcutta 209 and Arjun Singh v. Mohindra Kumar AIR 1964 SC 993.
' Lastly: it was urged that the statement embodied in the required documents, was the statement of the plaintiff and so the applications were based upon sound , grounds. Sheikh Asghar Hameed, learned counsel, who had entered the debate on 19-3-1996, dealt with the scope of Article 140 with a lot of clarity. He contended that Article 140 of the 'Order' was applicable to the previous statements which were in black and white and which were to be put to witness for showing their inconsistency. He placed reliance upon K.A. Vish v. State of Maharashtra AIR 1971 SC 2256, Rama Reddy v. V.V. Giri AIR 1971 SC 1162, Balabhadra v. Nirmala Sundari Devi AIR 1954 Orissa 23. Applying his submissions to the prayers contained in C.M. No,23-C of 1996, he argued that in item No,2, the summary which was submitted by Mr. Farooq Ahmed Leghari, the then Finance Minister, was his statement and it has recommended the remission of penalties. Similarly, he stated that the record concerning Mehran Bank Limited, including that of penalty, was also a statement made by him. He then argued that record relating to appointment of Acting Chief Justice, Judges, Ad hoc Judges, Acting Judges and Additional Judges of superior judiciary, were also the statements made by him.
He then stated that the record mentioned against items Nos.14 and 15 also contained statement of plaintiff/respondent and fell within the ambit of Article 140 of the 'Order'. As regards, the other documents, he contended that the officers in whose custody these documents were/are, were/are not supplying him those documents and so these documents could not be obtained by the applicant/defendant. As regards C.M. No,24-C of 1996, he submitted that it related to the record of judicial proceedings but the same was not being supplied to him and so applicant was constrained to file the second application bearing N6.24-C of 1996.
' On the contrary, Raja Muhammad Anwar, learned counsel, while appearing on behalf of respondent/plaintiff, resisted the applications on following premises:-- ' Firstly: That these applications, practically embodied the reliefs which were contained in previous applications and which were dismissed .By the learned Civil Judge on 6-12-1995; that these were challenged by the applicant/defendant by filing three revision petitions, namely, 429, 430 and 431 of 1995, which were dismissed as infructuous by Division Bench vide order dated 1-2-1996. On these facts, it was canvassed that the order passed by learned Senior Civil Judge. Dated 6-12-1995 had become final and the instant applications were barred by the principle of general res judicata.
Reliance was placed upon Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat PLD 1976 Lahore 396, Rameshwar Singh v. Hitendra Singh A.I.R. 1924 P.C. 202, Sourendra Mohan Sala v. Hari Prasad Sinha A.I.R. 1925 PC 280, Baldeo Dass v. Dharam Chand AIR 1944 Lah.262.
' Secondly: that the learned counsel for the applicant/defendant had stated before the learned Acting Chief Justice that he had moved the instant C. Ms. And so the revision' petitions be allowed to be treated as applications for re-consideration or application for review. In this factual context, it was asserted that these C. Ms. Were not original applications but they were in the form of review applications and were governed by Order XLVII, rules 1 and 2, C.P.C. According to the learned counsel, the scope of Review jurisdiction embodied in section 114 of C.P.C. Read with Order XLVII, Rules 1 and 2 was limited and there were no circumstances for the exercise of such power in the instant applications.
' Thirdly: that the documents required to be summoned were with regard to affairs of the State; have not been published anywhere and so they were privileged within the terms of Articles 6 and 7 of the Qanoon-e-Shahadat and could not be summoned for the purposes of making them available for contradicting the plaintiff under Article 140 of the Qanun-e-Shahadat.
' Lastly: it was urged that the case was at preliminary stages; that the respondent/plaintiff had not still completed his evidence and the applicant/defendant will be well within his right to make an application for summoning these documents when he starts his evidence. According to learned counsel such applications, when moved, shall be decided by Court according to law.
5. From the foregoing, the following questions arise for determination:--
(1) Whether the applications, in hand, are barred by the general principle of res judicata?
(2) Whether the required documents can be summoned within the terms of Article 140 of Qanun-e- Shahadat?
(3) Whether the required documents form the part of unpublished record of the State and so these are privileged documents under Article 6 of the Order?
' Before I proceed to deal with the first question, I find it necessary to examine the case-law cited by the learned counsel for the parties. The first case, I would like to refer, is Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh AIR 1924 PC 202. In this case decree-holder consented to appointment of receiver of judgment-debtor's property in execution petition but later on he moved an application for removal of. Receiver on number of grounds. The other side raised an objection that the application was barred by principle of res judicata. This plea was upheld by all the forums including Privy Council. Dealing with this question, Lord Shaw said:-- "It was strongly urged that a rigorous construction must be given to the provisions of the Civil Procedure Code and that the language of section 11 of the Code of 1908 could not be applied to the present suit as it did not fall within the statutory words: 'Any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by such Court'. It seems extremely doubtful whether there is any distinction whatsoever between the present and the former suits. But, in the construction of this section, as was the case also in the construction of section 13 of the Code of Civil Procedure of 1877, it has been long recognised that the principle laid down by Sir Barnes Peacock in Ram Kirpul Shukul v. Mt. Rup Kauri (1884) 6 All. 269 is correct, when the learned Judge said:-- 'The question, if the terms 'res judicata' was intended, as it doubtless was, and was understood by the full push, to refer to a matter decided by a Court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case. The matter decided by Mr. Probyn was not decided in a form suit, but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit as binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation' .
"
' And recently before this Board in Hook v. Administrator-General of Bengal (1921)48 Cal. 499 that rule was re-affirmed.
' There can be no real doubt that, in the course of the judgment in this case, two radical issues were definitely settled. First, that extinction of debt was part of the scheme which was to be gradually operative, and, secondly, that the appellant, under the consent order, was bound to this gradual procedure. Their Lordships accordingly assent to the judgment of the High Court in the passage above cited. That pronouncement, in their Lordship's opinion, was not made nor must it be taken in a sense which absolutely prealudes,, should proper occasion arise, a sale of the mortgaged properties by the Receiver. If the pronouncement has such a meaning or effect, then, in the opinion of the Board, it is erroneous".
6. The rule laid down in Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others AIR 1924 Privy Council 202 supra was followed by Lahore High Court, in Mahant Baldeo Dass v. Malik Dharem Chand AIR (33 1946 Lah. 462). In Yusuf v. Abdullah Bhoy AIR 1930 Bombay 294, it was however held that orders, passed by the Court in interlocutory matter, can be reviewed by that Court under section 151, C.P.C./i,e, inherent jurisdiction if the Court finds special circumstances on the doctrine of doing substantial justice between parties.
7. I now come to a classic judgment rendered by his.Lordship Justice B.Z. Kaikaus (the then Judge of the erstwhile West Pakistan High Court) Mst.Allah Rakhi v. Mst. Raj' Bibi and others PLD 1957 (W.P.)
Lahore 70. In this case Mst. Allah Rakhi has filed a suit against four respondents with allegations that defendant No,1 is not the legally-wedded wife and defendants Nos.2 to 4 were not the legitimate daughters of Bahadur (deceased). This suit was fixed for evidence of plaintiff on 23rd February, 1955. On that date, neither the plaintiff nor his witnesses were present and the request for adjournment was made. This prayer was refused by the Court and the evidence of plaintiff was closed. The Court then adjourned the case to 11th May, 1955 for the evidence of defendants.
Meanwhile, the Presiding Officer of the Court was transferred. On the 11th May, 1955, plaintiff moved an application for seeking permission to make her own statement as witness. This application was resisted. The, learned Judge dismissed the application. This order was challenged by Mst. Allah Rakhi by filing revision. The learned Judge framed two questions: (1) whether Order XLVII, R.1, C.P.C.
Applies to interlocutory order relating to Procedure; (2) whether there is inherent powers in the Court to review such order. The learned Revisional Court answered the both questions in affirmative. Dealing with both these questions it was held:-- "It will be observed that this section mentions only a decree. Does it mean that at that time interlocutory orders, an instance of which I have already quoted, were not subject to review at all? It would not seem reasonable that although a final decree was liable to be reviewed if certain grounds existed, an interlocutory order, which is only a step in the proceedings that are to lead to a decree, and the need for reviewing which order may frequently arise, was not liable to be reviewed at all. There is no reason, at the same time, to hold that in 1859 the position in India with respect to an amendment or alteration of any order realting to mere procedure was different from what it was in England. In England there was inherent jurisdiction in a Court to vary orders relating to mere procedure. I quote below extracts from Volumes 19 and 26 of Halsbury Law as which relate to this subject.
Para. 570, Volume 19.--- In matters of practice and procedure every appeal from a Judge should be to the Court of appeal, and an order made in a matter of practice and procedure cannot be discharged, either by the Judge who made the order or by the Divisional Court; but in the case of matter of mere procedure, a Judge or master has powers, where new facts are brought before him which shows that the following out of the precise -directions of that previous order will cause what he considers inconvenience or other injury to the parties, to give directions that, notwithstanding a previous interlocutory order, a different mode shall be adopted of carrying into effect the substance of the previous order. But the Judge or master has no similar power in the case of an interlocutory order by which the right of the parties have been decided.
' An order made ex parte may be set aside by a party affected by it on an application being made to the Judge, who made the order.
Note(n), page 84, Volume.
26.---An interlocutory order may be set aside on the ground of fraud or mistake; or where counsel has exceeded his authority. But a final judgment can only be set aside by judgment in a fresh action."
' Although the first passage quoted above has reference to the Judicature Act of 1925, the cases to which it refers are of a much earlier date and there can be no doubt that what is contained in the Judicature' Act of 1.925 only reproduces a principle which had already been accepted. In section 31 of the Judicature Act of 1925, it is provided that a Judge can review while sitting in Court such orders as have been passed in chambers. I may state that all orders relating to procedural matters can be passed in chambers.
' I would mention here that in England as well as in pre-partition India it was regarded as an establishment rule that after passing an order a Court had no jurisdiction to review it in absence of a statutory provision to that effect. I refer in this connection to Anantharaju Shetty v. Appu Hegade AIR 1919 Mad. 244, where English cases too are cited. But all the cases which say there is no jurisdiction to review in the absence of specific provision relate to orders passed on the merits and have no application to the setting aside of an interlocutory order relating to mere procedure, the legal position with respect to which was as appears from Halspury.
' I have no doubt that at the time when the first Civil P.C. Was enacted there was an inherent jurisdiction in the Courts to review such interlocutory order or rather to pass a different order in spite of a previous order. Now, could it be said that in 1877 when the Civil P.C. Was amended and(new section was 623) the word "order" introduced, the intention was to take away the inherent jurisdiction which existed for a review of an interlocutory order relating to procedure and to confine it within the strict limit of Order XLVII? The reason for the Corporation in section 625 of the Civil P.C., 1877, of "Order" was, it appears to me, the interpretation put by the Courts, in some cases, on section 376 of Act VIII of 1859, holding that in spite of the fact that the word "decree" only was mentioned in section 376 it did apply even to orders which ' were technically not decrees. In Deen Dayal Puramanick v. Ram Coomar Chowdhry and others 10 Suth WR 345, the High Court reviewed its own order saying that though section 376 mentioned only decrees, it had always been held to authorise reviews of order which are, strictly speaking, not decrees. The learned Judges relied for this proposition on a previous Full Bench case Haradhon Mookerjee v. Chudner Mohun Roy Special No, Weekly Reporter 66. Similarly in Syed Lotf Ali Khan v. The Court of Wards on behalf of Maharaja of Durbhanga 6 Suth WR 8 Cal. 63 following the same Full Bench it was held that an order in execution was also covered by the provision of section 376. I am of the opinion that the amendment was intended to give effect to these judgments and not to take away the inherent power of Court which respect to procedural matters.
' The conclusion that there is inherent power' in a Court to vary, alter or amend orders relating to mere procedure finds further support from Order XVIII, rule 2, Lahore amendment which empowers the Court to summon a witness even though the parties have closed their cases and it may be asked why instead of determining the applicability of Order XLVII. I do not base my decision in the present case on this rule. My answer is that I would not place this case on the footing, that but for the Lahore amendment to Order XVIII, rule 2, there will be no power in the Court to alter an order relating to the appearance of a witness. The Lahore amendment to Order XVIII(2) only recognizes the inherent power which already exists in the Court and not intended to confer a new power. The amendment is in the following words:- "At the end of rule 2, insert the following Explanations."
"Explanation I.--Nothing in this rule shall affect the jurisdiction of the Court, of its own accord or on the application of any party for reasons to be recorded in writing to direct any party to examine any witness at any stage.
' Explanation II.--The expression 'witness' in Explanation I shall include any party as his own witness."
' This amendment, it will be observed, is in the form of an Explanation. It is by itself, at the same time a strong argument . Against interpretation that Order XLVII, rule 1 applies even to orders relating mere procedure."
8. The view taken in Mst. Allah Rakhi v. Mst. Raj Bibi and others PLD 1957 (W.P.) Lahore 70 supra, was followed by Dacca High Court in Bashirullah Munshi v. Abdul Bari Bepari and others PLD 1969 Dacca 950, by Supreme Court in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, Amanullah Khan and others v. Khurshid Ahmad PLD 1963 (W.P.) Lahore 566 and Division Bench of this Court Ghulam Qadar and others v. Muhammad Sharif and others 1979 CLC 527.
The ratio deducible from the foregoing discussion is that:--
(i) The general principles of res judicata do not govern the interlocutory/interim orders passed by , Court in procedural matters. Although, the Court ordinarily discourages the successive applications on these matters, yet the Court has inherent jurisdiction to amend/alter or change such orders after taking into peculiar circumstances of each case. Even the Courts had the power under section 114 of C.P.C. Read with Order XLVII, rules 1 and 2 to review such order.
(ii) The proper place of procedure, in the administration of justice is to help and not to frustrate the grants of right to litigant. All the technicalities have to be avoided and calls doing substantial justice between the parties or to be heeded. See Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382.
(iii) That Qanun-e-Shahadat is an adjective law. It is the compendium of rules of procedure/practices according to which the Court is to record the evidence of the parties. It prescribes rules/method with regard to recording of evidence of parties.
9. Applying the above principles to the facts and circumstances of the applications in hand, it is quite clear to me that these pertain to a procedural matter; these seek the summoning of the documents along with their custodian/officials. The reliefs, claimed in these C. Ms. Are substantially the same which were asked for in previous applications and which were rejected by order dated 6- 12-1995 by the learned Senior Civil Judge, Islamabad. The main case of the applicant is that the learned Senior Civil Judge had not attended to his contentions in true perspective and the case was not heard properly. The order passed by learned Senior Civil Judge dated 6-12-1995 was challenged by the applicant in revision petitions but the -same were dismissed by the Division Bench of the Court as infructuous. This happened vide order dated 1-2-1996 on the premises that the instant applications have been moved before this Court. Without going into the history of the revision petitions and their final fate, it becomes clear that the learned Division Bench formed opinion that it was proper that the instant applications be dealt with on merit. These are special and distinctive features of the applications in hand. Following the rule of judicial dignity, I am bound by the order of Division Bench. Taking into consideration the afore stated distinctive features of these applications, I am of a considered view that the order of learned Senior Civil Judge dated 6- 12-1995 is not a bar to decisions of these applications. I accordingly find that the principle of general res judicata is not attracted to the facts of these applications.
10. Having dealt with the first question, I now turn to second one. Answer to this question hinges upon Article 140 of the ' Order'. It reads as follows:-- "140 Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." '
A bare look at this Article indicates that this provision enacts that a witness may be cross- examined as to his previous statement in writing with an intention to contradict the inconsistency in his statement made in Court. This Article prescribes that his attention must be drawn to that part of previous statement, which is intended to be contradicted. The underlying objectives of this Article are two-fold: firstly, that the witness is given opportunity to explain the inconsistency between statement in Court and his previous statement and secondly, it equips the other side to impeach the veracity of witness by showing that the person was not credible. This Article, as already noted, pertains to cross-examination. This Article is to be read with Article 151(3) of the 'Order'. Although, these two Articles cater for different aspects, yet the aims of both are overlapping.
Article 151(3) ibid, states that credit of witness may be impeached by proof of former statements which are inconsistent with any part of his statement in Court. The objective of this Article is to demonstrate that the person in the witness-box is not creditworthy. Article 151(3) ibid, however, does not provide the manner of proof of earlier inconsistent statement, while the Article 140 of the Order provides such machinery. The objectives of these two Articles were explained by Professor Wigmore in his celebrated treatise Law of Evidence in following words:-- "Is the same as that of the preceding sort,, namely, to show the witness to be in general capable of making errors in his testimony; for upon perceiving that the witness has made an erroneous statement upon one point we are ready to infer that he is capable of making an error upon other points."
11. From the above study of Articles 140 and 151(3) ibid, it becomes evident to me that a witness, who enters the witness-box, can be cross-examined as to his previous statement, made by him in writing or reduced into writing, by the other side and that witness is to be given opportunity, after seeing the inconsistent statement, to explain the same. This is in all the purport and substance of Article 140 ibid.
12. In the light of the above analysis of Articles 140 and 151(3) of the 'Order', I now turn to merits of C.Ms. Nos.23-C and 24-C of 1996. As regards C.M. No,23-C of 1996, it is prayed therein that the documents mentioned in Items Nos.l to 19 be summoned from the officials mentioned therein and be made available to applicant for the purpose of putting them in cross-examination. A close study of these documents, show that the required documents mentioned in item No,1, item No,2, sub-item (2), item No,4, Item No,8, Item No,9, Item No,10, Item No,11, Item No,12, Item No,13, Item No,17, Item No,18 and Item No,19, do not contain any statement in writing made by the respondent/plaintiff. This was very fairly conceded by Sheikh Asghar Hameed, learned counsel, while appearing on behalf of applicant on 20-3-1996. These documents form the part of unpublished record of the State, which has been prepared by the concerned functionaries of the State. These documents, therefore, in my humble .Estimation, cannot be put to the respondent/plaintiff under Article 140 ibid. This being the position, I am not required to further go in the matter and find that the application for summoning aforementioned documents for the purpose of putting to respondent in cross-examination, is wholly misconceived and the prayer contained therein cannot be accepted by recourse to any principle of law. For the above reason, the application/C.M. 23-C of 1996 is rejected to that extent. Now I will come to documents mentioned in sub-item (1) of Item No,2, Item No,3, Item No,7, Item No,14, and Item No,15. In so far as sub-item (1) of Item No,2 is concerned, the summary submitted by Mr. Farooq Ahmed Khan Leghari, the then Finance Minister, is sought to be summoned. Undeniably the summary was submitted by the respondent/plaintiff as a Finance Minister of Pakistan. It pertains to part of unpublished record of State. So it is clearly protected under Article 6 of the 'Order' being privileged document, which cannot be allowed to put to respondent/plaintiff in cross-examination. Its production is subject to privilege and the Court ordinarily is first to examine the question of privilege, when the same is claimed by the custodian of the document. The record summoned through Item No,3 is of vague nature and so this prayer also cannot be acceded to. Similarly, I am not persuaded to summon.
Record relating to appointment of Acting Chief Justice, Judges, Ad hoc Judges, Acting Judges, Additional Judges of superior judiciary. These documents are privileged documents and they cannot become a subject-matter of being put to witness under Article 140 of the 'Order'. The record relating to Registrar of Commission of enquiry into Mehran Bank Limited Scandal also is a privileged document. This matter was probed by a very high Commission and its findings have not so far been published by the concerned quarter. This being the position, the request to that extent also cannot be allowed.
13. The only documents now left for examination are embodied in Item No,12, Item No,15, sub-item No,14 of Item No,16. They relate to payments, allegedly received by respondent/plaintiff. These documents have some nexus with the controversy in suit (it is tentative assessment). Even the learned counsel for the applicant was not able to specify the document which contained the statement of respondent. It was, however, asserted that the concerned officials were not providing record of these documents by pressing into service banking practice. The case of the respondent/plaintiff was that these were wholly irrelevant. It has already been noted that the case is to be heard from day to day after 16th April, 1996 in consonance with the commitments of the parties. Although, it is still to be determined whether these documents do contain any statement which can be put under Article 140 ibid, to the respondent/plaintiff, yet I am inclined to summoning these documents/record in the interest of justice. Taking that circumstance into consideration, I accept prayer made in the application to the above extent. The concerned officials are directed to make available record mentioned in Item No,15.
14. Having disposed of C.M. No,23-C of 1996, now I take up C.M. No,24-C of 1996. The applicant, through this application, seeks the summoning of record of suit titled "Hoechest Pharmaceutical (Pvt.) Ltd. v. Ghazi Agro Chemicals, Dera Ghazi Khan and others", from the Record Room of learned District and Sessions Judge, Multan. Suffice it to say that this application is misconceived. The record of the suit forms part of judicial record. The documents mentioned in this application are public documents. Applicant is entitled to get the necessary/requisite copies from the concerned Copying J Agency. So it is not necessary to summon that record. For the above reason, this C.M. No, 24-C of 1996 is found to be wholly devoid of any force and is accordingly rejected.
15. As a result of the above conclusion, C.M. No,23-C of 1996 is disposed of in following term: it stands rejected with regard to documents mentioned in Item Nos.l, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19. The same is partly allowed with regard to Item No,15. The official in charge of record of National Bank of Pakistan, Corporate Branch, Rehman Plaza Shahra-eFatima Jinnah, Lahore, shall make available the records mentioned therein on the next date of hearing. This order shall be subject to further condition that the question as to whether the documents mentioned therein are relevant for the purposes of cross-examination within the ambit of Article 140 of the 'Order', shall be determined at the relevant time. The record shall be made available, as already noted, in consonance with the dictates of doing justice between the parties and for the purpose of finalizing the hearing of the case as wanted by the parties. C.M. No,24-C of 1996 is rejected as meritless.
While parting with this order I need not emphasise that all the findings contained in this order are only germane to the controversy as to whether the documents. Are necessary for the purpose of putting them to respondent/plaintiff in cross-examination.