P L D 2004 Lahore 17

 
Before Muhammad Sair Ali, J
 
MUHAMMAD RAMZAN---Petitioner
 
Versus
 
FATIMA and 30 others---Respondents
 
Writ Petition No.6065 of 1999, heard on 25th September, 2003.
 
(a) Civil Procedure Code (V of 1908)-----
 
---Ss. 96 & 115---Remedies of appeal and revision---Object and scope-- Converting of one remedy into the
other---Principles---Any person submitting to the jurisdiction of the Court enjoying revisional as well as
appellate powers should normally be allowed by such Court a contest on merits upon allowing free intra-
Court conversion of remedies---Invocation of remedy of a revision petition or an appeal is regulated under
the prescribed provisions of law and each has its well-defined legal parameters---In certain cases scope of
one remedy can overlap or can be genuinely mistaken or can even otherwise be confused with the other--
Object of both the remedies is to bestow upon the litigant another tier to seek rectification of the
orders/judgments/decrees assailed therein--Both the remedies are vehicles to have access to justice and to
correct injustice or wrong occurring in adjudication of a subordinate Court---Object of law providing various
remedies is to safeguard a legal right and to cure damage done to such right---Denial of anyone remedy is
denial of right sought to be enforced---Court should allow conversion of revision into appeal without demur
in absence of an insurmountable legal impediment---If a Court under law is the seat of revisional as well as
appellate jurisdiction, denial of conversion by such Court, in absence of compelling reasons, amounts to
stiffing the remedy otherwise guaranteed to a person under law---Conversion should not be taken to be
bounty of Court---Same is a vested right of a litigant to avail the remedy to which he is entitled either
through direct institution or through conversion, if the litigant has invoked the wrong remedy or the wrong
law.
 
Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 ref.
 
(b) Civil Procedure Code (V of 1908)-----
 
----Ss. 96 & 115---Constitution of Pakistan (1973), Art.199-- Constitutional petition---Converting of revision
into appeal---Grievance of the petitioner was that the Appellate Court had declined to convert his civil
revision into appeal--- Reasons advanced by the Appellate Court for declining such conversion was non-
affixing of documents with the civil revision---Validity---Such failure could not be categorized an
insurmountable impediment to deny the right---Compliance with formalities or procedures could have been
obtained subsequent to conversion or along with conversion---Appellate Court should have decided the
revision as appeal by evaluating comparative merits of the case of the parties---Orders of Appellate Court
were without jurisdiction, arbitrary, illegal, unjust and inequitable---High Court in exercise of Constitutional
jurisdiction, converted the revision, filed by the petitioner, into appeal and remanded the appeal to Appellate
Court for decision afresh---Petition was allowed accordingly.
 
Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 and Abdul Aziz and others v. Sheikh Abdur
Rehman and others PLD 1984 SC 164 ref.
 
Ch. Abdul Rehman Madni for Petitioner.
 
Mian Muhammad Ashraf Tanvir for Respondents Nos. 1 and 2.
 
Date of hearing: 25th September, 2003.
 
JUDGMENT
 
Through this Constitutional petition, petitioner has challenged order dated 5-11-1997 passed by learned Civil
Judge, Phalia, dismissing petitioner's objection petition, order dated 3-2-1999 of learned Additional District
Judge, Mandi Baha-ud-Din dismissing petitioner's revision petition as un maintainable and declining its
conversion into an appeal and also order dated 15-2-1999 declining to review order dated 3-2-1999.
 
2. On this Constitutional petition, pre-admission notice was given on 7-4-1999. Mian Muhammad Ashraf
Tanveer, Advocate appeared in response to the said notice on behalf of respondents Nos. 1 and 2. No one
appeared on behalf of other respondents. Hence, they are proceeded against ex parte.
 
3. The case remained in motion till date. However, on request of the learned counsel for the parties, it was
treated as an admitted/'Pucca' case.
 
4. The main thrust of the arguments of the learned counsel for the petitioner against impugned order dated 3-
2-1999 of learned Additional District Judge was that learned Judge acted contrary to the settled principles of
law which allow conversion of a revision petition into an appeal and vice versa. And that denial of learned
Additional District Judge to allow the conversion of the revision into an appeal was an order without
jurisdiction. Learned counsel for the petitioner relied upon the case of "Muhammad Hanif v. Muhammad and
others" (PLD 1990 S.C. 859), to state that the Hon'ble Supreme Court of Pakistan allowed conversion of
revision into an appeal observing that:
 
"The question whether a civil revision could be converted into an appeal and vice versa stands now
settled by some recent judgments of this Court. For example, in Abdul Aziz and others v. Sheikh
Abdur Rehman and others (PLD 1984 SC 164) while assuming that a civil revision could be
converted into a Second Appeal it was observed that the relevant date on which the Second Appeal
should be deemed to have been filed would be the date on which misconceived civil revision petition
is instituted or the date the request is made for its conversion or the date the request is allowed."
 
5. Learned counsel for the respondents confronted with this situation, 'conceded that the order of learned
Additional District Judge, Mandi Baha-ud-Din was patently illegal and without lawful authority.
 
6. The learned counsel for the parties thus jointly requested that the case be remitted back to the learned
Additional District Judge for treating the petitioner's revision petition as an appeal and deciding the same in
accordance with law after compliance of procedural and formal requirements. Learned counsel for the
respondents, however, urged that the legal objections available to the respondents against maintainability of
appeal including those under Statutes of Limitation be-allowed to be raised before the First Appellate Court.
 
7. I have considered the submissions of the learned counsel for the parties. The joint request is reasonable
and fair.
 
8. A person submitting to the jurisdiction of the Court enjoying; revisional as well, as appellate powers,
should normally be allowed by' such Court a contest on merits upon allowing free intra conversion of
remedies. Invocation of remedy of a revision petition or an appeal is regulated under the prescribed
provisions of law and each has its well defined legal parameters. Yet in certain cases their scope can overlap
or A can be genuinely mistaken or can even otherwise be confused. The object of both the remedies,
however, is to bestow upon the litigant another tier to seek rectification of the orders/judgments/decrees
assailed therein. Both the remedies are vehicles to access justice and to correct injustice on wrong occurring
adjudication of a subordinate Court. The object of law providing various remedies is to safeguard a legal
right and to cure damage done to such right. Denial of anyone remedy will be denial of the right sought to be
enforced. The Court should, therefore, allow conversion of revision without a demur in absence of an
insurmountable legal impediment. If a Court under law is the seat of revisional as well as appellate
jurisdiction, denial of conversion by such Court in absence of compelling reasons would amount to stifling
the remedy otherwise guaranteed to a person under law.
 
Conversion should not be taken to be bounty of the Court. In my opinion, it is the vested right of a litigant to
avail of the remedy to which he is entitled either through direct institution or through conversion if he had
invoked the wrong remedy or the wrong law.
 
9. In the referred case of "Muhammad Hanif v. Muhammad and others" (PLD 1990 SC. 859), the Hon'ble
Supreme Court of Pakistan was also pleased to allow conversion of revision into an appeal on the basis of
'principles laid down in the case of "Abdul Aziz and others v. Sheikh Abdur Rehman and others" (PLD 1984
SC 164). The impugned order was thus obviously passed by learned Additional District Judge overlooking
the principles of law regulating conversion of a revision into an appeal and vice versa.
 
10. In the present case, the reason advanced for declining conversion by learned Additional District Judge
was that the documents had not been affixed with the civil revision by the petitioner. This cannot be
categorized an insurmountable impediment to deny the right. Compliance with formalities or procedures
could have been obtained subsequent to conversion or along with conversion. The learned Additional District
Judge should not have found an easy way out to dispose of a case. He should have decided the revision as an
appeal by evaluating comparative merits of the case of the parties. The impugned orders of learned
Additional District Judge are patently without jurisdiction, arbitrary, illegal, unjust and inequitable.
 
11. This petition is thus accepted. The impugned orders dated 3-2-1999 and 15-2-1999 of learned Additional
District Judge are declared to be without lawful authority and of no legal effect. The revision, as filed by the
petitioner, is converted into an appeal which shall be deemed to be pending in the Court of learned
Additional District Judge, Mandi Baha-ud Din. Necessary legal and procedural formalities shall be allowed
to be completed. The appeal shall be decided by learned Additional District Judge, Mandi Baha-ud-Din
strictly in accordance with law by providing due opportunity of hearing to the parties. It goes without saying
that any legal and factual objections available to the respondents against the appeal including those under the
Statutes of Limitation, shall be allowed to be raised, heard and decided.
 
12. I would have imposed costs on the respondents but learned counsel for respondents Nos.1 and 2 had very
candidly and fairly conceded the petitioner's right to conversion. I, therefore, do not consider imposition of
costs as appropriate instead I appreciate the course adopted by the learned counsel for respondents Nos.1 and
2. The petition is accepted in above terms with no order as to costs.
 
M.H./M-2279/L Petition allowed.