Facts giving rise to this civil revision are that the respondents, Mst. Rehmat Bibi and others, riled a suit for specific performance of an agreement to sell certain land. It was alleged by the respondents that a deed incorporating, the said agreement had been executed by the petitioner, Nazir Hussain. On the other hand, the petitioner brought a suit for cancellation of the said agreement deed alleging that it was got executed by him under coercion and undue influence. The petitioner's suit was decreed by a Civil Judge and the respondents' suit for specific performance was dismissed by him. Judgment and decree passed by the learned Civil Judge in the petitioner's suit were challenged by the respondents* by taking appeal before an Additional District Judge but they did not prefer any appeal against judgment and decree by which their suit for specific performance was dismissed. The learned Additional District Judge accepted respondents' appeal arising out of suit riled by the petitioner and dismissed his suit. Feeling aggrieved by the judgment and decree passed by the learned Appellate Court, the petitioner has come up in revision to this Court.
2. A preliminary objection advanced by learned counsel for the respondents was that on the revision petition in hand proper court-fee had not been paid by the petitioner. His plea was that the learned Civil Judge had disposed of the two suits by a single judgment and since the valuation of the suit brought by the respondents was Rs.90,000 the petitioner ought to have paid court-fee on Rs.90,000 but he had not done so. On the other hand, it was submitted by learned counsel for the petitioner that this civil revision has not arisen out of the suit brought by the respondents and, therefore, the valuation of that suit was immaterial. His argument was that the civil revision before me was outcome of the suit brought by the petitioner and since the valuation of that suit was Rs.400, no court-fee was payable on the civil revision. It was conceded by learned . Counsel for the respondents that if the valuation* of the civil revision was Rs.400 the petitioner was not obliged to pay any court-fee.
3. As explained above, judgment and decree passed by the learned Trial Court in the suit for specific performance instituted by the respondents attained finality at the stage of trial because no appeal was preferred by the respondents against the said judgment and decree. As against this, judgment and decree passed in the suit brought by the petitioner were assailed by the.
Respondents with success and, therefore, the petitioner has come up in revision to this Court. 4n the circumstances, what matters in regard to payment of court-fee for the present civil revision is the valuation of the suit filed by the petitioner and not valuation of the suit instituted by the respondents, especially when the respondents also fixed the valuation of their appeal at Rs,400 (valuation of the suit brought by the petitioner) and not at Rs.90,000 (valuati, in of the suit filed by the respondents). As stated above, it is not disputed that no court-fee was payable by the petitioner on this civil revision if the valuation was Rs.400. 1, therefore, hold that the petitioner is not liable to pay court-fee on Rs.90,000 and overrule the objection of learned counsel for the respondents in this behalf.
4. Another preliminary objection raised by learned counsel for the respondents was that after the disposal of the appeal by the learned Additional District Judge, the petitioner filed an application for review of his judgment and decree but that application was dismissed. It was argued by learned counsel for the respondents that since no civil revision had been filed against the order by which the review application was dismissed, this civil revision against the judgment and decree originally passed by the learned appellate Court was not competent. He reached on Arya Insurance Co. Ltd. v. Lala Channciolal (AIR 1957 Allahabad 400) to support his contentions.
5. In the case of Arya Insurance Co. Ltd. The defendant did not file. Written statement in the suit brought against him and, therefore, his defence was struck off by a Munsif, on 31st October, 1953. It was further directed by the learned Munsif that the suit shall be heard ex parte on the date fixed.
On 14th November, 1953, the defendant made a review application praying for setting aside of the order of 31st October, 1953. The learned Munsif dismissed the review application on 19th December, 1953. On 23rd December, 1953, the defendant preferred an appeal against order, dated the 31st October, 1953.
Since it was filed after running out of the period-of limitation, he also made an application for condonation of delay on 13th February, 1954. '. The District Judge, who was seized of the appeal, declined to condone delay and rejected the appeal as time barred. Two civil revisions were, therefore, filed by the defendant. Civil Revision No.350 of 1954 was directed against the order of the learned District Judge, passed on 13th February, 1954, rejecting the appeal on the ground of limitation, and Civil Revision No.351 of 1954 was directed against the order of the learned Munsif passed on 19th December, 1953, dismissing the aforementioned, review application. Both the revision petitions were heard by the Allahabad High Court. The said learned High Court did not rind anything wrong with the rejection of the appeal on the ground of limitation. As for the order passed on review application, the learned High Court observed as follows:-- "(5) So far as the review is concerned, the Code does not provide for an appeal against refusal of a review. It provides for an appeal under O.XLIII, R.1 (w) from an order granting a review-, and an order is appealable in such a case on the ground specified in O.XLVII, R.7(1) of the Code. An order passed in review rejecting the review may, however, be brought into question in revision; but the scope of revision lies within a very narrow compass, for in such a case the applicant has got to justify his contention that in the exercise of ;ts jurisdiction the Court of first instance in refusing review, acted illegally or with material irregularity.
No such illegality or material irregularity has been found. If the Court in rejecting the review was of the view that the ground set out by the applicant was not proper and not acceptable, it would not be open to a revisional Court to come to a contrary conclusion on that point."
Resultantly, both the revision petitions were dismissed with costs.
6. As has been seen, it was not held in the case of Arya Insurance Co. Ltd. That if an application for review of any judgment and decree is dismissed, civil revision against such judgment and decree is not competent and it is only the order passed on the review application which can be challenged before the superior Court. The case of Arya Insurance Co. Ltd. Is, therefore, of no help to learned counsel for the respondents.
7. Now,. I turn back to the civil revision in hand which has been filed under section 115 of the Code of Civil Procedure. There is nothing in the provisions thereof to suggest that this Court cannot exercise its revisional jurisdiction if the judgment and decree in respect of which revisional jurisdiction is invoked were sought to be reviewed by means of an application but the order rejecting such an application is not challenged by means of a revision petition. What is discernible from section 115 is that a revision petition would not lie in a case in which an appeal is competent or in a case in which revisional jurisdiction has been exercised by the District Court. As indicated above, section 115 is completely silent in regard to a ' review application. 'It has already been noted that the precedent case cited by learned counsel for the respondents with a view to making capital out of the review application for the purpose of defeating the instant civil revision is of no avail to him. 1, therefore, hold that there is no force in the pica raised by learned counsel for the respondents and this Court is competent to exercise revisional jurisdiction qua the judgment and decree under challenge.
8. This brings me to the merits of the case. The averment of the petitioner is that the respondents took out criminal proceedings against him with regard to the land in dispute and he was allowed interim bail in those proceedings. According to the petitioner, the police pressurised him to execute the agreement deed in question and held out a threat that if he would not do so, his interim bail would not be confirmed and he would also be subjected to maltreatment: This plea of the petitioner rinds support from the statements of Muhammad Abdullab (P.W.2) and Muhammad Siddique (P.W.3). According to the recitals of the agreement deed, Rs.34,000 had been paid to the petitioner by way of earnest money but it was stated by the scribe, namely, Maqbool Mahmood (P.W.1) that nothing was paid in his presence. Surprisingly enough, according to the said Muhammad Abdullah and Muhammad Siddique the agreement deed was executed -at about 11- 00 p.m. During the night preceding the date fixed for confirmation of the interim bail of the petitioner. Petitioner's allegation is that the amount of Rs.34,000 was not paid to him as earnest money finds support from the statement of the respondents' own witness, namely, Ramzan Bibi (D.W.3), who is one of the respondents also. Her plea was that the petitioner had previously practiced fraud on the respondents in the matter of the purchase of the land in dispute and that while executing the agreement deed in question be had foregone the amount of Rs.34,000 in respect of which the fraud had been practiced. Muhammad Afzal (D.W.1) is a police officer. He stated that the agreement deed in question was not executed in his presence. Appearing as P.W.4, the petitioner deposed that he executed the agreement deed in question under the aforementioned threats of the police. In the circumstances, the learned trial Court was justified in holding that the agreement deed was executed by the petitioner under coercion and undue influence. The learned appellate Court had committed material irregularity in not taking into consideration the entire evidence on the record while reversing the finding of the learned trial Court on the issue involving the petitioner's plea of coercion and undue influence. I am, therefore, unable to uphold the finding of the learned appellate Court and would like to affirm the, verdict of the learned trial Court on the said issue.
9. Resultantly, I accept this civil revision with costs, set aside the judgment and decree under revision and restore the judgment and decree passed by the learned trial Court.
AA./N-54/L