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Petitioner: Muhammad Saif Ullah VS Respondent: Lahore Development Authorities and others
Court Name: Lahore High Court Judge(s): Shahid Waheed, Atir Mahmood, Ch. Muhammad Iqbal Title: Muhammad Saif Ullah vs Lahore Development Authorities and others Case No.: Review Application No. 2005 of 2019 Date of Judgment:2020-11-17 Reported As: 2021 [M] C L R 1, PLD 2021 Lahore 168 Result: Order accordingly
JUDGMENT
JUDGMENT SHAHID WAHEED, J.---The solitary cause which has been made basis to seek review of the order dated 7th December , 2018 dismissing the revisional application, that is, C.R. No.21 1935 of 2018 is the opinion that has been expressed in "Javed Iqbal, etc v. Province of Punjab, etc." (W.P.No.203044 of 2018), hereinafter called Javed's case, on the effect of subsection (5) added to Section 115 of the Code of Civil Procedure Act-V of 1908 ("C.P .C.") by the Code of Civil Procedure (Punjab Amendment) Act, 2018 ("Amendment Act, 2018"). It implies that instant application not only seeks review of the order dated 7th December , 2018 but also intends to get authoritative pronouncement from this Bench regarding the effect of addition made in section 115, C.P.C. by the Amendment Act, 2018. 2. The question posed to us by this application has nothing to do with the merits of the dispute between the parties, so there is no need to recapitulate the facts that led to the cause for bringing the action in the original Court. In fact, we are here concerned only with those events indicating how and when did the case go up in the litigation ladder . They may be briefly stated. It is not disputed in this case that the applicant is the holder of the decree dated 27th September , 2003 whereby he was held entitled to the transfer of the property (i.e. plot No.147, Nishter Block, Allama Iqbal Town, Lahore) subject to payment of the average market price to the Lahore Development Authority ("LDA"). This decree was maintained till the Hon'ble Supreme Court of Pakistan. On 14th November , 2006, the applicant took out the proceedings for execution of the decree. During these proceedings, the judgment debtor , namely , the LDA submitted the challan form in respect of the interim cost of the property demanding the deposit of Rs.15,846,160/- as an assessment of average market price. The applicant invoki ng the provisions of Order XXI, Rule 34, C.P.C. objected to the assessment made by the judgment debtor . The objections were declined by the Executing Court vide order dated 1st February , 2011. Under section 104 read with Order XLIII, Rule 1, C.P.C. this order was appealable and so the applicant preferred an appeal before the Additional District Judge, Lahore. This
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appeal was dismissed vide order dated 14th April, 2018. In the meantime, it had so happened that on 20th March, 2018 the Amendment Act, 2018 was promulgated and thereby subsection (5) was added to section 115, C.P.C., which set forth that no proceedings in revision would be entertained by the High Court against an order passed by the District Court under section 104, C.P.C. This amendment came under consideration in Javed's case and it was held that it would not affect the rights to remedy by way of appeal or otherwise available under an original enactment to the litigating parties on the date of commencement of the lis. It appears that the applicant was neither aware of this opinion nor had any knowledge of the amendment made in section 115, C.P.C. and he in routine on 12th May, 2018 presented his memorand um of revision in the office of this Court to challenge the order dated 14th April, 2018 of the Additional District Judge. Since the office was conscious of the opinion made in Javed's case, it entertained the applicant's revision and fixed it for hearing before a Single Bench of this Court. The applicant's revision came up for hearing before the Single Bench on 7th December , 2018 when his counsel was asked as to how after the promulgation of the Amendment Act, 2018 the proceedings in revision were competent for which he could not offer any reply and thus, on this short ground, the revisional application was dismissed being not competent. Subsequently , the applicant got knowledge of the opinion expressed in Javed's case, which was diametrically opposed to the one through which his revisional application was declined. He then filed the instant review application. Taking note of the divergent views of two Single Benches of this Court, the matter was referred to the Hon'ble Chief Justice for constituting Full Bench so as to settle the issue conclusively . Accordingly the case was processed and now this application is before us. 3. In the light of circumstances described above, the question we have to address is whether the addition of subsection (5) in section 115, C.P.C. by the Amendment Act, 2018 will also have an effect on the cases which had already commenced in the original Court before its enactment. In order to untangle the intricacies of this question, it will be necessary to take note of the provisions of section 115, C.P.C. as they stood before amendment and after amendment. Before the amendment the provisions of section 1 15, C.P .C. were like this: "115. Revision.---(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears. (a) to have exercised a jurisdiction not vested in it by law , or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity , the High Court may make such order in the case as it thinks fit. Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court. and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court, Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court." It is to be noted that prior to the amendment, the power of revision was wider and it could be exercised in any case where a jurisdictional error was committed by the original Court or where substantial injustice had resulted. It seems that the legislature felt that this power should be suitably curtailed and thus, through the Amendment Act, 2018 amendments were made in section 1 15, C.P .C., which became like this:- "115. Revision.---(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
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(a) to have exercised a jurisdiction not vested in it by law , or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity , the High Court may make such order in the case as it thinks fit: Provided that where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the sub-ordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the record of the subordinate Court. Provided further that the subordinate court shall provide copies of the document to a person within three days of the decision, and the High Court shall dispose of such application within six months, (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount of value of the subject-matter where of does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court. (5) No proceedings in revision shall be entertained by the High Court against an order passed by the District Court under section 104." 4. Here we are concerned with the newly added subsection (5) in section 115, C.P.C. by the Amendment Act, 2018 and its plain reading makes it clear that an order passed by the District Court under section 104, C.P.C. is no longer the subject matter of revision. It has been contended on behalf of the applicant that the right to move the High Court in the exercise of its revisional jurisdiction was vested right which attached to litigation when it commenced and that it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment; that exercise of revisional power by the High Court was not part, of procedural law; and, that the provisions of section 115, C.P.C., which were in force on the date when the litigation had commenced, would be decisive of the question as to whether a revisional application was or was not maintainable. In response, it is submitted that plain meaning of provisions of a statute has to be given full effect and even a bare reading of newly added subs ection (5) makes it clear that order made by the District Court cannot be brought under challenge through the proceedings in revision and thus, the order dismissing the applicant's revision was on terra firma; that there was no vested right to file a revisional application; and, that if the revisional power did not exist when it was invoked, the revision al application filed by the applicant, would not be held to be maintainable. It is just a coincidence that Mr. Uzair Karamat Bhandari, Advocate-Amicus Curiae is of the view of the applicant and the other Amicus Curie, namely , Mr. Khalid Ishaq, Advocate has endorsed the arguments of the respondent. 5. Before we make up our minds as to which set of arguments is plausible, we have to determine two ancillary issues, the answers to which will contribute to settle the main question. These issues are that in which category of law the C.P.C. falls and that what is the nature of the remedy of revision provided in it? It is to be noted that here we are confronted with a code of law whose title though contains the word "proc edure", but nevertheless, on its basis, its category cannot be ascertained with certainty . We think the real nature of any statute cannot be determined by its nomenclature and description, but for that a glance at its actual contents is essential and before undertaking this exercise it ought to be kept in mind that this is a fact that although the distinction A between substantive law and procedural law is clearly drawn in theory , there are many rules of procedure which, in their practical operation, are wholly or substant ially equivalent to rules of substantive law. Such a type of complexity also appears in physical science, and probably for that reason, we find that the issue we are discussing at the moment is similar to what Gilbert N. Lewis said in his book. 'The Anatomy of Science . He said, "one by one we have seen how categories, which at first seen sharply defined, merge one into another , and how every classification when analyzed shows that some imaginary line has been arbitrarily taken as a boundary". This brings us to the point where we have to see which appropriate test can be applied to get the correct answer to the issue under1
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discussion. The easiest and simplest test, as far as we understand, is the one that has been suggested by Sir John Salmond . According to him the law of procedure may be defined as that branch of the law which governs the process of litigation. All the residue is substantive law and relates not to the process of litigation but to its purpose and subject matter . This test has been recognized by our Supreme Court and appli ed in various cases. Let us now apply this test. The C.P.C. has been divided into two parts, one consisting of sections 1 to 158 and the other comprising the Orders I to LII which are divided into rules. The part consisting of the Sections is generally referred to as the body of the C.P.C. and gives several substantive rights to the litigants whereas the other part is referred to as rules which govern the conduct of the parties as well as of the Court at various stages of the proceedings in the Court; provide a mechanism for settlemen t of the disputes, and specify the process through which a case gets to its final conclusion. Upon this analysis, the conclusion to which we cannot resist is that virtually every important rule of both procedure and substantive law are intertwined in the C.P.C. so as to make it as much as possible comprehensive compendium to cover a complete system of the Courts of Civil judicature. 6. Proceeding to the second supplementary issue, we may mention that the body of the C.P.C. provides different remedies to a litigant, one of which is revision. This remedy has been provided under section 115. The Superior Courts have differing views on the nature of this remedy . Some say it is the right of a litigant and some say it is his privilege. It is important to note that precedents are the anchors of the law and thus, respect and adherence to them is the rule rather than the exception. Inasmuch as the Supreme Court is unqu estionably the ultimate expositor of law , the High Courts and other Courts are absolutely bound by its {{Foot Note}} 1 The Anatomy of Science (1926) P . 178 2 Salmond on Jurisprudence by P . J. Fitzgerald, 12th Edition, Section 128 3 "Nabi Ahmed and another v. Home Secretary , Government of the West Pakistan, Lahore and 4 others" (PLD 1969 SC 599 ) "S. M. Junaid v . President of Pakistan" (PLD 1981 SC 12 ) "Aftabuddin Qureshi and another v . Mst. Rachel Joseph and another" (PLD 2001 SC 482 ) "Muhammad Asghar v . Hussain Ahmad and others" (PLD 2014 SC 89 ) {{Foot Note}} precedents. It is not only a matter of owing, obedience but also of developing consistency in the evenhanded administration of justice in the courts. Nevertheless, it often happens, that we are confronted with discordant decisions and for that, we cannot provide ourselves with an excuse in the words of Oscar Wilde when he said that "consistency is the last refuge of the unimaginative". The rule, however , that applies is that when there is a conflict between two decisions of the Supreme Court, it is the decision of the larger of the Benches, whether it is earlier or later, should be followed by High Courts and other Courts in the country5. Mindful of this principle, when we began to study the precedents that have been presented to us, we looked at Karamat Hussain's6 case which was heard and decided by a five-member Bench of the Hon'ble Supreme Court. In that case second appeal was filed in the High Court which by virtue of amendment made in section 102, C.P.C. by the Law Reforms Ordinance XII of 1972 was found not competent because the value for the jurisdiction of the suit given in the plaint was less than Rs.2,000/-. It was then pleaded before the High Court that further proceedings in the matter be taken after treating the second appeal as revision. The High. Court, however , instead of doing so held that as the regular second appeal was incompetent valuation-wise and that since there was no obligation in law to convert the said appeal into revision especially when a revision was "only a privilege and not a right" and that the intention of the legislature in making the amendment in section 102, C.P.C. was to discourage litigation in matters of small valuation. The High Court accordingly declined to convert the second appeal into revision petition and proceeded to dismiss it as incompetent. On appeal, the Hon'ble Supreme Court while disapproving the said viewpoint remanded the matter to the High Court declaring that mere fact that exercise of revisional jurisdiction was discretionary did not mean that it was a privilege and not a right. It would be profitable if the relevant extract of that judgment is reproduced below not only for the facility of reference but also for clarity of thought:-2 3
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"Thus, if the second appeal that is brought before the High Court exhibits certain features which demonstrate that it falls within the scope of interference under section 1 15, C. P . C., the {{FOOT NOTE}} 4 The Relation of Dress to Art in Pall Mall Gaz. (28 Feb. 1885), sprinted in Aristotle at Afternoon Tea: The Rare Oscar Wilde 52 (John W yse Jackson ed., 1991) 5 "Muhammad Riasat, SET (Science) and others v. The Secretary of Education,N.W .F.P.,Peshawar and 2 others" (1997 SCMR 1626 ) Azmatullah through LRs. v. Mst. Hameeda Bibi and others (2005 SCMR 1201 ) "National Bank of Pakistan through Chairman v . Nasim Arif Abbasi and others" (2011 SCMR 446 ) 6 Karamat Hussain and others v . Muhammad Zaman and others" (PLD 1987 SC 139) {{FOOT NOTE}} Court should exercise its jurisdiction under the said provision of law. It hardly needs saying that the Court will be in a position to examine this aspect of the matter only if it considers the facts of each case and this can only be done if the appeals are treated as revisions whereafter the question can be examined by the High Court whether the Court subordinate to it has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity . True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C. P. C. confer on every person who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of Course, it may in certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the Writ Jurisdiction conferred upon the High Courts by the Constitutional is discretion ary. But the right to apply for a writ is certainly not a privilege. On the contrary it is one of the most valuable right that can be conferred upon a citizen." 7. The principle explained in Karamat Hussain's case was re-examined by a three-member Bench of the Hon'ble Supreme Court in Mandi Hassan's' case and reiterated that though revision is a supervisory jurisdiction, which is vested in a higher forum and is exercised for scrutiny if a case decided by the subordinate court suffers from any defect in terms of exercising of its jurisdic tion on the ground that it has acted in exercise of such jurisdiction illegally or with material irregularity , but nevertheless it is not a privilege but a valuable right of {{FOOT NOTE}} 7 Mandi Hassan alias Mehdi Hussain and another v . Muhammad Arif (PLD 2015 SC 137 ) {{FOOT NOTE}} an aggrieved party . Let us be acquainted with the exact observations made by the Hon'ble Supreme Court while describing revision as a right. They are like this: "2. Before embarking upon to resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of courts in relation to civil revision filed in terms of section 115, of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a 'case decided' by the court subordinate to the higher court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity . On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which
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is approached (i.e. the revisional court) is conferred with the power to ensure that the court subordinate thereto (to the revisional court) conforms to the parameters of its jurisdiction, In other words the revisional jurisdiction is meant to rectify; to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate court in that regard. But the "case decided" (order/judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party . Obviously , such exercise of revisional jurisdiction shall be subject to the rules of discretion; but the matter of approaching the revisional court cannot be relegated to a mere privilege of the court and not a right. The above view is fortified by a five Members Bench judgment of this Court reported as Karamat Hussian and others v. Muhammad Zama n and others (PLD 1987 SC 139) which held that "True the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege". In an another case Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs (1992 SCMR 2334 ), this Court concluded that "the exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right (emphasis supplied by us) to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of the C.P.C.". This is the apt, the conclusive and the final enunciation of law on the subject by this Court. And any view set out by certain dicta, of the various learned High Courts contrary to the above principle, which invariably comes to our notice, treating and considering the revisions to be a mere privilege and not a right carries no legal sanctity ." 8. It is an admitted fact on all hands that the view expressed in Karamat Hussain's case has not yet been altered or changed or modified by any five-member Bench of the Supreme Court, therefore, the same view will be adhered to. On being faced with this scenario, counsel for the parties as well as Amicus Curiae jointly submitted that revision is a vested right of an aggrieved person/litigant. In this milieu, there is no need to discuss the other precedents cited before us to determine the nature of the remedy of revision. We, therefore, hold that to seek revision by filing an application under section 115 of a case decided in which no appeal lies, on the ground of irregular or improper exercise or non-exercise of jurisdiction, is a substantive right conferred by the C.P .C.. 9. We deem it expedient to explain why the remedy of appeal or revision or second…
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