1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, in an application under section 115 of the Code of Civil Procedure, whereby an order of the Senior Civil Judge, Sheikhupura, dated the 7th of June 1968, rejecting the plaint under Order VII, rule 11 of the Code of Civil Procedure was set aside and the case remanded for trial by another Civil Judge in the same district.
2. The suit out of which the above revisional application arose was filed by the respondent herein for a declaration that he was the owner in possession of property No. B-IV-S-3-84 as a transferee from the Settlement Department and for a consequential relief for restraining the appellants, who were defendants in the suit, from interfering with his possession.
3. The property consisted of a shop on the ground floor and a chaubara over it which was in the occupation of the respondent. The allegations in the plaint upon which the suit was founded, were that the respondent had entered into an agreement with the appellant No. 2, who was his close friend and neighbour, that the latter would pay the entire price for the property to the Settle--ment Department and in consideration thereof the respondent would execute a deed of association in his favour agreeing to transfer the shop on the ground floor to him but would retain the chaubara for his own residence. In pursuance of the above agreement the respondent purchased a stamp paper and as he had implicit faith in his friend, the said appellant, he appended his signatures thereon even before the deed of association was written out. The appellant No. 2, however, in breach of his undertaking fraudulently drew up a deed of association in favour of the appellant No. 1 and provided therein that the entire property including the chaubara would be transferred to the said appellant. This deed, without being shown to the respondent, was fraudulent--ly got registered with the Settlement Authorities without the respondent's knowledge or consent.
4. Subsequently the appellant No. 1 by a registered deed of sale transferred the entire property in favour of appellant No. 2. Hence the respondent prayed in the plaint for having his title to the property declared after setting aside and cancelling the alleged fraudulent deed of association.
5. This suit was contested by the appellants who denied the allegations contained in the plaint.
6. Thereafter the trial Court before framing issues fixed the case under Order X, rule I of the Code of Civil Procedure for examination of the parties on the 30th of May 1968. On this date the respondent made a statement before the Court admitting that he had entered into the deed of association with the appellant Azizul Hasan and not the appellant Dr. Abdul Karim. He further admitted that the copy of the deed of association, which was marked as Exh. P/1, was the correct copy and that in this transaction no fraud or cheating had been committed against him. He also admitted that the P. T.
7. O. Was issued in the name of the appellant Azizul Hasan who in his turn transferred the property by a registered sale deed to Dr. Abdul Karim. He, however, maintained that according to the agreement the shop only was to go to Dr. Abdul Karim and the chaubara was to be given to him.
8. On the basis of this statement read along with the deed of association the learned Civil Judge found that the deed was in respect of the entire house ("Salam Makan"), and that it was entered into between the respondent and the first appellant, Azizul Hasan. Hence on the admission of the respondent himself he found that he had no cause of action in the suit. The plaint was, accordingly, rejected.
9. This order rejecting the plaint under Order VII, rule 11 of the Code of Civil Procedure, was a decree within the meaning of subsection (2) of section 2 of the Code and was, accordingly, appealable as such. Nevertheless, the respondent went up in revision to the High Court and as already stated the learned Judge relying upon to Single, Bench decisions in the cases of Ghulam Shah Bazshah v.
10. Muhammad Siddiq (PLD 1959 B J 10) and Abdur Rashid v. Abdur Rahim (PLD 1959 Lah. 806) in preference to some other Full Bench decisions of several other High Courts in this sub-continent, overruled the preliminary objection contained in the civil revision petition and set aside the order of the learned Civil Judge.
11. Leave was granted in this case in view of the judicial conflict on the point, namely, as to whether a revision would be competent from an order of a Subordinate Court from which an appeal lay in the first instance to another Court below the High Court.
12. The precise question on which leave was granted has already been considered by this Court in the case of the Municipal Committee, Bahawalpur v. Sh. Aziz Ilahi (PLD 1970 SC 506) where after reviewing a large number of decisions of various High Courts in this sub--continent this Court came to the following conclusion :- "That the Allahbad, Madras, Rajasthan, East Punjab and Patna High Courts have all taken the view that appeal in section 115 of the Code of Civil Procedure includes a second appeal. This view also seems to find support from the decision of the Privy Council in the case of Venkatagiri v. The Hindu Religious Endowments Board, Madras AIR 1949 P C 156."
13. The view thus arrived at was "that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent".
14. On principle also this Court was of the view that there existed "no valid reason for barring the revisional jurisdiction only where an appeal lies directly to the High Court." The Court observed that "to adopt such a narrow interpretation would lead to the result that a party aggrieved from a decree or order from which an appeal lies to the District Judge would try to short-- circuit the procedure prescribed by the Code and come direct to the High Court".
15. Learned counsel for the respondent has, however, drawn our attention to two other cases which had not been noticed in the above decision. The first is the case of the Province of West Pakistan and others v. Ghulam Qadir (PLD 1963 Kar. 337) where Wahiduddin, J. (as he then was) observed that "in law revisional jurisdiction can be exercised by the High Court where no appeal lies to it. The fact that an appeal lies to the lower Court is not a bar to a revision under the above-mentioned provision of law". No reason was, however, given for this conclusion, presumably because, it accorded with his earlier view in the case of Abdul Waheed v. Allah Din (PLD 1960 Kar. 472) which was noticed in the judgment of this Court in the case of the Municipal Committee, Bahawalpur.
16. The second is the case of the Arts Council of Pakistan v. Riazuddin Pirzada (PLD 1969 Kar. 349) where Dorab Patel, J. Sitting singly followed the decisions in the cases of Abdul Waheed v. Allah Din, Abdur Rashid v. Abdur Rahim, Ghulam Shahbaz v. Muhammad Siddiq and the Province of West Pakistan v. Ghulam Qadir. All these decisions except the last were of course noted by this Court in the case of the Municipal Committee, Bahawalpur, and overruled.
17. In this judgment reference has also been made to a Full Bench decision of the West Pakistan High Court in the case of Zafar Ahmad v. Abdul Khaliq (PLD 1964 Kar. 149) where while summarising the propositions deducible from the decisions reviewed by Manzoor Qadir, C. J. (as he then was) the second proposition has thus been set out :- "The High Court cannot exercise this power, if that same matter could have been brought before it by way of appeal."
18. There is no discussion in this judgment with regard to the meaning to be attached to the words "in which no appeal lies thereto," occurring in section 115 of the Code, for, that specific question was not before the Full Bench. The Full Bench was concerned mainly with the question whether section 115 of the Code of the Civil Procedure could be invoked only in respect of a final order at the conclusion of the trial of the whole matter or also in respect of other orders made at intermediate stages in the course of the trial.
19. These decisions do not, therefore, in our view, carry the matter any further, for, the reasonings given in the earlier Single Bench decisions had all been considered by this Court in the case of the Municipal Committee, Bahawalpur. We, accordingly, see no reason to depart from that view.
20. The learned counsel for the respondent also endeavoured to challenge the order of the learned Civil Judge, Sheikhupura, on merits, on the ground that in rejecting the plaint the Court could not travel beyond the allegations contained in the plaint. If the same disclosed a cause of action, the plaint could not be rejected. The provisions of Order X of the Code of Civil Procedure, accord--ing to him, would apply only if the pleadings were ambiguous and not otherwise.
21. In support of this contention reliance has been placed on a decision of the Allahabad High Court in the case of Izzat Ali v. Muhammad Sharafatullah Khan (AIR 1917 All. 355) where Walsh, J. Observed as follows :- "To entitle a Court to dismiss a plaint on the ground that it discloses no cause of action the Court can and must look at the plaint and at nothing else, and if on reading the plaint it is clear that if the allegations are proved in accordance with the plaint there is any sort of cause of action, however trivial, frivolous and doubtful, it is the duty of the Court to hear evidence and decide it on the merits, and where a cause of action is shown on the plaint it is open to a Court to take such evidence and only such evidence as may be necessary to show that there is a complete answer in law to the plaintiff's suit."
22. We do not, however, propose to express any opinion on this question, as, in our view, the respondent should, if so advised, raise this matter in an appropriate proceeding before a competent Court, for, it may be that he may still be able to file an appeal before the appropriate Court invoking in aid the provisions of section 14 of the Limitation Act or principles analogous thereto on the ground that he was bona fide litigating in a Court which lacked jurisdiction.
23. For the reasons given above this appeal must be allowed and it must be held that the revision before the High Court was incompetent. The order of the High Court is, accordingly, set aside and the respondent is left to take such other action as he may be advised.
24. Having regard to the fact that this appeal involved considera--tion of a question of law on which there was considerable conflict of judicial opinion, we make no order as to costs.