Raja Saeed Akram Khan, C.J. This appeal by leave of the Court has arisen out of the judgment of the High Court dated 02.11.2018, whereby, the appeal filed by the appellant, herein, has been dismissed.
2. The facts of the case are that the plaintiff-appellant, herein, filed a suit for declaration-cum- specific possession on the basis of ownership, regarding the land comprising Survey Nos.402, 404, 306, 316, 346, 311, 409, 396 and 403, total measuring 62 kanal, 8 marla, situate at village Cherh, Tehsil Rawalakot. It was averred that out of the aforesaid land, the plaintiff and proforma Defendants No. 2 and 3 are owners to the extent of land measuring 2 kanal, 12 marla, from khewat No. 65 and Defendant No. 1 forcibly taken into possession the said land. Alongwith the suit an application for interim relief was also filed. Initially, the status quo order was issued by the trial Court, however, after having the objections from the other side, the same was vacated on 20.06.2017 while fixing the case for framing the issues. Feeling dissatisfied from the said order, the plaintiff-appellant filed an appeal before the District Judge Rawalakot which was made over to the Additional District Judge, Rawalakot. The learned Additional District Judge after hearing the parties not only dismissed the appeal but also rejected the plaint under Order VII, Rule 11, CPC, vide judgment and decree dated 12.10.2017. Against the said judgment and decree the appellant preferred second appeal before the High Court which has also been dismissed through the impugned judgment, hence, this appeal by leave of the Court.
3. At the very outset, a preliminary objection has been raised by Sardar Shamshad Hussain Khan, Advocate, the learned counsel for the respondents that the second appeal before the High Court was not maintainable. He added that under Section 96 of the CPC an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. In this case, the learned Additional District Judge passed the decree in exercise of its revisional jurisdiction and not the original, hence, the appeal before the High Court was not competent. In support of his arguments, he referred to and relied upon the cases reported as Murtaza Hussain vs. Abdul Aziz & others [2014 SCR 1091], Ghulam Sarwar & others vs. Mst. Sultan Bibi & others [1989 MLD 4873] and Abdul Razzak vs. The Collector & another [1995 CLC 1453].
4. While meeting the preliminary objection, the learned counsel for the appellant has placed on record the copy of an unreported judgment of this Court delivered in the case titled Muzaffar Hussain vs. Hussain Khan [Civil Appeal No. 189 of 2017 decided on 11.10.2017] and submitted that in the referred case the plaint was rejected in the revisional jurisdiction, however, this Court held that the order of rejection was a decree, hence, was appealable under Section 96 of CPC.
5. Keeping in view the preliminary objection raised by the learned counsel for the respondents, we have perused the record which shows that the plaintiff-appellant filed a suit for declaration and possession before the trial Court along with an application for interim relief. Initially, the interim relief was granted by the trial Court, however, the. same was subsequently vacated. The plaintiff- appellant filed an appeal before the Additional District Judge, Rawalakot. The learned Additional District Judge not only dismissed the appeal but also rejected the plaint under Order VII, Rule 11, CPC. The appellant preferred an appeal before the High Court which has also been dismissed.
Under Section 96 of the Civil Procedure Code, 1908, an appeal lies from the decree passed by any Court exercising original jurisdiction. For proper appreciation Section 96 is reproduced as under: "96. Appeal from original decree-(1) Save where otherwise expressly provided in the body of this Code or by any other Law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may, lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties."
It is very much clear that an appeal lies against the decree passed by a Court exercising original jurisdiction and not revisional or appellate jurisdiction. This point has already been dealt with in an authoritative manner by this Court in the case reported as Murtaza Hussain us. Abdul Aziz & others [2014 SCR 1091], in the following manner: "6. Under Section 96 of the Civil Procedure Code, 1908, an appeal lies from the decree passed by any Court exercising original jurisdiction. For proper appreciation Section 96 is reproduced as under: "96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties."
A plain reading of the section shows that under Section 96, CPC, the appeal can be filed from the decree passed by a Court exercising original jurisdiction and not the revisional or appellate jurisdiction; In the case reported as Abdul Razzak vs. the Collector of Customs & another [1995 CLC 1453], it has been observed that the first appeal under Section 96, CPC, lies from a decree passed by a Court in original jurisdiction and not in revisional jurisdiction. It was observed in the report as under: ............The argument seems to be well-taken and it appears to me that the first appeals under reference are not maintainable for the simple reason that the decrees, in the nature of rejections of plaints, were passed not by a Court "exercising original jurisdiction" but by one, which had acted in furtherance of its revisional powers. The revisional orders themselves were passed at a time when revisions, under Section 115 of the Code of Civil Procedure, could competently be brought either in this Court or could be taken to the relevant District Court, depending on circumstances, which are not material for our purpose. What is material, however, is that if a revision was taken before the District Judge a further revision under Section 115(3) aforesaid couldn't be entertained in this Court.
The first appeals cannot, therefore, be treated as Civil Revisions either."
In the case reported as Khan Muhammad vs. Mahmood & another [2001 MLD 414], the trial Court refused to reject the plaint under Order 7, Rule 11, CPC. A revision petition was filed before the District Judge. The District Judge accepted the revision petition and rejected the plaint. Regular first appeal was filed in the High Court. The High Court observed that the appeal to the High Court would lie if the Court has passed the judgment by exercising original jurisdiction. It was observed at page 416 as under: "..........The appeal to the High Court would lie only if the Court by exercising original jurisdiction has passed the judgment. In the instant case the Additional District Judge has rejected the original jurisdiction because the trial Court had dismissed the application filed by the respondents for rejection of plaint under Order 7, Rule 11, CPC. The arguments advanced by the learned counsel for the respondents having force, therefore, in agreeing with the dictum laid down in the case of Abdul Razzaq (supra) by the learned counsel for the respondents I am of the view that the present appeal is not maintainable against the judgment passed by the Additional District Judge in exercise of its revisional jurisdiction, hence the same is dismissed. However, the appellant may avail of the alternate remedy under the law and the office is directed to return the original documents/certified copies of the Annexures to the learned counsel for the appellant after retaining the Photostat copies of the same."
In the case reported as Syed Qadir Bakhsh Shah & others vs. Additional District. Judge, Dera Ghazi Khan & others [2004 SCMR 1638] the Supreme Court of Pakistan observed that the first appeal under Section 96, CPC, is only competent if the Court has passed a decree in original jurisdiction and a decree passed in revisional jurisdiction is not appealable. It was observed in Para 5 of the judgment as under: "5. We are of the view that the very idea that the order of learned District Judge was appealable under Section 96, CPC, is not in accordance with law, Only those orders and judgments are appealable under Section. 96, CPC, where the lower Court happened to exercise original jurisdiction. In the instant case the District Judge had passed the order in his revisional jurisdiction and not original jurisdiction. The question of appeal under Section 96, CPC, is referable to the nature of jurisdiction exercised and not to the nature of order passed."
Similarly, in the case reported as Kaley Khan vs. Additional District Judge, Multan & 3 others [2006 MLD 210], a suit was filed. The defendant moved an application for rejection of the plaint. The trial Court dismissed the application. The District Judge accepted the revision petition and rejected the plaint. The High Court observed that the appeal is not competent against the order of rejection of the plaint by the District Judge in revisional jurisdiction. It was observed as under: "6. Now the facts of the said case were that the application filed by a defendant in a suit, for rejection of plaint, was dismissed by the learned trial Court but was allowed by a learned Additional District Judge in exercise of revisional jurisdiction. The observations made by this Court that the order passed by the ADJ being for rejection of plaint and a decree in terms of Section 2(2), C.P.C. it was appealable under Section 96, C.P.C. It was in this context that the aforenoted observations were made by the Hon'ble Supreme Court of Pakistan. In view of the said opinion recorded by the Hon'ble Supreme Court of Pakistan, we have nothing further to say and respectfully following the same, we do hold that, in the circumstances of the present case, a Regular first Appeal under Section 96, C.P.C, would not be available against the orders passed by revisional Courts rejecting the plaints."
In the case in hand, the plaint was rejected by the Additional District Judge under Order VII, Rule 11, CPC, in exercise of revisional jurisdiction and not in original jurisdiction, therefore, in view of Section 96, CPC, and rule of law laid down in the judgment (supra), the appeal before the High Court was not competent.
6. So far as the unreported judgment referred to by the learned counsel for the appellant, is concerned, in the said case the proposition, as involved in this case, was neither specifically raised nor authoritatively resolved rather the appeal was dismissed by the High Court on the main ground that decree was not appended with the memorandum of appeal.
The preliminary objection raised by the learned counsel for the respondent prevails. Consequently, this appeal is dismissed. No order as to costs.