2006 PLP 595 (SCMR)

HAMID ALI MIRZA, J.

This direct civil appeal is directed against the judgment, dated 14-1-2002 in Civil Revision No.597 of 1997 passed by learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the order, dated 10-4-1997 passed by Civil Judge, Faisalabad under section 12(2), C.P.C. was set aside, thereby ex pane judgment and decree dated 30-6-1991 were restored, hence this appeal.

2. Brief facts of the case are that respondent No.1 Mst. Fakhar Khurshid filed suit against respondent No.2 in the Court of Senior Civil Judge, Faisalabad, for declaration that she was owner in possession of house Khasra No.19/1, Square No.48, Chak No.2/13 R.B. Tehsil and District Faisalabad and that defendant/respondent No.2 Mst. Atiya Sultana has no right, title or interest in the suit property with a further request that the said respondent No.2 be restrained from dispossessing her from the said property which suit was decreed vide judgment and without the decree, dated 30-6-1991 by consent without appellant being party in the suit. The appellant when came to know about the said fraud and misrepresentation filed an application under section 12(2), C.P.C. for setting aside the judgment and decree, dated 30-6-1991, wherein learned Civil Judge, Faisalabad, after framing of issues and recording evidence of the parties, allowed the said application vide judgment and decree, dated 10-4-1997, thereby dismissed the suit of respondent No.1. All the respondents preferred Civil Revision No.587 of 1997 against the appellant before the Lahore High Court, Lahore which civil revision was allowed thereby judgment and decree dated 10-4-1997 passed by Civil Judge, Faisalabad, were set aside. The appellant has preferred this direct appeal under Article 185(d) of the Constitution of the Islamic Republic of Pakistan.

3. We have heard learned counsel for the parties at length and perused the record.

4. Learned counsel for the appellant has raised a preliminary legal plea that revision under section 115, C.P.C. preferred by the respondents before the High Court against the judgment and decree dated 10-4-1997 passed by learned Civil Judge allowing the application under section 12(2), C.P.C. and dismissing the suit of the respondent No.1 was not maintainable as law has provided provision of appeal under section 96, C.P.C. against the decree as the suit of respondent was dismissed by learned Civil Judge, 1st Class, Faisalabad, consequently the impugned judgment passed in Civil Revision No.597 of 1997 cannot be sustained and was lisle to be set aside. He has placed reliance upon sections 96 and 115 of the Civil Procedure Code and has referred to the decision of this Court reported as The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1(c) at page 14 contending that on filing of appeal entire case becomes reopened and sub judice and has to be decided in accordance with law but not in case of civil revision. He has also placed reliance upon decision of this Court reported as Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690(c) contending that though the plea of maintainability of revision was not raised before High Court but it being plea of law could be taken at any time as enquiry is not required in view of law laid down by this Court.

5. Learned counsel for the respondents has submitted that though learned Civil Judge, 1st Class Faisalabad was competent under the law to allow the application under section 12(2), C.P.C. but was not competent to dismiss the suit of respondent as such the impugned judgment ant decree dated 10-4-1997 passed on the disposal of an application uncle] section 12(2), C.P.C. were illegal. In support of his contention he has placed reliance upon Dilbar Khan and others v. Government of N.-W.F.P. and others 1992 CLC 416 where learned Single Judge observed that while setting aside the decree on the plea of fraud or misrepresentation, original suit cannot be dismissed but would be deemed to be pending to be decided on merits with opportunity to the defendants to file their written statement to be followed by list witnesses and evidence of the parties. He submitted that order on an application under section 12(2), C.P.C. is not to follow decree, therefore, revision was competent.

6. We do find merit and force in the contentions of the learned counsel for the appellant that learned Civil Judge 1st Class, Faisalabad while disposing of an application under section 12(2), C.P.C. allowed the same and dismissed the suit, which was followed by a decree which being on record against which an appeal under section 96 of C.P.C. lay and not civil revision under section 115, C.P.C.

7. Learned Single fudge in concluding para.20 of the impugned judgment has also observed, "In view thereof this petition is accepted with costs. The judgment and decree, dated 10-4-1997 passed by learned Civil Judge, Faisalabad is set aside." Learned Single Judge has also admitted in the impugned judgment and mentioned that civil revision was against the judgment and decree which were passed by the trial Court and were set aside, through the impugned judgment. Section 115 of the Civil procedure Code reads as under:-- " 115 Revision-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no a peal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it minks fit." The above provision of law specifically states that revision will lie to High Court against the decision or order of the subordinate Court in which no appeal lies. It is only in non-appealable orders or decisions, revision is competent but where appeal has been provided under the law, revision will not be competent. Reference may be made to decisions of this Court in Municipal Committee, Bahawalpur v S Rawalpindi Aziz Elahi PLD 1970 SC 506(a); (ii) Cantonment Board, v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472(a) at page 474 and (iii) B R.M.A.R.A. Adaikappa Chettiar and another v. It. Chandrasekhara Thevar AIR (35) 1948 PC

12. This Court as well as Privy Council in the above cited cases have held that decree or order passed by the trial Court is appealable to High Court, revision without availing of remedy by such appeal was not competent. Revisional jurisdiction under section 115 does not confer any substantive right and the right to move in revision is merely a privilege granted to a party, therefore, in view of section 96, C.P.C. which is reproduced as under:-- "

96. Appeal from original decree.(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties." An appeal against the dismissal of suit vide judgment and decree dated 10-4-1997 passed by Civil Judge First Class, Faisalabad was competent under section 96 of C.P.C. Law has expressly provided an appeal from decree under section 96, C.P.C. which could be availed by the party aggrieved of the decree passed, consequently the respondent who was aggrieved of the dismissal of the suit by the said decree could have availed of remedy by filing an appeal under section 96, C.P.C. where entire case would have been reopened to the parties and could have attacked the judgment and decree in appeal for getting the said judgment and decree reversed or otherwise.

8. The appellant challenged the ex. parte judgment and decree passed in the suit where he was not made party by the respondents as such he challenged the same by filing an application under section 12(2), C.P.C. on the plea of fraud and misrepresentation, which was allowed and suit was dismissed by the trial Court keeping in view the evidence recorded by him where he found that respondent/plaintiff was not entitled to the relief prayed by her in the plaint. In fact in case the trial Court found after recoding of evidence that the judgment and decree were obtained by fraud and misrepresentation he would have only allowed the said application and would have reversed/set aside the judgment and decree passed by him earlier and allowed the parties affording opportunity to the parties to adduce evidence if so desired after filing of written statement by the appellant and to dispose of the suit in accordance with provisions of the Code of Civil Procedure.

9. In the circumstances, we find that the impugned judgment is not sustainable in law, therefore, the same is set aside and the case is remanded to the Civil Judge First Class, Faisalabad who .will after impleading the appellant in the suit as defendant allow him to file written statement and reframe issues in view of the written statement so filed and proceed with the suit and decide afresh in accordance with law within the period of six months. The appeal is allowed with no order as to costs. These are the reasons of our short order of even date announced in open Court. M.H./F-3/SC?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.