' This Bench has been constituted by the Hon'ble Chief Justice pursuant to the following order dated 18-6-2004 passed by our learned brother Muhammad Khalid Alvi J., in the matter of an Office Report in Writ Petition No,981 of 2004:-- "Vide order dated 18-3-2004, the constitutional petition filed by the petitioner was directed to be treated as a Regular First Appeal. The Office has put up a note with reference to a judgment passed by my learned brother Muhammad Akhtar, Shabbir J. Reported as 2001 M LD 414 to point out that in the identical circumstances his Lordship has observed that Regular First Appeal is not maintainable.
2. Factual background of the case is that the petitioner filed a civil suit against respondents Nos.2 to 4. The said respondents moved an application under Order VII, rule 11, C.P.C. Before the learned trial Court with a prayer to reject the plaint. This application was contested by the petitioner, however, the same was dismissed by the learned trial Court vide order dated A 10-6-2003. This order was assailed by respondents through a revision. The same was allowed vide order dated 27- 1-2004 and rejected the plaint while exercising powers under Order VII, rule 11, C.P.C. The same was assailed by the petitioner through the constitutional petition, which was directed by this Court to be treated as Regular First Appeal.
3. I have gone through the judgment referred by the office delivered by my learned brother Muhammad Akhtar Shabbir, J. Another'judgment of the Peshawar High Court reported as 1989 M LD 4873 and a judgment of the Hon'ble Karachi High court reported as 1995 CLC 1453. The ratio of the above said judgments is that in such eventuality since the order of rejecting plaint is passed by a Court exercising "revisional jurisdiction" and not "original jurisdiction", therefore, under section 96 of the C.P.C., Regular First Appeal is not competent.
4. In two cases which have come to my notice i.e, 1989 M LD 4873 of Hon'ble Peshawar High Court and 1989 CLC 15 of Hon'ble Lahore High Court, it was held that if a plaint is rejected by a Court exercising revisional jurisdiction, the same cannot even be assailed under Article 199 of the Constitution.
5. With absolute humbleness and utmost respect for the above-referred able judgments rendered by the Hon'ble Judges of the various High Courts of the country if the same are followed, it would mean that a litigant, whose plaint is rejected for the first time by a learned District Judge while exercising revisional jurisdiction, he is left with no remedy under the law. The petition under Article 199 is not a remedy provided by law, rather it is an extraordinary jurisdiction of this Court under the Constitution.
6. On the other hand, I have only been able to lay my hands on one judgment of the Hon'ble Karachi High Court reported as NLR 1985 Civil 325 wherein, it was held that in such eventuality, the remedy of R.F.A. Is available.
7. The right of first civil appeal is governed by section 96 of the C.P.C., which 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 appeal from the decision 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 the consent of parties."
' According to the provision of law "every decree" passed by "any Court" exercising "original jurisdiction" is appealable. Meaning thereby, that decree passed for the first time is appealable under this section; secondly, it may have been passed by "any Court". Be it may the trial Court or the revisional Court. The only limitation is that the decree must have been passed by the Court exercising original jurisdiction. In a case like the one in hand, since the trial Court has failed to exercise jurisdiction vested in it by way of which while exercising its original jurisdiction under Order VII, rule 11, C.P.C., whereby,It could reject the plaint , and have failed to exercise its jurisdiction, therefore, the learned revisional Court, while exercising its powers under section 115(1)(b) has revised the order of the original Court and by exercising powers under Order VII, rule 11, C.P.C. Has rejected the plaint. Meaning thereby, that the revisional Court had assumed the jurisdiction to deal with the case under section 115, C.P.C. And has exercised the powers of the Original Court under Order VII, rule 11, C.P.C. Meaning thereby, that while rejecting the plaint the revisional Court has also exercised the original jurisdiction, thus, the, decree passed would be appealable under section 96.
8. It cannot be presumed that if the plaint of a litigant is rejected for the first time is not provided with any remedy by the law (C.P.C.), therefore, for the above stated reasons, I am of the humble view that in such eventuality an appeal is competent.
9. There is yet another aspect of the case to look at i.e, the word decree has been defined in section 2(2) of the C.P.C., whereby, the order of rejecting plaint has been given a deeming effect of a decree. Meaning thereby, the rejection of plaint in the ordinary sense is an order but it has been given the deeming effect of a decree. This deeming effect given by the legislature cannot be without any significance. It appears that the order rejecting plaint is to be deemed a decree so as to give a right of appeal to the litigant as a decree whose plaint is being rejected. Thus, it is evident that a plaintiff whose plaint is being rejected cannot be presumed to be without remedy under the scheme of, law provided by the C.P.C.
10. There is still another angle to look into the issue involved in the instant case i.e, in such eventuality if a revisional Court comes to a conclusion that the order passed by the trial Court dismissing an application filed by a defendant under Order VII, rule 11, C.P.C. Is defective it can record its reasons and remand the case to the trial Court for passing an appropriate order on application filed by defendant. If this course is adopted rights of all the parties would be protected in accordance with law.
11. Since, there is divergent view on a question of law, therefore, it appears expedient that the matter may be referred to the Hon'ble Chief Justice for the constitution of a larger Bench to settle the law.
12. The office is directed to immediately fax this order to the Principal Seat for its consideration by the Hon'ble Chief Justice for appropriate order."
2. It will be seen that we are called upon to answer the following question:--
(i) Whether in a case where an order of rejection of plaint in terms of Order VII, rule 11, C.P.C. Is passed by a Court exercising revisional jurisdiction, a first appeal in terms of section 96, C.P.C.
Would be available to the aggrieved party?
3. We have heard Mr. Asmat Ullah Khan Niazi, Advocate, in the matter of Writ Petition No,981 of 2004 and Mian Arshad Latif, Advocate, in the matter of Writ Petition No,5161 of 2004. Apart from the several judgments noted by his Lordship in the above noted order, Mian Arshad Latif, Advocate, has cited the case of Muhammad Shafi and 5 others v. Amanat Ali and 5 others (2005 M LD 559) a case decided by Mr. Justice Muhammad Muzammal Khan of this Court holding that an order rejecting the plaint is a decree in terms of section 2(d) C.P.C. But was appealable only if the same was passed by any Court exercising the original jurisdiction and that the revisional Court while discharging its jurisdiction under section 115, C.P.C. Could not be treated to be the Court exercising original jurisdiction and as such the order passed though being a decree cannot be challenged by way of an appeal under section 96, C.P.C. Mr. Asmat Ullah Khan Niazi, Advocate, draws our attention to the case of Syed Qadir Bakhsh Shah and others v. Additional District Judge, Dera Ghazi Khan and others (2004 SCM R 1638) wherein the Hon'ble Supreme Court of Pakistan Court has taken a similar view.
4. On our own we have been able to lay our hands on the case of Buland Khan v. Chiragh Din and 3 others (1981 CLC 249) decided by this Court holding the same view. We, therefore, do find that the consistent view of this Court as well as of the learned Peshawar High Court is that an R.F.A. Would not be competent in such an eventuality.
5. Now in the said case of Syed Qadir Bakhsh Shah and others, the Hon'ble Supreme Court of Pakistan Court has observed as follows in para. 5 of the judgment:-- "5. We are of the view that the very idea that the order of learned District Judge was appealable under section 96, C.P.C. Is not in accordance with law. Only those orders and judgments are appealable under section 96, C.P.C. Where the lower Court happened to exercise original jurisdiction. In the instant case the District Judge had passed the order in his revisional jurisdiction and not original jurisdiction. The question of appeal under section 96, C.P.C. Is referable to the nature of jurisdiction exercised and not to the nature of order passed."
6. Now the facts of the said case were that the application filed by a defendant in a suit, for rejection of plaint, was dismissed by the learned trial Court but was allowed by a learned Additional District Judge in exercise of revisional jurisdiction. The observations made by this Court that the order passed by the ADJ being for rejection of plaint and a decree in terms of section 2(2), C.P.C. It was appealable under section 96, C.P.C. It was in this context that the aforenoted observations were made by the Hon'ble Supreme Court of Pakistan. In view of the said opinion recorded by the Hon'ble Supreme Court of Pakistan, we have nothing further to say and respectfully following the same, we do hold that, in the circumstances of the present cases, a Regular First Appeal under section 96, C.P.C. 'would not be available against the orders passed by revisional Courts rejecting the plaints. The writ petitions are accordingly found to be competent provided the grounds stated in Article 199 of the Constitution for declaring the orders passed by the revisional Courts to be without lawful authority are available.
7. The office shall accordingly list these writ petitions before learned Single Bench of this Court for hearing and decision.