Muhammad Azam Khan, J.--This appeal, with the leave of the Court, is addressed against the order of the Azad Jammu and Kashmir High Court dated 13.6.2008, whereby Civil Appeal No.29/2008 was accepted as revision petition and the trial Court was directed to frame an issue on the question of jurisdiction and decide the same along with other issues.
2. The appellant was serving as Grade-I Officer in United Bank Limited Muzaffarabad. He was dismissed from service vide order dated 10.1.2002. He availed the remedy provided under the service rules of UBL. After exhausting departmental authorities the appellant challenged the dismissal order through a civil suit in the Court of District Judge Muzaffarabad on 10,10.2003. During the pendency of suit the defendants moved an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground of jurisdiction. The appellant/plaintiff filed the objections, and after hearing the counsel for the parties the District Judge Muzaffarabad rejected the plaint on 30.6.2004 on the ground that an amendment has been brought in Section 2- A of the Federal Service Tribunals Act, 1973 in Pakistan and the employees of Banks including UBL can seek their remedy by filing appeal in the Federal Service Tribunal as the Civil Court has no jurisdiction to try the suit. An appeal before the Azad Jammu and Kashmir High Court filed by the appellant, herein, was accepted on 24.11.2006 by setting aside the judgment of the District Judge with the observation that UBL has been privatized, it is neither owned by the Federal Government, nor has it controlling shares, and remanded the case to the trial Court for decision in accordance with the
3. After receipt of the file the trial Court started proceedings in the suit. When the defendants/respondents filed an application under Order VII Rule 10 of the Code of Civil Procedure for return of the plaint the District Judge dismissed the application. UBL filed an appeal in the Azad Jammu and Kashmir High Court. A Division Bench of the High Court accepted the appeal on 13.6.2008 as revision petition and directed the trial Court to frame an issue on the question of jurisdiction and decide the same along with other issues.
4. Raja Muhammad Hanif Khan, the learned. Advocate, while arguing on behalf of the appellant contended that any order passed by the Civil Court on an application made under Order VII Rule 10 or Rule 11 of the Code of Civil Procedure is not appealable, therefore, the appeal filed by the appellant before the High Court was not competent. He contended that the High Court has observed that an appeal can be treated as revision petition and the Court has the power to treat the same. This view is correct but appeal can be treated as revision petition if there is an illegality in the order of the lower Court or the subordinate Court has exercised the jurisdiction in an illegal manner. The High Court has not pointed out any illegality in the order of District Judge, or how the trial Court has exercised the jurisdiction in an illegal manner, therefore, there was no question for treating the appeal as revision petition and accepting the same.
5. The learned Advocate for the appellant contended that the question of jurisdiction was decided by the High Court in its judgment dated 24.11.2006. No appeal was filed against this decision of the High Court, it attained finality. The defendants tried to reopen the question of jurisdiction once decided by the High Court in the guise of application under Order VII Rule 10 of the CPC read with Sections 47(2) and 31(2) and schedule III of the Mad Jammu and Kashmir Interim Constitution Act, 1974. The District Judge is not the appellate Court of the High Court. Once the judgment of the High Court has attained finality, the trial Court has no jurisdiction to entertain the same. He further argued that in the findings of the learned Division Bench of the High Court that the Division Bench is not bound by the judgment of the single Judge on a question of law and it can form its own opinion, is correct, but the Division Bench was not hearing appeal against an order passed by the single bench. the High Court. It is only the Supreme Court which has the jurisdiction to hear the appeal from the order/judgment passed by the High Court. No appeal was filed against the order of learned single Judge of the High Court, therefore, the Division Bench was not competent to reopen the matter of jurisdiction once decided in previous round.
6. While controverting the arguments, Mr. Muhammad Idrees Mughal, Advocate, the learned counsel, for the respondents argued that the appellant was an employee of UBL, which was owned by the Federal Government. The Government had the controlling shares. Later on, the Bank was privatized, but the relevant date for determination of forum is the date of termination of the service of the appellant. When the service of the appellant was terminated the bank was in the ownership of the Federal Government, at that time, under Section 2-A of the Federal Service Tribunals Act, 1973 the employees of the Bank have right to file an appeal in the Tribunal. Under Section 2-A employees of the Banks and the statutory Corporations owned by the Federal Government were declared as civil servants for the purpose of appeal before the Tribunal and only the Federal Service Tribunal has jurisdiction to hear and adjudicate the appeals of Banks employees. He referred to a number of judgments of this Court and the AJ&K High Court, whereby it was held that the Bank employees can seek redressal of their grievances by filing an appeal in the Federal Service Tribunal. He contended that the learned single Judge in the High Court in previous round of litigation reserved the judgment, and it was announced without notice, a little time was left for the defendants to seek the direction from the authorities for filing appeal in the Supreme Court. He tried to distinguish the provisions of Order VII Rule 10 and Order VII Rule 11 of the Code of Civil Procedure. He contended that the previous application was decided under Order VII, Rule 11 CPC, while the present application is decided under Order, VII Rule 10 CPC. He further argued that the judgment of the AJ&K High Court dated 24.11.2006 passed by a learned single bench of the High Court is against the judgments of this Court on the point of jurisdiction.
7. We have heard the learned counsel for the parties and perused the record with utmost care. The matter in controversy before us is confined to only two points:-- "(a) Whether after the decision of the High Court dated 24.11.2006, whereby the High Court has declared that the Civil Court has jurisdiction to proceed in the suit, the question of jurisdiction can again be raised on the same ground; and
(b) The learned Division Bench of the High Court was justified in treating the appeal as revision petition.
8. It is an admitted position that UBL was in the ownership of Federal Government like other scheduled Banks. Section 2-A was incorporated in the Federal Service Tribunals Act, 1973, whereby the employees of the Banks/Corporations owned by the Federal Govt. were declared as civil servants for the purpose of appeal. This amendment was adapted by the Azad Jammu and Kashmir Council. This Court and the AJ&K High Court in a number of cases held that the remedy by way of appeal before the Federal Service Tribunal is available to the employees of the banks and dismissed a number of writ petitions filed by the Bank employees. The same proposition of law applied to the employees of UBL, but it was privatized on 10.2.2003. This fact of privatisation is born out from the decision of the District Judge passed on 13.6.2004 in the first round when the suit filed by the plaintiff was dismissed. We agree with the contention of the learned counsel for the respondents/ defendants that in the light of judgments of this Court Section 2-A of the Federal Service Tribunals Act was applicable in the cases, but the position in the case is quite different, firstly UBL after being privatized on 10.2.2003 is not in the ownership of Federal Government nor has it controlling shares, therefore, there is no question of application of Section 2-A of the Federal Service Tribunals Act, 1973 in the case of employees of UBL, secondly the Supreme Court of Pakistan in the case titled Muhammad Mubeen-ul-Islam v. Federation of Pakistan [PLD 2006 SC 602] has declared the Section 2-A against the provisions of the Constitution of Pakistan, therefore, there is no question of not following the judgments of this Court on the legal question by the single Judge of the High Court. For deciding the controversy the relevant portion of the judgment of the High Court dated 24.11.2006 is reproduced:-- "Admittedly the appellant was in service of UBL which is neither owned nor has any controlling share by the Government, therefore, the provisions of Section 2(a) of the Service Tribunal act, cannot be availed by the petitioner. This view finds support from the observation of the apex Court of Pakistan given in a case titled 'Rao Ghulam Murtaza v. MCB and others' decided on April 23, 1999.
In Para 4 of the judgment, the apex Court that the Federal Service Tribunal was not competent Lu hear the appeal of the petitioner on the ground that respondent MCB has been privatised and is neither owned nor controlled by the Federal Government. Moreover, in view of the latest judgment of the apex Court of Pakistan referred to and relied upon by the learned Advocate for the appellant, the employees of State owned corporations and banks have been excluded from definition of Civil Servants and Section 2(a) has been declared as un-constitutional. Therefore, findings of the District Judge are not sustainable even on this score. The other arguments of the learned Advocate for the respondents need not be discussed as the same can be raised at proper forum."
A perusal of the above leaves no doubts that the learned single Judge in the High Court has accepted the appeal on the ground that UBL has been privatized and Section 2-A of the Federal Service Tribunals Act is not applicable in this case. The Civil Court was directed to proceed in the case. The judgment dated 24.11.2006 to the extent of jurisdiction has attained finality, therefore, the question of jurisdiction cannot be reopened in the case. There may arise different questions of law in a case. The pure question of law can be determined on the basis of pleadings of the parties and documents attached thereto without recording the evidence, while the other type of questions may be mixed question of law and facts, which require resolution after recording of evidence and it is difficult to resolve mixed question of law without recording the evidence-A substantial question of law once decided "by the Court attains finality due to reason that it was not challenged in higher forum, and the parties are precluded from challenging the same at a subsequent stage. We may refer a case titled I.C.I.G. v. Mian Rafiq Saigol and others [PLD 1996 Lahore 528], wherein it was held that: "15. Learned trial Court has given a definite finding that such an objection can only be decided after recording of evidence on all the issues on merits, which have already been framed in the suit. It has also been held in the order that it is a case where mixed questions of law and facts are involved, resolution whereof requires recording of evidence even on merits of the case. This order has been upheld by this Court and, therefore, has become final, at least to the extent of finding to the effect that this is a case which involves mixed questions of law and facts, resolution whereof is possible after recording of evidence on all issues including the issues on merits together therefore, the same learned Court had no jurisdiction to sit on a judgment on those findings again while deciding an application under Order XIV, Rule 2, C.P.C. and holding to the contrary. In fact, although the principle of res judicata may riot be strictly applicable to this case, yet, the respondents cannot be allowed to raise the plea to the effect that the question of jurisdiction does not require recording of evidence on merits as under the general principles the issues once adjudicated upon up to the level of this Court have to be finalized and if this practice is permitted that an issue once having been finalized up to this Court is again reopened during the course of proceedings in the same suit, controversies can never come to an end, which exercise is not permissible under the law as held in case of Aziz Ahmed and others v. Mst. HajiranBibi and another 1987 SCM R 527"
9. We have also examined the contention of the learned counsel for the respondents that the service of the appellant was terminated on 10.1.2002, at that time UBL was in the ownership of the Federal Government. It was, privatized in 2003. The relevant forum for filing appeal at that time was the Federal Service Tribunal, the appellant has to file an appeal in the Federal Service Tribunal. The contention has no force. As we have observed that the question of jurisdiction has already been decided by the High Court in the previous appeal, the judgment has attained finality. It is not open to raise the question of jurisdiction in the guise of other provisions of the Code of Civil Procedure, relied upon by the defendant, or the Constitutional provisions on the same grounds.
In both the applications jurisdiction of Civil Court was challenged on the ground that remedy by way of appeal before the Federal Service Tribunal is available under Section 2-A of the Federal Service Tribunals Act, 1973. Even otherwise the record reveals that the appellant, after termination of his service, remained pursuing remedies before the Bank Authorities and after exhausting the remedies he filed the suit in the Court of District Judge Muzaffarabad on 10.102003, at that time UBL has already been privatized and there was no bar in filing the civil suit.
10. The High Court reached on the conclusion that order passed under Rule 10 of Order VII CPC is not appealable. It was observed by the Division Bench that the appeal can be treated as revision and the revision as an appeal if filed within limitation provided by the relevant law. We agree with the proposition but the revision petition before the High Court is competent where the order passed by the lower Court is without jurisdiction or the lower Court had exercised the jurisdiction in an illegal manner or has exercised such jurisdiction not vested in 'it or refused to exercise such jurisdiction vested in it. It was essential for the High Court to point out the jurisdictional defect or illegality in the order passed by the trial Court. Had there been any illegality or jurisdictional defect in the order passed by the trial Court, then the High Court was justified to convert the appeal into revision petition and decide.the same but a perusal of the judgment of the High Court reveals that no illegality or jurisdictional defect is pointed out in it, as such, the High Court was not justified in treating the appeal as revision petition. This Court in a case titled Tariq,Mehmood v. Contractor Ahmed Din and 4 others [2009 SCR 294] has observed as under:-- "5 Section 115 (3.P.C. applies to the cases where the lower Court has illegally assumed jurisdiction, irregularly exercised or refused 1co exercise the jurisdiction vested in it or committed an error of law. The power vested in the High Court under Section 115, C.P.C. is purely discretionary one and can be exercised on the principles upon which such discretionary orders are passed. While exercising revisional jurisdiction if the High Court comes to the conclusion that the lower Court has exercised such jurisdiction which is not vested in it by law or has failed to exercise or declined to assume the jurisdiction vested in it under law or 'exercised discretion in an illegal manner or has adapted such procedure the result of which puts a party in an advantageous position as against the other, then, the revisional powers must be exercised. If it is of the opinion that no violation of the above mentioned matters is on record then it shall decline to exercise the revisional jurisdiction. The proviso to sub-section (1) of Section 115 C.P.C. was incorporated through Law Reforms Ordinance No. X of 1980 in Pakistan."
No illegality or jurisdictional defect was pointed out by the High Court in its judgment, therefore, the appeal could not be treated as revision. It was argued by the learned counsel for respondents that in previous appeal the High Court reserved the judgment and it was announced without notice, therefore, appeal could not be filed, cannot be considered because, if the defendant had filed the petition for leave to appeal against that judgment of the High Court and taken this ground for condonation of delay then the argument has to be considered, but it is of no help to the case of the appellant and does not affect the finality of the judgment of the High Court.
The upshot of the above is that the appeal is accepted, judgment of the AJ&K High Court dated 13.6.2008 is set aside. We have noticed that matter pertains to service rights of the plaintiff, which was brought before the trial Court on 10.10.2003. A period of more than 6 years has elapsed and suit is at preliminary stage, therefore, the trial Court is directed to decide the suit within four months of receipt of the order of this Court.