This petition for leave to appeal has been directed against the judgment and decree of the High Court dated 23.05.2023, whereby, the appeal filed by petitioner, herein, has been dismissed.
2. The facts of the case briefly stated are that the plaintiff/petitioner, herein, filed a suit for declaration, perpetual injunction and cancellation of decree dated 26.05.2015, in respect of the land comprising khewat No. 253, survey No. 59, measuring 4 kanal, 16 marla, situate at Ramsar, Chakar, against the defendants/ respondents, herein, in the Court of Civil Judge, Chikar. It was averred that the plaintiff purchased the suit land vide sale-deed dated 21.02.2000 and is in possession of the same as owner. It was further averred that the defendants in connivance with each other filed a suit titled Ghulam Hussain vs. Muhammad Miskeen & others for cancellation of sale-deed dated 26.05.2015 and also obtained Compromise decree dated 26.05.2015, fraudulently, without impleading the plaintiff. The defendants filed an application for rejection of the plaint under Order VII, Rule 11, CPC, which was rejected vide order dated 20.10.2018 and they were directed to file written statement. Against the said order passed by the trial Court, a revision petition was filed before the District Judge, Jehlum Valley on 01.11.2018. The learned District Judge, Jehlum Valley, after necessary proceedings, accepted the revision petition, set aside the order of the trial Court dated 20.10.2018 and while allowing the application filed by the defendants under Order VII, Rule 11, CPC, rejected the plaint, vide order/judgment dated 26.02.2020. Against the said order/judgment, plaintiff/petitioner, herein, filed an appeal before the learned High Court. The learned High Court, after hearing the parties, dismissed the appeal vide impugned judgment and decree dated 23.05.2023, hence, this petition for leave to appeal.
3. Mr. Shahzad Shafi Awan, the learned Advocate representing the petitioner, submitted that the learned District Judge, Jehlum Valley, rejected the plaint vide judgment dated 26.02.2020. Rejection of plaint under Order VII, Rule 11, CPC, in exercise of revisional jurisdiction is a decree and appeal lies against a decree under Section 96, CPC. In support of his submission, the learned counsel referred to the case titled Muzaffar Hussain vs. Hussain Khan & others (Civil Appeal No. 189 of 2017, decided on 11.10.2017) and stated that in the said case this Court has held that against the rejection order of the plaint passed by the District Judge under Order VII, Rule 11, CPC, in exercise of revisional jurisdiction, appeal can be filed before the High Court. The learned counsel further submitted that the judgment of the High Court is erroneous and illegal being based on wrong appreciation of the facts and law. He added that the question of incompetency of appeal has not been raised before the High Court, hence, the same cannot be considered by this Court. He lastly submitted that important legal question of public importance is involved in this petition, hence, grant of leave is justified.
4. While controverting the arguments of the learned counsel for the petitioner, Mr. Shahid Ali Awan, the learned Advocate representing the respondents submitted that appeal before the High Court was not maintainable. He added that under Section 96 of the Code of Civil Procedure, an appeal shall lie to the High Court from every decree passed by any Court exercising original jurisdiction. In this case, the learned District Judge, Jehlum Valley passed the decree in exercise of revisional jurisdiction and not in original jurisdiction, hence, the appeal before the High Court was not competent. In support of his submissions, the learned counsel referred to and relied upon the case reported as Abid Hussain vs. Khalid Hussain & 33 others (2022 SCR 664].
5. I have considered the arguments of the learned Advocates representing the parties and have perused the record made available along with the impugned judgment. A perusal of the record reveals that the plaintiff/petitioner, herein, filed a suit for declaration, perpetual injunction and cancellation of decree dated 26.05.2015, in respect of the land comprising khewat No 253, survey No. 59, measuring 4 kanal, 16 marls, situate at Ramsar, Chakar, against the defendants/respondents, herein, in the Court of Civil Judge, Chikar. The defendants filed an application for rejection of the plaint under Order VII, Rule 11, CPC, which was rejected vide order dated 20.10.2018 and they were directed to file written statement. Against the said order passed by the trial Court, a revision petition was filed before the District Judge, Jehlum Valley on 01.11.2018. The learned District Judge, Jehlum Valley, after necessary proceedings, accepted the revision Petition, set aside the order of the trial Court dated 20.10.2018 and while allowing the application filed by the defendants under Order VII, Rule 11, CPC, rejected the plaint, vide order/judgment dated 26.02.2020.
Against the said order/judgment, plaintiff/petitioner, herein, filed an appeal before the learned High Court. The learned High Court, after hearing the parties, dismissed the appeal vide impugned judgment and decree dated 23.05.2023, which is the subject matter of the captioned petition for leave to appeal.
6. Firstly, I would like to attend the question of competency of appeal before the High Court against the judgment of the District Judge, Jehlum Valley. 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 bare perusal of the section (supra) would show that appeal can be filed against the decree passed by a Court exercising original jurisdiction and not 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 another case reported as Khan Muhammad vs. Mahmood & another [2001 MLD 414], the trial Court refused to reject the plaint under Order VII, 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."
Similarly, in the case reported as Syed Qadir Bakhsh Shah & others Vs. Additional District Judge, Dera Ghazi Khan & others [2004 SCMR 1638] the Apex 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."
Likewise, 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."
The same view has been reiterated by this Court in the recent full Court judgment tilted Abid Hussain vs. Khalid Hussain & 33 others [2022 SCR 664] and after referring Section 96 (supra) as well as several case law, it has been observed as under: "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."
In the instant case, the plaint was rejected by the District Judge Jehlum Valley, 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 precedents (supra), the appeal before the High Court was not competent.
The judgment referred to by the learned counsel for the petitioner cannot be considered in the light of the rule of law laid down by this Court in the full Court judgment (supra).
7. So far as, the contention of the learned counsel for the petitioner, that the point raised with regard to the incompetency of appeal was not taken before the High Court, hence, could not be allowed to be raised at the time of arguments before this Court, is concerned, that has no substance in view of law settled by this Court in number of cases. A few may be referred as Syed Muhammad Akram Shah vs. Chairman Allotment Committee [Civil Appeal No. 7 of 1995 decided on 24.7.1995] wherein it was observed that the Allotment Committee had the powers to make allotments under the relevant law. The same being a legal person was not impleaded as a party.
The writ petition was incompetent despite the fact that no objection was raised in this regard. It was also observed that such an objection could be gone into by the Court suo-motu without any objection having been raised from the opposite side. Identical view was taken in the case reported as Qazi Liaquat Ali Qureshi vs. Hafiz Muhammad Ishaque and 3 others [1997 SCR 239], wherein it was observed as under: "......In numerous cases it already stood resolved by this Court that where an effective writ could not have been issued due to non-implement of a necessary party, the objection may not be raised by any aggrieved party as the same could be gone into by the Court suo-motu. The reason for it is obvious that the writ being the discretionary relief the same could not have been issued in absence of necessary party being on the record. Thus in view of the aforesaid discussion the writ petition filed by respondent being incompetent was liable to be dismissed."
Since, we have reached the conclusion that the appeal before the High Court was not competent, therefore, there is no need to discuss the other points raised by the learned counsel for the petitioner The grant of leave in this petition shall create just a false hope and involve the parties into further litigation without any apparent benefit. The same, therefore, stands dismissed.