Abdul Hameed/respondent No, 1 and Khalid Mahmood/respondent No,2 have initiated an action for specific performance of agreement to sell dated 20-1-1996 in respect of agricultural land measuring 106 Kanals and 19 Marlas falling in the area of Chak No,439/EB, Tehsil Burewala, District Vehari against Sajjad Amjad herein applicant. The plaint was presented on 21-2-1998 and was registered as suit for specific performance on 21-2-1998. Feeling aggrieved the petitioner has moved this petition under section 151, C.P.C. For grant of following relief:-- " that the suit titled 'Abdul Hameed and others v. Sajjad Amjadpending in the Court of Mr. Muhammad Saleem Khan, Civil Judge, Burewala may kindly be declared to be abuse of process of Court and be quashed with costs."
Reliance is placed on Irshad Ahmad v. Muhammad Jamil (PLD 1994 Lah. 583).
2. Thus, the only point, that falls for determination, is whether this Court has powers under section 151, C.P.C. To entertain the application in hand and whether this Court has authority to quash the plaint which is not pending adjudication before it. Before proceeding further, I feel it necessary to examine Irshad Ahmad's case in detail. Muhammad Jamil/respondent No,1, in that case, was tenant of disputed house. Irshad Ahmad and others/petitioners sought his eviction before Rent Controller. He took up the plea that he was vendee and not tenant. Finally, the learned Rent Controller ordered his eviction on 13-10-1985. His appeal was allowed and the case was remitted back to the learned Rent Controller who again allowed the application on 7-1-1989. His appeal again failed. In order to frustrate aforesaid orders, he got a suit filed through his brother Muhammad Munir on 8-4-1991 for grant of perpetual injunction. The plaint, in the said suit, was rejected on 6-6-1991. This was not the end of the matter. One Farooq/respondent No, 3, as his attorney, filed an objection petition before the executing Court but this too failed on 6-6-1991.
Respondent No,2 filed an appeal. Meanwhile respondent No,3, brought yet another suit for permanent injunction against the petitioner/landlord as mortgagee. This suit was dismissed for non-prosecution on 29-3-1992. Then another gentleman Alhaj Muhammad Asghar Shahzad/respondent No,4 filed a suit for perpetual injunction on the basis of lease agreement. This suit was still pending and it was transferred by the learned District Judge, Lahore on an application of respondent No,4. Respondent, being dissatisfied/filed Civil Miscellaneous No,41/C of 1992.
Criminal Original No,38 of 1992 was filed by the landlord. This application was treated as application under section 151, C.P.C. And his lordship Mr.Justice Abdul Majeed Tiwana (as he then was) allowed the application and quashed the plaint in exercise of the authority under section 151, C.P.C. The decision was rendered in following terms:--- "Thus, it will be seen that the provisions of both the said sections being almost verbatim copy of each other, both can and should be, applied and utilized for achieving similar purpose. If in order to do justice between the parties and to prevent the abuse of the process of Court, frivolous criminal proceeding pending in any subordinate Court can be quashed or demolished by the High Court under section 561-A, Cr.P.C. Under section 151, C.P.C. It is equally competent to quash or undo the frivolous or vexatious civil proceedings pending in any Civil Court subordinate to it. The scope of its Constitutional jurisdiction is still wider and in appropriate cases it can also be invoked. In my opinion, the scope of section 151, C.P.C. Is rather more wider in its application and it can be utilized by every Civil Court in respect of its own proceedings and by the superior Courts in relations to the proceedings of the subordinate Courts. For instance, the District Judge in relation to the proceedings in the Courts of Civil Judges, the High Court in respect of proceedings in any Court on the civil side subordinate to it, and the Supreme Court, which also has vast powers under Article 187(1) of the Constitution, in respect of any proceedings on the civil side in any Court in the country."
3. With utmost respect to my learned brother Abdul Majeed Tiwana, J. (as he then was), I am not persuaded to subscribe to his view. In order to answer the above point, it seems useful, at this stage, to have look at section 151 of Code of Civil Procedure and section 561-A of Code of Criminal Procedure: Section 151, C.P.C. Section 561-A, Cr.P.C. ......Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court......Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
A bare look, on the juxtaposed examination of above provisions would show that both provisions relate to inherent jurisdiction of the Court. Manifestly, section 151, C.P.C. Pertains to the inherent jurisdiction of each Civil Court while section 561-A of Criminal Procedure Code deals with such jurisdiction of the High Court. The use of expression 'High Courtis conspicuously absent in section 151 of C.P.C. Conceptually this jurisdiction is necessary concomitant of the authority to decide. The Court, which is conferred with the authority to decide, has all the necessary enabling powers to effectively deal with the lis before it. Lord Morris in Connely v. D.P.P. 1964 AC 1254:--- A Court must enjoy such powers in order to enforce its rules of practice and to defeat any attempted thwarting of its process. The power (which is inherent in a Court's jurisdiction) to prevent abuses of its process and to control its own procedure must in a Criminal Court include a power to safeguard an accused person from oppression or prejudice................
Under section 9 of the C.P.C. Courts created under Civil Courts Ordinance, 1962, has power to try/decide all the suits of civil nature unless their jurisdiction is expressly or impliedly barred. This Court while administering justice, has to follow procedure provided in Code of Civil Procedure.
These Courts are necessarily confronted with situations for which nothing is prescribed in the Code.
Naturally, the Legislature could only foresee the most natural and ordinary events and so no rule can regulate all situations arising for all times to come. Inherent powers of the Courts cover the said events. Explaining the concept of inherent jurisdiction, it was held in Hukam Chand v.
Kamalanand (33 Cal. 927(DB):--- "Ex debito justitiae to consolidate; postpone pending the decision of a selected action; and to advance the hearing of suits; to stay on the ground of convenience cross suits; to ascertain whether the proper parties are before it; to enquire whether a plaintiff is entitled to sue as an adult; to entertain the application of a third person to be made a party; to add (section 32 (1882) not being exhaustive) a party; t6 allow a defence in forma pauperis; to decide one question and to reserve another for investigation, the Privy Council pointing out that it did not require any provision of the Code to authorize a Judge to do what in this matter was justice and for the advantage of the parties; to remand a suit in a case to which neither section 562 nor section 566 (1882) applies; to say the drawing of the Court's own orders or to suspend their operation if the necessities of justice so require to stay, apart from the question whether the case falls within section 545, be carrying out of a preliminary order pending appeal; to stay proceedings in a lower Court pending appeal and to appoint temporary guardian of a minor upon such stay; to apply the principles of res judicata to cases not falling within sections 13 and 14 of the Code (1882) so forth."
The rules, enunciated in Hukam Chand case followed by superior judiciary before and after partition. See Nandkishore v. Ramgolam 40 Cal. 955, Muhammad Ibrahim v. Shaik Muhammad AIR 1949 Mad. 292, All India Reporter v. Mogher AIR 1950 Nag. 110, M.B.F. Fund Ltd. v. Davarajulu AIR 1955 Mad. 455, Subramania Desika's case AIR 1958 Mad. 284 Muhammad Abdullah v. Imdad Ali Shah 1972 SCMR 1730, Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382, Manager, Jammu & Kashmir State Property v. Khuda Yar PLD 1975 SC 678, Mst. Ghulam Bibi v. Sarra Khan PLD 1985 SC 345 and Shahzad Bibi v. Gulzar Khan PLD 1973 Lah. 878.
5. To sum up the above, it, thus, clearly follows that the inherent jurisdiction of Court is perennial in attendance in Court till the lis remains. Section 151, C.P.C. Embodies the above concept. It means that it does not confer any new jurisdiction on Court rather it declares the existence of such jurisdiction of Courts. Courts, while exercising this jurisdiction, are .To bear in mind that this authority can be exercised on the calls of reasons, good conscience and equity and subject to condition that there is no express provisions in Code to meet the given situation. This, however, does not conclude the matter. Allied question that arises, is as to whether this authority of the Court is co-extensive with Courts below and this Court can receive such application straightaway and quash the plaint. This point came up for consideration in Subramania Dasika's case AIR 1958 Mad.
284. In this case S.R. 16033 was a plaint which was to be filed in the Court of subordinate Judge.
C.M.P. No,3912/57 was filed in the High Court with prayer to receive the plaint and transmit it to the Court of trial after granting interim relief. The question arose as to whether the High Court had power under section 151, C.P.C. To entertain C.M.P. And grant the requested relief. It was held that the Court had no such power. It will be of great use to reproduce para. 4 thereof, which is as under: "(4) As Mr. Champakesa Aiyangar has raised this question once again I propose to deal with the exact scope of the High Court's powers in this regard. It is not necessary to consider the jurisdiction of the Supreme Court which was the predecessor of the present High Courts. Nor is it necessary to examine the scope of the jurisdiction conferred on Sudder Dewaney Adalut the Company's Courts in the Moffusil. Section 9 of the High Courts Act, 1851, enacted: Each of the High Courts to be established under this Act shall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate, and all such powers and authority for, and in relation to, the administration of justice in the Presidency for which it is established as. Her Majesty may by such Letters Patent as aforesaid, grant and direct subject, however, to such directions and limitations as to the exercise of original, civil and criminal jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor- General-of-India-in-Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last- mentioned Courts". Under this provision, therefore, the High Court's original jurisdiction beyond the limits of the Presidency Towns was to be such as was directed by Letters Patent. The Civil jurisdiction outside the Presidency Town limits was dealt with by clause 13 of the Letters Patent. It ran as follows:-- 'And we do further ordain that the said High Court of Judicature at Madras, Fort William in Bengal, Bombay, shall have power to remove, and to try and determine as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, Bengal Division of the Presidency of Fort William Bombay, subject to his superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court."
Clause 13 was in contrast to the ordinary civil jurisdiction of the High Court under clause 12. By virtue, therefore, of section 9 of the High Courts Act the jurisdiction of the High Court in relation to the exercise of civil jurisdiction outside Presidency Towns would be subject to the limits prescribed by clause 13 of the Letters Patent. The power under clause 13, it would be seen, was one-- 'to remove and to try and determine as a Court of extraordinary original jurisdiction, any suit being or. Falling within the jurisdiction... ... Whether within or without the Presidency of Madras.'
The expression 'removewould undoubtedly indicate and postulate the previous existence of a suit which was being removed. It would therefore be not a proper construction of the clause to understand the word 'remove'. In this connection the terms of clause 12 may usefully be compared with those employed in clause 13. In the earlier clause the words used are 'to receive try and determine. The contrast cannot be missed.
The framers of the Letters Patent, therefore, drew distinction between the power 'to receiveconferred by clause 12 and the power 'to removeconferred to in clause 13. Learned counsel for the petitioner urged that as the Court had the power not merely to remove but also to try and determine, these powers might be read in 4 distributive sense so that the power to try might so to speak be disannexed from the power to remove, so as to make it independent of 'remove. I am wholly unable to accept this argument as doing violence both to the grammar as well as to the sense of the clause.
There cannot be a power to try a suit without a power to receive and clause 12 of the Letters Patent would confine the power to receive the plaint to the class of suits referred to in the clause. If this argument about clause 13 were rejected, there cannot be any basis for the jurisdiction of this Court to receive a plaint merely because the Mofussil Courts are closed for the summer vacation. No doubt in the application a reference is made to section 151, C.P.C., but that can apply only to the exercise of jurisdiction when once the matter is before the Court and cannot confer jurisdiction to entertain a proceeding."
6. The aforenoted point came up before a Division Bench of Erstwhile West Pakistan High Court in Karamatullah v. Government of West Pakistan (PLD 1967 Lah. 171). In this case Karamatullah and others filed a writ petition/challenging the order of their retirement. This petition was accepted. The Province of West Pakistan/respondent therein, moved an application under section 151, C.P.C./stating therein that the Government intends to file an appeal before the Supreme Court against the said decision and prayed that the operation of the aforesaid decision be stayed for one month. This prayer was repelled by the Division Bench of the High Court. Speaking for the Bench, his Lordship Sardar Muhammad lqbal, J. (as he then was) said:- "The question is whether the High Court has any jurisdiction to stay the operation of the order under section 151, C.P.C. It may be noted that there is no order which is capable of being executed. The request of the Government, however, is that the operation of the order be stayed in the exercise of inherent powers of this Court under section 151, C.P.0 There is abundant authority for the proposition that section 151 does not apply where there is an express provision in the Code dealing with the particular matter. The power of the High Court to grant the interim relief is exhaustively dealt with in Order XLV, Rule 13, C.P.0 If something has been withheld and is not provided for in that provision, section 151 cannot be used to provide for it. The Government has not applied under rule 13 of Order XLV and it may be for the reason that it has not made any application under sub-clause (a) of clause (2) of Article 58 of the Constitution for the certificate 'that the case involves a substantial question of law as to the interpretation of this Constitution'. Under clause (d) of rule 13 the High Court is competent to give such direction respecting the subject-matter of the appeal as it thinks fit. This provision, in our opinion cannot be pressed into service when neither there is an application to the Court for a certificate to appeal to the Supreme Court nor the leave to appeal has been granted by the Supreme Court. The provision, contained in rule 13 of Order XLV, however, is exhaustive for granting the interim relief and, thus, by implication excludes the passing of any orders by the High Court in the exercise of its inherent jurisdiction. It was, however, strenuously contended that it is of great importance that the subject-matter of appeal should be preserved during the litigation so that if the petitioner Government ultimately succeeds in the Supreme Court it may not stand to lose certain benefits because the High Court has not passed orders preserving the subject-matter of appeal. The question that arises is as to what is the subject-matter of appeal in the present case. Doubtless, if there had been a claim with regard to a house or a piece of land or sums of money, the subject-matter of appeal would have been the house or the piece of land or the sums of money. In the present case the subject-matter of appeal can only be the right which the petitioners were claiming against the respondents and in respect of which they claimed for a judgment of this Court. There can, however, be no denying the fact that a cause of action in a suit can also be treated as a subject-matter within the meaning of clause (d) of rule 13 of Order XLV.
This was the view taken in Shadi Ram v. Amin Chand (AIR 1930 Lah. 937). The cause of action in these proceedings was the right claimed by the petitioners and the wrong alleged to have been suffered by them. A direction under the circumstances, under rule 13 may have been competent but, as already observed, no application has been made under this provision and since the same deals exhaustively with the powers of the Court relating to the preservation of the subject-matter of the appeal and the suspension of the orders appealed against, there is no scope for inherent power."
7. Moreover, it is now well-known as to the cases in which the Court can exercise the inherent power under section 151, C.P.C, and new categories cannot be invented. The Code of Civil Procedure has made ample provision for stay of operation of orders in the appropriate case and it is not open to the Court in the exercise of its supposed inherent powers to stay the operation of cases other than those provided for merely on the ground that an unsuccessful party intends to apply to the Supreme Court for special leave to appeal.
8. It may also be noted that the inherent power under section 151, C.P.C. Cannot be exercised in a case where no matter is pending before the Court. The Court after having accepted the writ petitions became functus officio and unless there is some special provision like the one contained in rule 13 of Order XLV to pass any interim order, the Court has no jurisdiction to pass any order in the exercise of its inherent powers.
9. The ratio, deducible from the above review, is that the Courts are equipped with necessary enabling powers to pass orders to do acts which are necessary to do substantial justice between the parties, within the framework of reason, good conscience and fairness. Exercise of this power is subject to three necessary elements, firstly, the Court can exercise its jurisdiction in a manner which is not prohibited by any law; secondly, when there is express provision in Code, the Court cannot exercise this authority to defeat or circumvent such express provision; thirdly, expression 'Courtin section 151 of Civil Procedure Code means each Civil Court before whom the lis is pending.
After deciding the lis the Court becomes functus officio and cannot exercise the above powers.
Concludingly, it can be safely said that the High Court, in exercise of its authority under section 151, C.P.C., cannot entertain any application to quash a plaint/appeal which is before either the Court of, trial or the Court of appeal. The aforesaid conclusions are fortified by the provisions of section 115, Order VII, Rule 11, Order XLI, Rule 11 and section 12(2) of C.P.C. Section 115 equips the High Court with powers to call for record of any case which has been decided by any Court subordinate to it and in which no appeal lies if it appears that the said Court had exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested by law or to have acted in exercise of his jurisdiction, illegally or with material irregularity. The aforesaid revisional jurisdiction was also conferred upon the District Courts, by means of Ordinance XII of 1972. As regards. Order VII, Rule 11, it enumerates the circumstances on the basis of which Trial Court is empowered to reject a plaint. It rather casts a duty upon the Court of trial, to examine the plaint and in the first instance as to find out whether it was hit by factors enumerated therein, and is bound to reject the plaint if it so finds. The same power is conferred upon the Appellate Court by virtue of Order XLI, Rule 11, C.P.C.
Which postulates that the Court of appeal can requisition the record and reject the appeal without issuing any notice to other side. From above it, therefore, clearly emerges that the power of Court under section 151 is not co extensive with the powers of the Court below and can be examined only when the lis is pending before this Court. Courts of trial, Courts of appeal and revisional Court are invested with powers by specific provision of Code to do the above job.
10. As regards the ambit of section 561-A of Cr.P.C., suffice it to note that it occurs in the Code of Criminal Procedure and pertains to Courts dispensing criminal justice. Its scope in operational dynamic was beautifully summed up by the Supreme Court of Pakistan in Ghulam Muhammad v.
Muzammal Khan PLD 1967 SC 317. It was held therein: "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or had been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court has not found in the present case but has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature.
The High Court itself has referred to a Full Bench .Authority of Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the view expressed by Madras High Court for, we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in sections 196 to 199, Cr.P.C. Section 190(1)(b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magisrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non- cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submitted was under section 408, P.P.C., which was cognizable. This even the obstacle posed by section 155(2), Cr.P.0 did not stand in the way. The challan submitted by the police was, therefore, lawfully submitted and legally enquired into."
11. Manifestly the jurisdiction of the High Coul-t under section 561-A, Cr.P.C. Is neither alternative nor additional nor supplementary. It is designed to redress the grievance of those for which there is no other procedure available . This power is clearly co-extensive with the power of Criminal Courts subordinate to it. This power is of a wide amplitude and is broader than the power of the first Court under sections 249-A and 265-K of Cr.P.C. The remarkable feature of the Code of Criminal Procedure is that section 369 bears the jurisdiction of the Court below to change or alter their decision after the trial has been concluded. No Criminal Court has power to change/alter its decision after deciding the same. See Azad J&K Government v. Kaloo and others PLD 1958 Azad J&K 6 and R.H. Brightling v. Saeed Ahmad 1968 PCr.LJ 1818(1) and a Full Bench Decision in Zulfiquar Ali v.
The State PLD 1984 Lah.
461. However, the High Court, in view of section 561-A, Cr.P.C., is not subject to above limitation and is empowered to recall or alter its order if some mandatory provisions of law have been violated. I am, therefore, clearly of the view that section 151, C.P.C., is materially different from section 561-A, Cr.P.C. The view taken by his Lordship Mr. Justice Abdul Majeed Tiwana, J. (as he then was), therefore, is not in line with correct interpretation of sections 151, of C.P.C. And 561-A of Cr.P.C.
For reasons stated above this petition is found wholly incompetent and is dismissed in limine. The objection of the office is thus sustained. This order, however, shall not preclude the petitioner from availing of any appropriate remedy available to him under the law before the forums of competent jurisdiction.