1. MUHAMMAD YAQUB ALI, J.-The appellant filed a suit for a declaration that he was not liable to pay Rs. 4',000 to the Govern--ment of West Pakistan on account of the balance of octroi lease money for Fort Sandeman as he was not allowed to collect octroi .Within the Cantonment area. The Senior Civil Judge, Quetta, dismissed the suit on 31-8-1964. An appeal preferred from the judgment and decree was dismissed by the District Judge against which the appellant filed a Revision Petition in the High Court under section 33 of the British Baluchistan Courts Regulation VII of 1939 read with section 115, C. P. C. The Regulation had " been repealed and replaced by the West Pakistan Civil Courts Ordinance II of 1962 with effect from 30th January 1963. The revision petition filed on the 14th February 1966, was, accordingly held by a learned Judge to be incompetent in law. He also rejected the prayer that the revision petition may be converted into an appeal in the view that the appellant had not acted under a bona fide mistake.
2. It further transpired that the grounds on which the District Judge had dismissed the appeal preferred by the appellant were untenable on their face. It was held that when the plaintiff was prevented from recovering octroi tax in respect of the Military area, the proper course for him was to file a declaratory suit against the Cantonment authorities stopping them from interfering with the collection of octroi tax and that the suit against the Deputy Commissioner, the second defendant, was not competent.
3. The apprehension of the nature of the suit by the District Judge was entirely superficial and his judgment did not represent a serious attempt to do justice in the case and clearly called for reconsideration. It was also contended that the discretion vested in the High Court has been exercised otherwise than in a judicial manner so that for a technical error and that too by the plaintiff's lawyer in a Mofussil area where expertise in law is not very high a substantial vested right to have the District Judge's judgment re-examined in appeal had been refused. Leave to appeal was accordingly granted on 4-10-1967. Since the appeal was admitted the Province of West Pakistan has been dissolved and the Province of Baluchistan has been impleaded as the successor Government. Besides the grounds on which leave to appeal was given it is arguable whether the right vested in the appellant to file a revision in the High Court from the order of the District Judge under section 33 of the British Baluchistan Courts Regulation VII of 1939. On one view it could be urged that as the suit was filed before the West Pakistan Civil Courts Ordinance was made applicable to Fort Sandeman, the right vested in the plaintiff to file a revision from the order of the District Judge under section 33 of Regulation VII of 1939 was not affected. Reference may be made to The Colonial Sugar Refining Company Limited v Irving (1905 A C 369), Mst. Mahbub Fatima and others v. The Administrator of the City Corporation of the Lahore (PLD 1963 SC 333) and Sutlej Cotton Mills Limited, Okara v. Industrial Court, West Pakistan, Lahore (PLD 1966 SC 472). If the rule laid down in these cases was attracted the appellant's lawyer made no mistake in filing a revision under section 33 of Regulation VIII of 1939. Assuming without holding that the Revision Petition filed by the appellant was not competent, it could not be said that the mistake committed by the lawyer was not bona fide. It was, therefore a fit case for accepting the prayer made by the appellant's counsel that the revision petition be converted into a second appeal under section 100, C. P. C.
4. No substantial argument was raised by Shaikh Riaz Ahmad who appeared for the Province of Baluchistan in defence of the appeal. We, accordingly, allow the appeal with costs and remand the case to the High Court for converting the revision petition into a second appeal and disposing it of in accordance with law.