FAZAL-E-ILAHI KHAN, J:-This revision petition has arisen in the following facts and circumstances:-
2. On 17.7.1982 Juma Din son of Najbuddin made an application in the Court of Senior Civil Judge, D.I. Khan, for grant of Succession Certificate regarding the immovable property situated in District Karachi left by Hamida deceased. Najbuddin and two others were impleaded as respondents to it.
Abdul Ghafoor Saleem also came forward with an objection petition challenging the jurisdiction of the Court on two fold grounds. Firstly; that the property is situated at Karachi and, secondly; that it was the subject matter of litigation there. In support of his objection certain documents were filed along with the objection petition. After hearing both the parties, the objection prevailed with the learned trial Judge and vide his order dated 25.1.1984 the application was returned to the petitioner for presentation before a proper forum. Subsequently on 7.2.1984 Najbuddin, father of Juma Din, applied for the grant of Succession Certificate which was also opposed by Abdul Ghafoor Saleem on the grounds previously raised and on an additional ground that he being the purchaser of the property from the deceased, the petitioner as well as the other respondents have got no interest in it. Apart from several other documents he produced judgment and order dated 10.9.1980 of Karachi High Court whereby he was ordered to be made a party in the suit regarding the disputed property.
The learned Senior Civil Judge, in view of the facts stated above, was convinced to hold that the Court of Senior Civil Judge, D.I. Khan, was not a proper forum to entertain the petition as already held and ordered the return of the petition for filing it before the proper forum. The aforementioned order was challenged in appeal before the District Judge, D.I. Khan who after hearing the parties formed his opinion that the order in question was appealable to the High Court returned the appeal. The petitioner instead of challenging the order in revision made an application for review under Order 47 Rule 1 CPC mainly on the ground that the learned District Judge did not consider section 388 of the Succession Act, 1925 while ordering return of the appeal. The learned District Judge in his impugned order observed that there being no error or mistake apparent on the face of the record, interference with the order would not be justified in review. Accordingly he dismissed the application. Hence this revision petition.
3. It was contended by the learned counsel for the petitioner that the learned District Judge misread the law and also fell into an error in overlooking the provisions of section 388 of the Succession Act applicable to the present case. Section 388 of the Act provides that when an inferior Court is invested with the powers to exercise function of District Judge under this part of the Act and when the inferior Court as invested gives a decision in the matter, an appeal from such order of an inferior Court shall lie to the District Judge and not to the High Court.
4. The learned counsel for the respondents while supporting the order in question that appeal against the order of Senior Civil Judge would lie to the High Court relied on Nadeem Jan Qazi and another- Vs Mst.Wazirzadgai etc (PLJ 1974 Peshawar 87) and Mt Durga Devi w/o Kalu Mall and another. Vs. Rup Chand Duni Chand ( A.I.R. 1938 Peshawar 62). The learned counsel further argued that when an order is appealable to the High Court either directly or after taking it before the District Judge, no revision would lie if the intermediate appeal is not filed basing reliance on Municipal Committee. Bahawalpur. Vs Sh.Aziz Elahi reported in P.L.D. 1970 Supreme Court 506.
5. After hearing the learned counsel for both the parties and going through the judgments cited by the learned counsel for the respondents, I am of the view that the learned District Judge was wrong, firstly; in refusing to entertain the appeal and give his decision on merits of the case and, secondly in rejecting the review application. Section 388 of the Succession Act, 1925 on which reliance has been placed by the learned counsel for the petitioner is reproduced as follows:-
(1) "The Provincial Government may, by notification in the official gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part;
(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, having concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge; Provided that an appeal from any such order of an inferior Court as is mentioned in subsection (1) of section 384 shall lie to the District Judge and not to the High Court, and that the District Judge may if he thinks fit by direction as that subsection authorises the High Court to make by its order on an appeal from an order of a District Judge;
(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing subsection shall subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (V of 1908), as applied by Section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings;
(5) A notification under sub-section (1) may specify any inferior Court specially or any clases of such Courts in any local area;
(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the central of a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge."
From plain to this provision of law it is evident that when an inferior Court, Senior Civil Judge in this case, is invested with the powers of District Judge, then under sub-section (2) of section 388 of the Act he would be deemed to have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge and the order of such Court would be appealable to the District Judge and not to the High Court. Admittedly, the dispute raised before the learned Senior Civil Judge pertained to Part X of the Act and the decision given therein falls within the purview of appealable orders, governed by section 388 of the Act. The learned Senior Civil Judge having refused to issue Succession Certificate to the petitioner for lack of jurisdiction, his order was appealable to the District Judge in this articular case reading section 384 with section 388, though generally the order of refusal is appealable to the High Court.
6. The authorities relied upon by the learned counsel for the respondents are not applicable to the facts of the present case, In Nadeem Jan Qazi Vs. Mst Wazirzadgai etc (PLJ 1974 Peshawar 87), the facts were somewhat different, as in that case the ing to revoke the Succession Certificate granted to the respondents was simply held not appealable. In that case neither the matter in issue was involved nor section 388 of the Succession Act came for consideration before their Lordship.
Similarly, in Mst. Durga Devi's case though the Sub-Judge had been invested with powers to hear applications under the Succession Act but as no notification was issued in this respect in the official Gazette as required under subsection (1) of Section 388 of the Act hence appeal against the order of Senior Civil Judge was held competent before the Judicial Commissioner Court and not before the Court of District Judge. No such question was raised before me. In this case no prayer is made for setting aside the order of the Senior Civil Judge by this Court rather it has been prayed in the petition that the learned District Judge misread the section of law by reading section 382 for section 384 and 388 while passing his order which fact is apparent on the face of the record. The judgment cited as Municipal Committee Bahawalpur Vs. Sh. Aziz Ellahi (PLD 1970 Supreme Court 506) is, therefore, not applicable to the present case. I may observe here that there should be no apprehension in the minds of the respondents that hearing the appeal on merits would in any manner deprive them of taking the plea of limitation and lack of territorial jurisdiction raised before the learned Senior Civil Judge. The finding and decree of an inferior Court given on the issues including that of territorial jurisdiction is open to interference by the Appellate Authority and that right cannot be taken away because the inferior Court has held that it has got no jurisdiction.
7. For the reasons stated above this revision petition is accepted, the judgment and order of the District Judge, D.I. Khan dated 12.4.1987 is set aside and the case is remanded back to him with the direction that the appeal be decided on merits after hearing both the .Learned counsel for the parties.