1991 PLP 141 (MLD)

On 7th September, 1982 Naseem Ahmad and Mrs. N. Ahmad (hereinafter called "the applicants") riled a suit in the Court of XVIth Senior Civil Judge at Karachi, which was registered as Suit No. 4062/82 (later on, re numbered as Suit No. 2152/85) for recovery of Rs.25,000 with interest @ 15% per annum from the date of suit till payment against the respondents, six foreign based airlines, jointly and/or severally under the following circumstances:- That on 4th July, 1980 the applicants/plaintiffs air-freighted 27 packages of their personal and household effects vide Airway Bill issued by Air Botswana, (hereinafter called the. respondent No. 1) from Gaborone, Botswana to Kano, Nigeria. On or about 8th September, 1980, out of the said 27 packages the applicants were delivered only 24 packages, of which 9 were in damaged condition. The applicants received the nine damaged packages and lodged a written protest in respect thereof and the three short delivered packages. It was on 25th May, 1981 that Nigeria Airways Limited (respondent No. 6) issued to the applicants the Short Landing Certificate in respect of the said three missing packages. The applicants, it was so pleaded, made hectic efforts to amicably settle the dispute but with no success and hence they were compelled to file the suit as stated above. The respondents Nos. 2 and'3 filed their written statements while the rest of the respondents i.e. respondents Nos. 1, 4, 5 and 6 remained ex parte. In the written statement filed by respondent No. 2, inter alia, several preliminary legal objections, including the lack of Court's jurisdiction were raised. On the pleadings of the parties, the learned Senior Civil Judge framed rive issues, of which the issue No. 1 was as under:- "Whether this Honourable Court has no jurisdiction in the matter?" Vide his impugned' judgment dated 24th May, 1986, the learned VIItth Senior Civil Judge (South), Karachi, decided the above noted issue No. 1 in the affirmative and consequently dismissed the suit with no order as to costs. Aggrieved by the said judgment the applicants have filed this revision application, through their attorney Mr. Nizam Ahmad, Advocate. It was admitted to regular hearing with the following observations:-- "(1) Mr. Nizam Ahmed, Advocate submitted that consideration of this petition be deferred and the same may be heard at the time of regular hearing if the petition is admitted. Since I am admitting the matter for regular hearing as would appear from the order which immediately follows, office is directed to issue notices of this application to the respondents who may be informed that the application would be heard on the date when the petition comes up for regular hearing. (2) Granted subject to all just exceptions. (3) As to the maintainability of this Revision Petition, without first availing the remedy by way of filing an appeal before the Appellate Court (District Judge, Karachi), Mr. Nizam argued that this petition is competent in view of the principle laid down by the Honourable Supreme Court in the case reported as Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506 at page

513. Prima facie this revision petition is maintainable. The grounds Nos. 3, 4, 5 and 6 inter alia others raised in the petition require consideration. Admit. Notice." When this revision application came up for hearing before me on 17-1- 1990, the learned counsel for the respondents Nos. 2, 3 and 6 raised a preliminary objection against its maintainability. The learned counsel for respondents drew my attention to section 18(1)(b), West Pakistan Civil Courts ordinance, 1962 to contend that by virtue of that section an appeal is provided to the District Judge, which remedy was not pursued by the applicants, hence this revision application was not sustainable. The learned counsel for the respondents sought to support their contentions by the authority of the Supreme Court referred to in the above reproduced admission order, namely, P L D 1970 SC

506. It was strenuously urged by learned counsel for the respondents that in the above-referred authority of the Supreme Court it is specifically held that the discretionary powers available to the High Court under section 115, C.P.C. ought not to be exercised in favour of the applicant who has been negligent in pursuing the normal remedies open to him. In the instant case, all the three counsel for the respondents vehemently urged that the remedy to file an appeal was available to the applicants which they negligently failed to avail and hence this RA. is incompetent. In short, it was strongly contended on behalf of the respondents that this revision application having been filed against the impugned judgment without availing the right of an appeal available vide section 18(1)(b) of the Civil Courts Ordinance, 1962 should be dismissed as not maintainable. It was further urged by Mr. Khalid Rehman, learned counsel for respondent No.2 that the applicants have chosen a wrong forum and hence the revision application should be dismissed summarily. It was, on the other hand, contended by Mr. Nizam Ahmed, Attorney of the applicants, that this revision application is competent inasmuch as no right of second appeal is available to the applicants as the amount of the original suit does not exceed Rs.50,

000. In this connection he drew my attention to section 102(b) of the Civil Procedure Code and contended that since the value of the subject- matter of the original suit did not exceed fifty thousand rupees hence no second appeal could be filed in .the High Court and hence this revision application was rightly filed. Upon a careful perusal of the authority of the Hon'ble Supreme Court in the case of Municipal Committee, Bahawalpur (supra), I am firmly of the view that this revision application is not competent. There is no denying the fact that the impugned judgment and decree passed by the learned VIIIth Senior Civil Judge (South), Karachi could be assailed by filing an appeal to the District Judge under section 96, C.P.C., which in unambiguous terms lays down that "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions in such Court." (The word `shall' has been underlined by me for emphasis). The view taken in the cases of S. Ghulam Shchbaz Shah v. Ch., Muhammad Siddiq PLD 1959 BJ 10 and Abdul Waheed v. Allah Din PLD 1960 Kar. 472 to the effect that if an appeal lay to a District Judge and only a second appeal lay to the High Court, then it will be well within the competence of the High Court to entertain a revision has been overruled by the Supreme Court in the above-cited case of Municipal Committee, Bahawalpur. In this case it has been authoritatively held by Hamoodur Rehman, C.J., who wrote the judgment for the Court, as under:- "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:" It is further held in this very case as follows:- "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:" For the reasons given above, I would dismiss this revision application as being incompetent, but would make no order as to cost. I do not now feel called upon to decide the issue of jurisdiction of the trial Court to entertain and dispose of the suit on merits notwithstanding the fact that elaborate arguments were made by attorney of the applicants as well as the learned counsel for the respondents. AA./N-315/K Revision dismissed.