1988 PLP 1445 (MLD)

This appeal styled as Regular First Appeal has been filed by a plaintiff pre‑emptor on the principal grievance that his plaint was illegally dismissed in revisional jurisdiction by the learned Additional District Judge after reversing the decision of the trial Court allowing extension of time in deposit of zar‑e‑panjum.

2. Brief facts of the case are that Bassi appellant in the year 1975 filed a suit for pre‑emption at Lahore prior to the creation of Kasur as a separate district. The Civil Court at Lahore for one reason or the other failed to pass an order for the deposit of Zar‑e‑Panjum and in that state the suit was transferred to Civil Judge, Chunian who on 5‑7‑1977 noticing the, omission, directed the plaintiff to deposit Zar‑e‑Panjam by 16‑7‑1977. The case thereafter was adjourned on various dates. The appellant failed to comply with the order and did not deposit the Zar‑e‑Panjum within time fixed by the Court. However, on 22‑5‑78,the respondent filed an application for rejection of the plaint for failure of the pre- emptor to deposit Zar‑e‑Panjum. This application remained pending for as many as 8 further dates of hearing. In the meanwhile on 19‑7‑1978 the appellant‑pre -emptor gave an application to the learned Civil Judge for extension of tune claiming ignorance of the order of the Court dated 5‑7‑1977 for the deposit of Zar‑e‑Panjum by 16‑7‑

77. It was also admitted in this application that on 22‑5‑1978 the vendee had given an application whereupon the pre‑emptor gained the knowledge of default. Despite all this, a plea was raised that the belated application of 22‑5‑1978 tended to show that even the vendee had no knowledge of the passing of the order. The time for extension was, therefore, prayed. The application further disclosed that the main suit was fixed for 19‑7‑1978. This is a matter of no small surprise that the learned Civil Judge entertained this application for extension of time on 18‑7‑1978 and behind the back of the opposite side allowed it on the same day thereby allowing time to the pre‑emptor to deposit Zar‑e‑Panjum by 21‑7‑1978.

3. The passing of this order for extension of time on the application of pre -emptor on a date when the case was not fixed for hearing and its disposal spontaneously at the back of the opposite side gave a cause for grievance to the " vendee a respondent who thereupon filed a revision petition before the learned District Judge. The revision was disposed of by a learned Additional District Judge who accepted the same and ordered the rejection of the plaint vide his order dated 10‑1‑1979. The learned revisional Court took the view that the order dated 5‑7‑1977 having been passed in the presence of the counsel for the parties, it was not believable that the plaintiff gained no knowledge about this order and after full one year made an application that he be allowed further time for deposit of Zar‑e‑Panjum. It constituted a flagrant disregard of the order of the Court. He was further of the view that an order passed in the presence of the counsel for the parties burdened the parties with the knowledge of the order. The procedure adopted and the order passed by the Civil Judge was found to be also in disregard of the law laid down by the superior Courts. The order was held to have been passed illegally and with material irregularity. The plaint was accordingly ordered to be rejected for non‑compliance with the order of the trial Court dated 5‑7‑1977.

4. Learned counsel for appellant/petitioner argued that the learned ‑Additional District Judge ought not to have interfered in revision with the discretionary order of the trial Court. The contention has not impressed me. It may be observed that the post haste order passed by the learned Civil Judge on 18‑7‑1978 extending time for deposit of Zar‑e‑Panjum behind the back of the E vendee long after the time originally fixed for the purpose had run out on a day which was not the date fixed for hearing of the suit would not be a valid order. It is patent on a reading of section 22 of the Punjab pre‑emption Act that where an order for deposit of Zar‑e‑Panjam passed in terms of subsection (1) or (2) of this section is not complied with within the time fixed by the Court or within such further time as the Court nay allow, then the consequence of such non‑ 1 compliance according to subsection (4) is that his plaint shall be rejected or appeal dismissed as the case may be. In a case in which failure to comply with such an order has occurred on the part of the pre‑emptor, a right accrues in favour of the vendee to have the plaint rejected. This would at once attract a notice and a right of hearing to the opposite side before grant of further extension. Reliance may advantageously be placed on the decision of the learned, Supreme Court in the case of Niaz Muhammad Khan v. Mian Fazal Raqib P L D t 1974 S C 134 wherein it was held in a pre‑emption case that an order for extension of time for deposit of Zar‑e‑Panjum can be made after application of the mind to the circumstances necessitating and the vendee has clearly a right to be heard before extension is granted. In the present case the pre‑condition of hearing the vendee was not fulfilled. It follows, therefore, that the order dated I 18‑7‑1978 without meeting this requirement was void. On a proper appreciation of the events and facts of this case, it cannot reasonably be said to involve the question of exercise of discretion simplicitcr. A case of want of jurisdiction was thus made out for failure to comply with absolute legal requirement of hearing the respondent/defendant before the time was extended. The illegality stood aggravated by the fact that extension in time was, allowed by the trial Court during the pendency of the application of the vendee for rejection of plaint on a day which was not the date of hearing in the Suit. The order of the trial Court impugned before the District Court was clearly open to interference in revision' as the trial Court acted illegally and with material irregularity.

5. The learned counsel placed strong reliance on the case of Malik Hidayat Ullah and 2 others v. Murad Ali Khan P L D 1972 SC fig in support of his submissions. Tine learned Counsel however, fails to take notice of the case of Niaz Muhammad Khan v. Malik Fazal Raqib P L D 1974 S C 134 which fully covers the present case. Malik Hidayat Ullah's case is thus distinguishable on facts.

6. The next contention of the learned counsel for the appellant is to the effect that the order of the learned Additional District Judge was without jurisdiction in‑as much as the plaint could be rejected under Order VII Rule 11 of the C.P.C. on the grounds stated therein. In the present case there was complete absence of those grounds as enumerated in the aforesaid rule, thus the learned Additional District Judge possessed no power to reject the plaint. The objection flows from a misconception. The order of rejection of plaint in this case has been passed as ordained by the penal provisions of section 22(4) of the Punjab Pre -emption Act. The legislature by providing for penal consequences for failure to comply with the order passed under subsection (1) or (2) of section 22 of the Act had manifested its intention that the provision was mandatory. The same result allows from a plain reading of this provision as the words used therein are "his plaint shall be rejected." The rejection of a plaint of a party in a given situation being a mandatory requirement of parent provisions of a Statute, the exercise of the power in these terms was not dependent upon the scheme of Order VII, Rule 11 of the C.P.C. To my mind the provisions of Order VII, Rule I1 of C.P.C. and section 22(4) of the Punjab Pre‑emption Act would have effect in the given situations. The mere fact that subsection (4) of section 22 speaks of rejection of a plaint, it would not, therefore, follow that all plaints can be rejected only under the conditions visualised by the: provisions of Order VII, Rule 11 of the C.P.C. It must be observed that section 22 of the Punjab Pre‑emption Act carries its own scheme and its provisions, are self‑contained. Its subsection (1) obliges a Court in o every suit for pre‑emption to require the plaintiff at the time of settlement of issues or at any time before; it, to deposit in Court such sum as does not in the opinion of the Court exceed one fifth of the, probable value of the land or property or require the plaintiff to furnish security for the payment of the same amount to Court's satisfaction within such time as the Court may fix in the order. Then its subsection (2) authorises the appellate Court to exercise at any time the Powers conferred on a Court under subsection (1). Subsection (3) makes such sums deposited or secured to be available for discharge of costs. Then comes subsection (4) which is most relevant for the disposal of the case under consideration. It deals with the consequences of plaintiff's failure to comply with an order under subsection (1) or (2) or within such further time as the Court may allow to make the deposit or furnish the security. The penalty provided is rejection of plaint or dismissal of appeal as the case may be. I am clear in my mind that an order passed by virtue of section 22 (4) would be valid notwithstanding the provisions of Order VII, Rule 11 of the C.P.C. which carries its own scheme and deals with different situations contemplated by it. The mandatory provisions of a parent Statute would clearly have effect and the procedural rules and orders framed under the Code of Civil Procedure must give way and cannot be pressed into service to legitimately defeat the operation or effect of the former Statute. It is, therefore, not necessary to show that an order in terms of section 22 (4) of the Punjab Pre‑emption Act must be covered by the scope of Order VII, Rule 11 of the Civil Procedure Code. I may, however, observe that the pre‑emption Act and Order VII Rule 11 of the C.P.C. can co exist simultaneously and arc operative with full force in their respective fields and govern situation covered by each of them. The point raised by the learned counsel has no merit and is hereby repelled.

7. The attack on the merits of revisional order of the learned Additional District Judge on the ground of burdening the appellant‑petitioner with knowledge of the order of trial Court for deposit of Zar‑e‑Panjum is also not well based. The view of the revisional Court is to the effect that an order passed to the knowledge of and in presence of a counsel amounts to the knowledge of the party. The principle is by now well‑settled and no principle of law or precedent 1 has been cited to support the contrary view. That being the legal position, the further view of the learned Additional District Judge that there existed no valid cause or ground for extension of time had specially when the application for extension of time had been moved after one year's delay appears to be open to no valid exception on this score. The order of the trial Court passed behind the back of opposite side has already been found to be void and without jurisdiction.

8. After having dealt with the above points in open Court, I felt constrained to call upon the learned counsel to attend to the question of maintainability of the proceedings which ought to have been argued first before dealing with other questions. It was pointed out to him that his stand for treating the proceedings as Regular First Appeal did not appear to be apt as the order and decree under challenge were passed in‑ exercise of revisional jurisdiction under section 115, C.P.C. by the learned Additional District .fudge. A further revision was also barred by virtue of subsection (4) of section 115, C.P.C. The case also prima facie did not appear to be covered by the provisions of sections 96 and 1001 of the C.P.C.

9. The learned counsel for the appellant at this stage realising his difficulty replied that originally he was himself in doubt and had filed a writ petition in this Court but later on as per office objection he had prayed that it be treated as an R.FA. The learned Single Judge who admitted that appeal to a regular hearing vide interim orders dated 11‑4‑1979 and 24‑4‑1979 had considered the point worthy of examination. Counsel accordingly prayed that the proceedings which were instituted as writ petition may be treated as a regular first appeal under section 96 of the C.P.C. or in the alternative it could be disposed of as a writ petition. In either case he would be entitled to relief. He submitted that he was conscious of the fact that in case of regular first appeal the entire matter would become subjudice and open to consideration by this Court whereas in case the proceedings were treated as a writ petition its scope would be different and rather limited.

10. The learned counsel for the appellant then argued that the order of the trial Court having been assailed in revision before the District Court the rejection of the plaint amounted to a decree and the same could have been assailed by him as an R.FA. under section 96 of the C.P.C. He relied on the definition of `decree' as given in the Civil Procedure Code to the effect that a decree shall be deemed to include rejection of a plaint. According to him, therefore, in addition to an order passed under Order VII, Rule 11, C.P.C. for rejection of plaint all orders which amounted to rejection of plaint would also amount to a decree. According to him, an order under Order VII, Rule 11 of the C.P.C. was appealable as a decree whether passed by the trial Court in original jurisdiction or by the District Court under section 115, C.P.C. The same position would obtain according to him, in respect of rejection of plaint under section 22(4) of Pre‑emption Act. He, therefore, insisted that proceedings had rightly been instituted as an R.FA. under section 96 of the C.P.C.

11. Learned counsel for the respondent in reply raised serious objection to the maintainability of the present proceedings. He relied on subsection (4) of section 115 of the C.P.C. which was added by Law Reforms Ordinance (XVI of 1972) to make a revisional order of the District Judge immune from further interference in revision. According to the learned counsel the intention of law was to render the order passed in revision immune from further scrutiny by the High Court and thus even an appeal was incompetent. He also relied on a decision of a Single Bench of this Court Buland Khan v. Chiragh Din and 3 others 1981 C L C 249 which was rendered at limine hearing. In the cited case, a view had been taken by a learned Single Judge of this Court to the effect where a defendant in a suit had challenged the order of the trial Court in revision before the District Judge who while accepting the revision dismissed the suit, no regular first appeal against such order was competent nor it was open to treat the appeal so filed as a second appeal. The learned counsel for the appellant submitted that a case decided in a limine hearing lacked the force of binding precedent for the same Court. Be that as it may, the grievance of the learned counsel will presently disappear because I am myself examining the points arising for consideration at a regular hearing and the ratio of the cited precedent on a parallel level. It may however be pointed out that the counsel relied on some reported decisions which I did support the. learned counsel as regards the non‑binding nature of limine 1 decisions as precedents.

12. I have heard the learned counsel for both the sides at length on the point of maintainability of this appeal as F.RA. under section 96 of the C.P.C. or as an R.SA. under section 100 of the same Code. After due consideration I have arrived at the firm conclusion that the proceedings originally instituted as a writ petition cannot be treated as a first or second appeal under the C.P.C. I may observe that proceedings of one kind can ordinarily be treated as proceedings of another kind provided the period of limitation does not intervene. This is subject to a further qualification that such proceedings should otherwise be competent l under the provisions sought to be invoked. The decision of this question would l rest on the proper interpretation of the provisions of sections 96 and 100, C.P.C. I A reference to section 96 would show that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Then its subsection (2) lays down that an appeal may lie from an original decree passed ex parte. A comparison of the provisions of subsections (1) and (2) thus brings out that every decree passed by a Court exercising original jurisdiction would constitute an original decree. A Court exercising the revisional jurisdiction cannot by any plausible process of reasoning be termed as a Court exercising original jurisdiction in terms of section 96, C.P.C. It is unnecessary to decide the question whether the rejection of the plaint in revision would constitute a decree or not because assuming that it 1 amounted to a decree the basic question to be answered is whether such a decree would be an original decree. To my mind, in the facts and circumstances of the present case, the trial Court had not passed any decree but the revisional Court interfered and rejected the plaint. The decree so passed would thus properly be termed as a decree passed m revision and not an original decree passed by a Court exercising original jurisdiction. The case would, therefore, not fall under section 96, C.P.C. .

13. Reference may now be made to the provisions of section 100 of the C:P.C. It stipulates that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds enumerated therein. The maintainbility of an appeal under section 100 of the C.P.C. is dependent upon the existence of the fact whether the decree in question was passed by a Court in appeal while exercising appellate jurisdiction which in other terms may be called an appellate decree. Therefore, nothing substantial turns on the reasoning advanced by the learned counsel for the appellant that rejection of the plaint amounted to a decree of the learned Additional District Judge by virtue of fiction of law as per definition of `decree' as given in section 2(2) of the Code. The decree passed by a Court exercising revisional jurisdiction would be more appropriately described as a decree passed in revision or revisional decree. In the present case, the writ petition cannot be treated as an appeal under section 100 of the C.P.C. because in order to avail of this remedy a person approaching the High Court has to show that he is assailing a decree passed in appeal. There is broad distinction between the concept of appellate jurisdiction and revisional jurisdiction under the Code of Civil Procedure. It would, therefore, not be permissible to treat a decree passed by a Court exercising revisional jurisdiction as decree passed in appeal or an appellate decree within meaning of the expression employed in section 100, C.P.C. I have therefore no hesitation in rejecting the prayer of the appellant to treat the L proceedings as being one under section 96 or section 100 of the C.P.C. Needless to add that a further revision is barred by subsection (4) of section 115 of the C.P.C. In so far as the distinction between an appeal and revision under the Code of Civil Procedure is concerned, the question may not detain me any further as it would suffice to refer to the decision of the Supreme Court in re: Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another P L D 1963 S C

147. In the precedent case a view had been taken that the word "appeal" occurring in section 12(2), Limitation Act is to be construed in a broad sense so as to include a revision falling under section 15(1) of the Karachi Rent Restriction Act, 1953. However, at page.150 of the report, the Supreme Court observed:‑‑ "It is true that under the Code of Civil Procedure a distinction has been made between a `revision petition' and `an appeal under section 115 of the Code of Civil Procedure. A revision petition only lies where an appeal does not lie. But here we are dealing with a revision petition which had been filed under a special Act, namely Rent Restriction Act, 1953. It cannot be said that the special Act deals with revision petitions in the same sense as it is used in the Code of Civil Procedure:' It is evident from the above passage of their Lordships of the Supreme Court that there exist a distinction between a `revision' and `an appeal' under the Code of M Civil Procedure. It would, therefore, not 'be permissible to substitute me word, appeal' by the word `revision'.

14. The case of the appellant would stand on no better footing even if it was to be examined in the light of Constitutional jurisdiction of this Court. There is also no scope for interference in writ jurisdiction with the revisional order of the learned Additional District Judge because of the reasons already recorded that the order dated 18‑7‑1978 passed by the trial Court in the case for extension of time is void and without jurisdiction. The learned Additional District Judge did not consider it to be a fit case for condoning the conduct of the appellant for extension of further time. The view taken by the learned Additional District Judge that the plaint of the appellant merited to be rejected for non compliance with the order dated 5‑7‑1977 for failure to deposit the Zar‑e‑Panjum within the time fixed by the Court i.e. before 16‑7‑1977, therefore, appears to be unexceptionable and calls for no interference. No case is made out to show that the impugned order of the learned Additional District Judge suffered from want or excess of jurisdiction or failure to exercise jurisdiction. The order under attack appears to be a just order keeping in view the facts and circumstances of the case. This is thus not a fit case for exercise of Constitutional jurisdiction. There is no merit in this case and the appeal is accordingly dismissed with costs. M.Y.M./2528/L Appeal dismissed.