' These are four Civil Revision Applications bearing Nos. 216/1982, 247/1982, 274/1982 and 275/1982.
Revision Applications No. 216/1982 has been filed by Morio Goth Welfare Association against Muhammad Bachal and others whereas Revision Application No. 247/1982 has been filed by one Muhammad Iqbal against. Muhammad Bachal and others. Revision Applications Nos. 274 and 275 of 1982 have been filed by the Deputy Commissioner, Karachi (East) and another against Muhammad Bachal and others. These four Civil Revision Applications arise out of the same judgment and decree, dated 19-1-1980 passed by the Vth Senior Civil Judge, Karachi as upheld by the IVth Additional District Judge, Karachi by his judgment, dated 18-7-1982 in Civil Appeals Nos. 70 and 71 of 1980.
2. The facts leading to these Revision Applications, in brief, are that on 4-8-1976 the applicant No. 2 (Mukhtiarkar Karachi, East), in Civil Revision Applications Nos. 274 and 275 of 1982, issued a notice to respondent No. 1 (Muhammad Bachal) and one Nisar which reads as under: - "It has been reported that you are unauthorisedly encroaching upon Govermnent land which is in between Railway line and Moo Goth. You are, therefore, directed to stop the work forthwith and appear before me on 7-8-1976 at 10 a.m. and file your statement in the matter failing which legal action will be taken against you."
3. On receipt of the above notice, respondents Nos. 1 to 5. in all the Revisions, on 31-8-1976 filed a suit bearing No. 1866/1976 in the Court of Vth Senior Civil Judge, Karachi against the applicants in Revision Applications Nos. 274 and 275 of 1982, namely, the Deputy Commissioner, Karachi (East) and Mukhtiarkar, Karachi (East) praying for the following reliefs:- "(i) For declaration that Notice No. SGL/2114 of 1976, dated 4th August, 1976 (Annexure "J") is illegal, against law, without jurisdiction, mala fide, void, nullity in law, in excess of jurisdic tion, and of no legal effect and the plaintiffs are competent and/or entitled to use and enjoy in whatsoever manners the said land bearing Survey No. 164 known as 'Morio Khan Goth' situated in Deh Saforan, Tappo Sunghal, Taluka and District Karachi and they have right to raise construction of houses on the said land.
(ii) For permanent injunction restraining the defendants, their employees, servants and/or any other persons claiming through them from dispossessing the plaintiffs from the land and/or portion thereof bearing Survey No. 164 known as 'Morio Khan Goth' situated in Deh Saforan, Tappo Sunghal, Taluka and district Karachi and also restraining them from interfering with use and enjoyment of the plaintiffs of the said land and/or restraining them from preventing the plaintiffs from raising construction of houses on the said land.
(iii) Costs of the suit.
(iv) Any other reliefs grantable to the plaintiffs in the interest of justice."
' Summons in the said suit were issued to the said applicants who filed a joint written statement through a Government pleader.
4. On 24-11-1976 the Advocate for the said applicants filed an application under Order VII, rule 11 read with section 151, C.P.C. for rejection of the plaint on the ground inter alia, that the jurisdiction of the Civil Court was barred under the provisions of Sind Public Property (Removal of Encroachment)
Act, 1975. Meanwhile, issues were framed and the matter was set down for evidence. The issues read as follows:- "(1) Whether the deceased was the owner of the piece of land measuring 5 Acres 14 Ghuntas of Survey No. 164, Deh Saforan', Tappo Sunghal, Karachi and after his death, the plaintiffs are the owners of the land?
(2) Whether Notice No. SCL/2114 of 1976 dated 4-8-1976 issued under section 3 of Sind Public Property (Removal of Encroachment) Act, 1975 and the action contemplated therein is illegal, without jurisdiction, mala fide and of no legal effect?
(3) Whether land in dispute is the Government land?
(4) Whether the land in suit is situated in between Railway Line and Mario Goth?
(5) Whether the suit is barred under section 11 of Sind Public Property (Removal of Encroachment)
Act?
(6) Whether the suit is not maintainable in law?
(7) What should the decree be?"
5. Learned counsel for the said applicants, however, on 24-11-1976 made an application that the application under Order VII, rule 11, C.P.C. be decided first which request was granted by the learned Senior Civil Judge and the matter was put off for hearing of the said application to 14-12-1977 but was adjourned from time to time. In the meantime learned counsel appearing for the said applicants was replaced by another Government pleader who on 10-1-1979 gave a statement that "he does not press the application under Order VII, rule 11, C.P.C. "The suit was then set down for evidence, and was ultimately decreed ex parte in favour of respondents 1 to 5 by the judgment and decree dated 19-1-1980 as the applicants and their counsel remained absent.
6. There was no appeal filed by the applicants/defendants against the said judgment. However, the applicants in Civil Revision Applications Nos. 216 and 247 of 1982 filed an appeal before the learned District Judge, Karachi. on 10-12-1980. Since the applicants in the said two Revisions were not party in the suit, an application for leave to prefer an appeal was also filed on 18-12-1980. Notice of this application was issued to the respondents. The learned IVth Additional District Judge, Karachi to whom the matter had been transferred by the learned District Judge, Karachi, allowed the said application for leave to prefer appeal by his order, dated 26-9-1981. The appeal was, however, heard by the Successor Judge who dismissed it by his judgment, dated 18-7-1982 which has been impugned in all the four Revisions, referred to above. It may be mentioned here that the applicants in Revision Applications Nos. 274 and 275 of 1982, though did not prefer any appeal before the learned appellate Court against the judgment and decree dated 19-1-1980 passed by the learned Civil Judge, were made respondents in the Civil Appeals Nos. 70 and 71 of 1980, filed by the applicants who have preferred Revision Applications Nos. 216 and 247 of 1982.
7. It is necessary to mention here that the learned Civil Judge gave findings on issues Nos. 1 and 2 in affirmative and gave findings on issues Nos. 3 to 6 in affirmative without any discussions as no evidence was led on behalf of the defendants (Applicants in Revision Nos. 274 and 275), on whom there was burden to prove the said issues. The learned Additional District Judge who appears to have dismissed the appeal on the point of its maintainability did not discuss the legal issues raised by the defendants (Respondents Nos. 6 and 7) in the said appeals as to the point of jurisdiction and maintainability of the suit itself.
8. I have heard at length Mr. Moinuddin Ahmed, learned counsel for the applicants in Civil Revision Applications. Nos. 216 and 247 of 1982 and respondent No. 6 in Revision Applications Nos. 274 and 275 of 1982 Mr. Abdul Sattar Shaikh, Additional Advocate-General for applicants in Civil Revision Applications Nos. 274 and 275 of 1982 and respondents Nos 6 and 7 in Civil Revision Applications Nos. 216 and 247 of 1982 and Messrs Abbas Zia and Khalilur Rehman learned counsel for respondents Nos. 1 to 5 in all the four Revisions. Learned counsel for the parties also produced several documents during the course of arguments which were brought on record by the cobsent of the parties.
9. Learned counsel for the applicants in all the four Revisions as their first and foremost contention submitted that the suit was not properly framed inasmuch as the Government of Sind was not made a party to the suit. Reliance was placed on rule 8 of Order XXVII, C.P.C. and a Division Bench decision of the earstwhile High Court of Sind and Baluchistan, Karachi, reported as Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar.
625.
10. In order to appreciate the submission of the learned counsel it is relevant to reproduce the provision of Order XXVII, rule 8, C.P.C. which is as under:- "8. Procedure in suits against Public Officer.-- When the Government undertakes the defence of a suit against a Public Officer the Government pleader, upon being furnished with authority to appear and answer the plaintiff, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
(2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties: Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of decree."
11. It is evident from the title of the plaint that the suit was filed against the Deputy Commissioner (East), Karachi and the Mukhtiarkar of Karachi (East). It will further be seen that where no application is made by the Government pleader under sub-rule (2) above "the case shall proceed as in a suit between the private parties". In the present case the Assistant Government Pleader who appeared for the defendants (Applicants in Civil Revisions Nos. 274 and 275 of 1982) did not make any application as contemplated by sub-rule (2) of rule 8, C.P.C. quoted above. It is, therefore, apparent that the suit proceeded as if it was a suit between private parties. In the facts and circumstances of the case, it cannot be denied that the Government of Sind was a necessary party to the suit but was not made to it. Needless to say that when a suit is to be filed against a Provincial Government due regard is to be paid to the provisions of section 79, C.P.C., which in this case has not been adhered to. The learned Courts below exercised the jurisdiction illegally in decreeing the suit against the above-said two defendants, which purports to be passed against them in their official capacity which could not be done without impleading the Government of Sind as a party to the suit.
12. The suit as framed was, therefore, not maintainable. Reliance has rightly been placed by the learned counsel for the applicants on the decision PLD 1971 Kar.
625. However, counsel for the respondents made to submission in answer to this contention of the applicants.
13. The second contention as raised by the learned counsel for the above applicants is that the civil Court had no jurisdiction' to entertain the suit. It was submitted by the learned counsel for the applicants that looking to the contents of the plaint, as a whole, particularly its prayer clause, the relief was sought for declaration that the notice, dated 4-8-1976 issued by the Mukhtiarkar for removal of encroachment was illegal. The affidavit sworn in by the Deputy Commissioner, East (defendant No. 1) as well as the written statement filed by the defendants go to show that the impugned notice was issued under section 3 of the Sind Public Property (Removal of Encroachment) Act, 1975 calling upon the respondents (plaintiffs) to stop the work and to appear before him and file their statement on the ground that the respondents (plaintiffs) were unauthorisedly encroaching upon Government land and the respondents (plaintiffs) had sold the Government land to the outsiders who had raised the construction. The matter was also referred by the Mukhtiarkar of Karachi to the S.H.O., Airport Police Station, Karachi for eviction of the respondents (plaintiffs) from the said land. It will be advantageous to reproduce below the relevant provisions of section 2(h) defining the "Public property". Section 11(1) relating to the bar of jurisdiction of the civil Court and section 13 giving exclusive jurisdic tion to the Tribunal constituted under the Sind Public Property (Removal of Encroachment) Act, 1975, which read as under:-
14. "2
15. (h) 'public property' means a building, land, place or premises vesting in, or under the management or control of, Government, local council, autonomous body, or such other authority."
16.
11. Bar of jurisdiction and abatement of suits.--(1) No civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, or anything done or intended to be done under this Act."
17. (2)
18.
13. Exclusive Jurisdiction.-- A Tribunal shall have exclusive jurisdic tion to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act."
19. ' Reliance has been placed by the learned counsel for the applicants on a decision of a learned Single Judge of this Court (as he then was) reported as Murad Bux v. Haridas and 4 others PLD 1975 Kar.
1046. On the other hand M/s. Zia Abbas and Khalilur Rehman, learned counsel for the respondents placed their reliance on the case reported as Karachi Municipal Corporation v. Ali Hussain PLD 1976 Kar. 997 of another learned Single Judge of this Court (now a Judge of the Supreme Court)..
The case cited by the learned counsel for the respondents has no relevance to the present case. In that case the dispute in appeal pending before the civil Court related to a question whether the agreement between the parties constituted a lease or a licence. Learned counsel for the respondents also cited an unreported judgment in Revision Application 258/1975, decided by me on 14-2-1985. The facts of that case also differ from the present one inasmuch as in that case though initially in 1965 there was admittedly an encroachment but later on the Karachi Development Authority on 27-5-1969 had agreed to regularize the possession on the payment of the cost of land and penalty. In the present case the dispute relates to the nature of the land itself whether the land in question is "not a public property" as alleged by the respondents/plaintiffs as per impugned notice issued by the Mukhtiarkar which forms basis of the suit. The instant dispute, therefore, relates to certain land which is claimed to be a public property by the applicants whereas according to the respondents (plaintiffs) it is not public property. The dispute, thus, falling within the ambit of section 11(1) of the provisions of Sind Public Property (Removal of Encroachment) Act, 1975 bars the jurisdiction of the civil Court. The learned Courts below appear to have acted illegally in not considering the averments made in the written statement by the Deputy Commissioner, verified on solemn affirmation and a separate affidavit filed by him, perhaps, in support of the application under Order VII, rule 11, C.P.C.
20.
14. Learned counsel for the applicants in Revision Applications Nos. 216/1982 and 247/1982 also raised a contention that the applicants were necessary and proper parties to the said suit. It had been averred in para. 6 of the plaint that the land in question was meant for village and admittedly there were about 130 houses, hostels, one college, two schools, six hotels and markets which are owned by hundreds of persons there, and exist on the said land in their actual possession. It was alleged in written statement that the respondents/plaintiffs were unauthorisedly selling land to various persons. Efforts were, however, being made by the occupants of the land including applicants in Revision Nos. 216 and 247 of 1982 for regularization of their possession. In this respect, a letter, dated 30-5-1978 issued by Assistant Commissioner (Development) for Commissioner Karachi, addressed to the Deputy Commissioner (East), Karachi has also been placed on record.
The documents filed by the applicants in Civil Revision Applications Nos. 216 and 247 also go to show that the land in question measuring 5 Acres and 14 Ghuntas, out of Survey No. 164 was sanctioned by the Government for the residential purpose of the villagers which is inhabited by a large number of persons who appear to have formed into an association. The members of the said Association and the applicant in Revision Application No. 247 Muhammad lqbal, who is one of the occupants are to be adversely affected, as the decree for an unfettered right to use and enjoy the land in question was sought behind their back. The applicants were paying taxes including property tax to the Government and were also making efforts, as long back as in,1955, for mutation of their names in the Record-of-Rights and for regularization of their possession which is under consideration of the Government. It, therefore, appears that the applicants in Civil Revisions Nos.
216 and 247 of 1982 were the necessary and proper parties who ought to have been joined as parties to the said suit, as was also observed by the learned Additional District Judge, while granting permission to prefer the appeals, as under:-
21. "The appellants are residents of the Morio Goth, which is occupied by the displaced persons. It is said that there are mosques, hospital, a degree college and Eidgah. It is contended that residents are paying taxes including property tax to the Government. It is further contended that by the appellants that Muhammad Bachal one of the respondent had moved application in year, 1955 for mutation of his name in Records-of-Rights in place of his late father Morio Khan, which was rejected by Collector under his No. Rev./5403, dated 24-9-1955 on the ground that Morio Goth was sanctioned as village known as Norio Goth' and it was not the personal property of late Morio Khan."
22. "(7) The only reasonable approach that requires to be thrashed out is whether the appellants in both the appeals are adversely affected or not. I have discussed to some extent, circumstances of the contention raised by the two appellants. Admittedly the suit of the respondents 1 to 5 contained prayer for declaration for using and enjoying the S. No. 164 in any manner. The claim of the appellants is that they are occupants of the S. No. 164 in dispute. It will not only be safe to allow the request of appellants in order to protect their interests but interest of justice demand that permission sought may be granted.
23. In view of the above circumstances I allow the applications, dated 18-2-1980 of the appellants in the Appeals Nos. 70/80 and 71/80, seeking leave to prefer appeals."
24. It is, therefore, contended by the learned counsel for the applicants that the learned Additional District Judge acted illegally in revising the order dated 26-9-1981 passed by his learned predecessor granting leave to prefer the appeals after hearing the parties.
25. Learned counsel for the applicants referred to a case reported as S.M. Says & Co., Karachi v.
Wazir All Industries Ltd., Karachi and another PLD 1969 SC 65. It would be of advantage to quote the following observations of the Supreme Court:-
26. "A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressely provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders.
These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings."
27. Mr. Khalilur Rehman, learned counsel for the respondents, on the other hand relied on an unreported judgment of a Division Bench of this Court in H.C.A. No. 72/1981--Karachi Development Authority v. Haji Ghulam Ali and others. The facts of that case are distiguishable inasmuch as the point at issue in that case was whether the local authority or the company for which the land had been acquired could file an appeal under section 54 of the Land Acquisition Act. The learned Judges after noticing a number of judgments both from India and Pakistan came to the conclusion that no such appeal could be filed as the proviso to section 50 of the Land Acquisition Act and made it clear that where the land was being acquired at the cost of any fund controlled or managed by the Local Authority or a company, no such local authority or company was entitled to 'demand a reference under section 18 of the Land Acquisition Act and so there could not have been right of appeal to them under section 54 of the said Act as they could not claim to be persons interested or affected by the judgment of the Court under section 20 of the Land Acquisition Act, whereas there is no legal bar, in the facts and circumstances of the case, for the appellants to defend the suit or prefer an appeal. On the contrary they have a right to defend and prefer appeal when they have been shown as necessary and proper party to be joined in the proceedings having an interest in the land in question.
28. It is also noticeable that the permission to prefer appeal was granted earlier without any condition, whereas the learned Judge deciding the appeal imported the words "subject to consideration of point as to whether appellants are affected adversely in any way by the impugned judgment/decree" as observed by him in the impugned judgment. The learned Judge, in the circumstances, as stated above, appears to have misread the order, dated 26-9-1981 and have acted illegally in revising the order of his learned predecessor.
29. M/s. Moinuddin and Abdul Satter Shaikh learned counsel for the applicants in the above-said four Revisions have also raised a plea that in the suit the decree was obtained in collusion between respondents Nos. 1 to 5 and the learned Assistant Government Pleader who, later on, appeared in the civil Court. Learned counsel took me through the diary of the suit and submitted that the former Advocate appeared on behalf of the defendants viz. Deputy Commissioner and Mukhtiarkar, on 15- 11-1976. On 24-11-1976 he filed written statement, counter-affidavit to the injunction application of the respondents/plaintiffs and an application under Order VII, rule 11, C.P.C. on behalf of the said applicants/defendants. The matter was then adjourned from time to time and ultimately it was fixed on 26-11-1977 for evidence. On 26-11-1977 the said Advocate requested the Court that his application under Order VII, rule 11, C.P.C. be first heard and decided. The matter was then adjourned for hearing of the said application on various dates, when on 22-5-1979 another Government pleader filed his memo. of appearance in the suit. The matter was then adjourned to 28-5-1978 for hearing of the said application under Order VII, rule 11, C.P-.C. and thereafter adjourned to a number of dates for the same purpose but on 10-1-1979 the said Government pleader made a statement before the Court that "he does not press the application under Order VII, rule 11, C.P.C.", which was accordingly dismissed and the matter was put off for evidence. Thereafter the matter was adjourned from one date to the other for evidence on several dates but none was present for the defendants. The evidence for the respondents/plaintiffs was, however, recorded in the abSence of the said applicants/defendants. Thereafter, the matter was adjourned to 10-1-1981) for the evidence or defendants/applicants in Revision Applications Nos. 274 and 275 of 1982. On 10- 1-1980, again, none was present on their behalf. The matter was, however, adjourned to 17-1-1980 but, on that date too none was present for them. Their side was, therefore, closed and the matter was adjourned to 19-1-1980 for judgment. On 19-1-1980 the judgment was passed decreeing the suit in presence of the Advocates as stated in the diary. Mr. Moinuddin submitted that withdrawing the application under Order VII, rule 11, C.P.C. by the counsel appearing for the defendants (Deputy Commis sioner and Mukhtiarkar) and then absenting himself without making any application for adjounment or taking any step in the proceedings amounts to collusion. As it seems to me, the conduct of the learned counsel appearing for the said two applicants/defendants may amount to professional delinquency but mere withdrawal of the said application and non-appearance on certain dates cannot be said that the act and omission on the part of the learned counsel were collusive with respondents/plaintiffs Nos. 1 to 5.
30. Mr. Moinuddin and -Mr. Abdul Sattar Shaikh also raised a number of other pleas such as the suit was time-barred as the deceased Morio having died in 1984 the application for mutation made by the respondents Nos. 1 to 5 was rejected by the Revenue Authorities as long back as on 24-9-1955 which became final under the Sind Land Revenue Code, or that the suit was barred by section 42 of the Specific Relief Act, 1877 as the said respondents have failed to claim any relief for possession of the said land of which they are not in possession or that the suit has not been properly valued and the learned Civil Judge had no pecuniary jurisdiction to try the suit and lastly that the disputed land was not the personal property of late Morio Khan and the learned Courts below have misread the documentary evidence in this behalf. But, as I am of the view that the Revision applications most succeed on the ground that the suit as framed was not maintainable under Order XXVII, rule 8 read with section 79, C.P.C. and that the civil Court had no jurisdiction to entertain the suit because of the bar as imposed by section 11 read with section 13 of the Sind Encroachment of Public Property Act, 1975, it is not necessary for me to examine the legality or otherwise of the view expressed by the two Courts below that the suit property was the personal property of late Morio Khan which devolved by inheritance upon the respondents Nos. 1 to 5 or that there was a Bezari (Relinquishment) by late Morio Khan in favour of the Government, as alleged by the applicants or for that matter the other legal and factual pleas referred to hereinabove, as it may prejudice the case of the respondents before the Tribunal constituted under the Sind Encroachment of Public Property Act, 1975. For this, reliance is placed by me on Collector, Central Excise and Land Customs v. Aslam All Shah PLD 1985 SC 82 and M.O. Ghani v. A.N.M. Mahmood PLD 1966 SC 802.
31. However, before parting with these cases, I would like to deal with the last two contentions that were raised by Mr. Abbas Zia, learned counsel for respondents Nos. 1 to 5 about the maintainability of two revision applications bearing Nos. 274 and 275 of 1982 and the scope of Revision under section 115, C.P.C. Learned counsel contended that since no appeal was preferred by the Deputy Commissioner and the Mukhtiarkar, no Revision is competent by them.
32. Mr. Abbas Zia placed his reliance on a case reported as Municipal Committee, Bahawalpur v.
Sh. Aziz Elahi PLD 1970 SC 506. No doubt the Supreme Court, in the above case came to the conclusion that--
33. "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."
34. ' But it is also noticeable in the said case that--
35. "This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not. Normally, where the applicant has no other remedy left, the High Courts are inclined to take a liberal view."
36. On the other hand Mr. Abdul Sattar Shaikh placed his reliance on a Full Bench decision of Lahore High Court reported as Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore PLD 1954 Lah. 490 and a Supreme Court decision reported as Messrs S.M. Yusuf & Bros. v. Muhammad Mehdi Pooya and another PLD 1965 SC 15 and referred to the provisions of Order XLI, rule 33 of the Code of Civil Procedure, 1908. It is explit in the law itself that Order XLI, rule 33 relates to the power of an appellate Court to pass any decree and make any order which ought to have been passed or made by the trial Court and to pass or make such further or other decree or order as the case may require and this power may be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. PLD 1965 SC 15 and if the provisions of Order XLI, rule 33 are not taken into consideration, in proper cases, the High Court can entertain the same in a Revision application. It finds support from the Full Bench decision of the Lahore High Court, referred to above. In those appeals filed by the applicants in Revisions Nos. 216 and 247 of 1982, the Government functionaries were shown in the array of respondents and since the learned Additional District Judge while hearing the said appeals failed to consider whether he should have exercised his powers under Order XLI, rule 33, it can be urged through these revision applications and it can be a legitimate ground for interference with his decree, under section 115, C.P.C. Even apart from Order XLI, rule 33 regard may be had to general principles that a revision will be competent by a respondent in an appeal, if he feels aggrieved by the order passed in appeal. In this respect I may refer to ground (r) mentioned in the Revision Applications Nos. 274 and 275 of 1982 which is specific on the point that "the learned First appellate Court did not take into consideration the aforesaid legal pleas so-much-so none of them were even dealt with in its judgment although all the aforesaid legal pleas were raised during the course of hearing of the appeal. This is also supported by the affidavit of Mukhtiarkar.
37. Even otherwise, the supervisory powers of the High Court vested in it under Article 203 of the Constitution of Pakistan, 1973 are also available. For the exercise of such power reliance may be placed on a decision of this Court reported as Farida Parwin v. Qadeeruddin Ahmad PLD 1971 Kar.
119 in which it has been laid down that High Court is empowered to exercise the judicial control over decisions of subordinate Courts to correction of exercise of jurisdiction or non-compliance of
38. any statutory provisions or law. An earlier decision on the same point of the Lahore High Court in Muhammad Siddiq v. Syed Ali Shah and another PLD 1976 Lah. 293 may also be referred to. As another reason for invoking Article 203 in exercise of the supervisory jurisdiction of this Court I may also refer to a special circumstance pleaded by the applicants in ground (e) of the grounds taken in the memo. of Revision that "the learned Courts below did not take into consideration that the decree passed by the learned trial Court was collusive and was obtained by fraud and misrepresentation which was a case of professional delinquency." In fact, Mr. Abdul Satter Shaikh stated at the Bar that the applicants were not aware of the result of the proceedings in the trial Court which was reason for not filing an appeal before the learned Additional District Judge. It seems that they came to know of the full facts after notices in the appeals filed by the private parties i.e. the applicants in Revision Applications Nos. 216 and 247 of 1982 were served on them.
39. Mr. Abbas Zia laid much stress on the scope of section 115, C.P.C. and relying on a decision of the Supreme Court reported as Jalal Din and others v. Sh. Muhammad Rafiq and others PLD 1969 SC 261 submitted that the findings given by the trial Judge and the appllate Court as to the facts have become final and are not open to be challenged in revisional jurisdiction. Since I have decided the above revisions mainly on the point of jurisdiction the findings of the Courts below have become non-existent and void. Refer M.O. Ghani v. A .N.M. Mahmood PLD 1966 SC 802.
40. For the reasons aforesaid, I accept all the four revisions and set aside the impugned judgments dated 19-1-1980 and 18-7-1982 and decrees passed thereon and dismiss the suit but, in the circumstances, there will be no order as to costs.