P L D 1960 (W (PLP)

Dates of hearing: 27th January and 23rd February 1960. This order will dispose of Revision Application No. 219 of 1959, against the order of Mr. Abdul Wali Makhdoom, First Class Sub‑Judge, Mirpurkhas in an execution application in Suit No. 21 of 1958, dated 6th November 1959, who issued a warrant of arrest of the petitioner in execution of the decree passed in the said suit. Briefly, the facts leading to this application are that the respondent on 11th October 1958, obtained a decree on the basis of an award for a sum of Rs. 4,000 (four thousand) against the petitioner. The decree remained unsatisfied and the respondent filed an application on 19th of September 1959, for the execution of the decree by arrest of the petitioner. The learned Subordinate Court issued a notice and the petitioner in response pleaded that he was an agriculturist and exempted from arrest under section 21 of the Dekkan Agriculturists Relief Act and also prayed under section 20 of the said enactment for fixing reasonable instalment: for the payment of the decree. The learned Subordinate Court, after recording the evidence of the parties, dismissed the objections and directed that the decree may be executed against him by issuing a warrant of arrest. The petitioner has challenged this order on the ground that he being an agriculturist could not be arrested and the learned Subordinate Court ought to have allowed him to pay the decretal amount by reasonable Instal?ments. Mr. Nasim Farooqi, the learned counsel for the respondent, has raised a preliminary objection about the maintainability of the Revision Application. According to the learned counsel the order in question having been passed under section 47, C. P. C., is appealable and revision under section 115, C. P. C., is not maintainable. In support of his contention the learned counsel invited my attention to Ragha Mohan Datt, Silk Merchant v. B. Abbas Ali. Biswas and others (A I R 1931 All. 294 (F. B.)), A. H. Ghaznavi and another v. Sardar Gorcharan Singh (A I R 1937 All. 691), Secretary of State v. Ishar Das (A I R 1936 Lah. 761) Charles S. Brown v. Albert Donough Hanson (A I R 1933 Bom. 185); Nafar Chandra Sardar and others v. Kali Pada Das (A I R 1940 Cal. 257), to show that where an appeal lies either to the High Court or to the District Court as a lower Appellate Court, revision is not maintainable. On the other hand the learned counsel for the petitioner has invited my attention to a decision of Shabir, J., in Ghulam Shahbaz Shah v. Muhammad Siddiq (P L D 1959 B. J. 10) to show that if an appeal does not lie to the High Court but to the District Court, a revision petition is maintainable. The preliminary objection raised by the learned counsel for the respondent is not free from difficulty. There is divergence of view on this point. In Maharaja Sash! Nanta Acharjya Bahadur v. Nasirabad Loan Office, Co. Ltd. and others (A I R 1936 Cal. 786), Daw Min Baw v. A. V. P. L. N. Chettyar Firm and another (A I R 1933 Rang. 64), Tipan Prasad Singh and others v. Secretary of State (A I R 1935 Pat. 86), Sardar Harcharan Singh v. Mohammad Hussain Khan and others (A I R 1943 Oudh 241), and Ram Sundar Pandey v. Paras Ram and others (A I R 1946 Oudh 88), different view has been taken. In these decisions it was held that the appeal referred in section 115 must be an appeal to the High Court. The fact that an appeal lies to the lower Court will not take away the powers of the High Court to interfere on the revisional side. The learned counsel for the respondent dis?tinguished the case of S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq on the ground that in that case neither an appeal lay to the lower Court nor to the High Court and therefore the decision of Shabir, J., that a revision lies where no appeal lies to the High Court is not a well considered decision. No doubt Lahore, Allahabad and one decision of the Calcutta High Court support Mr. Nasim's contention but on the other side also there are weighty decisions to the effect that the High Court can interfere in revision even if an appeal lies to the Subordinate Court. The Bombay decision is not directly on the point as the appeal in that case lay to the High Court. It appears to me that the view taken by Shabir, J., in P L D 1959 B J 10 that: "This argument is without force because the appeal lay to the District Judge and the fact that it was not presented there would be no bar to this Court entertaining an application for revision under section 115 of the Code of Civil Procedure, because it is only in those cases in which an appeal lies to this Court that an application for revision is incompetent," is fully supported by the language of the relevant (sic) itself. It provides that a revision will not lie to the High Court if an appeal lies thereto. "Thereto" obviously means to the High Court. The record is to be called from the Subordinate Court and that appeal lies thereto cannot mean to the Subordinate Court. To interpret in any other manner will be adding some?thing more to the word "thereto" namely a first appeal to the Subordinate Court. One of the Judges in A I R 1940 Cal. 257 did not agree with Nasim Ali, J., on this point. The learned Judge in that connection observed: "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 at which the next appeal is to "some Court Subordinate to the High Court with the 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's 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." I am in full agreement with the view of Narsing Rau, J., in the above‑mentioned case and in my opinion the words "no appeal lies" refers to an immediate appeal against the impugned order to the High Court and cannot be interpreted to include an immediate appeal to a subordinate Court. This position is further fortified by the fact that a revision under section 115 is an excep?tional remedy provided in the C. P. C., and lies on very limited grounds. If, therefore, the intention of the legislature was that in no case where an appeal lies revision lies they would have specifically stated so. But that is not the position. Accordingly I follow the view taken in P L D 1959 B. J. 10 that in cases where no appeal lies directly to the High Court a revision is not barred. I therefore find no force in this contention and reject the preliminary objection. On merits the learned Subordinate Court has not applied its mind at all to the provisions of the Dekkan Agriculturists' Relief Act. Under it an agriculturist means a person who by himself or by his servant or by his tenant earns his livelihood wholly or principally by agriculture or who ordinarily engages personally in agricultural labour within those limits. The learned Judge did not at all consider the question whether the principal source of income of the petitioner is by agriculture or from other means. Principal source of income of course means that the major portion of his income comes from agriculture. The learned Subordinate Court has made certain adverse inferences against the petitioner but has not approached the question in the light of the definition of the agriculturist in the said enactment. He should have considered what is the income of the petitioner from agricul?ture and what is his income from other sources and thereafter come to the conclusion whether the income from agriculture exceeds his income from other sources. The learned Judge's conclusion that because the petitioner entered into a contract with Volkart Bros. to supply 250 maunds of Phutti his income from this source was more than the income from agriculture is not based on any evidence whatsoever. Even if the finding of the learned Subordinate Court that the petitioner enjoyed the benefit of Kabala is accepted there is no evidence of the profit earned by him from this transac?tion. In my opinion he has committed material irregularity in the exercise of his jurisdiction. Accordingly, I set aside the impugned order. The case is remanded to the trial Court for taking further evidence for finding out petitioner's income from agricultural and other sources. If he comes to the conclusion that the petitioner's principal source of income is agriculture, he should consider his application under section 21 and exempt him from arrest. If, however, he finds that his income from other sources is more, it will be open to him to issue warrant of arrest against the petitioner. But this conclusion must be based on positive evidence and not on conjecture and surmises. For the reasons given above the petition is allowed but the cost of this petition will depend on the final result of the question by the Subordinate Court. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.