1989M L D 313 (PLP)

6. The appeal of the respondents/plaintiffs succeeded before the learned Additional District Judge who by his order dated 21‑1‑1979 accepted the appeal, set aside the impugned judgment and decree on the premises that the trial Court committed an error of law by rejecting the application under Order 13, Rule 2 of the Code of Civil Procedure for permission to produce in evidence the statement of Patwari of the Settlement Department dated 10‑6‑1964 as additional evidence and the learned trial Court rejected erroneously an application under Order 6, rule 17 of the Code of Civil Procedure for amending the plaint by way of adding the relief of possession. The observations of the learned Additional District Judge are as follows:‑ "As a result of my findings above it is not now possible to record any findings on the merits of the appeal is allowed and impugned decree and judgment are set aside and the case is remanded to the trial Court for decision of the suit on merits afresh after allowing the appellants full opportunity to lead above‑mentioned additional evidence and after calling for amended plaint and new written statement and after framing of additional issues. Parties are directed to appear before the trial Court on 19‑2‑1979. Parties arc otherwise left to bear their own costs." Hence this F. A. O.

7. Learned counsel for the appellant in support of this appeal has made the following submissions:‑ (i) that the order of remand passed by the first appellate Court is contrary to the letter and spirit of Order XLI, rules 23, 23‑A, 24 and 25 of the Code of Civil Procedure. It was urged that the learned Additional District Judge misdirected himself by remanding the case without examining the existing material on record. It was also urged that there was sufficient material for the purpose of resolving the controversy. (ii) That the learned Additional District Judge fell into error of law by disregarding the provisions of Order XLI, rule 33 of the Code of Civil Procedure which cast on him an obligation to record his finding on each issue separately. (iii) That the learned Additional District Judge has failed to give effect to the finding of the learned Judge of the High Court in his judgment dated 5 -2‑1974 which was final and could not be re-agitated by virtue of section 15(7) of the Punjab Urban Rent Restriction Ordinance, 1959. He placed reliance on Abdul‑ Rehman v. Haji Mir Ahmad Khan and another P L D 1983 S C 21 and Za'btun Textile Mills Limited v. Central Board of Revenue and others P L D 1983 S C 358. (iv) That on the general principle of res judicata the finding recorded by the learned Judge of the High Court operated as res judicata and the Additional District Judge was not competent to re‑examine the aforesaid finding.

8. Learned counsel for the respondents replied the arguments and submitted that the finding of the learned Judge of the High Court was in exercise of jurisdiction under the Punjab Rent Restriction Ordinance, 1959. This Court had no jurisdiction to examine and decide the question of title, therefore, this finding was not final and cannot operate as bar in the present suit. Secondly it was contended that this appeal was not competent. In the instant case the suit filed was valued for the purpose of jurisdiction and court‑fee to be Rs.

200. The order of the learned Additional District Judge was not appealable under section 10 of the Code of Civil Procedure, therefore, no appeal was competent under Order XLIII, rule 1 (u) of the Code of Civil Procedure before the High Court. This appeal merits to be dismissed on this preliminary objection.

9. The record has been perused with the help of the learned counsel for the parties. My findings on the respective points urged before me are as follows:‑ The preliminary objection was not seriously questioned by the learned counsel for the appellant, who filed an application for the conversion of memo of first appeal as a revision. It was urged by him that there was some mis‑conception at the time of filing of appeal, that the appeal be, therefore, treated as the memo of revision and will be decided within the framework of section 115 of the Code of Civil Procedure. Learned counsel resisted this application. The provisions of Civil Procedure Code are meant to advance the cause of justice and not to hinder the justice. In Karamat Hussain and others v. Muhammad Zaman and others P L D 1987 S.C 139, it was observed by the Supreme Court that:‑ "Thus, if the second appeal that is brought before the High Court exhibits certain features which demonstrate that it falls within the scope interference under section 115, C.P.C., the Court should exercise its jurisdiction under the said provision of law. It hardly needs saying that the Court will be in a position to examine this aspect of the matter only if it the facts of each case and this can only be done if the appeals are treated as revisions whereafter the question can be examined by the High Court whether the Court subordinate to it has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit m advantage conferred on a person or a class of persons which other citizens do not enjoy while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. confer on every person who has litigated before a Court subordinate to the High Court the night to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court itself may interfere. Of course, it may in certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the Writ jurisdiction conferred upon the High Courts by the Constitution is discretionary. But the right to apply for a writ is certainly not a privilege:" The same principle was reiterated in Ali Muhammad alias Ali Ahmad and others v. Mehboob Ahmad and others 1987 S C M R 1263. I, therefore, allow this application for conversion. This first appeal shall be treated as a revision.

10. Now l will deal with the objections taken by the learned counsel for the petitioner as well as the reply of the learned counsel for the respondents. The main attack of the learned counsel for the petitioner that the order of the learned Additional District Judge is contrary to the letter and spirit of Order XLI, rules 23, 23‑A. 24 and 25 of the Code of Civil Procedure has got a lot of strength. In Pramatha Nath Choudhry and 17 others v. Kamir Mondal and three others PLD 1965 SC 434, it was held:- "A remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself, there can be no bar doing so." The same was held in another case entitled as The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (P L D 1975 S C 331). In this case it was observed that issue if left undetermined by the first Appellate Court, the High Court in second appeal is completely competent to dispose of such issue and is under no obligation to make order of remand. Similarly in another case reported as Nasir Ahmad and another v. Khuda Bakhsh and another 1976 S C M R 388 it was held that the appellate Court had same powers as the Court below and decide the issue not determined by the first Court on the basis of material existing on the record. The question of remand and the relevant provisions came up for consideration before the Supreme Court in Sher Muhammad and another v. Jamadar Ghulam Ghaus 1983 S C M R 133 and the Supreme Court observed as follows:-- "It follows from the words of the law and their further exposition by this Court that power to decide the case finally untrammelled by the grounds taken up in the judgment under appeal is possessed the only limitation on the power being that the evidence on record must be sufficient to enable the appellate Court to pronounce judgment. Applying the aforesaid principles to the facts of this case it is clear from the record that the issues were framed between the parties in the presence of the parties, that evidence was led by both the parties, that the trial Court had recorded his finding on the basis of the existing material before it, it had concluded that because of the finding of the learned Judge of the High Court in his judgment dated 5‑2‑1974, he had no authority to reopen and re‑examine it. Therefore, neither the case fell within the purview of Rule 23, 23‑A, 24 or 25 of Order XLI of the Code of Civil Procedure. I am of the positive conclusion that the learned first appellate Court had misdirected itself and not followed the letter and spirit of the law. On record there was sufficient material to decide the controversy and he could not have resorted by discovering errors discernible to microscope. The order of the learned District judge is un sustainable.

12. The second argument of the learned counsel is also very formidable one, The learned Judge of the High Court in his judgment dated 5‑2‑1974 categorically held the entitlement of parties in the following words:‑ "The learned counsel for the appellant stated at the bar that by an order dated" 8‑3‑1965, the respective properties of the parties had been demarcated. This document has been placed on record of this appeal as Annexure `E'. The last Para of this order is as follows:‑ `In view of the above it is held that property No. 2‑S‑8 has been transferred to Dasundhi Khan and the adjoining house bearing No. 2‑S‑8 B which is separated by intervening wall from House No. 2‑S‑8 has been transferred to Muhammad Bakhsh. There is already a wall existing in between the two houses and approach to both houses being separate, no further demarcation is necessary.' The learned counsel for the respondents admitted that such an order had been passed and" no appeal or revision was filed by Dasundhi Khan against that finding. 'He, however, submitted that this will be additional evidence which cannot be taken into consideration. He further argued that if this order is allowed to be admitted in evidence it will be necessary to allow the respondents to produce evidence in rebuttal. When I inquired from him what evidence would be produced "hen it was conceded that no appeal or revision was filed by Dasundhi Khan against this order, he stated that the Building Inspector could be Produced to 'show the location and measurement of the two houses. This additional evidence can be accepted for the reason that this order was passed after the order of ejectment passed by the Rent Controller and admittedly the only authority which had the jurisdiction to demarcate the two properties transferred to the parties by the Settlement Authority. In so far as the question of rebuttal is concerned the respondent would certainly have a right but the rebuttal suggested by the learned counsel for the respondents cannot rebut the final order passed by a competent authority under the Displaced Persons (Compensation and Rehabilitation) Act, 1958." The judgment was rendered by the learned Judge of the High Court under section 15 of the Punjab Rent Restriction Ordinance. This finding was not open to any scrutiny by virtue of section 15(7) of the Ordinance. Subsection (7) of Section 15 ibid is reproduced below:- "(7) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise." Subsection (2) of section 12 of the Code of Civil Procedure was considered in Rehmat Ullah v. Ali Muhammad and another (1983 S C M 1t 1064) in detail: The dictum laid down in Zahurul Hasan v. Mst. Ruqqia Begum and 4 others (P L D 1981 S C 112) was approved in Rehmat Ullah v. Ali Muhammad and another (1983 S C M R 1064) in the following words: "If the Rent Controller decides the question of relationship of landlord and tenant affirmatively, in favour of the landlord directly upon a finding regarding his claim to recover rent on account of his ownership in the property, it would not be possible under ordinary circumstances for a Civil Court, on account of the statutory bar, to reopen the same question. And simply because the determination of this question of fact will also determine his own jurisdiction will render it into a jurisdictional fact simpliciter. This general consideration by itself, will not displace the overriding command of the statute law in section 15(7) (or section 15(5) unamended) of the Ordinance or section 12(2) of C.P.C., wherever applicable for example when there is a decision by an appellate Court or by a superior Court in an urban tenancy matter." In the same judgment Mr. Justice Nasim Hassan Shah, in a separate note also held as under:‑ "I may, however, usefully add that any Tribunal or a statutory Authority exercising quasi‑judicial functions when required to determine any question, which, under the law, it has the authority to determine should decide all the questions arising before it and thereby spare the parties from the ordeal of rushing from one forum to another. The findings recorded by such Tribunals on the questions adjudicated by it, subject to correction or alteration by the Appellate or Constitutional forum are final and on the general principles of res judicata arc not open to be re-agitated before a Civil Court. Thus, the findings recorded by a Tribunal of limited jurisdiction like the Rent Controller would also be final, if they are given on the merits of the plea raised before it and will operate as res judicata. However, in the event where the Rent Controller feels that a complicated question requiring a protracted inquiry would be necessary for deciding a particular question such ass for instance whether a party claiming to be the owner of a property and is, therefore, the landlord of the person occupying it, cannot in view of the demands of the law to decide questions of the existence of the relationship of landlord and tenant expeditiously be undertaken by him, he can observe that such a question should be‑'decided by a Court of general jurisdiction, namely, the ordinary Civil Court and this finding should be specifically recorded by him in this Order:"

13. In the context of the aforesaid declaration of law the objection of the respondents that the finding in respect of entitlement of the appellant as well as the respondents recorded y the High Court in the judgment dated 5‑2‑1974, is not relevant before the Court of preliminary Jurisdiction under section 9, C.P.C, is of no avail. The law in the field is that the finding of the Rent Controller or any other superior authority is unexceptionable before the Court of preliminary jurisdiction under section 9 of the Code of Civil Procedure. Applying the aforesaid principles to the facts of the case in hand, I am of the positive opinion that neither the statement of Patwari was needed to resolve the controversy nor application for amendment was called for. The judgment aid decree of the Civil Judge was unexceptionable and he had decided the matter correctly and on sound principles.

14. The upshot of whatever has been discussed above, I have no hesitation in holding that the order of the learned Additional District Judge dated 21‑1‑1979 is clearly beyond the terms of Order XLI, rules 23, 23‑A, 24 and 25 of the Code of Civil Procedure. The learned Additional District Judge has not applied the correct law nor has followed the law laid down by the superior Courts on the various provisions of the Urban Rent Restriction Ordinance and, therefore, has committed a material irregularity in exercise of jurisdiction in setting aside the judgment and decree of the trial Court. Resultantly, the revision petition is, accepted, the order of the learned Additional District Judge dated 21‑1‑1979 is set aside and the judgment and decree passed by the trial Court dated 31‑7‑1975 is hereby restored. Since the case involves intricate questions of law, there should be no order as to costs. M.Y.H./M‑1057/L Appeal accepted.