Ghulam Sarwar filed a suit against Mst. Sultan Bibi and pro forma defendants 2 to 5 in regard to certain land which was admittedly joint property of the parties. In the suit, the plaintiff had challenged the validity of partition of the land which had been ordered by the Tehsildar. It was alleged by the plaintiff that not only the partition proceedings had been conducted ex parte but the mode of partition was also accepted behind his back by fraud and collusion between Revenue authorities and the answering defendant. The plaintiff was aggrieved by the allotment of khasra No.201 new to the answering defendant which was in actual possession. The plaintiff therefore, prayed for a declaration to the effect that the order of partition of the disputed land was not only against law and facts land having been procured by collusion and fraud was also void and inaffective against them rights of the plaintiff and defendants 2 to 5 by way of consequential relief, an injunction restraining the answering defendants from interfering with the plaintiffs land was also claimed.
2. The suit was contested by defendant No.1 on a number of legal and factual grounds. During the pendency of the suit, however, the answering defendant made an application for rejection of plaint under Order VII rule 11(d) C.P.C. The application was also resisted. The application was, however, dismissed by the trial Judge. The order of the learned trial Court was challenged by the answering defendant by means of application in revision under subsection (2) of section 115 C.P.C. The learned District Judge, D.I.Khan by his order dated 1-11---1986 while accepting the revision application rejected the plaint under Order VII rule 11 (d) ibid. The view taken by him was that the suit was barred by clause (xviii) of subsection (2) of section 172 of the West Pakistan Revenue Act, 1967 (W.P.Act XVII of 1967). According to the learned Appellate Court since the plaintiff could validly invoke the jurisdiction of the heirarchy of the Revenue Courts to challenge the legality or propriety of the impugned ex parte order of partition and having emitted to do so, the civil Court could not grant the bare declaratory relief under the Proviso to section 42 of the Specific Relief Act, 1877 (Act I of 1877). The plaintiff has, therefore, come up in second appeal to this Court.
3. The Office had raised an objection to the competency of a Regular Second Appeal against the order of rejection of plaint under Order VII rule 11(d) C.P.C. Passed in a revisional order of the District Judge and returned it to the learned counsel for the plaintiff. Therefore the learned counsel "re- submitted the file with the request that in case R.F.A. Is not competent then the same may genuinely be allowed to be treated as a petition under section 151 C.P.C.".
4. Haji Saadullah Khan Miankhel, the learned counsel for the appellants, endeavoured to meet the objection to the maintainability of the Regular First Appeal by contending that the powers of Trial Court and those of Revisional Court are co-extensive and since order of rejection passed by the learned District Judge was a decree by virtue of section 2(2) of the C.P.C. Therefore, the instant appeal would lie.
5. This argument is simply untenable. The impugned order rejecting, the plaint was passed by the learned District Judge in exercise of his revisional jurisdiction and not a Court of original jurisdiction and, therefore, the appeal would not be competent. In Buland Khan v. Chiragh Din 1981 CLC 249, the respondent challenged the order of trial Court in revision before the Additional District judge. The Additional District Judge accepted the revision and dismissed the suit. The plaintiff-petitioner filed Regular First Appeal in order to challenge the order passed in the revision Muhammad Ilyas, J, held the Regular First Appeal to be incompetent. His Lordship also declined to treat the First Appeal as Second Appeal and second revision under subsection (4) of section 115 C.P.C.
6. I am in respectful agreement with the above view of the Lahore High Court. I am, therefore, inclined to hold that where a District Judge passes an order rejecting the plaint in exercise of his revisional jurisdiction and not a Court of original jurisdiction, it would not amenable to Regular First Appeal under section 96. Likewise this appeal also cannot be treated as a Regular Second Appeal because, as held in the case of Buland Khan cited above under section 100 of Code of Civil Procedure Second Appeal can be riled against a decree passed in an appeal by the Court subordinate to the High Court. The decree in the instant case was not passed by the learned District Judge in appeal but in the revision filed by the respondents. Therefore, even Second Al-peal would not be entertainable.
7. The learned counsel for the appellant then maintained that Regular First appeal in hand may be converted into an application under section 151 C.P.C. It is well established that the provisions of section 151 ibid will be attracted, first, where the case is not covered by the express provisions of the Code and secondly, where the procedure as laid down and provided is being abused so as to obstruct the ends of justice. No such situation has either been pointed out or is discernible on the face of record. An order passed under revisional jurisdiction cannot be questioned under section 151 C.P.C. Because both the above conditions are not available to the appellant it would be for the appellant to search for the legal remedy against such order.
8. Lastly, learned counsel for the petitioner on the authority of Spencer Co. v. A. Razak 1987 MLD 2033 urged that the appeal may be treated as constitutional petition in the interest of justice as the order passed by the learned revisional Court is per se illegal. I have been able to Jay my hand on a recent case of Muhammad Akram v. Muhammad Rafi 1989 CLC 15 wherein Akhtar Hassan, J, held that rejection of plaint in revisional jurisdiction could not be assailed in constitutional jurisdiction.
The facts of the Spencer's case are clearly distinguishable. The condition precedent for the conversion of a civil revision into a constitutional petition was the per se illegality of the order passed in the revision petition. The crucial question that requires to be addressed in the case in hand is whether the impugned order of the revisional Court per se is illegal. In this context the learned counsel urged that since the appellant had assailed the partition proceedings conducted by the Tehsildar on the basis of fraud and collusion the appellant's suit was not hit by clause (xviii), subsection (2) of section 172 of the Land Revenue Act, 1967. In support of this proposition he relied on:
(1) Syed Shah v. Khuda Bakhsh PLD 1954 Lah 606, and
(2) Din Muhammad and 6 others v. Mehr A.I Khan and 2 others PLD 1978 Kar. 267
9. As against this S. Mushtaq A.I Shah the learned counsel for the answering respondent, invited my attention to Mir Ahmad Shah v. Muhammad Bakhsh PLD 1985 Pesh.
74. The case of Mir Ahmad Shah is oil all fours to the proposition in hand. In the aforementioned case too, the Revenue Officer had proceeded ex parte in the partition proceedings. In the suit to challenge the order the learned Civil Judge held that he lacked the jurisdiction in view of section 73 of the Land Revenue Act, 1967. The aggrieved plaintiff went up in appeal to the Court of District Judge where an Additional District Judge set aside the order of the trial Court on the ground that dispute between the parties being of civil nature, therefore, it was determinable by a Civil Court under section 9 of the Code of Civil Procedure. The defendant-petitioners filed a petition for revision in this Court wherein Abdul Khaliq Khan, J was pleased to hold that pleas of improvement and ex parte proceedings could be decided only by the authority which conducted the petitioner proceedings and on acceptance of the revision petition, the order of the learned Additional District Judge was set aside and that of the trial Court restored. In the. Instant case, as stated earlier, the appellant instead of approaching .The Revenue Court for setting aside the ex parte proceedings and invoking the jurisdiction of the hierarchy of the Courts on the revenue side has rushed to the civil Court merely because the ex parte proceedings have been taken against him. The question of collusion between the answering respondent and the Revenue authorities in procuring the ex parte decree could validly be agitated firstly before the Tehsildar who had ordered the partition proceedings and/or before the higher Revenue forums. Nothing of this sort was resorted to and the appellant deemed it appropriate to rush to the civil Court which is not permissible. I am clear in my mind that merely because the ex parte proceedings have been taken a question of fraud amenable to the jurisdiction of the Civil Court a/s 97 C.P.C. Had arisen.
10. Lastly, it was argued by the learned counsel for the appellant that the averments in the plaint alone, without reference to defence, are to be considered for decision of the question of jurisdiction and again referred to the cases of Syed Shah and Din Muhammad cried above. The impugned order has not been substantially passed on the perusal of the material other than the averments in the plaint. Nonetheless the law has now undergone a change in this respect. In Nazir Ahmad v.
Ghulam Mehdi 1988 SCMR 824 the august Supreme Court repelled the similar argument and held that upsetting of the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality. It may, however, be pointed out that this proposition was laid down by the Supreme Court in a case under Order VII, Rule 11 C.P.C. Again in the case of Muhammad Akram v. Muhammad Rafi 1989 CLC 15 referred to above, it was held that in order to invoke Order VII, Rule 11 C.P.C., the emphasis that the Court had to confine itself to the contents of the plaint and could not look into the extraneous matters was misplaced because the concept had undergone a change, in that event the material produced in defence could also be kept in mind for rejecting a plaint.
11. Besides being incompetent there is also no substance in this regular first appeal and the same is dismissed leaving the parties to bear their own costs.
H.B.T./G-908/P