1987 PLP 1263 (SCMR)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑S. 102‑‑Constitution of Pakistan (1973), Art. 185 High normally allows conversion of a second appeal into a revision but in certain circumstances it can refuse such permission in exercise of its judicial discretion‑‑Where the High Court had indicated reasons for refusing to exercise its discretion to allow conversi3n of second appeal to a revision and view taken by the High Court was not fanciful, arbitrary, perverse or capricious, Supreme Court declined interference in the matter. Karamat Hussain v. Muhammad Zaman and others P L D 1987 SC 139 ref. Zakiuddin Paul, Senior Advocate Supreme Court and Abid Nawaz, Advocate‑on‑Record (absent) for Appellants. M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 2nd May, 1987. NASIM HASAN SHAH, J.‑‑In this case the plaintiff had valued his suit for declaration and issuance of a perpetual injunction as consequential relief for process of jurisdiction and court‑fee at Rs.5. His suit was decreed but this decree was challenged by the defendant by filing an appeal before the Additional District Judge but without success. He then filed an appeal in the High Court against the judgment passed by the learned Additional District Judge. Since, however, the value given in the plaint for purposes of jurisdiction and court‑fee (Rs.5 only) also determined the forum of appeal (vide Ilahi Bakhsh v. Bilquis Begum P L D 1985 SC 393), the second appeal was not maintainable on account of the provisions of clause (b) of section 102 of the Code of Civil Procedure. An objection was also raised by the respondent to the maintainability of the second appeal whereupon the learned counsel for the appellant sought time to study this point and when the case came up for hearing again before the High Court, on the adjourned date of hearing, he attempted to justify his action in filing the second appeal. However, after the matter had been argued for sometime and realising that his plea was untenable, he prayed for conversion of the appeal into a revision. This prayer was refused by the learned Judge in the High Court observing: ‑

"I find that no reasonable explanation was given by the appellants for filing second appeal when the same was clearly hit by the provisions of section 102, C.P.C. Learned counsel sought adjournment on the let date of hearing but maintained his view about the competence of this appeal and filed no application for its conversion into revision petition. I am, therefore, not inclined to exercise discretion in the circumstances of the instant case in favour of the appellants at this belated stage." This appeal, by leave of this Court, is directed against the above judgment of the High Court. The controversy as to whether the High Court can allow a second appeal to be converted into a revision now stands resolved by this Court's judgment in Karamat Hussain v. Muhammad Zaman and others P L D 1987 S C 139, wherein it has been held that normally the High Court should allow the conversion of a second appeal into a revision but in certain circumstances it can refuse this permission in exercise of its judicial discretion. In this case the learned Judge in the High Court has indicated the reasons for refusing to exercise his discretion to allow conversion of the second appeal to a revision and we do not consider that the view taken by him is fanciful, arbitrary, perverse or capricious. No interference in the order passed by the High Court, is, therefore, warranted. This appeal, accordingly, fails and is dismissed hereby. However, the parties will be left to bear their own costs. M.B.A./A/44/S Appeal dismissed.