1986 PLP 335 (CLC)

ABDUR REHMAN, J.‑‑These are Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan. Briefly stated the case of the petitioner is that House bearing C.S. No. F/1265 Gar! Khata, Hyderabad is owned by the petitioner and was transferred to him by Settlement Department. P. T.O. was issued in his favour on 2‑4‑1960 and P.T.D. was issued in March, 1963. On 15‑7‑1963 the petitioner filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against late Khan Muhammad Nizamani, the statutory tenant of that house for his ejectment before the Rent Controller, Hyderabad who passed an order on 16‑11‑1963 directing Khan Muhammad Nizamani to put the petitioner into vacant possession of the house in question. The petitioner then filed execution application against Khan Muhammad Nizamani which was admitted and notice was issued to him. Khan Muhammad Nizamani first made an application for setting aside the ex parte decree which was dismissed. He then filed an appeal that too was dismissed. Khan Muhammad and his brother Allah Bux also preferred a revision application before the Settlement Commissioner, Hyderabad. The Settlement Commissioner allowed the Revision application. The petitioner challenged the order of the Settlement Commissioner by filing a Writ Petition before this Court, which was allowed on 8‑9‑1972 and the order .of the Settlement Commissioner was declared as without lawful authority. The petitioner, therefore, again approached the executing Court to proceed with the execution application. No progress, however, could be made as the original record of the ejectment proceedings alongwith the execution proceedings was missing. The efforts to trace out the same remained without any success hence re‑constitution of the record was ordered and the petitioner produced certified copies of the order, dated 24‑6‑1964, Memo. of Appeal No. 216 of 1964 and the order, dated 29‑5‑1965 and simple copy of execution application signed by him to enable the Court to proceed further in the matter. The matter was taken up by the Executing Court on 30‑8‑1976 and Court motion notices were issued to the parties. Khan Muhammad Nizamani appeared before the, Executing Court but did not file objections although he took several adjournments for that purpose. Accordingly writ of possession was issued on 20‑12‑1976. On 22‑12‑1976,Khan Muhammad made an application under Order XLVII, rule 1, C.P.C. and Allah Bux made an application under Order XXI, rule 99, C.P.C. for setting aside the order of issuance of writ but the same were dismissed. Both of them then filed Revisions before the District Judge, Hyderabad, which were transferred to III‑Additional District Judge the respondent No.

1. During the pendency of the said Revisions Khan Muhammad died and respondents 1 to 6 were brought on record as his legal heirs. On 21‑8‑1979 the said revisions were dismissed for non‑prosecution. Two Restoration Applications were filed and that too were dismissed as not maintainable, on 28‑11‑1979 by respondent No.

1. Respondents 2 t o 6 again filed two similar Revision Applications Nos. 66 and 67 of 1979 on 3‑12‑1979 before District Judge, Hyderabad who transferred these to the learned III Additional District Judge, Hyderabad respondent No. 1 for disposal. The respondent No. 1 heard the said Revisions and it is alleged by the petitioner that he without properly and correctly, appreciating the submissions made by the counsel for the petitioner passed the impugned order on 22‑4‑1980 whereby he allowed both the revisions an, set aside the order of the learned III Senior Civil Judge issuing the writ of possession in the execution application. It has been contended by the petitioner that the said impugned order is neither based on facts on record nor on law but is absolutely arbitrary and capricious. There was no material before Respondent, No. 1 on the basis of which it could be held that the execution application was not duly filed. Though certified copy of the order, dated 16‑11‑1963 was filed alongwith original execution application. It was wrongly held that no such certified copy was filed. Moreover the filing of certified copy of the order was not a legal requirement. The respondent No. 1 had failed to consider the papers which were on record. The reasons and grounds given by respondent No. 1 could not be made a basis for dismissing the execution application. The order of respondent No. 1 was absolutely illegal, wrong and amounted to great injustice to the petitioner. Hence he has prayed for a declaration in both these petitions that the impugned order, dated 22‑4‑1980 passed by respondent No. 1 is illegal, void and without lawful authority and that the writ of possession be executed against respondents 2 to 6 in respect of house in dispute. We propose to decide both these petitions by this single order. The respondents have chosen to remain absent in spite of service. We have heard Mr. Hassan Mehmood Baig, Advocate for the petitioner at length. A perusal of the order of Mr. Didar Ahmed Soomro the respondent No. 1 the then III‑Additional District Judge, Hyderabad, dated 22‑4‑1980 shows that he has allowed the revisions on 2 grounds. The first ground was that no certified copy of decree was filed with execution application . The second ground was that the execution application was not verified on oath nor was stamped nor was there endorsement by the Judge of the Court on the same. These grounds are absolutely wrong and unjustified. First of all it was not necessary for an applicant to file certified copy of the order with the execution application. This practice is in vogue only for the sake of convenience. Moreover, certified copy of the order was filed alongwith the original execution application which was misplaced and the allegation of the petitioner's counsel made at the bar that the same was misplaced at the instance of Khan Muhammad Nizamani or his heirs also cannot be lightly brushed aside. Since the record was reconstituted after the loss of the original record, the absence of certified copy in the newly reconstituted record cannot be treated as legal or even technical defect. In the same way the original petition was duly verified on oath and stamped and endorsed by the Judge while the simple copy of the petition furnished by the respondent was only a secondary evidence of that application and absence of verification, endorsement or stamp of the Judge on the same cannot be treated as absence of verification, endorsement or stamp on the original. In this connection it will be useful to reproduce section 115 of the Civil Procedure Code. "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 regularity 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. "(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 sub‑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 under subsection (2) by the District Court." A perusal of the above provisions would show that the scope of section 115 of Civil Procedure Code is limited to cases where the subordinate Court has exceeded its jurisdiction or has declined to exercise the jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. No doubt if a Court has jurisdiction to decide a matter on facts or law it has the jurisdiction to decide one way or the other and the fact that a superior Court is of the opinion that the decision arrived at by the Court below is incorrect, does not mean that decision is without jurisdiction. But when the point on which erroneous decision has been given is based on points which affects the Court's capacity to entertain the case or to proceed further with it, the erroneous decision if acted upon would result either in the illegal assumption of jurisdiction or illegal or, erroneous exercise of it. A revision petition based on casuistic arguments cannot be entertained as section 115 is not designed to meet unsubstantial points of form. Reference in this connection may be made to P L D 1966 Dacca

105. In P L D 1979 Kar. 475, which has almost similar facts as the present case, it was held that a District Judge hearing revision application under section 115, C.P.C. does not enjoy the same power as enjoyed by an appellate Court under section 107, C.P.C. Hence if a revisional Court allows a revision on any one of the conditions which are not specified in section 115, C.P.C., its judgment is without lawful authority and liable to be set aside. In this case the Civil Judge had decreed a suit filed under section 9, C.P.C. and had refused to adjudicate the issues regarding right of possession of defendant based on title. Additional District Judge, Sukkur, allowed a revision and remanded the case for a decision on those issues thus converting the suit to one under section 8 of Specific Relief Act. In a Constitutions' Petition filed by the plaintiff our learned brother Ajmal Mian, J. sitting on a D.B. of our High Court with Fakharuddin Ibrahim, J. set aside the order of the Additional District Judge. In a latest ruling reported in 1985 C L C 2099 our learned brother Saeeduzzaman, J. held that preparation of Paper Book require by rules 198 to 201 of Sind Civil Courts Rules was only for convenience Non‑compliance thereof does not render the decision defective or illegal and the High Court cannot interfere with such an order in revision. In yet another latest ruling reported in 1985 C L C 2238 our learned brother Hyder Ali Pirzada, J. has held that revisional Court could not constitute itself as Court of appeal and could not reverse judgment unless the same was perverse or had overlooked essential evidence. In Raunaq Ali's case, reported in P L D 1973 S C 236 the principle has been explained in detail. It has been held that where finality is given by statute to the decision of certain tribunal the decision in such a case cannot be called in question in any proceeding by an other tribunal or body of limited jurisdiction. It was at the same time clarified that where a tribunal was acting beyond clear sphere allotted to it by law the action was nullity in the eyes of law. The superior Court would refuse to perpetuate something patently unjust and unlawful. It was further clarified by the Supreme Court that the object of the writ was to foster justice and right the wrong. In P L D 1961 S C 439 it has been held that where an original order passed earlier was not traceable but evidence was forthcoming to show that changes had been made in the record for that purpose it was held that presumption in the particular circumstances of the case would rightly be drawn that such an order in fact was passed. We are, therefore, of the clear view that impugned order is clearly illegal and void and has caused great injustice to the petitioner. We therefore, set aside the same and direct that the execution application filed by the petitioner should proceed according to law. A . A Petitions allowed.