PLJ 2011 Peshawar 257
[D.I. Khan Bench]
[D.I. Khan Bench]
Present: Syed Sajjad Hassan Shah, J.
ABDUL HAMEED & others--Respondents/Plaintiff
C.R. No. 25 of 2006, decided on 20.5.2011.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 23--Suit for correction of parentage in revenue record and in mutation--Plea of legitimacy in plaint--Suit was dismissed--Case was remanded by First Appellate Court--Order of remanding--Validity--Where a suit had been disposed of upon a preliminary point and decree was reversed in appeal, then appellate Court can remand the case with further direction of framing issue and trial of the case--No provision in O. 41, Rule 23, CPC that Appellate Court cannot exercise such powers in the interest of justice--Appellate Court had power to set aside the judgment and decree while exercising its inherent powers to direct trial Court to amend the plaint, frame issue, record evidence of the parties and then decide the matter Appellate Court exercised powers vested in it to meet ends of justice. [Pp. 259 & 260] A & D
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 107, 151 & O. XLI, R. 33--Power of Appellate Court--Dispensation of justice--Scope of--All powers vested in trial Court--Validity--In order to meet eventualities which cannot be catered with by any existing provision of law, it can exercise power u/S. 107, r/w. S. 151 and Order XLI, R. 33 of CPC as these are enabling provisions which cover those situations causing insurmountable difficulties in dispension of justice--Even Appellate Court can act as ex debito justiatiac to supply omission in procedure and can adopt methodology to effectively carry out purpose in view--Appellate Court was equipped with powers and duties possessed by trial Court--Petition was dismissed. [P. 260] B & C
Mr. Karim Khan Marwat, Advocate for Appellant/Defendant.
Sh. Iftikhar-ul-Haq, Advocate for Respondent/Plaintiff.
Date of hearing: 20.5.2011.
This revision petition calls in question the judgment and decree passed by the learned District Judge, Tank dated 29.10.2005, whereby the appeal filed against the judgment and decree of the Senior Civil Judge, Tank dated 29.10.2003 was accepted and the case was remanded to the learned trial Court with the direction to allow the plaintiff to file amended plaint and to implead all the legal heirs of deceased Mehr Khan and to include the plea of his legitimacy in the plaint.
2. Briefly stated the facts are that the respondent-plaintiff filed a suit seeking the decree for perpetual injunction for correction of his name instead of Qutab Khan as Mehr Khan in the revenue record and in Mutation No. 2311 attested on 09.12.1999. He averred in the plaint that the name of his father was in fact Mehr Khan alias Qutab Khan who was the resident of Ghorazai, Tehsil Tank which is entered in the revenue record of the said village. At the time of issuance of his national identity card, the name of his father is shown as alias Qutab Khan and same is incorporated in the revenue record. The respondent applied to Defendant No. 2 for correction of his name and issuance of fresh identity card showing correct parentage as Mehr Khan by substituting Qutab Khan which was mentioned in addition to the name of Mehr Khan. The Petitioner-Defendant No. 1 and 2 were placed exparte whereas Abdul Latif petitioner-defendant arrayed as party in the panel of defendants contested the suit by filing his written statement. The learned trial Court framed issues out of divergent pleadings of the parties and provided ample opportunity to both the parties to adduce evidence and after hearing the arguments, dismissed the suit of the respondent-plaintiff.
3. Feeling aggrieved from the judgment and decree of the learned trial Court, the respondent-plaintiff filed appeal which was accepted and the matter was remanded to the learned trial Court as mentioned above. Hence, the instant revision petition by Abdul Latif petitioner-defendant.
4. The learned counsel for the petitioner-defendant contended that this was not the case of remand, as provision of Rule 23 of Order XLI, C.P.C. is not applicable to the facts and circumstances of the case because the remand would not serve any purpose without the amendment of the plaint. He further contended that the parties cannot travel beyond the parameter of pleadings and cannot be permitted to lead evidence beyond the averments. He made the reference of Order II, Rule 3 and Order VI, Rule 17 C.P.C.
5. The learned counsel for the respondent-plaintiff contended that the bone of contention between the parties is as to whether the respondent-plaintiff is the son of Mehr Khan or not. Simplest correction of name would hardly serve the purpose of the respondent-plaintiff. The learned appellate Court comprehended the controversy between the parties, thus, permitted the respondent-plaintiff to seek amendment in the plaint and then to proceed with the case. He further contended that in essence it is the case of legitimacy, therefore, the order of remand is in accordance with law and suffers from no legal infirmity.
6. I have considered the submissions of learned counsel for the parties and carefully perused the record.
7. It is discernable from the record that the respondent-plaintiff has sought the decree for correction of his parentage. However, the petitioner-defendant in his written statement, categorically denied the claim of the respondent-plaintiff and asserted that he is not the son of Mehr Khan and being son of Qutab Khan, the respondent-plaintiff cannot claim the correction of the record of the property owned by the predecessor of the respondent-plaintiff as mentioned in the plaint. He further agitated in the written statement that the respondent-plaintiff in wake of the instant suit intended to disturb the gemological table of the petitioner-defendant without having any entitlement. He termed the claim of the respondent-plaintiff as baseless. In such eventuality, it has become essential for the respondent-plaintiff to plead the facts as per requirement of law and to bring his plaint in its proper form and then to lead evidence in support of his claim.
8. There is no cavil to the proposition of law that the provision contained in Rule 23 of Order XLI C.P.C deals with the remand where a suit has been disposed of upon a preliminary point and the decree is reversed in appeal, then the appellate Court can remand the case with further direction of framing issue and trial of the case. There is no provision contained in the Rule ibid or anywhere in relevant Rules that the appellate Court cannot exercise such powers in the interest of justice. The appellate Court has ample power to set-aside the impugned judgment and decree while exercising its inherent powers to direct the trial Court to amend the plaint, frame issues, record evidence of both the parties and then decide the matter. It is not out of place to say that the learned appellate Court even otherwise can exercise such powers as vested in it under Section 107 C.P.C falling in the chapter of General provisions relating to appeals which reads as under:--
"107. Powers of appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
9. It is abundantly clear from the above mentioned provisions of law that the appellate Court enjoys all the powers vested in the trial Court. In order to meet some eventualities which cannot be catered with by any existing provision of law, it can exercise powers under Section 107 read with Section 151 and Order XLI, Rule 33 of C.P.C as these are enabling provisions which cover those situations causing insurmountable difficulties in dispensation of justice. Even the appellate Court can act as ex debito justitiae to supply the omission in the procedure and can adopt the methodology to effectively carry out the purpose in view. When we read all the above mentioned provisions in juxtaposition, we would definitely reach to the conclusion that the appellate Court enjoys plenary powers to proceed in the matter. These provisions have been introduced in the Code of Civil Procedure to fill in the gaps wherever found in the procedure. In such circumstances, the appellate Court is equipped with the powers and duties possessed by the trial Court. The provisions contained in above noted Sections do not abridge or in any manner override the other provisions of law relating to disposal of appeals.
10. For the reasons mentioned above, I am of the view that the learned appellate Court has exercised the powers vested in it to meet the ends of justice. There is no illegality or material irregularity in the impugned order of the learned appellate Court calling for interference by this Court in exercise of its revisional jurisdiction. The revision petition being without substance is hereby dismissed, leaving the parties to bear their own costs.
(R.A.) Petition dismissed.