1985 PLP 1660 (CLC)

All the above titled revision petitions arise out of the following circumstances: - (i) Through Revision Petition No. 2 of 1984, Muhammad Ilyas and others challenged an order, dated 2nd April, 1984, passed by Sub-Judge Sehnsa, whereby their application for extension of time to deposit the decretal amount which they failed to deposit in time on account of ambiguous character of the decree, was rejected; (ii) Muhammad Ilyas and others, through Revision Petition No. 11 of 1984, sought vacation of decree, dated 30th January, 1984, whereby their separately instituted pre-emption suit against sale, dated 20th August, 1980, which, after consolidation, was decided alongwith other suits by a single judgment and time to deposit the decretal amount to each of the plaintiff-decree-holders, was not specifically and sufficiently given, was turned down; (iii) Muhammad Ilyas and others, through Revision Petition No. 12 of 1984, challenged the order, dated 2nd of April, 1984 of the Sub-Judge Sehnsa, whereby application moved by the same petitioners for amendment of decree, dated 30th January, 1984, to the effect that when Mst. Zarina Begum and others, decree-holders, failed to deposit their share of pre-emption money, how much amount and which of the rest of the plaintiff-decree holders were entitled to deposit, was rejected; (iv) Through Revision Petition No. 13 of 1984, Muhammad Ilyas and others sought reversal of the order passed by Sub-Judge Sehnsa, on 2nd April, 1984, whereby their application for extension of time to deposit the decretal amount till the decision of their application for amendment of decree, dated 30th of January, 1984, was disposed of, was turned down; (v) Muhammad Ayub and others, through Revision Petition No. 15 of 1984, impeached the order of Sub-Judge Sehnsa, dated 2nd April, 1984, whereby their application for permission to deposit three-fourth share of the pre-emption money which, according to the terms and conditions of the decree, fell to the share of Muhammad Ilyas and others who failed to deposit it in time, was rejected; (vi) Jan Muhammad, vendee-judgment-debter, through Revision Petition No. 17 of 1984, challenged the orders of Sub-Judge Sehnsa, dated 2nd April, 1984, and 23rd April, 1984,' whereby on deposit of Rs. 41,906 by Muhammad Ayub and Rs. 1,25,718 by Muhammad Yasin the decree dated 30th January, 1984, was made final; and (vii) Muhammad Yasin, plaintiff-decree-holder, through Revision Petition No. 28 of 1984, called in question the order, dated 23rd April, 1984, passed by Sub-Judge Sehnsa, whereby he was directed to pay three-fourth share of the decretal amount, instead of full decretal amount, was rejected.

2. Briefly the facts which gave rise to the present revision petitions are that Muhammad Yasin son of Diwan Ali, filed a suit for pre-emption on 28th March, 1981, to the effect that a piece of land measuring 30 Kanals comprising Survey Nos. 9 and 9/1, situate, in village Bhrand Tehsil Sehnsa District Kotli, alongwith the share of 'Shamlat' the trees standing thereon and two houses, was sold by Fazal Dad and others in favour of Jan Muhammad through sale-deed, dated 8th August, 1980 for an ostensible consideration of Rs. 1,61,500 and he, being an heir of the vendor and owner of the land, adjacent to the land sold, was entitled to pre-empt the same, Jan Muhammad, defendant, through his written statement, dated 14th April, 1984, denied the claim of the plaintiff and claimed improvements to the tune of Rs. 10,000.

3. Muhammad Ilyas, Muhammad Ishaque sons and Mst. Mir Jan, wife of Muhammad Yusuf, Mst. Zarina, wife of Ismail. and Mst. Munir Jan, wife of Muhammad Idrees, also filed a suit on 24th August, 1981 to pre-empt the above-mentioned sale. They claimed that Muhammad Ilyas and Muhammad Ishaque and Mst. Mir Jan are the sons and wife of Muhammad Yusuf, whereas Mst. Zarina is wife of Ismail and Mst. Munir Jan is the wife of Muhammad Idrees, vendor, therefore, they enjoy the right of prior purchase and prayed for grant of decree for possession of the property sold. Jan Muhammad, vendee-defendant, denied the claim and pleaded waiver.

4. Muhammad Ayub, Dawood, Muhammad Qasim, Latif and Ibrahim sons of Fazal Dad also filed a suit on 24th August, 1981, to pre-empt the aforesaid sale and claimed that they were sons of Fazal Dad, vendor and the nephews of Muhammad Yusuf, Ismail and Idrees, vendors and were entitled to pre-empt it. Jan Muhammad, defendant denied the right of the plaintiffs through his written statement, dated 2nd November, 1982.

5. The learned Sub-Judge consolidated all the three suits on 5th July, 1981 and framed the issues on Ist November, 1981. The case was fixed for the evidence when on 21st November, 1983, Jan Muhammad, vendee through a compromise deed, admitted the right of prior purchase of all the three plaintiffs and the plaintiffs in turn, accepted that the land was sold for a sum of Rs. 1,61,500 and stated that they were ready to make the payment.

6. Fazal Dad Khan, Advocate for Muhammad Ayub and others made a statement to the effect that Muhammad Ayub and others were the heirs of Fazal Dad, vendor and were entitled to pre-empt the property in dispute to the extent of the share of Fazal Dad, whereas Muhammad Ilyas and others, plaintiffs were the heirs of the rest of the vendors and were entitled to pre-empt the sale to the extent of their shares, hence, the decree may be granted in their favour. In both the suits, rights of pre-emption of the plaintiffs were superior to the right of Muhammad Yasin, plaintiff and a decree in favour of Muhammad Yasin may be passed in the alternative.

7. Sardar Muhammad Hanif Khan, Advocate for Muhammad Ilyas and others made a statement that Muhammad Ishaque and Mir Jan were the heirs of Muhammad Yusuf, Mst. Zarina was the heir of Ismail and Mst. Munir Jan was the heir of Muhammad Idrees, therefore, Ilyas, Ishaque and Mir Jan were entitled to pre-empt the suit property to the extent of the share of Muhammad Yusuf and Mst. Zarina was entitled to pre-empt the property upto the extent of Ismail's share whereas Mst. Munir Jan was entitled to pre-empt the property to the extent of the. share of Muhammad Idrees, vendor. Muhammad Ayub and others were the sons of Fazal Dad vendor and were entitled to pre-empt the sale upto the extent of his share.

8. Mr. Nisar Hussain, Advocate for Muhammad Yasin, admitted the right of prior purchase of Muhammad Ilyas and others and Muhammad Ayub and others and stated that the decree, on the basis of right of prior purchase, might be passed in their favour, but in case, they failed to comply with the terms and conditions of the decree granted in their favour, a decree in favour of Muhammad Yasin might be granted.

9. Mr. Rafiullah Khan, Advocate for Jan Muhammad, vendee, accepted the right of prior purchase of all the three plaintiffs and the learned Sub-Judge, through his order, dated 30th January, 1984, granted the decree in favour of the plaintiffs.

10. Muhammad Ayub, plaintiff deposited a sum of Rs. 41,906 on 2nd April, 1984 and the decree to the extent of one-fourth share in the property was made final in his favour alongwith his co-plaintiffs decree-holders whereas a decree to the extent of three-fourth share of the property sold, was made final in favour of Muhammad Yasin when he deposited Rs. 1,25,708.

11. Muhammad Ilyas and others filed an application for correction of the decree dated 30th January, 1984, to the effect that in case, one set of the plaintiffs failed to deposit the decretal amount to which date, the second set of the plaintiffs might deposit it and what sum of money, each of the various plaintiffs would deposit if rest of the co-plaintiffs elected not to deposit/contribute their shares. This application was rejected by the learned Sub-Judge, through his ,order, dated 2nd April, 1984 and Muhammad Ilyas and others have sought revision of it.

12. Muhammad Ilyas and others also moved another application on 2nd April, 1984, before the learned Sub-Judge and prayed that their application for amendment of the judgment and decree was pending before the Court, therefore, time to deposit the decretal amount might be extended till decision of the said application. This application was also dismissed by the learned Sub-Judge, on 2nd April, 1984 and this order of the learned Sub-Judge was also the subject-matter of the revision petition.

13. Muhammad Ilyas and others have also filed a revision petition against the decree of the learned Sub-Judge Sehnsa, dated 30th January, 1984 and prayed that the judgment and decree passed by the lower Court, was ambiguous and did not have the necessary details of the decretal amount each of the plaintiff would deposit and in case, one of them failed to deposit the share of the decretal amount, till what time the rest of the plaintiffs could deposit such amount. Thus, the petitioners were misled and had not been able to deposit the decretal amount in the trial Court, therefore, the decree passed by the learned Sub-Judge, might be set aside and the learned Sub-Judge might be directed to pass a fresh decree in accordance with law.

14. Muhammad Ayub and others also moved an application in the lower Court on 2nd April, 1984 and prayed that the judgment recorded by the Court on 30th January, 1984, was incorrect and did not have the necessary details about the deposit of the decretal amount, therefore, they might be allowed to deposit the said amount and the time might be extended. This application was also rejected by the trial Court and Muhammad Ayub and others filed the present revision petition seeking reversal of the said order.

15. Jan Muhammad, vendee-judgment-debtor, has sought revision of the orders dated 2nd April, 1984, whereby on payment of Rs.41,906 only by Muhammad Ayub, the decree was made final in favour of Muhammad Ayub alongwith his co-plaintiff-decree-holders and Muhammad Yasin who was required to deposit a sum of Rs.1,67,642, deposited Rs.1,25,718 and in spite of deficit payment, decree was made final in his favour.

16. Muhammad Yasin, plaintiff-decree-holder sought revision of the order, dated 24nd April, 1984, whereby on his application, dated 21st April, 1984 for deposit of the decretal amount, he was directed to pay only three-fourth share of the pre-emption money, that is Rs. 1,25,718, instead of the full of the decretal amount that is Rs. 1,67,642.

17. Ch. Alimuddin, the learned counsel for Muhammad Ilyas and others, petitioners, argued that the judgment and decree recorded on 30th January, 1984, did not contain the correct and necessary details of the suit property. It was not clearly mentioned as to who were the plaintiffs, who had to deposit, how much of decretal amount on what date and in case of failure of one of the plaintiffs, upto what time the other plaintiffs would be required to deposit the decretal amount and that the ambiguous terms of the decree, had caused the failure of.his client to deposit the decretal amount and in spite of the fact that the lower Court was apprised of this defect, necessary correction was not ordered and the time for depositing the decretal amount was not extended. He stated that the High Court was competent to interfere in revision, with an order passed by a subordinate Court, even where appeal lay to a Court, subordinate to the High Court, such as the Court of District Judge. He argued that his clients were entitled to call in question the decree passed by the lower Court on 30th January, 1984, by way of an appeal in the Court of District Judge but their failure to file such an appeal, did not debar them to approach this Court and invoke its revisional jurisdiction as contemplated by section 115, C.P.C. He cited cases reported in A I R 1920 Patna 568, A I R 1936 Cal. 786, A I R 1940 Cal. 257, A I R 1952 Punjab 428, P L D 1959 (W.P) Lah. 806, P L D 1960 Kar. 472, P L D 1971 Quetta 30 and P L D 1983 S C (AJK) 13 in support of his contention.

18. The learned counsel for Muhammad Ayub and others, on the other hand, argued that Muhammad Ilyas and others, plaintiffs failed to deposit the decretal amount as was required by the decree passed by the lower Court and the terms of the decree were clearly recorded, therefore, their suit stood dismissed and there was no merit in their applications which they moved in the trial Court and they had no right to press the revision petitions. He stated that his clients deposited the decretal amount in time as was required by the decree of the lower Court and they were entitled to deposit the rest of the amount but as the lower Court had not prescribed the period for such deposit, and his clients application for prescribing the time and permission to deposit the decretal amount which Muhammad Ilyas and others did not deposit, was incorrectly dismissed, therefore, the order passed by the lower Court might be revised and his clients might be allowed to deposit the said amount.

19. The learned counsel for Jan Muhammad, taking up the objection with regard to the competency of the revision petitions, argued that an appeal against the decree passed by the learned Sub-Judge, Sehnsa, on 30th January, 1984, was competent but no such appeal was filed and in this state of the matter, the revision petitions filed by Muhammad Ilyas and others and Muhammad Ayub and others, were incompetent and to support his contention, he referred to a case reported in P L D 1970 S C 506, wherein it was observed as under:- "The trend of judicial opinion is now to the effect that if a decree of 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. This view is also sound on general principles, for, if the framers of section 115 of the Code of Civil Procedure had been of the opinion that a revision would, be incompetent only where an immediate appeal lay to the High Court, they would have used the word 'from' and not 'in' before the words 'which no appeal lies thereto'. To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word 'appeal' used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The words 'no appeal lies thereto' are words of general import and there is nothing in the section to confine their operation only to first appeals."

20. The point that when an appeal against the decree passed by a Court, subordinate to the High Court, lay in the district Court and not direct to the High Court, the revision petition against such judgment, would be competent, was considered by the Patna High Court in a case reported in A I R 1920 Patna 568 and it was held:- "It is the privilege and the prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set aside, and direct such further proceedings to be taken as justice may require."

21. The matter with respect to the revisional powers of the High Court in case where the impugned order was, appealable in the subordinate Court and not directly in the High Court, was considered by the Calcutta High Court in a case reported in A I R 1936 Cal. 786 and it was observed:- "Revisional power of the High Court under section 115 is a bar only when an appeal lies to High Court. The fact that an appeal lay to the lower appellate Court will not take away the powers of the High Court to revise the order of the trial Court. The language of section 115 is that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto."

22. The similar point was considered by the Culcutta High Court in a case reported in A I R 1940 Cal.

260. The relevant observations are as under:- "The words 'in which no appeal lies thereto' present some difficulty. 'Thereto' means of course to the High Court. The words 'no appeal lies' are not so easy to interpret. Where at the moment the record is called for, the case has reached a stage at which the next appeal, whether first or second, is to the. High Court, it is easy enough to say whether an appeal actually lies to the High Court or not; and if it lies, revision is clearly barred. But where a case has not reached that stage and has, say, only reached the stage which the next appeal is to some Court subordinate to the High Court with a possibility of a second appeal to the High Court at some future date, is revision barred? In other words, are we to interpret the expression in which no appeal lies' as if it were equivalent to the expression 'in which no appeal lies or may in future lie', I hesitate to place so wide a construction upon these words. According to the alternative interpretation, revision is barred only where an appeal, whether first or second, lies immediately to the High Court; where no such immediate appeal lies, the High Court has jurisdiction to intervene in revision, although whether it will exercise this jurisdiction or not will depend upon the urgency of the need for intervention."

23. In a case reported in A I R 1952 Punjab 428, while considering the same point, it was held:- "It is conceded that no appeal lies to this Court and if an appeal lies at all, it lay to the Court of District Judge. Section 115 gives an aggrieved party the right to file a petition for revision to the High Court in a case where no appeal lies thereto. This means that if the order by which a party is aggrieved is not appealable to the High Court he can file a petition for its revision."

24. In P L D 1959 Lah. 806, it was observed as under:- "Section 115, C C.P.C. 1908 confers revisional jurisdiction on the High Court in cases in which no appeal lies to the High Court. The word 'and in which no appeal lies thereto' do not exclude High Court's revisional jurisdiction if the appeal lies to the District Court and not to the High Court."

25. In P L D 1960 Kar. 472, it was held that the words 'thereto' in section 115, C.P.C. 1908 and the words 'no appeal lies to the High Court' occurring in the same section, refer to an immediate appeal against the impugned order to the High Court. Revision, in this section, therefore, is barred only when an appeal, whether first or second, lies immediately to the High Court. Where no appeal lies, the High Court has the jurisdiction to intervene in revision, even if an appeal lies to the subordinate Court.

26. In the case reported in P L D 1971 Quetta 30, it was observed as follows:- "Order passed by the Court under section 39(C) of the Arbitration Act, 1940 , was challenged in revision before the High Court under section 115, C.P.C. 1908. It was contended that since the impugned order was appealable, under section 39, of the Act, the revision petition was not maintainable. The contention was rejected and it was held that a revision is barred under section 115, C.P.C. 1908, only when there is right of appeal against the impugned order before the High Court. Since in the present case, the appeal lay only to the District Court, under section 39 of the Arbitration Act, 1940 , the revision was maintainable."

27. In the case reported in P L D 1983 S C. (AJK) 13, it was held that:- "We have here also the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, which invests the High Court with' the authority of superintendence and control over the Courts subordinate to it. Section 35 of the Courts and Laws Code Act, 1949, gives wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. Prerogative and privilege of the High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under section 115, C.P.C. This right imposes a corresponding duty to see that Courts subordinate to it, do not invade vested rights of subject by usurping jurisdiction."

28. In the case in hand, the petitioners have also challenged the orders passed by the learned Sub-Judge on 2nd April, 1984 and 23rd April, 1984, whereby their applications for correction/amendment of the decree, dated 30th January, 1984 extension of time to deposit the decretal amount and for dismissal of the suit for want of deposit of the full decretal amount, for cancellation of orders, whereby on payment of part of the pre-emption money, the decree was made final, were rejected, are required to be considered and no appeal is provided against these orders. Besides, the power vested under section 115, C.P.C., this Court, under its superintending powers, can also pass an appropriate A order, in the matter brought before it, in exercise of its revisional powers. I, therefore, over-rule the objection with regard to the incompetency of the revision petitions and, hold that the revision petitions are competent.

29. It is the duty of the Courts to express themselves in very explicit terms while recording the judgment and decrees so that the parties may not fall in confusion while complying with the directions given in the decree and the terms imposed must not be so harsh as to create difficulties for the parties or to make the execution impossible. The pre-emption decrees are required to be formulated in accordance with the provisions of Order XX, rule 14, Civil Procedure Code which lays down as under:- "The decree shall - (a) specify a day on or before which the purchase money shall be so paid, and XX XX XX XX XX XX XX XX XX XX XX XX if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect."

30. After going through the judgment of the lower Court and the decree recorded by it, I feel that the lower Court failed to comply with the provisions of Order XX, rule 14, C.P.C. and there was a genuine reason for the petitioners to be misled by it. It was incumbent upon the trial Court to record the judgment and clearly lay down the terms of the decree to be complied with. In the instant case, there were three separate suits and all the three plaintiffs claimed their prior right of purchase against the vendees as well as amongst themselves and when the parties compromised their dispute, it was incumbent upon the lower Court to clearly prescribe their shares in the property as well as the amounts which they had to deposit and in case, any of them failed to deposit his share of the amount, till what time, the other party would deposit the same. The lower Court, in the decree, prescribed the time for depositing the decretal amount by Muhammad Ayub and others and Muhammad Ilyas and others but it failed to prescribed the time, till which time the other plaintiffs will make the deposit of pre-emption money if one of the plaintiffs having equal right of prior purchase failed to deposit his share of the pre-emption money in time. The detail of the property was also not sufficiently given, as for instance, the houses and the trees standing over the suit land, sought to be pre-empted, were not listed in the judgment and the decrees. I, therefore, feel that the lower Court failed to comply with the provisions of law and caused the petitioners to be misled by its order.

31. As I have already held that the learned Sub-Judge failed to comply with the provisions of law while formulating the decree, dated 30th January, 1984 and have declared the said decree to be illegal and have proposed to direct the learned Sub-Judge to pass the decree in accordance with law, as such, the order sought to be revised which, one way or the other, ooze out of the said decree automatically become redundant arid infructuous. I, therefore, have not examined the merits of those orders in this judgment.

32. In the aforesaid view of the matter, I hereby accept the revision petitions, set aside the decree, dated 30th January, 1984 and all the orders, sought to be revised and mentioned in the earlier part of the judgment and direct the lower Court to record the terms of the decree giving full defails and particulars of the property, that is to say, the amount, each of the parties will have to deposit and the period in which, such amount will be required to be deposited and in case, any of the plaintiffs, enjoying right of prior purchase, in equal degree, failed to deposit their shares of the pre-emption money, the other set of the plaintiffs will be entitled to deposit such amount and in case, the plaintiffs enjoying superior rights of pre-emtion, fail to successfully exercise their rights, till what time, Muhammad Yasin, plaintiff will be entitled to deposit the pre-emption money.

33. Consequently, the revision petitions are accepted and disposed of in the manner indicated above. Keeping in view the circumstances of the case, I pass no order as to costs. A.A. Revision Petition accepted.