P L D 1955 Lahore 525 (PLP)

AKHLAQUE HUSAIN, J.--‑On the 28th of October, 1953 the petitioner abtained a decree for ejectment from shop No. 138 in Anarkali, Lahore, against one Muhammad Ibrahim. He applied for execution of the decree on the 12th of Novem ber, 1953 and the execution was ordered on the 28th of the same month. Before, however, the process‑server could go to the spot to deliver the possession to the decree‑holder the respondent Muhammad Rafiq applied to the Court on the 1st of December, 1953 alleging, inter alia, that the decree was fictitious and that he and his father were in possession of the shop for about a year as tenants of one Syed Said Ali Shah Sahib Gaddi Nashin Darbar Hazrat Nlian Mir Sahib and prayed that the issue of the warrant for delivery of possession be withheld until the disposal of his application. This applica tion purported to be under rule 99 of Order 21 of the Code of Civil Procedure. On that very date the learned Senior Civil Judge ordered the Civil Nazir to return the warrant to the Court without execution. The decree‑holder contested the application and in his reply dated the 22nd of January, 1954 took the following preli minary objections :‑ (1) . . . . . . . . . . . . . . . . . . . . (2) The law quoted, i.e., Order 21 rule 99 Civil P. C. is not at all applicable to this case and hence the application is absolutely incompetent. (3) The petitioner has no locus standi to submit .the application. The learned Senior Civil Judge framed the following three issues:‑ (1) Is the objection petition maintainable in law ? (2) If it be found that the objection petition is maintain able, is petitioner in possession of the property in dispute as tenant of Syed Said Ali Shah, Mutawalli of the shrine of Hazrat Mian Mir Sahib ? If so, with what effect ? (3) Relief. The learned judge by his order dated the 30th of August, 1954 answered all the three issues in favour of the objector and against the decree‑holder and dismissed the application for execution. The decree‑holder has come up to this Court in revision against this order. The only point which was argued at the bar, and falls for decision, is whether the respondent had any locus standi under Order 21 rule 99 of the Code of Civil Procedure‑or in other words, whether the lower Court had any jurisdiction to entertain his application. The relevant rules of the Order are as follows:‑ "Resistance to delivery of possession to decree‑holder or purchaser 97. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resis tance or obstruction. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment‑debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, orde‑ judgment‑debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may, extend to thirty days.

99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment‑debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment‑debtor, the Court shall make an order dismissing the application. 100. (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment‑debtor, it shall direct that the applicant be put into possession of the property." It will be seen that the provisions of rules 98 and 99 come into play only when a complaint is made by the decree‑holder under rule

97. In this case there was no such complaint and in fact there could not have been any such complaint because the stage for actual delivery of possession on the spot had not been reached before the respondent made his applica tion to the Court. The only other remedy which was open to the respondent was under rules 100 and 101, but this could become available to him only after he had been actually dispossessed. In the present circumstances, therefore, the? respondent had no right to ask the Court to adjudicate upon his claim; nor did the Court possess the jurisdiction to adju dicate because the requisite conditions which could confer that jurisdiction upon it had not come into existence. On this view of the matter the learned lower Court clearly exercised a jurisdiction which was not vested in it by law. Learned counsel for the respondent has strenuously urged upon me to refrain from exercising my discretionary powers in revision on the ground that the parties have led evidence and the Court has decided the matter on merits. I refrain from expressing any opinion on the merits of the case but I am quite clear that there were no laches or acquiescence on the part of the decree‑holder‑petitioner. He led evidence because the learned Judge did not decide the second and third issues framed by him at the very outset as preliminary issues. It was clearly the learned Judge's duty to have applied his mind to the relevant provisions of law as soon as the applica tion was put up before him, and to find out whether he had the power to entertain it. His failure to perform this obvious duty has led to a considerable waste of his own time as well as that of the parties. It would not be a proper exercise of my discretion to ignore the fact that a jurisdiction has been exercised which by law was not vested in the lower Court. A number of authorities have been relied upon on behalf of the respondent; but in my opinion none of them precisely covers the point which I am called upon to decide. In Nathu Mal v. Mst. Ambo and others (10 I C 183) a learned judge of the late Punjab Chief Court refused to interfere in revision on the ground that the real order against which the petitioner could have had some grievance was allowed to stand unchallenged for a considerable length of time. In the concluding portion of the judgment the learned judge observed:‑ "I do not consider that I am justified at this last stage in considering his alleged grievances. Apart from this objec tion (which per se is fatal to his prayer), it is clear that the petitioner had the right to proceed under Order 'XXI, rule 103, and as he had that remedy, in order to rectify the final order of the District Judge, he cannot reasonably claim any indulgence from this Court." I do not understand the learned judge to have meant that, even apart from the laches on the part of the petitioner in challenging the original order, his application for revision was concluded by the mere fact that under rule 103 he had the alternative remedy of filing a suit. That remedy can only follow an order made under rule 98, rule 99, or rule

101. In the case before me there is no order under any of these rules inasmuch as in the circumstances of this case the learned lower Court possessed no power to pass such an order. In Rajendra Kishore Pal Chaudhury and another v. Asirullah and another (A I R 1938 Cal. 192) a learned judge of the Calcutta High Court held that the order passed by the lower Court under rule 100 of Order XXI was not erroneous, and went on to add: "In the next place I am satisfied that this Court should not interfere in a case of the present description even if it were held that the decision against which this rule was directed was erro neous, seeing that there was a more comprehensive remedy open to the petitioner to establish his title to the property in question . . . . . ." I take it that the emphasis in this passage is on the words "in a case of the present description." Another learned Judge of the same High Court in the earlier case of Bhim Naik v. Chakradhar Maity and others (A I R 1930 Cal. 348) held that where an application is brought in revision against an order restoring a purchaser from the judgment‑debtor of a non‑transferable occupancy holding, to possession under Order XXI, rule 101, the High Court of Calcutta as a rule does not interfere in revision because another and better remedy by way of suit is open to the parties. In this case again it was not laid down as an immutable rule that the presence of the alternative remedy of a suit bars the revision. A perusal of the judgment would show that the learned judge had refused to interfere with the decision of the lower Court on merits. There was no question in that case of the lower Court having exercised a jurisdiction not vested in it by law. A Single judge ruling of the Madras High Court in Vesra swami Mudali v. P. R. henkatachala Mudali and others (A I R 1926 Mad. 18) relied on by the respondent is again, in my opinion, inappli cable to the fact of this case and in fact partly supports the petitioner. The relevant headnote of that ruling is as follows:‑ "Where a remedy by way of suit is available the High Court will not ordinarily interfere by way of revision. But if the remedy is clear and is sure to result in applicant's success the parties will not necessarily be driven to another suit." In Baij Nath Prasad v. Khodu Ram and others (A I R 1933 All. 959) a learned judge of the Allahabad High Court refused to interfere in revision not on the mere ground that it was open to the peti tioner to file a suit but mainly because a proper adjudication of the matters in dispute required the presence of persons who were not parties to those proceedings. I cannot accept it as good law that a High Court must refuse to interfere in revision where it is open to the petitioner to obtain redress through a regular suit. This would be D tantamount to an amendment of the Code of Civil Procedure which confers the jurisdiction upon the High Court to interference in revision. In the absence of special circumstances it would be inequitable to derive a party to the long drawn out and expensive remedy of a suit when it is possible for the High Court in revision to rectify an order which can be legitimately impugned on one of the grounds mentioned in section 115 of the Code of Civil Procedure. I am fortified in the view that I take of this case by a ruling of the Patna High Court in Daroga Prasad Sahu and others v. Bhagwati Prasad Singh and others (A I R 1935 Pat. 253). The headnote runs thus :‑ "Where nothing more has been done than an application by the decree‑holders for possession it cannot be said that persons other than the judgment‑debtors have been dis possessed because there has been no possession given to the decree‑holder; that yet remains to be done and there is no jurisdiction in the Judge to determine in the form of an anticipatory application. It is only when the person is dis possessed that an application of this kind can come before the Judge." For the foregoing reasons I set aside the order of the learned Senior Civil judge and allow this application with costs here and in the Court below. A. H. Petition allowed.