MUHAMMAD MUZAMMAL KHAN, J.--- Instant Constitutional petition seeks revisional judgment/orders dated 14.2.2004 passed by the learned Additional District Judge, Lahore, whereby revision petition of the respondents was accepted by allowing their application under Order VII, Rule 11, CPC and plaint of the petitioners was rejected, to be declared illegal, void and of no legal consequence.
2. Precisely, relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief with the averments that the parties had exchanged their land inter se and on account of some subsequent dispute the matter was referred to "Panchayat" consisting of four Arbitrators who delivered their decision/award on 8.9.1990 declaring the petitioners owners of the land subject of suit. They further averred that they have become exclusive owners of the land, by virtue of decision of the "Panchayat" dated 8.9.1990 and the respondents had no right to interfere in their possession by any means whatsoever, thus, they may be restrained through a decree for permanent injunction.
3. The respondents being defendants in the suit, contested it denying the averments in the plaint and refuted the story of arbitration mentioned therein. The respondents besides filing their written statements also moved an application under Order VII, Rule 11, CPC praying rejection of the plaint on the ground that it did not disclose any cause of action and that the suit on the basis of some award is barred by law. The learned Civil Judge, cognizant of the suit, after obtaining reply to the application of the respondents, dismissed the same vide order dated 25.9.2003.
4. The petitioners aggrieved of the decision of their application under Order VII Rule 11, CPC dated 25.9.2003 filed a revision petition before the learned Additional District Judge where they succeeded as their revision petition, as well as, application under Order VII, Rule 11, CPC were accepted and the plaint of the petitioners was rejected vide order dated 14.2.2004. Whereafter the petitioners filed the instant Constitutional petition with the relief noted above. The respondents in response to notice by this Court have appeared and are represented through their counsel.
5. The learned counsel for the respondents at the out set, objected to the maintainability of the Constitutional petition on the ground that the order of rejection of plaint being a decree is appealable, hence an appeal there-against should have been filed and this petition is not maintainable. The judgments in the cases of Ghulam Muhammad vs. United State Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCM R 907) and Mst.
Kaniz Fatima and 3 others vs. M R.R. Punjab, Lahore and 5 others (PLD 1973 Lahore 495), were relied in support of the objection raised.
6. The learned counsel for the petitioner submitted that the suit of the petitioners was not barred by any law and at the same time it disclosed a cause of action, thus, the plaint thereof could not have been 1-ejected. He further submitted that the revisional Court exceeded its jurisdiction in rejecting the plaint, itself.
According to him, since the plaint was not before the revisional Court was only to examine the legality or other-wise of the order of the Trial Court and of at all, the order impugned was not justified, the matter should have been remitted back for decision in accordance with law. In support of his submissions, the learned counsel for the petitioners relied on the judgments by the Honourable Supreme Court in cases of Chaudhary Muhammad Saleem Versus Muhammad Akram and others (PLD 1971 SC 516) and Qamar-ud-Din Versus Muhammad Din and others (PLD 2001 SC 518). The learned counsel for the petitioners replying to the objection of the respondent's counsel regarding maintainability of the Constitutional petition urged that since revisional order was passed in excess of jurisdiction, the same could be challenged in Constitutional jurisdiction as per judgment of the Honourable Supreme Court in the case of Qamar-ud-Din (supra). He further argued that the order rejecting the plaint passed by the revisional Court is not appealable, as the same was not passed by the Court exercising the original jurisdiction. In support of this submission reference was made to the judgment in the case of Abdur Razzaq vs. Collector of Customs and another (1995 CLC 1453).
7. The learned counsel for the respondents replying to the arguments of the petitioners refuted those and supporting the revisional judgment/order, urged that the plaint as drafted did not disclose any cause of action because the petitioners could not file the suit on the basis of decision of the "Panchayat" in form of award, as the suit was barred under the provisions of Arbitration Act, 1940.
8. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Before analyzing the case on merits, I intend to deal with the objection of the learned counsel for the respondents that the order rejecting the plaint by the revisional Court is appealable and hence. Constitutional petition there-against, is not maintainable. Order rejecting the plaint under Order VII, Rule 11, CPC is a decree by fiction of law, under clause (d) of Section 2 of Civil Procedure Code, 1908. Since, the order rejecting the plaint is passed without proper adjudication of respective rights of the parties, hence, fresh suit on the basis of same cause of action has been permitted to be filed in terms of Rule 13 of Order VII of the Code obviously subject to limitation and the aggrieved person has also a right of appeal against the order. A decree is appealable under Section 96 of the Code, which lays down that an appeal shall lie from every decree passed by any Court exercising the original jurisdiction: For ready reference Section 96 is reproduced as follows:-- "96 Appeal from original decree.---(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree , passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties.
9. In view of the above-reproduced provision of law, the order rejecting the plaint in terms of Section 2(d) of the Code, has the force of decree and as such is appealable only if the same is passed by any Court exercising the original jurisdiction. There is no cavil about the proposition that the revisional Court while discharging its jurisdiction under section 115, CPC cannot be treated the Court exercising original jurisdiction so the orders passed by it, even though having the force of decree cannot be challenged, by way of an appeal under section 96 of the Code. My this view gets support from the Judgment in the case of Abdur Razzaq (supra) wherein the earlier view on this point from the Karachi jurisdiction in the case of Tamizun Nisa vs. Parween Fatima, etc. (NLR 1985 Civil 325) and observations of the Honourable Supreme Court in the nature of obiter dicta in the case of Ghulam Hussain Versus Shahbaz Khan (1985 SCM R 1925), though having binding effect were. Treated as per incurium decision. Another aspect of the matter which goes in support of the above view is that under section 1'15, CPC revisional powers vested concurrently in the District Court and the High Court and a revision petition subject to the evaluation of the suit for purposes of jurisdiction, is maintainable either before the High Court in revisional jurisdiction, its appeal should go before the Honourable Supreme Court, subject to Constitutional requirements of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 but all such orders are not challengeable under Article 185 of the Constitution. This all, brings me to hold that appeal against the order of rejection of the plaint by the revisional Court, is not competent, especially when, the petitioners had challenged the invocation of revisional jurisdiction by the learned Additional 'District Judge, hence, the petition hand was correctly maintained as per judgment in the case of Qamarud-Din (supra).
10. 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 prerequisites 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 motu, as well and the Court can make such order in the case, as it thinks fit. Since, in the language of the Section 115, 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 Honourable Supreme Court in the cases 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 19 70 SC 506), and by the High Court in the cases of Muhammad Salim and others vs. D. C.O. And others (1994 M LD 295) and Muhammad Saleem and another vs. Mst. Zarina Begum and 4 others (1996 M LD 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.
11. Coming to the merits of the case, in connection with rejection of plaint, the revisional Court has given exhaustive reasons in support of his order detailing that "Panchayat decision" in form of an award could not have been endorsed through a civil suit in super-session of provisions of Arbitration Act, 1940 and that an unregistered document, transferring title of property of the value of more than 100/- confers no title or interest in the property in favour of the transferee. Reliance of learned counsel for the petitioners on the case of Ch. Muhammad Sharif (supra) to assert that a civil suit in view of provisions of section 32 of the Act (ibid) was maintainable over looks the findings of the Honourable Supreme Court in case, an award had been acted upon by the parties by mutual consent then of course, any of the parties could base his suit on it but in the case in hand what to talk of panchayat decision/award, and proceedings culminating to it, were denied/refuted by the respondents in their written statement as well as, in their application under Order VII, Rule 11, CPC. It goes without saying that a civil suit, without invoking the provisions of Act, 1940, for making such decision/award a rule of the Court or adjudication there-over, was not maintainable even according to the ratio of the judgment in the case of Ch. Muhammad Saleem (supra). Section 31 of the Arbitration Act, 1940 clearly provided that all the questions regarding the validity, effect or existence of an award shall be decided by the Court, in which the award has been or may be filed and by no other Court. Besides it, an unregistered panchayat decision /award, without having backing of some decree by a Court of competent jurisdiction, like an order under section 14/17, Arbitration Act, could not have been implemented by the officials working in revenue hierarchy and their direction for filing a civil suit was of no consequence as no such suit was competent. As a matter of fact, the petitioners should have filed an application under section 14 of the Arbitration Act and the suit as it stood, was barred under law and did not disclose any cause of action.
12. For the reasons noted above, I have no hesitation to hold that the revisional Court correctly exercised its jurisdiction and aptly rejected the plaint and; without committing any illegality/irregularity, a lawful view taken by a Court of competent jurisdiction, within ambit of its framework, cannot be substituted in the Constitutional jurisdiction of this Court and consequently this petition having no merit, is dismissed with no order as to costs.