' This Revision Petition under section 115 of the Civil Procedure Code, 1908 (C.P.C.) has been filed against the order, dated 7-1-1997 passed by Xlth Civil Judge Karachi (South) in Suit No,517 of 1995, whereby applicant, who is plaintiff in that suit, its application under Order 39, Rules 1 and 2, C.P.C.
Was granted but subject to condition of payment of parking charges to the respondent/defendant Against that order this revision has been directly filed before this Court.
2. On 2-5-1997, when this matter came up for hearing at the level of Katcha Peshi, following order was passed by this Court:- and 3) The petitioner has challenged the final orders passed . On , an application under Order 39, Rules 1 and 2, C.P.C. By Xlth Civil and Family Judge, Karachi (South) in a petition under section 115, C.P.C. Section 115, C.P.C. Provides that revision would be competent only when no appeal lies, whereas under Order 43, Rule 1(r), C.P.C. Appeal would lie against the impugned order. Learned counsel for the applicant requests for time to bring case-law on the point that in the circumstances of the case the present revision application is maintainable. Time granted.
Adjourned to 12-5-1997 "
3. 1 have heard Mr. Salim Karamally, Advocate, for the applicant and Mr. Mian Mushtaque Ahmed, Advocate, for the respondent. On the point of maintainability as observed above, the learned counsel for the applicant has referred to the case of Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi 1988 SCM R 82 wherein it was held inter alia, by the Honourable Supreme Court that the revision application should have been entertained by the High Court where the plaintiff was non-suited for a trivial formality. In that case a plea was raised of not availing appeal and invoking of revisional jurisdiction of the High Court without first obtaining remedy of first appeal.
However, his objection was not considered as the party raising the objection failed to place sufficient material before the Court. In that case reference was also made to the cases of Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 Supreme Court 506 and Manager, Jammu and Kashmir State Property in Pakistan and others v. Khuda Yar and another PLD 1975 SC 678. In the last cited case, one of the objections raised before the Hounourble Full Bench of Supreme Court was that the revision filed by the appellant was incompetent before the High Court as remedy of appeal was not availed by the appellant. Reference was made to the several reported cases including Bakhshish Singh and others v. Biru AIR 1932 Lah. 176, Rama Charan Das v. Hira Nand AIR 1945 Lah. 298 as well as to the case of Municipal Committee Bahawalpur (supra), where after it was held, inter alia, that in some peculiar and special circumstances, revisional powers of the High Court under section 115, C.P.C. Could be invoked. Although it has been quoted several times, still it would be advantageous at this stage to reproduce the provision of section 115, C.P.C. Which read as follows:-- "115.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: ' Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: ' Provided further that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months.
(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court "
4) The most relevant case-law in the present circumstances is the case of the Municipal Committee Bahawalpur PLD 1970 Supreme Court 506. In that case a suit for recovery of money as outstanding salaries was filed by the respondent against the appellant which suit was decreed with costs. Against that judgment/decree the Municipal Committee did not file any appeal but instead filed civil revision under section 155, C.P.C. Directly before the High Court where preliminary objection to the maintainability of that revision was raised, in terms as similar to the present objections. Reference was made to the cases S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq PLD 1959 (W.P.) BJ 10; Abdul Wahid v. Alladin PLD 1960 (W.P.) Kar. 472, Abdur Rashid and others v. S. Abdur Rahim PLD 1959 (W.P.) Lah. 806; Custodian of Evacuee Property, New Delhi v. Nasir Uddin and others AIR 1962 Punjab 218 and Masta v. Sarang and another PLD 1969 SC 261 whereafter following observations were made by the then Chief Justice of Pakistan, Hamoodur Rehamn J., (as his Lordship then was) which view was concurred by Muhammad Yaqoob Ali J., and Sajjad Ahmed J., (as their Lordships then were). Relevant observations of the case read as follows:-- " From the above analysis I have come to the conclusion that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent.
' On principle also I can see no valid reason for barring the revisional jurisdiction only where an appeal lies directly to the High Court. To adopt such a narrow interpretation would lead to the result that a party aggrieved from a decree or order from which an appeal lies to the District Judge would try to short circuit the procedure prescribed by the Code and come direct to the High Court.
There is, of course, nothing in the Code to justify this nor am I, in the absence of clear and express words, inclined to adopt a construction which is likely to result in complexity rather than simplicity of procedure.
' As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised, the High Court will not, as a rule, interfere in revision. Thus an order under Order XXI, Rule 52 of the Code of Civil Procedure, determining the priority between the decree-holder and a third person or a decision under section 9 of the Specific Relief Act, which could have been challenged by a separate suit, will not ordinarily be interfered with in revision. This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not. Normally, where the applicant has no other remedy left, the High Courts are inclined to take a liberal view, but where the case is one which does not clearly fall under the terms of section 115, no revision can be entertained in any event..."
5. It was contended by Mr. Mian Mushtaque Ahmed that the applicant/plaintiff obtained certified copies of the impugned order within the time provided for filing an appeal but did not file the same and has adopted the present mode after bypassing the provisions of appeal. It was further argued that there are no special or peculiar circumstances for entertaining this revision directly. The only ground of attack against the impugned judgment is that the learned trail Judge has travelled beyond the pleadings of the parties while considering the application under Order 39 Rules 1 and 2, C.P.C. No jurisdictional error has been pointed out in the impugned judgment. No doubt the recent trend of the Superior Courts is that a party should not be non-suited on mere technical grounds and that the dispute should be resolved on merits, but this principle is not attracted in the circumstances of the present case. Plaintiff or for that matter a defendant, should not be granted a discretion to either invoke provisions of appeal or revision. If law provides that appeal would lie against such order passed by the Civil. Court, it should be adhered to. Recently, a trend has been developed in the Bar to bypass the remedies at the level of subordinate Courts and to directly approach the High Court for their convenience sake. Such practice which may become a matter of routine, should be discouraged. If the legislators have provided a remedy in law, it is to be followed and all short-cuts to get relief at the cost of other litigants, who are waiting for decision of .Their cause, should be strictly discouraged. There is no special or peculiar circumstances existing in the case of the applicant which may influence this Court to bypass the remedy of appeal and to entertain this revision application directly.
6) As a result of the above discussion, the revision application is dismissed in limine with no order as to cost along with the listed application.