This civil revision under Section 115, C.P.C. has been directed against impugned order dated 20.6.1998 passed by Qazi Muslim Bagh whereby the application filed by the petitioners for execution of the decree has been dismissed by the learned Counsel and against order dated 22.6.1999 passed by learned Majlis-e-Shoora, Loralai dismissing the appeal of the petitioners filed against the above said order of the learned Qazi Muslim Bagh.
2. The brief facts of the case are that the petitioners filed suit for declaration, ejectment and perpetual injunction against the respondents in the Court of Qazi Muslim Bagh in respect of property bearing Khasra Nos, 583, 585, 591, 561 and 593 measuring 50 rods and 13 pols situated in Mahal and Mouza Jungle, Tappa Babu Cheena, Sub-Tehsil Loy-band, District Killa Saifullah and during the course of proceeding of the suit, the parties agreed to resolve the dispute through arbitration accordingly one Moulvi Taj Muhammad was appointed by the parties to act as sole arbitrator for resolving the dispute according to `Sharia' who ultimately delivered his award on 10.2.1986. The award made by arbitrator was filed in the Qazi Court, Muslim Bagh and the learned Court ultimately decreed the suit in favour of the petitioners on 12.2.1986. The case of the petitioners is that pursuant to the award and the decree passed by the learned Qazi Muslim Bagh, the suit property was transferred in the names of the petitioners/decree holders vide Mutations Nos, 35 and 37 and the judgment debtors/respondents also made a statement on 23.3.1989 before the Naib Tehsildar Loy-band acknowledging and accepting the ownership of the petitioners about the suit property. The grievance of the petitioners was that despite attestation of the above mutations in their favour, physical possession of the land in question decreed in their favour was not delivered to them therefore, application for execution of the decree passed by the learned Qazi Muslim Bagh was filed on 4.5.1994 in the said learned Court and the learned Qazi Muslim Bagh vide order dated 16.9.1997 dismissed the execution application. The petitioners/decree holders feeling themselves aggrieved of the above said order filed appeal in the Court of learned Majlise-Shoora, Loralai, which remanded the matter to Qazi Muslim Bagh for decision afresh to be made in accordance with law by means of order dated 7.3.1998, and; ultimately the learned Qazi Muslim Bagh again, vide impugned order dated 20.6.1998 dismissed the application of the petitioners and the petitioners assailed the said order by filing appeal in the Court of learned Majlis-e-Shoora, Loralai which too has been dismissed by the learned Appellate Court by means of order dated 22.6.1999 and both these orders have been assailed in the instant petition.
3. I have heard the learned counsel for the parties at length. Mr. K.N. Kohli contended that in the circumstances of the case the order impugned in appeal before the Majlis-e-Shoora, Loralai since was not appealable within the purview of Order XLIII, C.P.C. therefore, in all fairness and in the interest of justice the learned Appellate Court to have treated the appeal as revision under Section 115, C.P.C. and thereafter, to have decided the same on its own merits in accordance with law, but the learned Appellate Court without attending to such aspect of the case dealt with the matter technically and dismissed the appeal as being not maintainable. According to Mr. K.N. Kohli notwithstanding the provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 since the Civil Procedure Code has been made applicable under the Regulation, therefore, in the exercise of inherent powers vesting in the Appellate Court appeal filed by the petitioners to have been converted into revision, but the learned Majlis-e-Shoora in the improper exercise of jurisdiction vested in it wrongly and illegally by taking technical conclusions passed the impugned order, therefore, according to the learned counsel the same is liable to be interfered with and the matter be remanded to the Majlis-e-Shoora for deciding the same afresh by treating the appeal of the petitioner as revision against the order passed by the learned Qazi Muslim Bagh.
4. Mr. Khushnood Ahmed in view of provisions of Article 3 of Shariat Application Regulation submitted that since Code of Civil Procedure was made applicable under the Regulation notwithstanding the provisions of the Regulation and the order passed by the learned Qazi has since was not made appealable within the purview of Order XLIII, C.P.C. hence according to the learned counsel appeal filed by the petitioner before the Majlis-e-Shoora was not competent nor was maintainable, thus, the same was appropriately dismissed by the learned Appellate Court for want of jurisdiction. The learned counsel further contended that no request for conversion of appeal into revision was made by the petitioner therefore, the learned Appellate Court rightly passed by the impugned order.
5. I have considered the contentions put forth on behalf of the parties learned counsel in the light of the impugned order. Undisputedly Balochistan Civil Disputes (Shariat Application) Regulation, 1976 has been /Made applicable to the area where the subject-matter of dispute is situate and the suit instituted by the petitioners was also adjudicated upon under the said Regulation and ultimately the same was decreed in terms of the award, by the Qazi Muslim Bagh on 12.2.1986. Subsequently; the suit property was transferred in the names of the petitioners/decree holders vide Mutations Nos, 35 and 37 and grievance of the petitioners is that despite attestation of the above said Mutation, physical possession of the suit land was not delivered to them, consequently; they filed application for execution of the decree in the Court of Qazi Muslim Bagh and the learned executing Court dismissed the execution application. However, such order was set aside by the learned Majlis-e-Shoora, Loralai and the matter was remanded to the Qazi Muslim Bagh for decision afresh in accordance with the law, and; ultimately the learned Qazi Muslim Bagh vide order dated 20.6.1998 dismissed the application of the petitioners seeking for execution of the decree. This order was assailed by the petitioners by filing appeal in the Court of learned Majlis-e-Shoora Loralai. The learned Appellate Court vide order impugned herein dismissed the appeal of the petitioner on the ground that since the order passed by the learned Qazi Muslim Bagh has not been made appealable within the meaning of Order XLIII, C.P.C. therefore, the same is immune from being assailed by filing appeal,and under scheme of the Regulation revisional powers being not available to the Majlis-e-Shoora, Loralai consequently; the learned Court dismissed the appeal of the petitioners. I have considered the contentions of the parties learned counsel in the light of the provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 hereinafter referred to as the Regulation and the impugned orders passed by the Courts below including the documents available on record. Bare perusal of the provisions of Article 3 of the Regulation reveals that notwithstanding anything contained in the Regulation, the provisions of Code of Civil Procedure have been made applicable to the proceedings under the Regulation, consequently; the provisions of Sub-Clause (b) of Clause (1) of Article 4 of the Regulation which provides that Majlis-e-Shoora shall be the First Appellate Court in respect of judgments, decrees and orders of Court of Qazi will not come in conflict with the provisions of Article 3 of the Regulation and therefore, the order passed by the Qazi Court Muslim Bagh being not appealable within the meaning of Order XLIII, C.P.C. was immune from being attacked in appeal in the light of the above said provisions of Article 4(1)(b) of the Regulation, and; therefore, the learned Majlis-e-Shoora appropriately held that the order passed by the Qazi Muslim Bagh was not made appealable by Order XLIII, C.P.C. and thus; rightly treated the appeal filed by the petitioner to be not maintainable, but all the same the learned Majlis-e-Shoora held that since the revisional powers under C.P.C. are not available to it therefore, the learned Court dismissed the appeal. It may be seen that by virtue of Clause (2) of Article 4 of the Regulation it has been provided that every Majlis-e-shoora shall be deemed to be a District Court within the meaning of the Code (C.P.C.) therefore, such of the provisions of the Regulation shall be read in conjunction with the provisions of Article 3 of the Regulation which provides that notwithstanding anything contained in the Regulation the provisions of C.P.C. shall apply to the proceedings under the Regulation; required effect whereof would be that the Majlis-e- Shoora simultaneously being the District Court within the meaning of C.P.C., shall have the jurisdiction to exercise revisional powers as a District Court within the purview of Section 115, C.P.C. in case of an interlocutory order not made appealable by any of the provisions of C.P.C. It appears that the learned Majlis-e-Shoora while dealing with the matter about the competency of the appeal failed to take notice of the provisions of Clause 2 of Article 4 of the Regulation whereby for the purposes of the Regulation, every Majlis-eShoora had been declared to be a District Court within the meaning of Civil Procedure Code and redundancy to such provisions of the Regulation cannot be attributed, accordingly, I am of the considered view that the order passed by the Qazi Muslim Bagh since was not appealable within the purview of Order XLIII, C.P.C. Therefore the, same could have been validly assailed by filing revision under Section 115, C.P.C. before the learned Majlis-e-Shoora, Loralai and the learned Appellate Court to have in exercise of inherent powers vesting in it under Section 115, C.P.C., converted the same into revision in the interest of justice, but the learned Appellate Court dismissed the appeal as above said and by holding that the revisional powers are not available to the Majlis-e-Shoora, despite of the fact that every Majlis-e-Shoora under the aforesaid provisions of the Regulation has been declared to be a 'District Court', and, in my considered view the Majlis-e-Shoora being Appellate Court simultaneously enjoys the revisional powers by virtue of Clause (2) of Article 4 of the Regulation.
Thus; for the foregoing reasons the impugned order passed by learned Majlis-e-Shoora is set aside with the direction that the appeal filed by the petitioners be treated as revision against the order passed by Qazi Muslim Bagh and be disposed of on its own merits in accordance with law after hearing the parties. Resultantly, this revision is allowed partly in the above terms leaving the parties to bear their own costs.