' This appeal is directed against the judgment and decree, dated 7-6-1990 of Additional District Judge, Gujrat, whereby the respondent's/plaintiff's appeal has been accepted, the judgment and decree dated 5-10-1967, passed by the Civil Judge, Gujrat, has been set aside and his suit for declaration has been decreed as prayed for.
2. The facts, in brief, are that the respondent/plaintiff, Allah Ditta, instituted the declaratory suit on 1- 2-1966 in the Civil Court at Gujrat for declaration to the effect that the suit land measuring 61 Kanals and 5 Marlas, as detailed in the plaint, was under occupancy tenancy of deceased Ahmed son of Sharaf Din and on his demise (before December, 1898), the same was inherited by his widow Mst. Jewni (Exh.D.1), copy of Mutation No,131, dated 14-12-1898), the plaintiff was the sole heir of Mst.
Jewni, being her nephew on the maternal side and on her death (19-12-1962) the suit land was mutated in his name vide Mutation No,2717, on 1-7-1964 by the A.C.II, Tehsil Kharian. Later on the appellants/defendants preferred an appeal and the learned Collector Gujrat, remanded the case back to the Revenue Officer for fresh decision. After remand, the Revenue Officer revised the mutation and vide his order dated 15-10-1965, allocated 1/4th share of the land left by Ahmed to the respondent/plaintiff, Allah Ditta, being the share of widow of Ahmed and allocated 3/4th share of the land left by Ahmed to be appellants/ defendants, declaring them to be the heirs of Mst.
Ayesha who was held to be the sister of Ahmed, the prepositus, and the said mutation, according to the plaintiff, was the result of connivance of the defendants with the revenue staff and was fictitious and the plaintiff prayed for a declaratory decree to the effect that he was the sole owner of the suit land and the defendants/appellants had no concern with the same. The suit was resisted by the defendants through written statement with the averments that Mst. Jewni was limited owner and her husband Ahmed was the last male owner of the land in dispute and the defendants claimed to be the distant kinder of said Ahmed, being the heirs of Mst. Ayesha, the sister of Ahmed, and after his demise they were entitled to th share of the suit land.
3. After framing the necessary issues, the trial Court recorded the evidence of the parties and vide its judgment and decree dated 5-10-1967, dismissed the suit holding that Mst. Jewni was limited owner and, therefore, on her death the land reverted back to the last male owner namely, Ahmed and that the defendants/appellants were the heirs of Mst. Ayesha, who was held to be the sister of Ahmed and, consequently, the mutation in dispute was held to have been correctly attested. The District Judge, Gujrat, vide his judgment and decree dated 11-11-1968, dismissed the respondents' appeal, however, the Regular Second Appeal (R.S.A. 368 of 1969) was accepted by a learned Single Bench of this Court on 8-3-1990 and the case was remanded back to the District Judge, Gujrat, for fresh decision on all issues. After the remand, the Additional District Judge Gujrat, as mentioned above, vide, his judgment and decree dated 7-6-1990, has accepted the respondents' appeal holding that although Mst. Jewni was a limited owner of the land left behind by her husband Ahmed (not under custom but under section 59 of the Tenancy Act) but the defendants were not entitled to get any share of suit land as they had failed to prove that they were the distant kinder of the deceased Ahmed because they had failed to prove that Mst. Ayesha, the predecessor of the defendants/appellants was the sister of Ahmed and consequently it was held that in the absence of any other heir, Mst. Jewni, the widow of Ahmed, on the death of Ahmed inherited the whole of the suit land left behind by the deceased Ahmed, th as Quranic sharer/as childless widow and the residue of th share in Return (Radd).
4. I have heard the learned counsel for the parties and have also seen the record and at this stage, before this Court, it is admitted position that Mst. Jewni was a limited owner and was not a full owner and the dispute is only in regard to the relationship of the appellants/defendants predecessor Mst. Ayesha with the deceased Ahmed. It is also pertinent to mention here that it is also an admitted position that respondent/plaintiff is legal heir of Mst. Jewni, the widow of Ahmed and that's why onus of issue No,2, reproduced below, was placed on the defendants/appellants: "Issue No,2: ' Whether the defendants are distant kinders of Ahmed? O.P.D."
5. Learned counsel for the appellants while arguing that the appellants' predecessor Mst. Ayesha was the real sister of Ahmed deceased has referred to the disputed Mutation No,2717, attested by the Revenue Officer, on 15-10-1965 and has also referred to the pedigree-table prepared and relied by the Revenue Officer and the learned counsel has also very heavily referred to the contents of the mutation which contain the reasoning of the Revenue Officer for arriving at the conclusion that the appellants predecessor Mst. Ayesha was the real sister of Ahmed. It is argued that the order of the Revenue Officer, contained in the above said mutation, shows that the parties to the present suit had previously also entered into civil litigation with each other and the judgments delivered by the Civil Court in the previous preemption suits in the year 1956, which have been relied upon by the Revenue Officer while attesting the disputed Mutation, patently show that Mst. Ayesha was the real sister of Ahmed. In this regard it has also been brought to my notice that at the stage of first appeal, the appellants moved an application under Order 41, Rule 27, C.P.C., seeking permission to produce the judgments and decrees dated 10-2-1956, passed by the Senior Civil Judge, Gujrat, which was dismissed by the learned First Appellate Court in the previous round of litigation on 17-9- 1968, but the said judgments are available on record as the same were attached with the application. The precise arguments of the learned counsel for the appellants is that the dismissal of the application seeking permission to produce additional evidence has resulted in the mis- carriage of justice because on being made aware of the judgments and decrees dated 10-12-1956, passed by the Senior Civil Judge, Gujrat, in Suits Nos.381 and 382, the Courts below ought to have looked into these judgments instead of refusing to look into them on technical grounds because it is a matter regarding the determination of the heirs left behind by deceased Ahmed and merely by not looking into the judgments which might throw some light on the subject-matter, the actual relationship will not change. It has also been argued that although the application seeking permission to produce these judgments and decrees by way of additional evidence was dismissed by the First Appellate Court in the previous round on 17-9-1968 but since the said judgments are available on record, therefore, the First Appellate Court, in the second round, ought to have looked into the same on its own as they are very relevant for the just and prompt decision of the suit and the First Appellate Court should have remanded the case back to the trial Court for fresh decision on merits.
6. Learned counsel for the respondent, on the other hand, has submitted that after the rejection of the application seeking production of additional evidence on 17-9-1968, the appellants never agitated the matter any further and on the basis of the evidence available on the record, the appellants have failed to prove any relationship between Mst. Ayesha and Ahmed, but with all fairness, the learned counsel has frankly conceded that since it is a matter in regard to the determination of legal 'heirs of a deceased right-holder, therefore, the Courts of their own also could look into the judgments and decrees passed by the trial Court previously on 10-12-1956 in the two suits which were inter-parties and if there were any admissions or denials by the parties in regard to the relationship between Ahmed and Ayesha, the same could have also helped the Courts in arriving at a just conclusion and for doing complete justice, especially when these judgments are mentioned in the impugned mutation itself which are the basis of the decision of the Revenue Officer. Learned counsel for the respondent further submits that in these circumstances he has no objection to the remand of the case back to the trial Court for fresh decision on merits after bringing on record the judgments referred to by the Revenue Officer at the time of attestation of Mutation No,2717, on 15-10-1965 as additional evidence.
7. It may also be mentioned here that on 17-9-1968, the First Appellate Court dismissed the appellants' application under Order 41, Rule 27, C.P.C. Merely on technical grounds:
(i) that the parties had led their entire evidence in the lower Court;
(ii) that it was never contended that the copies sought to be produced were not available before the judgment was announced by the trial Court;
(iii) that these documents were never relied upon in the lower Court; and
(iv) that there was sufficient evidence available on the record, for and against, for the Court to come to a conclusion.
8. Soon thereafter the First Appellate Court dismissed the respondent's appeal on merits on 11-11- 1968 and, therefore, the present appellants never felt the necessity to challenge the order dated 17- 9-1968 any further and the matter is being reagitated now because the respondent's appeal in the second round of litigation has been accepted.
9. The respondent/plaintiff through the present suit challenged the correctness and legality of Mutation No,2717 as attested by the Revenue Officer on 15-10-1965 but failed to produce the same in evidence. He also failed to appear as a witness in support of his suit. The certified copy of the above said mutation for the first time has been brought to the notice of this Court by the appellants at this stage of second appeal and has been attached with the grounds of appeal as Armature "A", the contents of which are not disputed by the respondent's counsel, which contains a pedigree-table prepared by the Patwari on the report of Headman/Lumberdar and the same has been taken to be true by the Revenue Officer not only because of the report of the Patwari but also because of the judgments previously delivered by the Civil Court on 10-12-1956 in pre-emption Suits Nos.381 and 382, between the parties to the present suit, which according to the Revenue Officer, conclusively prove that Mst. Ayesha who died as far back as on 25-11-1905, (Exh.D.2, copy Death Register entry), was the real sister of deceased Ahmed who died prior to December, 1898.
10. The abovementioned shows that the determination of heirs of Ahmed, the last male owner, at the time of his death in 1898 is not free from difficulty as the Mutation No,131 (Exh.D.1) of his inheritance in favour of his widow as limited owner was attested as far back as on 14-12-1898. The oral evidence (D.W.1 to D.W.4), produced by the appellants, to prove Issue No,2, under the circumstances, was held to be insufficient by the first appellate Court while passing the impugned judgment because none of the witnesses had a first-hand knowledge and bad neither met the last male owner Ahmed who died more than a century ago nor Mst. Ayesha, his alleged sister who died in the year 1905. In these circumstances, the appellate Court ought to have looked into the documents, in the shape of judgments of the Civil Court for arriving at a just and proper decision of the suit, especially, when the respondent/plaintiff also had failed to produce any-evidence in rebuttal, to see as to whether these judgments were relevant or not for the determination of the issue and if the same were held to be relevant then a fresh decision was warranted by the trial Court in the light of those judgments delivered by the Civil Court previously in 1956. Strangely enough, the Courts below also failed to look into the disputed mutation itself which has now been produced before this Court. I have gone through the judgment dated 10-12-1956, passed by the Civil Court and the same is relevant for the determination of the controversy in hand. I have also gone through the contents of Mutation No,2717, dated 15-10-1965 which contains very valuable information in regard to the subject-matter in issue. The appellate Court on its own, at any time, under Order 41, Rule 27, C.P.C., can look into the fresh material placed before it to see whether the same are relevant or not for the purposes of bringing them on the record of the suit an additional evidence. Furthermore, the Court has the inherent jurisdiction also to take necessary steps for the just and proper decision of a suit. I may also mention here that the circumstances mentioned above might have prevailed upon the learned counsel for the respondent to consent to the remand of the case back to the trial Court for fresh decision on merits after looking into the abovementioned documentary evidence.
11. In view of what has been narrated and discussed above and for the reasons mentioned above, I am of the view that the controversy cannot be resolved justly and properly and complete justice cannot be done unless and until the above said disputed mutation and the above said judgments and decrees passed by the Senior Civil Judge, Gujrat in the year 1956 are brought on the record as additional evidence. I am, therefore, issuing necessary direction in this regard, in the latter part of this judgment, in the suo motu exercise of inherent jurisdiction of this Court, the scope of which is discussed below. I may also mention here that Mr. M. Aftab Iqbal Chaudhry, Advocate, learned counsel for the respondent has rendered a valuable assistance to me, at my request, because although the case is being remand to the trial Court with the consent of the parties, yet the determination of jurisdiction of this Court is necessary as some documents are being directed to be brought on the record as additional evidence at this , second appeal stage, through the suo motu exercise of inherent jurisdiction of this Court.
12. After having gone through the various provisions of the Code of Civil Procedure and the judgments of the Honourable Supreme Court of Pakistan and of this Court, some of which have been referred to below, I am of the view that this Court at the stage of second appeal also, can take all the necess directions, can direct the trial Court, on its own, to bring all the necessary and relevant documents on the record of the suit as an additional evident , even without the asking of either party to the suit and can remand the case pack to the trial Court for fresh decision on merits in the light of the additional evidence, to be brought on the record. I am also convinced that necessary steps can be taken or can be directed, by this Court, to be taken by a Court low at any stage of the hearing of the appeal and the exercise of such authority, power and jurisdiction by this Court is limited only by the rule that this Court cannot exercise such an authority arbitrarily and this jurisdiction must be exercised with caution and only where necessary. It goes without saying that at the time of exercise of such a jurisdiction the Court must record reasons for the same. I may also add that the District Judges are also ves ed with such an authority while hearing first appeals against judgment s and decrees passed by the Courts of original civil jurisdiction.
13. Relevant provisions of Code of Civil Procedure governing the scope of jurisdiction of this Court at the time of hearing second appeal, from a decree passed in appeal by a Court subordinate to this Court, the jurisdiction to receive a document in evidence by a Court at a subsequent stage aft r the closure of the evidence, the inherent jurisdiction of this Court to grant relief which has not been asked in the appeal, the jurisdiction of the appellate Court to remand the case, to direct retrial, to frame issues and direct trial Court to take required additional evidence, to permit addition evidence at the second appeal stage and the power of the appellate Court to pass any decree and make any order which ought to have been passed o made and to pass or make such further other decree or order as the case ma require, are sections 100, 103, 151, Order XIII, Rule 2, Order X I, Rules 22, 23 and 23(a) as added through the Lahore High Court Amendmnts 25, 27 and 33. These relevant provisions governing the jurisdiction of this Court have been interpreted again and again by the superior Courts of this country and some of the judgments on the subject-matter pronouncing the law which have guided me to arrive at the conclusions in regard to the jurisdiction of this Court mentioned above in para. 12 of the judgments are referred here. In Iqbal Ahmed and other v. Khurshid Ahmed and others 1987 SCM R 744, the application of the plaintiff for permission to produce copy of the Jamabandi to establish his superior right of pre-emption was rejected by the trial Court as well as the first appellate Court, the High Court in second appeal while allowing the plaintiff to produce such copy of Jamabandi in evidence to prove his qualification of being an owner in the estate observed that authenticity and genuineness of certified copy of Jamabandi being part of record of rights, was beyond dispute and that it was not understandable why the trial Court and the appellate Court below had declined to allow its reception in evidence. The order passed by the High Court during the pendency of the second appeal was challenged by the defendant before the Honourable Supreme Court. The Honourable Supreme Court refused to grant leave and dismissed the defendants civil petition for leave to appeal while holding that such an order granting such a permission by the High Court, was under the circumstances, unexceptionable. It was, however, observed that the petitioner can rebut the evidence produced in this behalf by any cogent evidence and can also challenge the authenticity of the document and shall be entitled to produce evidence in rebuttal. In Muhabbat v. Asadullah Khan and others PLD 1989 SC 112 it was held that "A reference to Order XLI, Rule 27, C.P.C. Makes it clear that where the appellate Court requires any witness to be examined to enable it to pronounce judgment, it may allow such witness to be examined and the only rider placed is that it shall record reasons for doing so". In this case a learned Single Judge of the Peshawar High Court recorded additional evidence of a Patwari while exercising revisional jurisdiction in regard to which there was no request by the counsel for the respondent nor was there any request made at the appellate stage and it was argued before the Honourable Supreme Court that in doing so, the learned Single Judge misdirected himself as if he was exercising powers of an appellate Court. The Honourable Supreme Court while repelling the argument and while dismissing the appeal further held that "even if technically Order XLI, Rule 27, C.P.C. Did not apply to the revision as it was not a continuation of the suit, I have no hesitation (Muhammad Halim, C.J.) in holding that the High Court could in the exercise of its inherent jurisdiction under section 151, C.P.C. Admit such evidence for clarification in the ends of justice." In Amanullah and others v. Mst. Ghulam Jannat and others 1989 SCM R 547, the assessm ent of the High Court that without additional evidence it had become difficult to pronounce judgment on the relationship of predecssor-in-interest of respondents with the original owner of the property was considered as a sufficient ground to satisfy the condition under Order XLI, Rule 27, C.P.C. And the order of the learned Single Judge of this Court entertaining a pedigree- table produced by the respondents side in the second appeal was upheld and the apex Court refused to grant Special Leave to Appeal against the judgment of the learned Single Judge of this Court relying upon such a pedigree-table. In Mst. Fazlan Jan v. Roshan Bibi and two others PLD 1992 SC 811, the Honourable Supreme Court came to the conclusion that the trial Court as well as both the appellate Courts had failed to bring 1 the relevant documents on the record though they were not denuded f powers to summon all the necessary Revenue Record and also to summon e Patwari so as to supply omissions from both sides and it was held that in not doing so the trial Court and both the appellate Courts had failed to perform their duty. It was a case of inheritance of land by a lady and the apex Court further held that it was an appropriate case for exercise of power un er Order XLI, Rule 27, C.P.C. For bringing on record additional evidence d the suo motu exercise of such powers would have been fully justified I circumstances. In Messrs S.M. Yousaf and brothers v. Mirza Ahmed Mehdi Pooya and another PLD 1965 SC 15, the apex Court while interpreting Rule 33 of Order XLI, C.P.C. Considering the wide jurisdiction of this Court as an appellate Court under the above said rule, held that "the terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be lowed within the framework of the suit. The non obstante clauses are particu any significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole Dec was before the appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, he mere fact of the plaintiff not having filed an appeal against the failure of trial Court to grant a decree against Amanullah Kirmani would, not by itse f be sufficient to justify refusal to exercise the power under the. Rule. The principle as stated in the judgment of the High Court, namely, that "in the absence of a counter-appeal being filed a decree against another defendant c of be given" not only constitutes a fetter upon the extremely wide powe given to the appellate Court 'by the Code, but may also be thought to in direct contravention of a clear provision in the rule". The Honourable Supreme Court while referring to other precedent judgments laid down the g eral propositions to the effect "that the power given by the rule is widely e Dressed and must by applied with discretion, where interference is required "to adjust the right of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power "would lea. To impossible, contradictory and unworkable orders". These particular co siderations undoubtedly are circumstances which would justify the exercise of the discretion conferred by the rule, but it is right that we should say at if these propositions are to be understood as limiting the exercise of t e power within the circumstances specified, they would be in excess of e power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anytning expressed in negative or destructive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made'beneficially, and in accordance with the relevant facts". In Ahmed Khan v. Sattar Din PLD 1981 SC 148, the appeal of the appellant, Ahmed Khan, against the judgment of Peshawar High Court, dated 3rd December, 1973, was dismissed with costs on 11-2-1981 by the apex Court as having no merits. However, during the hearing of the appeal an issue was raised, on behalf of the pre-emptor/ respondent, whose Civil Petition for Special Leave to Appeal against the judgment of the High Court had already been dismissed by the Supreme Court on 5-2-1974, as being barred by time, to the effect that the respondent in the present proceedings was entitled to canvass that the decree of the High Court was not sustainable as the High Court had erred in taking the view that it was. Necessary for the pre-emptor to have contiguous land with both the Khasra Numbers in dispute. The Honourable Supreme Court while recording dismissal of the appeal of the appellant granted the relief to the respondent whose petition for Special Leave to Appeal had been dismissed earlier on 5-2-1974 as being barred by time and in the concluding paragraph of the .Judgment, while referring to the power of the Court under Rule 33. Of Order XLI, C.P.C. And Article 187 of the Constitution, it has been held that "The question, however, is whether we should give any relief to the respondent in the exercise of our power under Order LXI, Rule 33 of. The C.P.C., or under Article 187 of the Constitution, which enjoins the Court to pass any appropriate orders for the purposes of doing complete justice between the parties according to law. Although the Civil Petition for Leave to Appeal, filed by the respondent against the judgment of the High Court was dismissed as being barred by time, the fact remains that he has 'been illegally deprived of his right to obtain possession of Khasra No,110 .As well by way of pre-emption. In the circumstances, we are of the view that this is a fit case in which we should set aside the decree of the High Court and restore that of the District Court in respect of both the Khasra numbers in dispute. We ." In WAPDA and another v. Khanzada Muhammad Abdul Haq Khan Khatak & Company PLD 1990 SC 359, the trial Court had not awarded interest as provided in section 29 of the Arbitration Act, 1940, the Award directing the appellants to pay a sum of Rs,13,01,113 to the respondents was made Rule of the Court by the. Senior Civil Judge, Abbottabad, vide his judgment and decree dated 9-7-1979. Aggrieved by the rejection of the objections to the Award by the trial Court, the appellants filed an appeal in the Peshawar High Court. The appellants also filed an appeal from decree passed on Award. The respondents filed cross-objections to the appeal under Order XLI, Rule 22, C.P.C. Claiming award of interest on the decretal amount from the date of decree to the date of payment. The Peshawar High Court by two separate judgments, dismissed the appeal of the appellants and allowed the cross-objections and awarded interest on the amount at the rate of 8% per annum from the date of the decree to the date of payment. Aggrieved by the judgments, the appellants filed two appeals before the Honourable Supreme Court. The appeal against the award of interest by the High Court is relevant for this case. It was the contention of the appellants before the Honourable Supreme Court that the cross-objections against non-award of interest by the decree passed by the learned Senior Civil Judge were incompetent as an appeal under section 39(1) of the Arbitration Act, 1940, would lie only from the orders mentioned in that section and from no other orders, therefore, no cross-objections, which are in the nature of cross- appeal, were maintainable. The Honourable Supreme Court while holding that no such appeal by the respondents was maintainable under section 39(1) of the Arbitration Act held that High Court could award such an interest to the respondents in the appellants appeal against the .Decree passed by the trial Court as "the appellate Court had ample powers under Order XLI, Rule 33, C.P.C.
To pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power could be exercised by the Court in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection". The contention was thus repelled and both the appeals were dismissed with costs. In Ghulam Hussain and another v. Fazal Muhammad and 7 others PLD 1991 SC 218, the inherent powers of the trial Court, appellate Courts and of the Supreme Court were considered and the provisions of sections 151 and 153 and of Order XLI, Rule 33 of the Civil Procedure Code were considered by the Honourable Supreme Court. The matter related to inheritance under Muhammedan Law by a female heir of the deceased landowner who was cited as a proforma defendant in the suit filed under section 42 of the Specific Relief Act, 1877. The female heir was not granted any share in the property of the deceased merely for the reason that she had not filed the suit and she being a proforma defendant to the suit was held to be disentitled to the grant of any relief by the appellate Court. It was held by the Honourable Supreme Court that such a situation would not present any insurmountable difficulty in granting relief to such 'female heir to which she was found to be entitled and it was observed that the Court and under its inherent power to do complete justice between the parties could exercise power by undoing an unIslamic mode of devolution of inheritance whereby a female heir had been deprived of her valuable right of inheritance. It was held that Supreme Court could exercise such power under Supreme Court Rules, 1980, Order XXXIII, Rule 5. It was further observed that trial Court had also inherent powers under section 151, C.P.C. To do justice between the parties before it on the analogy of provisions contained in Order XLI, Rule 33, C.P.C. And Order XXXIII, Rule 5, Supreme Court Rules. The apex Court held that "if there was any need for an order for transposing a defendant as a plaintiff the same also could have been done under other provisions of C.P.C. Including general enabling provision in this behalf namely, section 153, C.P.C. This error or defect could be remedied by any of the Courts and could also be resorted to by this Court if there would have been any need but in view of the availability of the other more elaborate and effective power under Order XLI, Rule 33, C.P.C. The two lower appellate Courts and under Order XXXIII, Rule 5 of this Court, there is no need to resort to the said provision of C.P.C. Including sections 151. And 153, thereof" The appeal was resultantly allowed. In Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590, it was again held by the apex Court that the High Court, under Order LXI, Rule 33, C.P.C, can exercise the appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. In North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418, the apex Court considered the cumulative effect of sections 107(2), 151 and Order XLI, Rule 33 of Civil Procedure Code (V) of 1908 and it has been held that "it hardly needs any emphasis that the entire body of the procedural law is meant for advancement of the cause of justice and not to pose any technical difficulty in the way of the Court to unveil the truth and to does complete justice between the litigating parties, for the determination of which alone it has been created. Not unoften it has been noticed by the Courts that the provisions of Order XLI, C.P.C. Are not exhaustive. Seemingly, to fill in the gap in the procedure, section 107(2) was enacted in which the appellate Court has the same powers and is burdened with the same duties, as conferred and imposed on the trial Court.. Reference here may also be made to Order XLI, Rule 33, C.P.C. Which in order to prevent the ends of justice being defeated, gives wide discretionary powers to the appellate Court, to adjust the rights of the parties, as the ends of justice may demand and pass such decree or order, as ought to have been passed.
The Court has also inherent powers under section 151, C.P.C., to make such order, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. Has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act exdelicto justice, supply the omission in the procedure, adopt methodology for effectually carrying out the purpose in view. Reading of these provisions together would amply demonstrate that the Appellate Court enjoys plenary powers to proceed in the matter"
' Similarly in Khyber Insurance Company Ltd. .v. Pakistan National Shipping Corporation PLD 1994 SC 725, it has been held that a plain reading of Order XLI, Rule 33, C.P.C. Shows that "An Appellate Court under the C.P.C. Has been empowered to pass a decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and the power contained therein is exercisable notwithstanding the fact that the appeal is as to part only of the decree. It further shows that the above power may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection." The Honourable Court while considering the illustration of the above said Rule observed that "Whereas the illustration explains the scope of the above provision by giving an example that the Appellate Court upon appeal filed by a co-defendant can pass a decree against the other codefendant against whom the trial Court had not passed any decree." In Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 it has been observed that the technicalities are confined to the parties alone and the appellate Court I y virtue of Rule 33 of Order XLI has been rendered free to fashion relief according to the requirements of a case, and the object or arming the Appellate Court with such an extensive and wide ranging power seems to be none other than to ensure prompt and ready relief in cases of hardship as also, generally, to redress wrongs and to do complete justice in the case. Again in a recent judgment titled Nazir Ahmed and another v.
Abdullah 1999 SCM R 342, the august apex Court granted the desired relief under Rule 33 of Order XLI, C.P.C. In this case the successful preemptor/decree-holder failed to deposit the whole of the pre-emption money in time. The finding was that shortfall resulted because the Judge miscalculated Zar-i-Panjam' amount in the order-sheet to be deposited before the given date. The issue was as to whether it was an inflexible Rule of universal application that deficiency in deposit of pre-emption money which occurred because of miscalculation or through other error made by the Court is not excusable at all or it can be condoned on the principle that no one should suffer because of any error of the Court or because neither the mistake was wilful nor it was on account of any fault of the person concerned. The Honourable Supreme Court held that under the circumstances section 148 and Order XLI, Rule 33, C.P.C. Can be availed of to remedy such unintentional error "as the terms of these two provisos are of the widest amplitude to enable the competent Court to pass decree according to justice of the case and to adjust claim, rights and liabilities of the parties to the litigation in accordance with equity justice, good conscience and fair- play. "The plaintiff was, thus, granted the extension of time under sections 148. 151 and. Order XLI, Rule 33 of the C.P.C., his appeal was accepted and he was directed to make up the shortfall of Rs,40 within two months. No doubt the scope of second appeal under section 100, C.P.C. Is not unlimited unlike the first appeal under section 96, C.P.C. And by virtue. Of section 101, C.P.C. Second appeal does not lie except on the grounds mentioned in section 100 and this, in the opinion of late Mr. Justice Amir Ali, is so because the Indian Legislature was anxious "to prevent the High Court from being inundated with second appeals in trifling matters. This was so observed by late Mr. Justice Amir Ali as a Member of the Privy Council in Sri Chidambara Sivaprakasa Pandara Sannadhigal y.
Veerama Reddi alias Mooka Reddi and others AIR 1922 PC 292. Justice Amir Ali, however, also observed that the legislature had provided other provisions like section 103 and Rule 25 of Order XLI, C.P.C. "to avoid gross miscarriage of justice". In the said case the matter was remitted three times because the Judge in the first instance misunderstood the order of the High Court and in the second instance expressed himself as unable to come to a definite conclusion and the Privy Council gave its opinion that the High Court had jurisdiction to remit the case a third time, though it could as well-determine the issue left undetermined by the lower Court on evidence on record.
14. In view of the law laid down by the apex Court, referred to above, I may reiterate at the cost of repetition that the appellate Court can on its own take all the necessary steps for doing complete justice and such an authority can be exercised by it under Rule 33 of Order XLI, C.P.C. Or if need be in the exercise of its inherent jurisdiction under section 151, C.P.C.
15. At remand, the scope of the trial is obviously not as wide as at the time when the suit was being tried by the trial Court originally and the E proceedings have to be regulated by the trial Court in terms of order of remand passed by the higher Court. The trial Court in this regard may seek guidance from the guidelines laid down by this Court as well as by the Honourable Supreme Court in various judgments including Muhammad Hussain v. Fazal Haq and another PLD 1974 Lail. 208 and Jamil Aimed v. Saif-ud-Din PLD 1994 SC 501.
16. In view of the above mentioned, the appeal is accepted, the impugned judgment and decree, dated 7-6-1990 of Additional District Judge, Gujrat, is set aside, the judgment and decree, dated 5- 10-1967, passed by the Civil Judge, Gujrat, is also set aside and the suit is remanded back to the trial Court for fresh decision on merits. The trial Court is directed to bring the certified copy of Mutation No,2717, dated 15-10-1965, copy of which has been attached with this appeal as Annexure "A", on the record of the suit as additional evidence. It shall also bring on record the judgment and de-rees dated 10-12-1956, passed by the Senior Civil Judge, Gujrat, mentioned by the Revenue Officer, while attesting the disputed Mutation No,2717, dated 15-10-1965, as additional evidence. The trial Court shall also bring on record the pleadings of the parties to the said suits and the evidence, if any, recorded by the trial Court, as an addition evidence in the present suit. The respondents shall, however, be at liberty to rebut the evidence so produced by any cogent evidence and can also challenge the authenticity of the documents and shall be entitled to produce evidence in rebuttal. The trial Court shall thereafter, pass a fresh judgment and decree on merits in accordance with law, after hearing the arguments of the learned counsel for the parties within three months from the receipt of record which is directed to be transmitted to the trial Court within one week and the parties are directed to appear before the Senior Civil Judge, Gujrat on 1-6-1999 who shall entrust the matter to any of the Civil Judges of competent jurisdiction, stationed at Sub-division, Kharian. The parties are left to bear their own costs. As the appeal itself is being disposed of, the learned counsel for the applicants in Civil Miscellaneous 2-C of 1998 and Civil Miscellaneous 1-C of 1999 has elected not to press these applications which are accordingly dismissed as not pressed.