2006 PLP 286 (CLC)

SYED ZAWWAR HUSSAIN JAFFERY, J.

The office has raised objection that how this revision application is maintainable against the order, dated 3-11-1998 passed by the learned II-Senior Civil Judge, Sukkur. Mr. Abdul Qadir Shaikh, the learned counsel for the applicants has urged that revision application before this Court is maintainable as the value of the suit is Rs.5,27,000 beyond the jurisdiction of District Court. Mr. Shaikh as also relied upon the Schedule of. Article 12 of Court Fees Act, 1870 and section 12 of C.P.C. It is further urged that such person challenges the validity of a judgment, decree or order on the pleas of fraud, misrepresentation or want of jurisdiction, such person shall seek his remedy by making an application to such Court and no other suit can be filed separately. An order under this section is not classified as an appealable order and revision before this Court is properly filed. Mr. Shaikh has relied upon Ordinance X of 1980 and Civil Court Rules (Amended) Ordinance, 1994. Learned counsel has also relied upon the cases of Munir Ahmed Khan and others v. Samiullah Khan and others 1982 CLC 525 and Province of Punjab through Secretary, Government of Punjab Housing and Physical Planning Department, Lahore and another v. District Judge, Lahore and 3 others PLD 1984 Lah.

515. On the other hand, Mr. David Lawrence for the respondents has filed an application as C.M.A. 184 of 2001 with a prayer that this Court may determine the court-fee on the amount of Rs.5,70,000 as the original valuation of the first class suit. It is also urged that the applicant be directed to pay the same amount of court-fee in above revision despite he noted office objection. In alternate, it is also prayed that it is mandatory to deposit the court-fees if it is not payable then certificate can be issued for return of fees. It is further urged that order under section 12(2), C.P.C. is final order and the applicant is liable to pay court-fee at revisional stage. Mr. Lawrence has relied upon the cases of Mst. Ghulam Sakina and 4 others v. Nishan and 2 others 1992 CLC 87 and Fazar Ali Khan and 3 others v. Ghulam Ali Khan and 9 others 1995 CLC 1850. The learned counsel has placed reliance on an unreported authority of Lahore in Civil Revision No.1618 of 1981 wherein ex parte judgment and decree was passed for Rs.7,50,000 and the only court-fee was paid Rs.7-50. The judgment and decree was set aside. I have gone through the record and the case-law cited at the bar. In view of the amendments by Ordinance XII of 1972 the revisional powers are available to the District Judge and in other cases according to section 18 of West Pakistan Civil Courts Ordinance, 1962, the High Court can also entertain a revision as concurrent jurisdiction. Since point of jurisdiction is involved in this matter. The jurisdiction means the power of administering justice according to the means which law provides, and subject to the limitation imposed by law and such limitations may be territorial or pecuniary or that may relate to the nature of litigations. The section confers an exceptional and necessary power intended to secure effective exercise of the High Court's superintending and revisional powers of correction unhindered by technicalities. The jurisdiction under section 115, C.P.C. is discretionary in nature. A Court cannot arbitrarily refuse to exercise its discretionary power and must act according to law and the principles enunciated by superior Courts. In the case of Province of Punjab v. District Judge, Lahore PLD 1984 Lah. 515, it has been observed as under:- "

8. Under section 115, C.P.C., both the High Courts and the District Courts, can exercise revisional jurisdiction. There is, however, a limitation on the exercise of such jurisdiction by the latter. It can exercise revisional jurisdiction, only in those cases, wherein the value of the subject-matter, does not exceed its appellate jurisdiction. The appellate jurisdiction is regulated by section 18 of the West Pakistan Civil Courts Ordinance, 1962. It has already been stated, that under this section, if the "value" of the original suit is not more than Rs.50,000 the appeal from the judgment and decree passed therein, lies to the District Court and in other cases to High Court. As pointed out by the learned counsel for the respondents, the term "value" has been defined in section 2(h) of the Ordinance, which reads as follows:-- "Value" used with reference to suit means the amount of value of the subject-matter of the suit." In view of the Schedule-I, Article 12 of the Court Fees Act, 1870 read with section 12 of C.P.C. and Civil Court Rules (Amendment) Ordinance, 1994, Ordinance, 1980 and case-law cited by the learned counsel for the applicant has force in his pleas, therefore, the office objection is overruled and revision application is maintainable before this Court and no court-fee is payable by the applicant at revisional stage as the order passed on application is filed under section 12(2), C.P.C. has been challenged. The C.M.A. 184 of 2001 is dismissed as no court-fee is payable by the applicant as the application was filed by the applicant under section 12(2), C.P.C. and impugned order is challenged before this Court by way of revision. Since very short point is involved in this matter the revision application is admitted for regular hearing in the meanwhile learned counsel for the applicant is directed to comply with the objection at Serial Nos.6 and 7 within 10 days and this matter be fixed for regular hearing in the next months. M.B.A./A-278/K Order accordingly.