1. This is a Civil Revision Application moved under section 115 of Code of Civil Procedure against an order dated 2-4-1994 passed by Senior Civil Judge, Thatta, on an application under section 12(2), C.P.C. In First Class Suit No.63 of 1992, Ahmad v. Haji Muhammad Qasim whereby an application under section 12(2), C.P.C. Was dismissed.
2. Brief facts as stated are that respondent Ahmad filed a suit for declaration and permanent injunction against the petitioner that he be declared owner of suit land Survey No. 177, 206, 208 and 209, admeasuring 22-35 acres of Deh Abad, Tapo Pini Ladho Sarno, Taluka Sujjawal, District Thatta and further that the petitioner be restrained from forcibly dispossessing him and prayed for permanent injunction restraining the petitioner from interfering with his peaceful possession: The petitioner was served through publication in daily Mashriq' and service was held satisfactory as per order dated 10-8-1992 passed by lower Court and as the petitioner did not appear after service having been held satisfactory, the suit was ordered to. Proceed ex parte and ultimately suit was decreed on 21-12-1992. Petitioner filed an application under section 12(2), C.P.C. On 3-2-1993. The respondent filed counter-affidavit and petitioner filed rejoinder to his affidavit and thereafter the impugned order was passed.
3. I have heard Mr. Muhammad Rafiq Khanzada, counsel for petitioner and the respondent Ahmad Khan in person and perused certified copies of the documents filed with the revision petition.
4. Mr. Khanzada contends that the respondent had given incorrect address of the petitioner and thereby made misrepresentation and fraud and obtained the judgment and decree against the petitioner. He contends, in fact, the petitioner has been residing on the address given in the memo.
5. Of the petition. He further contends that the lower Court did not frame any issue on the point of misrepresentation and fraud, therefore, the impugned order is illegal and liable to be set aside in this Revision Petition.
6. Respondent Ahmad Khan argued that revision petition is time-barred as it has not been filed within 90 days from the date of impugned order. He further contends that he has given correct address of the petitioner and has not made any misrepresentation or played any fraud. He also contends that petitioner has also moved an application under order IX rule 13, C.P.C. Before the Court and the same was still pending fir disposal there.
7. In the present case, judgment and decree has been passed by the Court of Senior Civil Judge, Thatta. Admittedly an appeal under section 96, C.P.C. Would lie against the said judgment and decree passed by the learned Senior Civil Judge, Thatta, but the appeal was tot filed instead of that an application' under section 12(2), C.P.C. Was filed by the petitioner. Revision under section 115, C.P.C. Will only be competent if no appeal lies to this Court against the decision of the subordinate Court. It may also be pointed out that an application under Order IX, rule 13, C.P.C. Filed by the applicant is still pending before the lower Court and same has not been disposed of by the said Court. Petitioner cannot be permitted to avail two remedies at the same time. I enquired from the learned counsel for the applicant as to why he did not prefer an appeal before the District Judge, Thatta to which he replied that his Revision would be competent against the impugned order. Main hurdle in the way of the petitioner is not an order passed on his application under section 12(2), C.P.C. But judgment and decree passed in the suit. In fact, he should have approached the District Judge, Thatta for getting the said decree set aside. However, he has alternative remedy under Order IX, rule 13, C.P.C. In case he brings his case within four corners of rule 13 of Order IX, C.P.C. And the petitioner has made such application under Order IX, rule 13, C.P.C. Which was pending before the lower Court, therefore, his present revision petition would be incompetent.
8. In the circumstances, this revision petition being incompetent in law is dismissed. However, he is not debarred from availing his remedies before the lower Court either under Order IX, rule 13, C.P.C.
9. Or by filing first appeal before the District Judge, Thatta if he could bring his case within the provisions of law.