2014 C L C 207

2014 C L C 207

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ISMAIL and 5 others----Petitioners

Versus

MUHAMMAD ASHRAF and 4 others----Respondents

Writ Petition No.19832 of 2010, heard on 29th May, 2013.

(a) Civil Procedure Code (V of 1908)---

----S. 12 (2) & O. I, R. 10---Constitution of Pakistan, Art.199---Constitutional petition---Application under S.12(2), C.P.C. for setting aside consent decree---Non-joinder of necessary party---Scope---Revisional Court directed the Trial Court to frame an issue, record the evidence and send the same to it for adjudication---Validity---Suit land was allotted under Ejectment Tenant Scheme and ownership of the same remained available with the Provincial Government---Status of allottee was only of tenant and Provincial Government was not made party to the impugned decree---Trial Court while dismissing the application under S.12(2), C.P.C. had recorded findings of fact without recording the evidence thus committed material illegality---Revisional Court was bound to examine the order of Trial Court as supervisor and not as Appellate Court---If the Revisional Court was of the opinion that recording of evidence was necessary then it was to remand the case for that purpose and to decide the same on merit---Revisional Court had no jurisdiction to direct the Trial Court to record the evidence and send the same to it for decision and by doing so illegality was committed by the said court---Impugned decree in exclusion of Provincial Government who was owner of the land in question was nullity in the eye of law and such aspect of the case had been ignored by the Trial Court as well as Revisional Court---Constitutional petition was allowed and impugned orders  were  set  aside  and  case  was  remanded  to  the  Trial  Court for decision  afresh  after  framing  issues  and  recording  evidence.

(b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---Scope---Revisional Court had to examine only three factors as detailed in S.115(1)(a), (b) and (c), C.P.C.  and such powers were supervisory and not of a court of  appeal---Revision was not a right but was a privilege and was available only where the right of appeal was not provided in the statute, whereas the appeal was right created by the statute.

(c) Civil Procedure Code (V of 1908)---

----O. XLI, R. 25 & S. 115---Power of Appellate Court---Scope of O.XLI, R.25, C.P.C. and S.115, C.P.C.---Comparison---Appellate Court, if considered that evidence was necessary to be recorded, had powers to direct the Trial Court to record the same and give the findings and send to it but the Revisional Court had no such powers except in special circumstances---Jurisdiction of Revisional Court was supervisory jurisdiction and said court could set aside the order under revision but could not pass an order in every case in terms of O.XLI, R.25, C.P.C.

            Sh. Naveed Shahryar for Petitioners.

            Taqi Ahmed Khan for Respondents Nos.1 to 3.

            Ch. Muhammad Iqbal, Addl. A.-G. Punjab.

JUDGMENT

            MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioners filed an application under section 12(2), C.P.C. before learned  Civil-I  Judge,  Gojra praying  for  setting  aside  decree  dated 1-3-1979 alleging that it has been obtained by practising fraud.

2.         The petitioners asserted that they are the legal heirs of Umer Din and Nawab Din the two real brothers. They were jointly allotted land measuring 104-kanals 16-marlas on 16-9-1956 detailed in the petition under the ejected tenant scheme. The two brothers developed the land by investing huge amount and Labour and continued to pay the Government Revenue thereagainst. One Abdul Wahid the third brother of Umer Din and Nawab Din, on 15-7-1978 prepared a forged agreement on  behalf  of petitioner  No.1  and  her  mother  Zohran  Bibi  and  on 14-12-1978 filed a suit against Umer Din etc. The predecessor-in-interest of petitioner i.e. Nawab Din and Umer Din were only the allottees of land in dispute and ownership of the land was with the Provincial Government. Abdul Wahid has not impleaded Provincial Government as party to the suit and succeeded to obtain a consent decree by producing an Advocate on behalf of legal heirs of Umer Din in exclusion of Provincial Government on 1-3-1979.

3.         The learned Civil Judge vide order dated 18-5-2006 dismissed the application under section 12(2), C.P.C. without framing issues and recording  the  evidence.  The  petitioners  assailed  the  order  dated  18-5-2006 by way of an appeal, the appeal, however, was dismissed on 6-12-2006. The petitioners then challenged the order of two courts below through Writ Petition No.1262 of 2007. This Court vide judgment dated 29-5-2007 accepted the writ petition and remanded the case to the learned Appellate Court directing the learned Appellate Court to treat the appeal as revision.

4.         The learned Revisional Court in post remand proceedings vide order dated 5-6-2008, directed the learned Civil Court, to frame an issue on the point of limitation, record the evidence and send the same to the learned Revisional Court for final order. The learned trial Court accordingly framed the issue on the point of limitation and submitted evidence so recorded to the Revisional Court. The learned Revisional Court after hearing the parties dismissed the petitioners' revision petition on 28-6-2010, hence, the present petition.

5.         Learned counsel for the petitioners submits that this Court while remanding the case to learned Revisional Court has remanded the revision only and the learned Revisional Court was to decide the revision on the basis of available record, in case the learned Revisional Court was of the opinion that evidence has to be recorded then learned Revisional Court was  duty  bound  to  remand  the  case  to  learned  trial Court  under Order XLI, Rule 25, C.P.C. The learned Revisional Court itself was not having the jurisdiction to decide the revision petition on the basis of evidence recorded by the learned trial Court without any finding, due to the said illegality the petitioners' right of revision stands compromised. Learned counsel submits that the learned trial Court while dismissing the application under section 12(2), C.P.C. vide order dated 18-5-2006 has given the findings of fact without recording the evidence, hence, the learned trial Court was not justified to pass an order dated  18-5-2006 on merits without framing issue and recording the evidence. Learned counsel has relied on Zulfiqar Ali and 2 others v. P.O. Sindh through DCO Khairpur and 5 others (2007 MLD 1000), Habib Ullah v. Azmat Ullah (PLD 2007 Supreme Court 271), Muhammad Aslam Baloch v. Member, Board of Revenue (Colonies) Punjab and 2 others (1988 CLC 356), Syed Wajih Ullah Hassan Zaidi v. Government of Punjab and others (1997 SCMR 1901).

6.         Learned counsel for respondents submits that the Revisional Court has rightly directed the learned trial Court to record evidence on the point of limitation and send the same to the Revisional Court for adjudication. As the point of limitation is the core issue before entering into the merits of the case, the learned trial Court on the direction of learned Revisional Court has recorded the evidence and the evidence produced  by  the  parties  sufficiently  proved  that  application  under section 12(2), C.P.C. was barred by time. Learned counsel further submits that the decree of Civil Court dated 1-3-1979 is a consent decree and it cannot be assailed on the ground of fraud after 27 years. Learned counsel submits that the Revisional Court is enjoying the jurisdiction to decide the revision petition on the point of limitation alone. Learned counsel has relied on Ghulam Akbar Khan v. Haji Sher Jan and another (1989 CLC 1789), Export Promotion  Bureau and others v. Qaiser Shafiullah (1994 SCMR 859), Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others (2001 SCMR 1493) and Secretary to the Government of Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415). Learned counsel submits that sufficient material was available being the admitted documents on record and as such there was no need for recording the evidence.

7.         Heard, record perused.

8.         Messrs Nawab Din, Umer Din and Abdul Wahid were three brothers. It is an admitted fact that Provincial Government allotted the suit-land to Umer Din and Nawab Din under Ejected Tenant Scheme. It is also an admitted fact that ownership of land remained available with the Provincial Government and the status of Umer Din and Nawab Din was only of a tenant under the ejected tenant scheme. It is also an admitted fact on record that Provincial Government was not made party to the impugned decree.

9.         The petitioners in their application have set up a case of fraud allegedly committed by the deceased Abdul Wahid with petitioner No.1 and one Zohra Bibi as according to them they never executed alleged agreement to sell. The petitioners have also denied the appointment of any counsel and recording of any statement before learned trial Court on their behalf.

10.       The learned trial Court vide order dated 18-5-2006 dismissed the application by recording findings of fact including the point of limitation. The petitioners assailed the order dated 18-5-2006 through an appeal before the learned appellate Court. The learned appellate Court dismissed the appeal holding that the appeal is barred by time. The petitioners assailed the said judgment through Writ Petition No.1262 of 2007. This Court after hearing the parties held that the learned appellate Court will treat the petitioners' appeal as revision and will re-decide the same. This Court while deciding writ petition on 29-5-2007 referred to above passed the following order:---

            "Resultantly, such judgment cannot be sustained which is hereby set aside and the matter is remanded to the learned court of appeal for decision on merits. As erroneously, instead of revision, the appeal has been filed, therefore, the court below is directed to treat the appeal as revision."

11.       After the remand order by this Court the objection of limitation in  filing appeal  came  to  an  end  as  admittedly  the  revision  before the learned Revisional Court was within time. The Revisional Court directed the leaned trial Court to frame an issue on the point of limitation, record the evidence and send the same to Revisional Court for adjudication.

12.       Now it has to be seen whether the powers of Revisional Court and the appeal Court are the same or different with each other. For better appreciation of the scope of revision under section 115, C.P.C., it is reproduced as under:---

"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 cop of such decision within three days thereof and the High Court shall dispose of such application within three months".

13.       From the perusal of above provision of law it is clear that Court while hearing the revision has to examine only three factors detailed in section 115(1) (a), (b) and (c), meaning thereby the powers of Revisional Court under section 115, C.P.C. are supervisory and not of a appeal court. The revision is not a right but is a privilege and in available only where the right of appeal is not provided in the statute, whereas the appeal is rightly created by the statute.

14.       In these circumstances, it has to be seen whether the Revisional Court was justified to direct the learned civil court to record the evidence and sent it back for deciding the revision.

15.       It is an admitted fact that learned trial Court while dismissing the application under section 12(2), C.P.C. has recorded findings of fact without recording the evidence, hence, committed material illegality, the Revisional Court in these circumstances was bound to examine the order of trial Court as supervisor and not as appellate court and was if of the opinion that recording of evidence is necessary was to remand the case for recording the application and to decide the same on merits.

16.       After the remand by this Court to District Judge, the District Judge was to act as Revisional Court and not the appellate Court and has to  see  whether  the  petitioner's  case  fulfils  the  requirement  of section 115(1), (a), (b) and (c), C.P.C. or not? It appears that the District Judge after remand by this Court assumed that he is acting as appellate Court, the learned Revisional Court thus fallen in error while assuming that the High Court has directed him to decide the revision himself after recording the evidence.

17.       The appellate Court under Order XLI, Rule 25, C.P.C. if considers that evidence is necessary to be recorded has the powers to direct the trial Court to record the evidence and record the finding and sent to appeal court but the Revisional Court under section 115, C.P.C. is not enjoying the powers under Order XLI, Rule 25, C.P.C. except in special circumstance. The jurisdiction of Revisional Court is a supervisory jurisdiction; hence, the Revisional Court can set aside the order under revision, but could not pass an order in every case in terms of Order XLI, Rule 25, C.P.C.

18.       Under Order XLI, Rule 25, C.P.C. the words used are appellate Court. For better appreciation of Order XLI, Rule 25, C.P.C. it is reproduced as under:--

            "Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from---Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required.

            And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor."

19.       The perusal of above said provision of law will show that even if it is presumed that case in hand falls within the ambit of special circumstances even then the learned Revisional Court was not having the jurisdiction to direct the learned trial Court to record the evidence and send the evidence to the Revisional Court for decision, the Revisional Court was to direct the learned trial court to record the evidence and record the findings and send it back to the revisional court. The revision court thus committed illegality by directing the trial Court to record the evidence and send it back without recording the findings.

            In the circumstances of the case after remand by this Court the only jurisdiction available to the learned Revisional Court was to remand the case to decide the revision on merit under its supervisory jurisdiction.

20.       In the present case there is another aspect of the case that impugned decree in exclusion of Provincial Government who is the owner of property was nullity in the eye of law as without impleading the owner no decree can be passed especially when only the allotment rights were available to Nawab Din etc. This aspect of the case has totally been ignored by the learned trial Court as well as Revisional Court.

21.       In view of the above, the petition is allowed, the impugned orders dated 18-5-2006 and 28-6-2010 are hereby set aside and the case is remanded to the learned Civil Court who will decide the application under section 12(2), C.P.C. afresh after framing issues and recording evidence. As it is an old case, the learned Civil Court will decide the application under section 12(2), C.P.C. within six months on receipt of certified copy of this order. The parties are directed to appear before the learned Civil Court on 10-7-2013.

AG/M-201/L                                                                                       Case remanded.