' MUHAMMAD NOOR MESKANZAI, C.J.---Instant revision petition is directed against the order dated 26th June, 2012 passed by Qazi, Dalbandin. Whereby the execution application filed by the respondents was allowed.
2. Precise facts for the disposal of instant revision petition are that the respondents Nos.1 to 6.
Instituted a suit for possession of Gawandan Mosooma Zainoi Durjanwal, situated at Kalbairak, in the Court of Qazi, Dalbandin against the petitioners and respondents Nos.7 to 11. Initially the learned Qazi dismissed the suit, however, on filing appeal by the respondents Nos.1 to 6, before the learned Majlis-e-Shoora. Chagai at Noshki the same was accepted and the case was remanded to the Qazi. Dalbandin with direction to decide the suit afresh.
3. After remand the petitioners and the respondents Nos.7 to 9 contested the suit by way of filing written statements. The learned Qazi framed issues and after recording evidence pro and contra again dismissed the suit vide judgment and decree dated 17th September, 1999. The respondents Nos.1 to 6 feeling aggrieved of the above referred judgment preferred an appeal before the learned Majlis-e-Shoora, Chagi at Noshki which was accepted vide judgment and decree dated 13th January, 2000. The petitioners filed Civil Revision No,55 of 2000 before this Court which too was dismissed vide judgment dated 5-1-2009. The petitioners still feeling aggrieved of the judgments and decrees approached the Hon'ble Supreme Court by way of filing Civil Petition for leave to appeal No,266/2009. The Hon'ble Supreme Court vide order dated 4th June, 2009 besides directing for maintaining status quo granted leave. The operative portion of the above referred order is reproduced herein below:-- "We have also examined the record with the eminent assistance of learned Advocate Supreme Court which requires to be reevaluated in order to see as to whether the same has been examined with diligent application of mind and settled norms of justice by the learned appellate court or otherwise? Leave is accordingly granted. To be fixed during next session. Meanwhile status quo is directed to be maintained."
4. The respondents on 10th May 2012 filed an execution application in the Court of Qazi, Dalbandin.
Notice of the execution application was served upon the petitioners, they appeared before the executing court and filed objection petition calling in-question the competency and maintainability of the application. It was contended that the matter is sub judice before the Hon'ble Supreme Court of Pakistan and the apex Court has directed to maintain status quo, as such the execution application filed by the respondents Nos.1 to 6 is not entertainable. However, the learned executing court vide order dated 26-6-2012 directed for execution of the decree by way of delivering the possession of the property to respondents Nos.1 to 6, hence this petition.
5. Heard. Learned counsel for the petitioners submitted that the Hon'ble Supreme Court has directed for maintaining status quo, therefore, there was no occasion for the executing Court to have had issued directions for execution of the decree. Learned counsel further contended that specific objection in this regard was raised before the executing court, yet the latter by mis- interpreting the order of Hon'ble Supreme Court issued directions for execution of the decree which amounts to contempt of Court and the order impugned is void without lawful authority and liable to be set aside.
' Learned counsel for the respondents strenuously opposed the submissions by submitting that as the status quo order dated 4-6-2009 passed by the Hon'ble Supreme Court was till next date and the petitioners failed to produce any order passed by the Hon'ble apex Court extending the status quo order, as such, the executing court rightly accepted the execution application.
6. I have considered the arguments advanced by the learned counsel for the parties and perused the record with their eminent assistance. The present controversy has conceived a couple of controversial and complicated legal question:-- i. Whether the impugned order is appealable? ii. If appealable whether this revision is convertible into appeal? iii. If converted whether from the date of institution or from the date of conversion and what will be the impact of limitation?
7. Admittedly, an execution application for execution of the Decree dated 17-9-1999 was filed and objection with regard to competency of A the application was raised. The executing court heard the arguments and rejected the objections. In my considered opinion the objection raised and decided is a question that relates to execution, discharge or satisfaction of the decree and thereby falls within the ambit of section 47 Civil Procedure Code and an appealable order within the meaning of section 104, C.P.C. For the sake of facility section 104 C.P.0 is reproduced:- "104. Orders from which appeal lies.--- An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.-- 3 ................. ] 4[ an order under S.35A: (ff) an order under Section 47;]
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules; 5[Provided that no appeal shall lie against any order specified in clause 6[(f)] save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this section."
8. No doubt, the impugned order is not a decree yet appealable under section 104 Civil Procedure Code. By holding the view I am fortified by the dictum laid down in the judgment titled as 'Muhammad Ismail v. Raja Muhammad Younis' reported in 2003 CLC (Lahore) 1252 (relevant at page- 1253-54), wherein it was observed as under: "The order was, therefore, passed in relation to execution of the said decree. This order is squarely covered by section 47, C.P.C. Being a lis between the parties to the suit in which the decree was passed. This being so, the order was appealable under section 104(1)( ff), C.P.C. So far as the said judgment is concerned. It dealt with an order urged to be covered by section I04(1)(h), C.P.C, The learned Additional District Judge has therefore, refused to exercise the jurisdiction vested in him of hearing and deciding the appeal filed by the petitioner. This revision is allowed. The result would be that the appeal filed by the petitioner shall be deemed to be pending before the learned District Judge, Rawalpindi, who shall requisition records, summon the parties and hear and decide the said first appeal in accordance with law."
9. It is pertinent to observe that at the eve of hearing preliminary arguments, a specific question regarding maintainability of revision petition, was posed. Learned counsel for the petitioner on the very said date emphasized and insisted on the maintainability of petition on the ground that impugned order is governed by the provisions of Dastoor-ulAmal Diwani, Kalat 1952 and under the Dastoor revision is competent before High Court. The perusal of record reflects the stance of learned counsel was factually incorrect. The suit was filed before Qazi, Dalbandin under the provisions of Balochistan Civil Disputes (Shariat Application) Regulation Act, 1976 and not under the Dastoor-ul-Amal Diwani Kalat.
1952. Section 4 of the Shariat Regulation Act, 1976 defines the court: "4. Courts for adjudication of disputes under this Regulation.-
(1) Notwithstanding anything contained in section 3, there shall be the following Courts, namely:-
(a) the Court of Qazi, which shall be the Court of original jurisdiction in respect of disputes wherein the subject-matter in amount or value does not exceed fifty thousand rupees; and
(b) the Majlis-e-Shura, which shall be the first appellate court in respect of judgments, decrees and orders of the Court of Qazi, and shall also be the court of original jurisdiction in respect of all disputes wherein the subject-matter in amount or value exceeds fifty thousand rupees.
(2) Every Majlis-e-Shura shall be deemed to be a District Court within the meaning of the Code."
10. Legally the pecuniary jurisdiction for entertaining suits by the Qazi under Shariat Regulation, 1976 is rupees fifty thousand. Keeping in view this legal position, admittedly, within the meaning of section 18 of Civil Courts Ordinance either revision petition or appeal, in any case, is competent before Majlis-e-Shoora at the strength of section 4(2) of Shariat Regulation, 1976.
' In view of the above discussion it can safely be concluded that the impugned order is appealable, so, the first issue stands resolved in affirmative.
11. Now, the next question is whether one type of proceedings could be converted into another type of proceeding? There is no cavil to the proposition that prime purpose, paramount consideration and basic theme of the legal proceedings is to do justice between the parties; and to achieve this object; of course, subject to competency of the Court, the nature of the proceedings are always of secondary consideration, because too much adherence to technicalities, which impede the course of justice cannot be countenanced by, the court, therefore, one type of proceedings can conveniently be converted into another type proceedings just to avoid multiplicity of proceedings or failure of justice. By holding the view I am fortified by the dictum laid down in the judgment titled as `Liaqat All Bashiran Bibi and 9 others' reported in 2005 CLC 11 (relevant at page-24), wherein it has been held as under:-- "32. We will also like to observe that rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master.
And, to avoid failure of justice and multiplicity of litigation, one type of proceedings could be converted into another type of proceedings."
12. Adverting to second limb, whether the circumstances of this case justify the conversion of instant revision into appeal under section 104, C.P.C. So far as the conversion of an appeal into a revision or vice versa is concerned, the law stands settled that a revision can be converted into an appeal and an appeal can be converted into revision. So much so, if necessary the proceedings could be re-converted. Admittedly, in this case revision against the impugned order is not competent and a party may not be deprived of the right of having an opportunity of hearing by a competent forum just on the basis of technicalities. If this revision is not converted into an appeal, resultantly the petitioner shall be deprived of the right of hearing in a case wherein the question of interpretation of the F order of Hon'ble apex Court by the executing Court is involved of course such a case, cannot be left at the mercy of technicalities, therefore, I feel no legal difficulty nor there is any legal, bar, hitch or impediment in converting the instant civil revision in to an appeal keeping in view the facts and circumstances of this case. In this regard I am fortified by the dictum laid down in the judgments of Hon'ble apex Court in case titled as 'Mst. Noor Jahan v. Mst. Roshan Jahan and 6 others' reported in .1994 SCM R 2265, relevant observations wherefrom reads as under:-- "5. We are convinced that although the order, dated 3-4-1991 of the trial Court was not an appealable order, yet under section 115(2), C.P.C. The District Judge had revisional power to deal with it, so it will be deemed that the appeal was actually heard and decided as a Revision. In this view of the matter order dated 26-10-1991 of the District Judge could be treated as a revisional order precluding further interference by the High Court under section 115(4), C.P.C. And as such impugned order/judgment is without jurisdiction/authority.
6. As far the alternate argument of the learned counsel, the learned District Judge had the legal authority to interfere with the order dated 3-4-1991 as a revisional Court, therefore it was/is not possible to declare/hold that the order dated 26-10-1991 passed by him was without lawful authority and of no legal effect. The case-law cited by the learned counsel for the respondents is quite distinguishable.
7. Resultantly the petition is converted into an appeal and allowed. The impugned order/judgment of the High Court is set aside and that of the learned District Judge is restored with no order as to costs."
' Similarly, in the case titled as 'Muhammad Hanif and others v. Muhammad and others' reported in PLD 1990 SC 859 (relevant at page 864). It has been observed as under: ' The aforenoted circumstances fully justify it Accordingly, there is no force in the ground relating to the supply of the relevant copies so as to create a bar for conversion of the Revisions into Regular Second Appeals on the assumption that this would also influence the question of limitation."
14(sic) Now adverting to last limb i,e, question of limitation: the nature of the impugned order clearly reveals that it does not require the affixation of an enhanced court fee and the revision petition has been filed within time. Therefore, there is no legal hitch or embargo to convert this revision into appeal from the date of its institution, reliance is placed on the case titled as 'Abdul Aziz and others v. Sheikh Abdur Rahim and others' reported in PLD 1984 SC page-164 (relevant at page-168), where it has been observed as under: "In the case before us the High Court has allowed the revision to be treated as second appeal. The only point in issue is from what date this revision should he treated to be converted into a second appeal, from the date a misconceived civil revision petition was instituted, from the date a request was made for its conversion or from the 'date that it was allowed to be converted and registered as a second appeal. We find that as no other formality had to be completed in the nature of deficiency in court fee to be made up or condition to be satisfied, e.g. The initial bar of limitation, the treatment has to be from the date that the revision petition was instituted".
In the light of above discussion, the petition stands converted into appeal under section 104, C.P.C.
And transferred to the file of Majlis-e-Shoora, Chaghi at Noshki. Therefore, the Majls-e-Shoora, Chagai at Noshki shall decide the appeal within two months after receipt of this judgment as sufficient time was already been consumed.