' Civil Revision No,299 of 1962 resurrected by an order of this Court on 8-2-1992, passed in C.M.463/C/91 raised three points:--
(1) Certified copies of judgment and decree by the lower appellate Court were not annexed to the Civil Revision, and, therefore, it was not properly presented;
(2) Pre-emption money deposited in terms of pre-emption decree passed by the trial Court later withdrawn on 31-7-1963, and, redeposit on 25-9-1968 entailed dismissal of the pre-emption suit;
(3) Since dispute about the improvements effected to the land in dispute by the vendee- defendant was not finally determined by first Court of appeal, issue on it needed reconsideration, and, therefore, the case required remand as was done in the connected second appeal No,298/62 by Sardar Muhammad Iqbal, J. (as his Lordship then was) on 19-3-1968.
' Order for restoration of Civil Revision No,299/62 was upheld by the Supreme Court, on 7th of July, 1992, in Civil Appeal No,134/922. Facts have already been efficiently elucidated in the order of this Court in C.M.No,463-C/91 and to avoid their irksome repetition need not be reiterated with fullness, except where it was absolutely necessary for the purpose of deciding the points in the petition in revision. Therefore, leaving aside unnecessary details, bare facts of the case in brief stated are:-- 16 Kanals 18 Marlas of land were sold by Rana Hameed Khan to respondent Fazal Hussain through Mutation No,244, sanctioned on 6-8-1960. Mst. Musharaf Sultana claimed pre-emption in respect of the sale. She asserted her superior right of the pre-emption, as wife of the vendor. Respondent resisted the suit. On 7-12-1961, trial Court decreed pre-emption for the land-in-suit, in her favour, subject to payment of Rs,4,225 to the respondent on or before 8-1-1962. In default, pre-emption suit was to stand dismissed and the decree passed in it annulled. Respondent preferred an appeal. It was allowed on 1-5-1962, by learned District Judge on the sole ground that sale of evacuee-land was not pre-emptible. In consequence, pre-emption suit brought by the petitioner was dismissed.
Petitioner preferred a Civil Revision in the High Court. It was numbered 299/62. Alongwith it, Civil Revision No,298/62 against the judgment and decree of the lower appellate Court in a connected pre-emption matter was also filed in the High Court by the petitioner. Both the Civil Revisions were admitted to regular hearing. Civil Revision No,298/62 was treated as regular second appeal of the same number. It was allowed on March 19, 1968. Connected Civil Revision No,299/62 was left undecided and was dismissed for default in appearance of the petitioner on 14-3-1979. Off-shoot of remand in Second Appeal No,298/62 and the judicial superstructure built on it need not be commented upon as it already found mention in the restoration order. Dismissal in default of civil revision was later recalled, as indicated in the opening lines of the order. With this brief reference to the facts, I shall revert to the basic points at issue agitated at the hearing and their consequential effects on the Civil Revision. As wife of the vendor, petitioner was possessed of a better right of pre- emption. Price paid for the land was not in dispute. So the first point requiring determination was about the omission to annex to the Civil Revision, the certified copies of the judgment and decree appealed from. The controversy has two facets. First, whether certified copies of judgment and decree appealed from accompanied the Civil Revision, and, second whether the omission to annex them was fatal to its valid presentation. As for the first, Civil Revision was accompanied by a certified copy of the judgment and decree passed in connected Civil Appeal No,12/62 and as far the other appeal' R.S A.298/62, certified copies of judgment and decree passed in Civil Appeal No,13/62 were annexed. Net result of it was that the documents which ought to have been filed with Civil Revision No,299/62 were annexed with second appeal and those which must have accompanied it were annexed to Civil Revision No,298/62. Since the matter was fairly old and record in it shifted in different rounds of litigation, possibility of intermixing of records and a shift in them, either deliberately or otherwise was not inconceivable. No objection on this score was ever raised either in second appeal or in Civil Revision. Both were admitted. One was decided finally on merits by the High Court, and, the other was yet on its cause list awaiting for a 'similar treatment. In J.P .Ojha, Applicant v.Firm R.R.Tanda and others (A.I.R.1962 All.485), dealing with an objection about filing of power of attorney with the revision petition, the Court took the view:- "There is another aspect of the matter. The revision was not thrown out as not properly presented on the date it was presented, but was thrown out after it had been admitted at the stage of form hearing If the learned Judge had any idea of throwing out the revision, he should have done so at the earlier stage. Once the revision has been admitted, entertained, and, listed for final hearing, the learned District Judge could not take the view that the revision was not properly presented. The stage of presentation, having been passed and the revision having been admitted, the order is open to be questioned on this ground as well. The Full Bench authority on Oam Parkash v. Moti Lal (1958 All. L.J.210) (AIR 1958 All.409) though not directly on the point may be referred to in this behalf in advantage."
3. Seen in the context, it may not be appropriate exercise of revisional jurisdiction to throw out the civil revision after expiry of about thirty one years from the date of its initial presentation. The record is before the Court and nothing prevents it for looking into it for judging on correctness of the impugned judgment sought to be revised and if found defective to rectify the error. Upon this view, though it was unnecessary to advert to the other facet of the controversy but since a contention was raised by Muhammad Aslam Uns, Advocate, learned counsel for the respondent, I propose to comment on it and express my views. Learned counsel for either party did not refer to any decided case for assisting the decision of the point. On my own research, I have been able to discover cases reported in AIR 1954 M.B.18 (Gwalior Bench), AIR 1961 Madhya Pradesh 323 (Gwalior Bench), (AIR 1962 Gujarat 64), (AIR 1976 Punjab and Haryana 324). In the first case, there was an express rule, making it compulsory to file a copy of the judgment with the petition for revision, therefore, the Court held that the petition for revision without a copy of the judgment was not valid presentation of the revision. In the second case, the, question arose whether a fresh power of attorney was required to be filed with revision petition. The Court held that revision was not a continuation of the suit, but was altogether a separate proceeding. Upon this view, delay in filing Vakalatnama was condoned and the initial omission was treated as a curable irregularity. The third case also covered the interpretation of Order 3, Rule 4(3) of C.P.C. The Court put a wider interpretation on the expression (appellate, jurisdiction) to include in it the revisional jurisdiction. Upon this interpretation, it was observed that "a revision should be deemed to be included in the last expression and the pleader having such powers as given in the Vakalatnama should be deemed to be authorised to file a revision as well." After taking this view, it was observed that a revision after it is admitted could not be thrown out at the stage of its final hearing. I have already made a reference to these observations of the Court in the preceding portion of my judgment. In the last case from Punjab and Haryana jurisdiction, a Division Bench of the Court referred to Rule 7, in Chapter 1-A of Volume V of the Rules and Orders of the Punjab High Court running as:-- "7.--Every such petition shall be stamped as required by law and shall be accompanied by a copy of the decree or order in respect of which such application is made and by a copy of the judgment upon which such decree is founded. In the case of petitions for revision of the decree or order of an appellate Court, a copy of the judgment or order of the Court of first instance shall also be filed", and found that import of the rule was not of mandatroy character and despite the omission to file necessary copies, the Court was authorised to exercise its provisory jurisdiction.
' In para. 5 of the judgment, it was said:-- "The power of revision is conferred on this Court under section 115 of the Code of Civil Procedure, which empowers it to call for the record of any case decided by any Court subordinate to it in which no appeal lies and if the subordinate Court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it, or has acted in exercise of its jurisdiction illegally or with material irregularity, this Court can rectify the error and pass such an order as it thinks fit.
This power may be exercised by the High Court either suo motu or on a petition presented to it in this behalf. When the High Court exercises suo motu powers, the certified 'copy of the order or judgment passed by a subordinate Court need not be before it. The High Court can also exercise this jurisdiction ex debito justitiae on the basis of information conveyed to it by anybody other than the aggrieved party. The object is to give relief in case of manifest injustice unhampered by the technical formalities of procedure. In other words. The very nature and design of this statutory provision is such as would not admit of this rule being of mandatory character."
' In a later portion of the judgment, it was observed:- "At the cost of repetition, I would like to add that unlike the exercise of appellate jurisdiction, revision jurisdiction can be exercised even suo motu. It is precisely for this reason that an express provision had to be made in Order XLI, Rule 1, enabling the appellate Court to dispense with the copy of the judgment appealed against. In view of the wide ambit and scope of the revisional power, it was not considered necessary to make such a provision in Rule 7, quoted above. At the same time, there is no express provision in the rules which debars a Court of revision to dispense with the production of the copy of the order or judgment sought to be revised. In a situation like this, the Court can pass suitable orders, either dispensing with the production of such a copy or allowing its production at a late stage as the justice of a particular case demands. The procedural Codes are exhaustive only on the points expressly dealt with them, a Court can always evolve its own procedure regarding the points on which such Codes are silent in the interest of justice, equity and good conscience."
' In para. 8 of the judgment, the Bench observed:-- "A Court of revision may insist that a certified copy of the judgment of the trial Court should be filed and may even decline to exercise revisional powers when such a copy is not filed either alongwith the petition or during the time allowed by it. If the facts are otherwise admitted or there is no dispute about the real purport of the order or the judgment rendered by the trial Court, the High Court may even dispense with the filing of its copy but I fail to see how an embargo can be placed on the rights of a revision Court to do justice on the basis of technicalities of procedure. I would, therefore, hold that Rule 7 quoted above is directory in nature and it is open to the High Court to entertain a revision petition in the absence of a copy of the order or judgment sought to be revised, or to allow late production of such a copy or even to dispense with its production. The Court would have to exercise discretion on the facts and circumstances of each case and no hard and fast rules can be laid down on this point. It suffices to mention that this Court has seldom shown any indulgence to a party who is not serious and vigilant about prosecuting its own case_ With utmost respect to the learned Judge who decided Beh Lal's case, 1971 PCr.LJ 868 (supra), it may be said that the view taken by him appears to unduly narrow down the wide scope of the provision of section 115, Code of Civil Procedure, and does not commend itself to me."
4. In case of first appeal, 'Order XLI, Rule 1, Civil P.C. Makes it compulsory for the memorandum of appeal to be accompanied by a copy of the decree appealed from and a judgment upon which it is founded. Rule gave power to the Court to dispense with the production of judgment but presence of the decree was compulsory. Order XLII of the Code applied rules of Order XLI to the appeals from the appellate decrees. Lahore High Court, by an amendment on 19-3-1926 added, rule 2 to Order XLII. It provided that:-- "In addition to the copies specified in Order XLI, Rule 1, the memorandum of appeal shall be accompanied by copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith."
' Volume V of Rules and Orders of the High Court of Judicature at Lahore dealt with judicial business relating to the presentation and reception of Appeals and Applications for Review. Rule 7 in Chapter 1-A of the above volume covered the case of revisions petitions.
' It reads as:-- "7. Every such petition shall be stamped as required by law and shall be accompanied by a copy of the decree or order in respect of which such application is made and by a copy of the judgment upon which such decree is founded.
' In the case of petitions for revision of the decree or order of an appellate Court, a copy of the judgment or order of the Court of the first instance shall also be filed."
' Rule 7 framed by the High Court brought it at par with the requirements in Order XLII of the Code of Civil Procedure. Civil P.C. However, itself did not insist on fulfilment of such a requirement. However, by Ordinance X of 1980, section 115 of the Code was amended. It was provided that an application for exercise of revisional jurisdiction must accompany copies of pleadings, documents or order of the subordinate Court and the High Court, except for reasons to be recorded may dispose of the application without calling for the record from the subordinate Court. In Riasat All v. Muhammad Jaffar Khan and 2 others (1991 S.C.M.R.496), the Supreme Court found that the rule contained in section 115(1), proviso was not mandatory and its initial infraction was not fatal to the proper presentation of the Civil Revision. If the Court did not intend sending for the record, it must call upon the applicant to provide the required documents. Amendment to section 115(1) operated prospectively and did not attract to the revision petitions instituted in the High Court prior to its C enforcement. Present revision petition was brought to the High Court in the year 1962. Therefore, the amended requirement did not apply. The contentionjC has little merit and is repelled.
5. This takes me to the second contention about the withdrawal of purchase-price and its re- deposit in Court. As said above, pre-emption suit was decreed on 7-12-1961 subject to deposit of Rs,4,225 on or before 8-1-1962. There was no dispute that Zar-i-Panjum was already deposited in time in Court. Balance purchase price was also deposited in time fixed in the decree by the trial Court. Appeal from the decree of the trial Court was allowed on 1-5-1962, and, pre-emption suit dismissed by learned District Judge. Revision was filed in the High Court in year 1962. On 31-7-1963, the decretal money (not the Zar-i-Panjum) was withdrawn from the Court. Second Appeal No,298/62 was allowed on 19-3-1968. On remand, the appeals by the respondent were dismissed on 30-9-75. It covered the dispute (though erroneously), in Civil Revision No,299/62. It is common ground that the amount withdrawn from the Court was redeposited on 25-9-1968 by the petitioner.
Knowing of the withdrawal of the pre-emption money, respondent made an application to the trial Court for restoration of possession of the land to him on the ground that the pre-emption suit had fallen flat. Without waiting for decision on his application before the trial Court, the respondent preferred an application before the Appellate Court which was then seized of the remanded appeal. Application was dismissed on 30-9-1975 by learned District Judge, Jhelum. Civil Revision No,1244/75 filed in this Court for impugning the order was dismissed by Akhtar Hassan J., on 30-1-
90. Petition for Leave to Appeal No,204-R /90 was allowed by the Supreme Court. Leave granting order is reported in 1991 S.C.M.R.491. There was nothing on record to suggest, whether the withdrawal of pre-emption money was with or without the permission from the Court. Learned District Judge assumed it to be without permission, and, decided the application on merits against the respondent. Petition for leave to appeal No,204-R/90 Was converted into Civil Appeal No,766/90 and dismissed for non-prosecution on 16-10-1991. An application for restoration was also dismissed on 31-3-92 by the Supreme Court. Mr. Muhammad Aslam Uns, learned counsel for the respondent did not acquaint the Court about the later development and argued the point as if it had not already been decided by the High Court and appeal against it dismissed for non-prosecution.
However, in the case under consideration, the pre-emption suit stood dismissed and Civil Revision against the dismissal judgment was sub-judice in this Court. Therefore, withdrawal of purchase money and its re-deposit could not prejudice the petitioner's claim of preemption. AIR 1939 Nagpur 279 supported this view. Further, decision by my learned brother Akhtar Hassan, J., in Civil Revision No,1244/75 was also an authority in the same direction. The second point, therefore, has also no substance in it.
6. I shall now advert to the third point i,e, the expenses incurred on improvements and the claim for their re-imbursement. Respondent claimed Rs,10,000/- on this score. It was stated in the written statement that he had constructed four Kot has and a verandah on the land in suit and also installed a well. Issue No,5 covered the improvements. The trial Court did not entertain the claim for improvements by the respondent and decided issue No,5 against him. On appeal by the respondent, on the view of the matter taken in it, it was not considered necessary to discuss "the costs of improvements" by the learned District Judge. So, there was no finding recorded on issue No,5 in the lower appellate Court. Two courses were open to this Court. One, to remand the case to the lower appellate Court for a finding on issue No,5, and, the second to decide it here, on the basis of existing material. I felt reluctant to remand the whole case for it involved fresh round of litigation and unnecessary expense and delay. Therefore, I preferred the second course for final decision of the Civil Revision by this Court and to enable the Court for exercising that course, it was considered that first a finding by the lower Appellate Court on issue No,5 shall be helpful. Revision is an extended appellate jurisdiction of the Court. Therefore, upon the analogy of Order XLI, Rule 25, Code of Civil Procedure, supplemented by inherent powers of the Court, issue No,5 is remitted for its decision to the lower Appellate Court upon the existing material on record. The lower Appellate Court shall record its finding on the issue remitted to it and return the same to this Court before 1- 12-1992.
' Records be sent to the lower Court for completing the exercise. Parties shall appear before it on 28-10-1992.
' Required attested copies of judgment and decree of the lower Appellate Court and the judgment of the trial Court have been placed on the file of Civil Revision for setting the record in order.