' That though this writ petition is not yet admitted for regular hearing and still at motion stage but both the parties have advanced their arguments at full length, therefore this writ petition is being decided as Pacca case.
2. Facts of the case are that the Allah Diwaya (predecessor-ininterest of writ petitioners) filed a suit for possession through preemption against Fazal Hussain and Kora/respondents (predecessor- ininterest of Respondents No. 1 to 15) on 04.09.1975 which was decreed ex-parte vide judgment and decree dated 26.04.1976 passed by learned Civil Judge, Kot Addu. On 21.01.1984, some of the respondents filed an application for setting aside ex-parte decree, which after framing of issues and recording of evidence was dismissed on merits, vide order dated 6.11.1989 passed by learned Civil Judge, Kot Addu. Present respondents preferred an appeal against dismissal of their application for setting aside ex-parte decree. The appeal was also dismissed vide order dated 14.06.1990 passed by learned Additional District Judge, Muzaffargarh. The Respondents No. 1 to 15 filed another application on 19.06.2004 under Section 12(2) read with Section 151, CPC for recalling of ex-parte judgment and decree, dated 26.04.1976 on the ground that the plaintiff (predecessor-in- interest of the petitioners) did not deposit the Zar-e-Panjum which was a mandatory requirement for suit for possession through pre-emption and the same suit was liable to be dismissed for non depositing of Zar-e-Panjum under Section 22 of Punjab Pre-emption Act, 1913. Present writ petitioners being respondents in application under Section 12(2) of CPC filed contesting written reply and thereafter filed an application under Order VII Rule 11 of CPC for rejection of application under Section 12(2), CPC. Application under Order VII Rule 11, CPC was accepted by learned Civil Judge, Kot Addu vide its order dated 24.11.2005 and application under Section 12(2) was rejected.
Present Respondents No. 1 to 15 filed revision petition against the rejection of their application under Section 12(2), CPC. The revision petition was accepted vide order dated 24.02.2007 passed by learned Additional District Judge, Kot Addu. Consequently, order of rejection of application under Order VII Rule 11, CPC was set aside and case was remanded to trial Court for recording of evidence after framing of additional issues regarding the maintainability of the suit for possession through pre-emption and fact of non-depositing of zar-e-Panjum and its effect. The present petitioners, through this writ petition, have assailed the remand order, dated 24.02.2007 passed in revisional jurisdiction by Additional District Judge, Kot Addu.
3.Learned counsel for the petitioners argued that there was no occasion for the Respondents No. 1 to 15 to file application under Section 12(2), CPC after dismissal of their application for setting aside ex-parte judgment and decree. Learned counsel for the petitioners further argued that act of framing of issues would result into legal complications and after passing the judgment and decree, present petitioners through their predecessor-in-interest had deposited the rectal amount and a credit certificate had also been issued in their favour by the Treasury Office, Kot Addu; it was further argued that the revisional Court has passed the impugned order dated 24.02.2007 in excess of its revision jurisdiction under Section 115 of CPC and thus impugned order is liable to be set aside.
4.On the contrary, learned counsel for Respondents No. 1 to 8 argued that the learned trial Court/Civil Judge while accepting the application under Order VII Rule 11, CPC has exercised the jurisdiction not vested in it as application under Section 12(2), CPC could not be rejected under Order VII Rule 11, CPC in accordance with the dictum laid down in a judgment reported as Salah- ud-Din v. Mst. Zia Farhat (1996 SCM R 1528). Learned counsel for the respondents further argued that revision Court remanded the matter after framing of additional issues and thus properly exercised the jurisdiction so vested in it and writ petition is not maintainable against a order passed in revision jurisdiction.
5. I have heard the arguments advanced by learned counsel for the parties at length and gone through the record carefully.
6. The question which would require resolution by this Court in its extra ordinary constitutional jurisdiction would be as to whether Additional District Judge had the jurisdiction to pass the impugned order and secondly as to whether the present writ petition is maintainable against the order passed by a revisional Court.
7.The revision jurisdiction is regulated under Section 115 of CPC and main ingredients to invoke the revision jurisdiction under Section 115 of CPC are enumerated as under:-- 1.The sub ordinate Court has exercised the jurisdiction not vested in it by law, or 2.to have failed to exercise a jurisdiction so vested, or 3.Has acted in exercise of its jurisdiction illegally or with material irregularity.
' Under sub-section (2) of Section 115, CPC the District Court may exercise the power conferred on the High Court in respect of any case decided by a Court sub-ordinate to such District Court in which no appeal lies, 8 In the present case, the learned trial Court which accepted the application under Order VII Rule 11, CPC and rejected the application under Section 12(2), CPC is sub-ordinate to the District Court and while rejecting the application decided the whole case. In this way, order of learned trial Court can be scrutinized upon the aforesaid legal principle under the relevant provisions of Section 115, CPC.
This Court could only disturb an order passed in revision jurisdiction, if the order is based upon gross misreading or non-reading of evidence as well as record and reasons given are absolutely perverse, not supported by law, evidence or material available on record. Such order passed in revision jurisdiction cannot be merely termed as having been passed without lawful authority. This Court, in dispensation of justice has no authority to decide rights of parties according to their whims, caprice or imagination.
9. Learned counsel for the, petitioners has failed to point out any jurisdictional defect in impugned order dated 24.02.2007 passed by learned Additional District Judge, Kot Addu which otherwise do not decide the case rather the case has been remanded for decision afresh On merits after framing of additional issues. A remand order or framing of additional issues did not prejudice the case of petitioners in C any manner before the trial Court where they can produce the evidence to prove the issues in their favour, but rejection of application under Section 12(2), CPC out rightly under provisions of Order VII Rule 11, CPC amounts to non suit the applicants in their application.
Needless to add that law favours adjudication on merits rather on technicalities. It is another questionable issue as to whether application under Section 12(2), CPC can be termed as a plaint within the meaning of Order VII Rule 11, CPC so as to be rejected under Order VII Rule 11, CPC.
10. I am of the view that provisions of Order IX Rule 13, CPC regarding setting aside of ex-parte decree relates only to service of summons and sufficient cause for non appearance in response of summons; while provisions of Section 12(2), CPC provides that a decree (whether contested or exparte) can be challenged on the grounds of fraud, mis-representation and want of jurisdiction and thus both these provisions are based on different pedestals; and therefore on the basis of dismissal of an application filed under Order IX Rule 13, CPC, the application filed under Section 12(2), CPC could not be dismissed by the learned trial Court and therefore such an application should be decided on its own merits.
11. It goes without saying that provisions of Section 22 of Punjab Pre-emption Act, 1913 were mandatory in nature; therefore, proposed additional issues were rightly framed by the learned Additional District Judge, Kot Addu.
12. At this stage, it would be useful to refer to the observation made by the Honourable Supreme Court of Pakistan in a judgment reported as Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131) wherein the August Supreme Court regarding the filing of constitutional petition has observed as under:- "Before parting with the case we may observe that there is an increasing tendency to file constitutional petition even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court in contradistinction to a persona designate, has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that a decision on a question of fact or law is not correct does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badar-ul-Haq Khan v. The Election Tribunal, Dakka and others (1), Muhammad Hussain Munir and others v. Sikandar and others (2) and Abdul Rehman Bajwa v. Sultan and 9 others (3).
' We are of the view that tendency to file such constitutional petitions tends to clog the superior Courts with frivolous litigation and causes unnecessary delays in disposal of other cases and this tendency should therefore, be curbed with a strong hand".
13. For what has been discussed above, this writ petition being devoid of any merits, is dismissed.