MAULVI ANWARUL HAQ, J.--- In order to challenge a decree dated 14.4.1984, the petitioner filed an application under Section 12(2), CPC. This application was dismissed for non-prosecution on 10.1.1989. An application was filed for restoration on 12:1.1989. It was stated in the application that the Attorney of the petitioner had to come from Gujranwala, to attend the hearing :Ind he got late while the learned counsel could not put in appearance because of busy before another Court. The application was resisted by filing a written reply. The learned. Trial. Court framed issues. Evidence of the parties was recorded. The said application for restoration was dismissed on 2.6.1990.- The petitioner filed a first appeal against the said order which was dismissed by a learned Addl. District Judge, Jhang, on 9.2.1991. The learned Addl. District Judge observed that the appeal is not competent. A request for converting the appeal into a revision was rejected with the observation that even if decision of the lower Court is incorrect revision would not be competent. No one has turned up for the petitioner.
2. Having examined the records of this case anz not inclined to dismiss it for non-prosecution.
3. Learned counsel present contends that the appeal was not competent and learned Addl. District Judge has not committed any error in dismissing the same. As to the non-competency of the appeal I do agree with the learned counsel for respondent No. 10. Vide order dated 2.6.1990 learned Trial Court had dismissed an application for restoration of application under Section 12(2), CPC.
Such an order is not appealable under Section 104, CPC read with Order 43, Rule 1, CPC. The appeal is provided only against an order refusing to restore the suit not an application.
4. The question which arises is as to what was to be done once learned Addl. District Judge had concluded that the appeal was not competent. It is apparent that the request was made before the learned Addl. District judge for conversion of appeal into revision. He has dealt with the matter as follows:- "Even if the appeal be treated as a revision, the scope becomes very narrow". It is well-settled law that incorrect decision of the lower Court cannot form subject-matter of revision petition."
5. The impugned order is liable to be struck down for the reasons that it has been passed in direct contravention of law laid down by Supreme Court ot, Pakistan in the case of Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 S.C. 139), wherein it has been held that right to invoke exercise of revisional jurisdiction is not a privileged but a most valuable right. Several judgments of this Court were set aside with the observations that High Court should have allowed conversion of second appeal into revision and then to see whether interference was called for in the judgment of the subordinate Court. The learned Addy. District Judge has simply thrown away the case holding that the appeal was incompetent and the scope of revision is narrow. He ought to have first converted the appeal into revision and then to have decided whether interference with the impugned order before him is possible or not. Similarly the said observation of the learned Addl.
District Judge that 'incorrect decision of the lower Court cannot form subject-matter of revision is wholly unfounded. In the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 S.C. 447). Mr. Justice Nasim Hassan Shah (as his Lordship then was), while agreeing with the leading opinion of Chief justice Muhammad Haleem (as his lordship then was) observed as follows at page 452 of the report:- "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly; when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of Lw can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
6. In view of above discussion, the impugned order of learned Addl. District Judge, Jhang, dated 9.2.1991 cannot be sustained. This civil revision is accordingly allowed. The impugned order of the learned Addl. District Judge is set aside. The result would be that the Civil Appeal No. 30/14 of 1990 filed by the petitioner shall be treated as civil revision against the order dated 2.6.1990 of the learned Trial Court dismissing the application of the petitioner for restoration of his application under Section 12(2), ,CPC. Learned Addl. District Judge shall requisition the record, summon the parties and after hearing then to decide civil revision in accordance with law and observations made above. No order as to costs.
Copy of this order be immediately remitted to the learned District Judge, Jhang, for further compliance. .