1. ' The common question in these First Appeals pertains to the rejections of plaints in several suits at the revisional level by the learned District Judge, Karachi (West), from which orders of rejection such First Appeals arise. On the factual plane a number of persons, at different points of time, had filed those suits for recovery of varying sums of money against common respondents namely, the Collector of Customs (Appraisement), Karachi, and the Islamic Republic of Pakistan. The claims for recovery arose relative to some imports, allegedly, because of arbitrary and illegal assessments of duties and other charges effected under the Customs Act, 1969. Applications under Order VII, rule 11, C.P.C. Having been filed by the defendants (respondents) but the relevant trial Court having refused to reject the plaints, revisions were taken by the unsuccessful defendants before the learned District Judge. When, ultimately, the revisions succeeded and the plaints were rejected, the plaintiffs in the suits have come in First Appeals to this Court.
2. ' As to the competence of the First Appeals in this Court, the learned counsel for the appellants, Mr. Haider Iqbal Wahniwal, relies upon Tamizun Nisa v. Parveen Fatima, NLR 1985 Civil 325, and a passing observation of the Supreme Court in Ghulam Hussain v. Shahbaz Khan, 1985 SCM R 1925.
3. The contention, in essence, is that because rejections of the plaints, in the present category of matters, took place for the first time at the revisional level, the rejections constituted decrees under the deeming provision in section 2 (2) of the Code of Civil Procedure and, accordingly, rights to prefer Civil Appeals under section 96 of the Cod arose. Thus, it is claimed, the First Appeals have competently been lodged here.
4. ' Mr. A.G. Siddiqui for the respondents-defendants, on his part, has pointed out that under section 96, C.P.C. Appeals lie only from original decrees and such appeals are specific from decrees "passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." The argument seems to be well-taken and it appears to me that the First Appeals under reference are not maintainable for the simple reason that the decrees, in the nature of rejections of plaints, were passed not by a Court "exercising original jurisdiction" but by one, which had acted in furtherance of its revisional powers. The revisional orders themselves were passed at a time when revisions, under section 115 of the Code of Civil Procedure, could competently be brought either in this Court or could be taken to the relevant District Court, depending on circumstances, which- are not material for our purposes. What is material, however, is that if a revision was taken before the District Judge a further revision under section 113 (3) aforesaid could not be entertained in this Court. The First Appeals cannot, therefore, be treated as Civil Revisions either.'
5. ' A passing reference may here be called for concerning the intervening legislative changes in section 115, C.P.C. Wherefrom, for sometime, the provisions regarding revisions to District Courts was deleted but since then there has been an about-turn and the earlier version is back on the statute book. This is not toimply that these successive and rather quick changes are material for the decision here, the only significance being that the opinion expressed herein would have a material bearing from an interpretor's point of view on the subject so long as section 115 in the Code stays the way it is. That, of course, would be so only till a different view of the matter, if any, comes to prevail in course of time.
6. ' Taking the view that I do, something may now be said about the decision in the cases of Tamizun Nisa and Ghulam Hussain, supra, relied upon by Mr. Wahniwal in support of these appeals. The first is a Single Bench decision of this Court authored by Zahoorul Haq, J. There the learned Judge, in circumstances similar to these, concluded that rejection of plaint being a decree, as defined in section 2 (2), C.P.C., and appeal having been provided for against decrees in section 96 of the Code and the rejection taking place for the first time in revision, due appeal to the High Court was competent. With respect, however, it escaped notice that section 96 C.P.C. Conceived only of appeals against decrees passed by Courts exercising "original" and not revisional or appellate jurisdictions. Besides, under the same section appeals lie only to such Court as is competent to hear appeals "from the decisions" of the "Court exercising -original jurisdiction" and not to any other Court. I am conscious that this outcome may leave an aggrieved party with little or no remedy except, probably, in appropriate cases, via Constitutional jurisdiction but that is how the law stands and is to be given effect to. Correspondingly, however, in cases of like nature rejections of plaints in revisions at the High Court level would continue to carry due remedies of appeals in the Supreme Court subject to Constitutional conditionalities.
7. ' This brings up the following observation of the Supreme Court in the case of Ghulam Hussain ibid: "The learned Judge in the High Court while dismissing the writ petition noted that as a result of the revisional order the plaint had not been rejected, meaning thereby, that if rejected the petitioner would have a right of appeal. Therefore, obviously, the High Court was not inclined to interfere in the matter which had arisen out of a Civil suit."
8. The observation appears to be in the nature of obiter dicta but even an orbiter of the apex Court is binding. However, the quoted observations, because it does not take into consideration the constraints in section 96, C.P.C. Is ex facie, with all respect, per incuriam. A per incuriam decision, even of the highest Court, does not bind any other Court and it matters little that such Court itself be at the lowest rung in the hierarchy of Courts.
9. ' As a result, the First Appeals involved in 'these proceedings, being incompetent, were dismissed through a short order. These were the reasons for such order.