P L D 1995 Lahore 15 (PLP)

This is an application under Order IX, Rule 4 read with section 151, C.P.C. for restoration of the revision petition dismissed for non-prosecution on 20-9-1994.

2. It is argued that the revision petition originally appeared in the motion cause list for 19-9-1994 and was adjourned to 20-9-1994 when it was dismissed for non-prosecution. It is added that the revisional powers enjoyed by this Court under section 115, C.P.C. were withdrawn with effect from 27-7-1994 when Civil Laws (Reforms) Act XIV of 1994 came into force. Thereafter this Court has no revisional jurisdiction, therefore, the petition could not have been dismissed for non-prosecution. It is submitted that the learned counsel for the petitioner could not appear as he was suffering from bacterial infection of the little toe of the right foot while the petitioner attended the Court on both the dates.

3. I have given my anxious consideration to the arguments, gone through the record and provisions of section 115, C.P.C. originally as well as amended. The arguments of the learned counsel for the petitioner can be conveniently split up into two parts:

Firstly, that the powers of High Court under section 115, CP.C. were withdrawn with the promulgation of Civil Laws (Reforms) Act XIV of 1994, therefore, order of dismissal is without jurisdiction; and secondly, that there is sufficient cause for the absence of the learned counsel while the petitioner throughout remained in attendance, therefore, the petition is liable to be restored.

4. It is worthwhile to refer to the legislative history of section 115, C.P.C. (Act V of 1908) before proceeding any further. It was amended by Ordinance (XII of 1972) whereby subsections (2), (3) and (4) were added. The result was that the reversional powers were also bestowed on District Court in addition to High Court. This position continued till these subsections were deleted by the Civil Laws (Reforms) Ordinance XXXIII of 1993, which was promulgated on 13-10-1993 and on its expiry Ordinance XXX of 1994 was promulgated but ultimately Act XIV of 1994 was enacted, which became into force from 31-7-1994. The result was that following subsections were again added:

"(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3)? If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be madc to either of them. (4)??????????? No proceedings in revision shall be entertained by the High Court ???????? against an order made under subsection (2) by the District Court." These are the relevant subsections to appreciate the argument of the learned counsel for the petitioner. It is clear that practically the position prevalent before October 1993 has been restored. The result is that the District Court has once again been given the revisional jurisdiction in respect to the matters within its pecuniary jurisdiction. This is in addition to revisional powers of High Court and not instead of it. The power is, therefore, concurrent. The parties in these matters can file revision petition either in the High Court or before the District Court. It is, however, evident from the above provisions that the revisional powers of the High Court were not withdrawn by Act XIV of 1994. This becomes absolutely clear if reference is made to subsection (3) where it is provided that application has been made either to the High Court or District Court. Then again subsection (4) provides that no proceedings in revision shall be entertained by the High Court against an order under subsection (2) passed by the District Court. The relevant words have been underlined to make the things clear.

5. It is evident from the above discussion that the. revision is competent in the High Court in the following matters:

(i)? suo motu in all matters except which the order has been passed by the District Court in revisional jurisdiction; (ii) in all matters where the appeal lies directly to this Court in view of the value of the subject-matter of the suit. According to section 18 of the Punjab Civil Courts Ordinance, 1962, the appeal now lies to this Court where value exceeds Rs.2,50,000; and (iii)????????? in all other cases where petitioner opts to file civil revision in this Court.

6. The present revision petition was filed on 28-12-1993 when the Ordinance XXXIII of 1993 was in force. Therefore, the argument that this Court has no jurisdiction on 20-9-1994 when the revision was dismissed for non-prosecution is utterly misconceived. It is clear from the above discussion that the revisional powers of this Court were never withdrawn. The same was competent and had to be dealt with in accordance with law. I am fortified in my view by the judgment of the Hon'ble Supreme Court in .the case of Superintendent of Police, Headquarters, Lahore and 2 others v. Abdul Ghafoor 1992 SCMR 2162. It was argued that if this interpretation is adopted then it would open a flood gate of revisions in the High Court. It is no ground to interpret section 115, C.P.C. in clear violation of the text of the subsections. The justice cannot be sacrificed at the altar of the convenience. The revision, therefore, was rightly dismissed for non-prosecution. ?

7. Now coming to the ground that the petitioner remained throughout present on 20-9-1994. The contention is absolutely false, incorrect and against record. He was present in the morning at the first call but thereafter he did not appear. The contents of para. 4 of this application that this application would have been filed earlier but no exact, information of the disposal of the case was available to the petitioner, who came to know from the office on 16-10-1994 that revision petition has been dismissed are also incorrect and false on the face of it. If the petitioner was present throughout the day then he would have come to know immediately that the revision petition has been dismissed for non-prosecution. This also renders the affidavit of the petitioner false. I have been persuaded by the learned counsel not to take action against the petitioner for deliberately filing a false affidavit. The request is allowed because he is 'senior Member of the Bar and known for his clean habits.

8. Now coming to the ailment of the learned counsel, I have no doubt that the absence of the learned counsel was justified. But the petitioner in order to succeed in this application has to explain the absence of all concerned including his own as well as his learned counsel. There is no explanation for the absence of the petitioner and, on the other hand, he has taken up a false plea and to support it filed a false affidavit. He was clearly negligent in the prosecution of the civil revision.

9. The application fails and is accordingly dismissed. AA./M-1829/L????????????????????????????????????????????????????????????????????????????????? Application dismissed.