PLJ 2006 AJK 63
Present: Sardar Muhammad Nawaz Khan, J.
Mst. SARWAR JAN and others--Petitioners
versus
DISTRICT JUDGE BAGH and
others--Respondents
Writ Petition No. 23 of 2005, decided
16.9.2005.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O.VII, R. 11--Azad Jammu and
Kashmir Interim Constitution Act, 1974, S. 44--Constitutional
Petition--Rejection of suit by First Appellate Court in revision petition filed
against orders of trial Court--Civil Procedure Code, not providing remedy of
appeal against impugned order nor revision--Rectification of legal
error--Exercise of Constitutional jurisdiction by High
Court--Maintainability--Order of rejection of plaint or Suit under Order VII,
Rule 11 C.P.C. is decree in view of C.P.C.--Such decree is appealable, if it is
passed by Court of original jurisdiction as provided u/S. 96 C.P.C.--Court of
original jurisdiction i.e. Civil Judge declined to reject plaint or
suit--Assailed--District Judge was not competent to reject suit--Sole
competence of trial Court cannot be allowed--District Judge was fully competent
to reject plaint or revision petition, if otherwise permissible under
law--Amendment in Section 115 C.P.C. provides concurrent jurisdiction to High
Court and District Judge to exercise revisional powers as indicated--However,
if revision is made either to High Court or District Judge no further such
application is permissible to either of them--C.P.C. neither provides appeal
against impugned order nor revision in view of amendment in Section 115 C.P.C.
is permissible--Held: Writ Petition is not maintainable neither it can be said
that it is not case for admission of writ petition--Petition admitted for
regular hearing. [Pp. 65
& 66] A, B, C, E & F
Suo-Moto--
----There is no cavil with settled
proposition of law that High Court being
Sardar Muhammad Suleman Khan, Advocate
for Petitioners.
Mr. Sardar Khan, Advocate for
Respondents.
Date of hearing: 1.18.2005.
Order
This is a constitutional petition
challenging the validity of order passed by learned District Judge on 3.5.2005.
Comments were invited however, Mr. Sardar
Khan Advocate appeared on behalf of the respondents and requested to allow him
to argue the case without filing comments. He was allowed to do so. He opposed
the admission of this revision petition as the same was not maintainable on the
following 2 grounds:--
(1) The
impugned order passed by learned District Judge being a decree under Clause
2(d) of Section 2 of C.P.C. was appealable therefore, an alternate and
efficacious remedy was available to the petitioners. The petitioners therefore,
was precluded to invoke extraordinary jurisdiction under "Section 44 of
the Interim Constitution Act, 1974."
(2) Assuming
it to be correct that no appeal against the impugned order was available,
amendment in Section 115 C.P.C. did not take away the inherent powers of High
Court to undo a wrong or legal error committed by the subordinate Courts if it
is brought in its notice. Thus, the validity of the order impugned before this
Court could be seen by exercising revisional powers available under normal
course of law.
On the contrary, the learned counsel for
the petitioners submitted that the impugned order was not subject to appeal
because it could be possible only if the suit had been rejected by the Court of
original jurisdiction as provided under Section 96 C.P.C. No doubt, according
to the learned counsel, the rejection of plaint under Order 7, Rule 11 is a
decree in view of Clause 2(d) of Section 2 C.P.C. and is appealable under
Section 96 C.P.C. only when it is passed by the Court of original jurisdiction.
It was further argued that the Court below i.e. District Judge was not even
competent to reject the suit and, at the most he could merit it back to the
trial Court by accepting the revision petition. The order impugned through the
present writ petition was neither appealable nor reviseable in view of Section
115 C.P.C., thus, there being no alternate and efficacious remedy available to
the petitioners, he has rightly invoked extraordinary jurisdiction of this
Court, the learned counsel maintained. While making his case for admission, the
learned counsel raised following 2 points:--
(1) The
impugned order in view of definition of "cause of action" was
patently illegal and as such needed rectification.
(2) The
Court below i.e. learned District Judge is found to have dismissed the suit
whereas; the suit could only be rejected in absence of non-availability of
"cause of action" as provided under Order 7, Rule 11 C.P.C.
It is correct that the order of rejection
of a plaint or suit under Order 7, Rule 11 C.P.C. is a decree in view of Clause
2 (d) of Section 2 of C.P.C. It is also correct that such a decree is
appealable if it is passed by a Court of original jurisdiction as provided
under Section 96 C.P.C. Here in this case, the suit by the petitioners herein
stands disallowed by the District Judge under Order 7, Rule 11 on a revision
petition. The Court of original jurisdiction i.e. Civil Judge declined to
reject the plaint or suit and his order was challenged before District Judge
through a revision petition. However, I decline to allow the argument that the
learned District Judge was not competent to reject the suit as it was the sole
competence of the trial Court. The learned District Judge was fully competent
to reject the plaint on a revision petition if otherwise permissible under law.
I fully subscribe to the view taken by Lahore High Court in Muhammad Sharif's
case (PLJ 2005 Lah. 1097) in which the following observation has been made:--
"Now dealing with the petitioner's
stance that the revisional Court could not itself reject the plaint as the same
was not before it and instead it should have remitted the case to the trial
Court for doing the same activity under its direction. No doubt scope of the
revisional jurisdiction is controlled by certain prerequisities laid down in
Section 115 of the Code and those, powers are circumscribed by the condition of
excess of, failure to exercise and exercise of jurisdiction in an illegal
manner but inspite of it, this jurisdiction is very vast and corresponds to the
remedy of "certiorari" which, though discretionary yet can be invoked
suo moto, as well and the Court can make such order in the case, as it thinks
fit. Since, in the language of the Section 115 of the Code, this Court can make
such order as may be needed in the circumstances of the case, hence on
invocation of this jurisdiction, the entire case becomes open for scrutiny, in
view of the law laid down by the Honorable Supreme Court in the case of
Muhammad Swaleh and another Versus Messrs United Grain and Fodder Agencies (PLD
1964 SC 97), H.M. SAYA and Co. Karachi versus Wazir Ali Industries Limited,
Karachi and another (PLD 1969 SC 65) and Municipal Committee, Bahawalpur versus
Sh. Aziz Elahi (PLD 1970 SC 506), and by the High Court in the cases of Muhammad
Salim and others vs. D.C.O. and others (1994 MLD 295) and Muhammad Zaleem and
another vs. Mst. Zarina Begum and 4 others (1996 MLD 1959), thus, there is no
ambiguity that during the course of exercise of revisional jurisdiction, the
Court exercising it can pass any order needed in the circumstances of the case
including rejection of plaint, if the same is required on the touch stone of
the order VII, Rule 11 of CPC."
The learned Judge of Lahore High Court as
evident from the above quoted abstract of the judgment placed reliance on
different judgments of SC Pakistan which is respectfully followed by this Court
too.
The amendment in Section 115 C.P.C.
provides concurrent jurisdiction to the High Court and District Judge to
exercise revisional powers as indicated by sub-section (2) of Section 115
C.P.C. However, if an application (revision) is made either to the High Court
or the District Judge no further such application is permissible to either of
them. It means that if a party to a lis chooses to file a revision petition
before District Judge, he in presence of such petition is precluded to bring a
revision petition before High Court. Likewise, if a revision petition has been
filed before H.C., the petitioner cannot invoke the jurisdiction of District Judge.
This is because to avoid the conflicting judgments by the District Court and
the High Court simultaneously on the same cause before them. This is the intent
and purpose of sub-section (3) of Section 115 C.P.C. Sub-section (4) of Section
115 C.P.C. provides that when a revision petition stands decided by the
District Court no revision is competent before High Court.
Keeping in view of above stated legal
position, the question arises as to how the order recorded by the District
Judge if found illegal can be rectified. Civil Procedure Code neither provides
appeal against the impugned order nor a revision in view of amendment in
Section 115 C.P.C. is permissible. There is no cavil with the settled
proposition of law that the High Court being a constitutional Court has the
powers to rectify or undo a legal error by invoking its inherent powers
available to it under Constitution if it is brought or comes in its knowledge
even suo moto. Nontheless the fact remains that this is possible only by
exercising constitutional powers. When there is no remedy to an aggrieved
person under normal course of law then High Court being a constitutional Court
cannot sit back with folded arms. Here in this case, the points urged by the
learned counsel for the petitioners for admission of this revision merit
consideration which is only possible by exercising the Constitutional powers
available to this Court. Therefore, it could not be said that the present writ
petition is not maintainable neither it can be said that it is not a case for
admission of the writ petition.
The result therefore, is that this
petition is admitted for regular hearing. Notice shall issue to the respondents
to file written-statement, affidavit and other documents if any, or before the
next date of hearing. To come up on 12.10.2005.
(A.S.) Petition admitted