2011 PLP 1818 (CLC)

SALMAN HAMID, J.

This civil revision application (CRA) has been filed by the applicant upon passing of judgment dated 11-6-2011 (Impugned Judgment) by the Vth Additional District Judge, Sukkur. (V-ADJ.S) in Civil Appeal No.12 of 2010.

2. Concisely the facts of the case are that Gul Muhammad (Respondent No.1) preferred a Suit No.17 of 2000 for pre-emption before IInd Senior Civil Judge, Sukkur in which suit the present applicant moved application for rejection of plaint under Order VII, rule 11, C.P.C. The IInd Senior Civil Judge, however in terms of his order dated 7-11-2003 returned the plaint by observing that the "suit falls in the category of third clause division" and further ordered that such suit should have been filed before the lowest court having pecuniary jurisdiction. This order dated 7-11-2003 was challenged by the respondent No.1 by way of filing Civil Miscellaneous Appeal No.13 of 2004 before the IInd Senior Civil Judge, Sukkur, which despite vigorous contest by the applicant was allowed in terms of order dated 26-4-2004. The judgment in Appeal No.13 of 2004 categorically mandated that. "The parties are directed to appear before trial Court on 6-5-2004. The trial Court will not issue Court motion notice."

3. In addition to the availing of remedy by way of filing of above Appeal No.13 of 2004, the respondent also availed the remedy of review, as provided under Order XIXII and section 114, C.P.C. before the same Court (IInd Senior Civil Judge, Sukkur). It would be evident from the record that despite specific order of the IInd Senior Civil Judge, Sukkur to the effect that no court motion notice shall be issued and also the fact that the applicant had contested the above mentioned appeal, for the reasons best known he failed to pursue Suit No.17 of 2000. Resultantly in terms of Judgment dated 30-8-2004 such suit of the respondent was decreed. It was only after the decree of the suit, the applicant filed application under Order IX, rule 13 read with section 151, C.P.C. for setting aside the judgment and decree, passed in the suit. The IInd Senior Civil Judge, Sukkur without notice of the application to the respondent dismissed it on 29-8-2006 by holding that the same was beyond the period of limitation prescribed for moving such applications.

4. Above order dated 29-8-2006 prompted the applicant in filing Civil Miscellaneous Appeal No.12 of 2006 before the V-ADJ,S, who on his turn vide judgment dated 27-8-2008 allowed such appeal by holding that since the order impugned in the appeal was passed without hearing the other side (the respondent), the application moved under Order IX, rule 13 read with section 151, C.P.C. be heard after notice. The IInd Senior Civil Judge, Sukkur heard the application, after notice, and yet again in terms of his order dated 23-4-2009 dismissed the application by holding that it (application) under Rule 13 of Order IX, C.P.C. was not maintainable in view of the fact that such Rule could be made applicable only when the judgment was passed ex parte against the defendant whereas in Suit No.17 of 2000 notice was duly served on the applicant who also filed written statement.

5. After dismissal of the application, the applicant filed Appeal No.5 of 2009 before V-ADJ,S and challenged Order dated 23-4-2009. The V-ADJ,S allowed the Appeal by observing that the judgment having been passed one sided, therefore, the provision of rule 13 of Order IX, C.P.C. were applicable. The IInd Senior Civil Judge once again after judgment of the V-ASJ,S in the appeal under point heard the Applicant and, thereafter dismissed application under Order IX, rule 13 read with section 151, C.P.C. and vide order dated 1-12-2010 dismissed the application.

6. After dismissal of the application, the applicant once again filed Civil Miscellaneous Appeal No.12/10 before V-ADJ,S who on his turn vide impugned judgment dated 11-6-2011 dismissed it (Appeal).

7. The only ground that was vehemently urged and argued by the leaned counsel was that since the respondent besides filing of Appeal No.13 of 2004 before IInd Senior Civil Judge, Sukkur also availed remedy of review before him, the applicant remained under the impression that Suit No.17 of 2000 would not proceed further unless review application is not decided. The argument, on the face of it was fallacious and mala fide for two reasons. Firstly once Civil Appeal No.13 of 2004 was decided, which was duly contested by the applicant, wherein it was categorically observed that the applicant be present before the IInd Senior Civil Judge, Sukkur on 6-5-2004 and that no Court motion notice would be issued, there was no occasion for the applicant to remain away altogether from such suit. Secondly after passing of order dated 26-4-2004 in Appeal No.13 of 2004, the review application that was filed by the respondent was also dismissed by the IInd Senior Civil Judge, Sukkur on 15-5-2004 when such was not pressed by the respondent. Needless to mention that even the review application was the subject-matter of the same suit with which the applicant remained aloof. It is also evident from the record of the file that the applicant, after decree of the suit, besides filing of application under Order IX rule 13, C.P.C. also filed application under section 12(2), C.P.C.. Except that the respondent had availed two remedies at a time i.e. appeal and review, no other ground for maintaining the above CRA was seriously urged and/or argued.

8. No where in the entire CRA, even by passing it was alleged that the jurisdiction exercised by the courts below did not have such jurisdiction and/or such courts have had failed to exercise the jurisdictions which vested in them or that such courts have had exercised jurisdictions illegally or with material irregularity. It is well-settled by now that a revision application is competent only if the courts below had exercised jurisdiction not vested in them by law or failed to exercise jurisdiction so vested or had committed illegality or material irregularity in exercise of jurisdiction. The scope of revision is limited to cases where the subordinate courts have had exceeded their jurisdiction or had declined to exercise jurisdiction warranted by the law. It was not the case of the applicant that the courts below had committed a gross illegality and did not attend the legal proposition of law and passed the judgments/orders in violation of the established principle of law.

9. High Court can interfere in the funding of the courts below only if it was shown that such were based on misreading/non-reading of evidence or were patently absurd or the courts have had failed to exercise jurisdiction vested in it or assumed jurisdiction not vested. It is also well-settled by now that where conclusion of law and fact do not in any way affect the jurisdiction of the court, no matter, however, erroneous, wrong or perverse the decision might be either on a question of fact or law, unless decision involved matter of jurisdiction, the provision of revision cannot be invoked. High Court has no jurisdiction to interfere if the courts below had jurisdiction to pass an order. In the present case it would be evident that substantial justice had been rendered by the two courts below and it would not be appropriate to interfere by way of entertaining present revision inasmuch as the facts and circumstances of the case have revealed that the same does not suffer by any jurisdictional error.

10. For reasons mentioned above, this CRA is found to be merit less is dismissed in limine, however without costs. All listed applications are also dismissed. M.H./F-20/K Revision dismissed.