1. ' SARDAR MUHAMMAD NAWAZ KHAN, J.---This is a constitutional petition challenging the validity of order passed by learned District Judge on 3-5-2005.Comments were invited however; Mr. Sardar Khan, Advocate appeared on behalf of the respondents and requested to allow him to argue the case without filing comments. He was allowed to do so. He opposed the admission of this revision petition as the same was not maintainable on the following 2 grounds:--
(1) The impugned order passed by learned District Judge being a decree under clause 2(d) of section 2 of C.P.C. Was appealable therefore, an alternate and efficacious remedy was available to the petitioners. The petitioners therefore, were precluded to invoke extraordinary jurisdiction under "section 44 of the Interim Constitution Act, 1974".
(2) Assuming it to be correct that no appeal against the impugned order was available, amendment in section 115, C.P.C. Did not take away the inherent powers of High Court to undo a wrong or legal error committed by the subordinate Courts if it is brought in its notice. Thus, the validity of the order impugned before this Court could be seen by exercising revisional powers available under normal course of law.
2. On the contrary, the learned counsel for the petitioners submitted that the impugned order was not subject, to appeal because it could be possible only if the suit had been rejected by the Court of original jurisdiction as provided under section 96, C.P.C. No doubt, according to the learned counsel, the rejection of plaint under Order VII, rule 11, is a decree in view of clause 2(d) of section 2, C.P.C. And is appealable under section 96, C.P.C. Only when it is passed by the Court of original jurisdiction. It was further argued that the Court below i.e, District Judge was not even competent to reject the suit and, at the most, he could remit it back to the trial Court by accepting the revision petition. The order impugned through the present writ petition was neither appealable nor reviseable in view of section 115, C.P.C., thus, here being no alternate and efficacious remedy available to the petitioners, he has rightly invoked extraordinary jurisdiction of this Court, the learned counsel maintained. While making his case for admission, the learned counsel raised following. 2 points:--
(1) The impugned order in view of definition of "cause of action" was patently illegal and as such needed rectification.
(2) The Court below i.e,, learned District Judge is found to have dismissed the suit whereas; the suit could only be rejected in absence of non-availability of "cause of action" as provided under Order VII, rule 11, C.P.C.
3. It is correct that the order of rejection of a plaint or suit under Order VII, rule 11, C.P.C. Is a decree in view of clause 2(d) of section 2 of C.P.C. It is also correct that such a decree is appealable if it is passed by the Court of original jurisdiction as provided under section 96, C.P.C. Here in this case, the suit by the petitioners herein stands disallowed by the District Judge under Order VII, rule 11, on a revision petition. The Court of original jurisdiction i.e, Civil Judge declined to reject the plaint or suit and his order was challenged before District Judge through a revision petition. However, I decline to allow the argument that the learned District Judge was not C competent to reject the suit as it was the sole competence of the trial Court. The learned District Judge was fully competent to reject the plaint on a revision petition if otherwise permissible under law. I fully subscribe to the view taken by Lahore High Court in Muhammad Sharif's case (PLJ 2005 Lah. 1097) in which the following observation has been made:-- "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 of 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 Honorable Supreme Court in the cases of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (PLD 1964 SC 97), H.M. Saya & Co. Karachi v. Wazir Ali Industries Limited, Karachi and another (PLD 1969 SC 65) and Municipal Committee, Bahawalpur v. Sh. Aziz Elahi (PLD 1970 SC 506), and by the High Court in the cases of Muhammad Saleem and other v.
4. D.C.O. And others (1994 M LD 295) and Muhammad Zaleem and another v. 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 C.P.C."
5. ' The learned Judge of Lahore High Court as evident from the above-quoted abstract of the judgment placed reliance on different judgments of SC Pakistan which is respectfully followed by this Court too.
6. The amendment in section 115, C.P.C. Provides concurrent jurisdiction to the High Court and District Judge to exercise revisional powers as indicated by subsection 2 of section 115, C.P.C. However, if an application (revision) is made either to the High Court or the District Judge no further such application is permissible to either Of them. It means that if a party to a lis chooses to file a revision petition before District Judge, he in presence of such petition is precluded to bring a revision petition before High Court. Likewise, if a revision petition has been filed before H.C., the petitioner cannot invoke the jurisdiction of District Judge. This is because to avoid the conflicting judgments by the District Court and the High Court simultaneously on the same cause before them. This is the intent and purpose of subsection (3) of section 115, C.P.C. Subsection (4) of section 115, C.P.C.
7. Provides that when a revision petition stands decided by the District Court no revision is competent before High. Court.
8. Keeping in view of above stated legal position, the question arises as to how the order recorded by District Judge if found illegal can be rectified. Civil Procedure Code neither provides appeal against the impugned order nor a revision in view of amendment in section 115, C.P.C. Is permissible. There is no cavil with the settled proposition of law that the High Court being a constitutional Court has the power to rectify or undo a legal error by invoking its inherent powers available to it under Constitution if it is brought or comes in its knowledge even suo motu. Nonetheless the fact remain that this is possible only by exercising constitutional powers. When there is no remedy to an aggrieved person under normal course of law then High Court being a constitutional Court cannot sit back with folded arms. Here in this case, the points urged by the learned counsel for the petitioners for admission of this revisions merit consideration which is only possible by exercising the constitutional powers available to this Court. Therefore, it could not be said that the present writ petition is not maintainable neither it can be said that it is not a case for admission of the writ petition.
9. ' The result therefore, is that this petition is admitted for regular hearing. Notice shall be issued to the respondents to file written-statement, affidavit and other documents if any, on or before the next date of hearing. To come up on 12-10-2005.