' ANWAR ZAHEER JAMALI, J.---This Revision Application under section 115, C.P.C. Is directed against the judgment, dated 29-5-1994 and the decree, dated 8-6-1994 passed by IInd Additional District Judge, Dadu, in Civil Appeal No.86 of 1982, whereby this appeal was dismissed on the sole ground of non-maintainability.
2. The relevant facts leading to this litigation are that a suit for possession under section 9 of Specific Relief Act filed by the predecessor-in-interest of the respondents on 27-7-1974, being Suit No.26 of 1981, was decreed by the Court of Civil Judge, Dadu vide judgment, dated 31-8-1982, followed by decree, dated 12-10-1982.
3. The applicants preferred appeal under section 96, C.P.C. Against such judgment and decree before the District Court, Dadu, being Civil Appeal No.86 of 1982, which was dismissed for non- prosecution on 12-12-1984. The restoration application moved by the applicants was also dismissed on 16-4-1986. These orders were challenged by the applicants through M.A. No.9 of 1986 filed before this Court. By judgment, dated 19-12-1990 the said M.A. Was allowed and case was remanded to the Appellate Court for proceedings in the appeal in accordance with law.
4. It seems that on remand of the case to the Appellate Court, the question of maintainability of appeal under section 96, C.P.C. Came up for consideration before the Appellate Court. Whereupon, with reference to section 9 of the Specific Relief Act, Appellate Court came to the conclusion that the appeal was incompetent and consequently by impugned judgment, it was dismissed on this ground alone.
5. Syed Madad Ali Shah, learned counsel for applicants has candidly stated that filing of appeal under section 96, C.P.C. Against the judgment and decree passed in a suit for possession under section 9 of the Specific Relief Act was obviously incompetent to challenge the merits of the impugned judgment and decree passed in the suit. However, to seek relief in this revision application, learned counsel has made two fold submissions. His first submission is that the Appellate Court could have suo motu converted the appeal filed by the applicants into civil revision application under section 115, C.P.C. And decided it accordingly in accordance with law. To fortify this submission, he has placed reliance upon the case of Muhammad Yusuf v. Mst. Kharian Bibi (1995 SCMR 784), wherein it was held by the apex Court that the Courts were competent to convert the appeal into revision petition even, on a verbal prayer made by the party concerned. His next submission is that no party shall be made to suffer due to any act or omission of the Court.
Dilating upon this aspect of the case, he contended that admittedly the appeal under section 96, C.P.C., filed by the applicants against the impugned judgment of the lower Court was within time, but due to the admission of this appeal without any objection, either by the office or by the Court, they were mislead and continued to pursue the appeal under the bona fide impression of its maintainability. Every Judge is supposed to know the law, therefore, if the appeal was incompetent, then the memo. Of appeal should have been returned to the applicants in time or appeal could have been dismissed before its admission, so that the applicants could have followed alternate course of either presentation of appeal after converting it into revision application or could have filed revision application within time to avoid technical knockout. In this regard, he has made reference to the following cases:--
(a) Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), (b) Mian Muhammad Talha Adil v. Mian Muhammad Lutfi (2005 SCMR 720), (c) Farukh Nawaz v. Faisal Ajmal (PLD 2003 Quetta 68), (d) Mst. Ghulam Sakeena v. Bashir Ahmad (2000 CLC 334) and (e) Ghee Corporation of Pakistan (Pvt.) Ltd. v. Brokenhill Proprietary Co. Ltd. (2003 YLR 2040).
6. Mr. Shah lastly contended that even if there was some elements of negligence of applicants or their counsel, the Court should have still opted to decide the case of the applicants on merits and the applicants could have been penalized for such omission/negligence by imposing costs.
7. Mr. Kishanchand, Advocate for respondent has 'strongly opposed this revision application. He contended that suit for possession under section 9 of the Specific Relief Act was instituted by the predecessor-in-interest of respondent on 27-7-1974 and it has already consumed more than 30 years in litigation. In such circumstances in order to do competent justice between the parties, it will not be apt to set aside the impugned judgment by showing indulgence, thereby putting the parties to another round of litigation. However, Learned counsel did not dispute that the Appellate Court, where appeal under section 96, C.P.C. Was filed by the applicants; was the same Court where the revision application, if preferred, would have been entertained. He also did not dispute that the appeal was instituted by the applicants within time, therefore, if the office or the Appellate Court had raised objection in the first instance with reference to the non-maintainability of appeal, in view of the clear language of section 9 of the Specific Relief Act, instead of admitting the appeal in a routine manner and keeping it pending for over one decade, the applicants could have followed other remedy in time. Thus, in this manner, the omission on the part of Appellate Court has also contributed in non-suiting the applicants at this belated stage and deprived them from getting adjudicate of their grievance on merits.
8. I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record and also the case-law cited at the bar.
9. Indeed presentation of appeal by the applicants before the District Court, Dadu seems to be due to the ill advise of the learned counsel, as only civil revision could have been legally maintained against the judgment and decree in a suit for possession instituted under section 9 of the Specific Relief Act. But at the same time, the Appellate Court seized of the matter had the jurisdiction to convert the said appeal into revision application, subject to other legal objections and terms, to foster the cause of justice and for providing an opportunity to the litigant parties for disposal of their disputes on merits in accordance with law.
10. Nevertheless, the negligence on the part of the applicants also cannot be overlooked, more particularly when such litigation between the parties has already consumed more than three decades. Taking into account all these facts and circumstances of the case, this revision application is allowed, but subject to the payment of costs of Rs.10,000 (ten thousand) to the respondents, to be deposited by the applicants with the Additional Registrar of this Court within three weeks from the date of this order. In case of non-deposit of the amount within time, this revision application shall be deemed to have dismissed. However, on deposit of aforesaid sum, the impugned judgment and decree passed by the Appellate Court shall be deemed to have been set aside and case remanded to the Appellate Court after allowing conversion of civil appeal into civil revision under section 115, C.P.C. The revisional Court shall ensure hearing of the case without any further delay, to ensure its disposal within one month from the date of receipt of copy of this order.
The parties and their counsel are directed to appear before the revisional Court/Appellate Court on 22-10-2005, for which date no notices will be issued to them.