P L D 1993 Karachi 61 (PLP)

By this revision application, the applicants have impugned the ,order passed by IInd Senior Civil Judge, Nawabshah on 5th December, 1990 whereby he has rejected the application under Order VII, Rule 11, C.P.C. Briefly the facts are that the present respondents had riled the suit wherein they have sought relief of declaration and injunction. The -value of the suit as per plaint was shown to be Rs.500 each for the two reliefs and the same was the value for the purposes of jurisdiction. In the suit an application under Order VII rule .11, C.P.C. was moved by the Applicants/Defendants with the prayer that the plaint be rejected on the ground that the Civil Court had no jurisdiction to entertain the said suit. This application was dismissed with the observation that issue is to be framed which would be settled after the evidence is brought on record by, the parties. Being aggrieved, the present applicants have preferred this revision application. At the time, of regular hearing of the revision application the point arose that since after the amendment introduced in section 115 of Civil Procedure Code, this revision application should have been presented before the Court of District Judge, Nawabshah and not before this Court. On this point I have heard the arguments of the learned counsel for the parties. Mr. SA. Sarwana, the learned counsel for the applicants has submitted that subsection (2) has been added to section 115 of Civil Procedure Code which provides for exercise of revisional jurisdiction also by District Court but it does not exclude the jurisdiction of this Court to entertain such revision application. He has further submitted that, therefore, it is the choice of the applicants as to which forum he chooses, He has submitted that the applicants cannot be disallowed the benefit of being heard before this Court by virtue of the above-said amendment. In support of 'his contentions, he has placed reliance on the following cases; (i) In ref. Office reference in respect of Civil Courts (Sindh Amendment) Ordinance, 1970 (XIII of 1970) PLD 1981 Kar. 210; (ii) P.H.D. Laboratories Employees and Workers Union v. Registrar of Trade Unions PLD 1973 Lah. 659; (iii) Zaheer Ahmed v. Allah Ditta PLD 1983 Lah. 256; (iv) Imtiaz Ahmed v, Ghulam Ali and others PLD 1963 SC 382; (v) Ghulam Nabi v. Syed Muiarrab Hussain,PLD 1974 Kar.

408. As against this Mr. Muhammad Ali Sayeed, the learned counsel for the respondents has submitted that the Scheme of the Civil. Procedure Code provides the legal provisions in Sections and Orders in the Schedule. He has submitted that the Civil Procedure Code is not only a procedural law but also substantive law as certain substantive provisions have been made in the same such as right of appeal, review etc. which are again governed by the procedure provided therein. He has made a reference to section 120 of Civil Procedure Code and submitted that the provisions of sections, 16, 17 and 20, which deal with jurisdiction of the Courts of different tiers, have been excluded from their application to the original side jurisdiction of the High Court. He has placed reliance on the cases of Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 and Abdul Ghani v. Settlement Commissioner PLD 1971 Lah.

59. I have considered the, submissions of the learned counsel for the parties. The point involved is that in view of the vesting of Revisional powers in District Court, whether the High Court may entertain the revision applications from the orders of the Courts of Senior Civil Judge or Civil Judges for which revision application would otherwise be competent before the Court of District Court. In the present suit it is an admitted position that the value of the suit is only Rs.1,000 and that in such a suit, an appeal would otherwise lie before the Court of District Judge under the provisions of section 18, subsection (i), clause (h) of the Sindh Civil Courts Ordinance, 1962 as amended up to date which reads as under; "

18. Appeals from Civil Judges.

(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie

(a) to the High Court if the value of the original suit in which the decree or order was made exceeds two lakhs fifty thousand rupees; and (b) to the District Judge in any other case." The above provision, therefore, shows that an appeal in a case where the value of suit is less than Rs.2,50,000 would lie before the Court of District Judge. It may also be observed here that subsection (2) was added to section 115 of Civil Procedure Code vide Ordinance XII of 1972. This added subsection (2) reads as under; 115

(1)

( 2) The District Court may exercise the powers converted 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." This provision very clearly establishes that in such cases where the value of the subject-matter does not exceed the limits of appellate jurisdiction of District Court, the revision application may be filed before the District Court and the District Court can exercise the same revisional powers as vested in the High. Court. Of course, the cumulative effect of the above provisions is that both the Courts, High Court as well as Court of District Judge, have the jurisdiction to entertain a revision application but the same is also to be governed by the provisions of section 18 of the Sindh Civil Courts Ordinance, 1962 as well as section 15 of the Civil Procedure Code. Section 15 of Procedure Code provides that every suit shall be instituted in the Court of lowest grade competent to try it. Section 120 of Civil Procedure Code provides that the provisions of sections 16, 17 and,20,. &P.C. shall not apply to High Court in the exercise of its original civil jurisdiction. This. shows that applicability of section 15 has not been excluded by the e provisions of Civil Procedure. Code. The cumulative effect of the above cited provisions shows that for the purposes of institution of proceedings the analogy of section 15, C.P.C. is to be followed, of course excluding the cases of Karachi District which are governed by special law with regard to the original side jurisdiction of District Judge and Senior Civil Judge as compared to other parts of the Province of Sindh. In the case reported in PL . D 1981 Karachi 210 (supra) a Full Bench of this Court by dealing with reference with regard to the, amendment in Sindh Civil Courts Ordinance, 1962 in a case of Karachi District had observed that section 15, C.P.C. does not govern suits on the original side of the High Court and, therefore, it was considered .by the learned Full Bench that there was. no need to examine this question of Any further. This case, with all respects to the learned Full Bench, would not be applicable to the pre sent case as in the above'-cited case the point under consideration was the jurisdiction of . High Court of original side pertaining to Karachi District. In the two cases .of Lahore. High Court referred to by the learned counsel for the applicants the facts. are different. In the case of Zaheer Ahmad, v. Allah Ditta, it was observed by a learned Single judge that in case appeal against order of Civil Judge was incompetent before District Court and District Court declining to treat the said appeal as revision, the High Court had held the same to be competent before the High Court. In the other case of P.D.H. Laboratories v. Registrar Trade Unions, the facts are totally different and cannot be applied to the present case. In (he case of Imtiaz Ahmed v. Ghulam Ali:the Ho,s ble Supreme Court had observed that no strict adherence to technicalities would help the course of justice. There is no cavil abut this principle of law.. In the present case it is not the question of procedure but of. substantive law -as well., _ It may be observed that right of appeal is a creature of statute. in Civil Procedure Code section 96 provides such a right while section 115 also provides a right of revision. In the. case of Hussain Bakhsh v. settlement Commissioner, the Hon'ble- Supreme Court was pleased to hold as under: "The right to claim review of any decision of a Court of law, like the, right to appeal, is a substantive right and, not- a mere matter of procedure. An appeal, as observed :by Branwell, L.J., in the case of Sandback Chafity Trustees v'.. North Staffordhshire Railway Co. (1)__ "does not exist in, the nature of things;' a right to. appeal from any decision of any Tribunal must be given by express enactment." This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights, As such, neither of them is available unless it has been conferred by law." In this case it has also been held, that though a High Court is not a Civil -Court, nevertheless the. Provisions :of Civil Procedure Code would apply to the High Court when exercising 661 jurisdiction, In the case of Abdul Ghani v. Lahore High Court has held as "A right of appeal is not the same thing as a power of review. The language of section % as well as of section 100 of the Code which provide for First and Second Appeals respectively leaves no manner of doubt that whilst appeals are as of right, the provision with regard to "Review" in the nature of a 'power' given to the Court to alter or to correct if orders or judgments, under certain circumstances. Both section 96 and section 100 of the Code, while providing for an appeal state that an appeal shall lie...., while section 114 of the Code merely enables the Court to enterain applications for review in stated circumstances and empowers the Court to make such orders thereon as it thinks fit. Strictly speaking, the power of review is more in the nature of an enabling provision although in its juxtaposition with the right of appeal it may in a sense be considered Finally a reference may be 'made to the case of. Ghularn Ali v. Syed Mukarrab Hussain and others. In this .case Tufail Ali A. Reliman, C.J. (as his Lordship then was) held as under: - Now I have found myself entirely unable to accept the argument; section 15 directs, in ere , that where there is more than one Court competent to try a suit then that suit shall be instituted in the Court of lowest grade competent to try it. Obviously, therefore, it enforces a choice between Courts of competent jurisdiction and 1, therefore, find it quite impossible to infer from the section that all Courts other than the Court of lowest grade mentioned in the section are by the section itself deprived of jurisdiction. Ex hypothesis the choice is being made between Courts ' of jurisdiction and the section is a procedural section which directs as to which of several Courts of jurisdiction shall be chosen. by the plaintiff to file his suit in. It cannot have the effect of depriving any other Court of jurisdiction." The above-cited cases show that the jurisdiction of a superior Court Cannot be taken away by riling a suit or other proceedings before the Court Of lower grade which too would otherwise be competent to try the same. The said provisions of section 15, C.P.C. do not have the effect of taking away the jurisdiction of a Court of higher grade in case where Courts of different grades are competent to try the same suit but all that it provides is that for the choice to be made by the person coming to the Court to seek remedy. This provision regulates such choice by providing that it shall be the Court of lowest grade competent to entertain the suit. From this the intention of legislature that can be inferred is that one should in the first instance approach the Court of lowest grade. For example a Court of Civil Judge III Class would be competent to try a suit of the value of Rs. 1,000 whereas a District Judge is also competent to try the suit of said value but by this provision of Civil Procedure Code -it has been regulated that in such cases the plaintiff has to choose the Court of lowest grade as in such situation the Court of District Judge would also be a Court of appeal with regard to any order passed by lower Court in such suit. This does not mean that the Court of higher grade is being deprived of its jurisdiction. Similarly, in case of revision application the choice with regard to instituting the same would be regulated by analogy of section 15, C.P.C. as well as section 18 of the Sindh Civil Courts Ordinance, 1962. In subsection (2) of section 115, C.P.C. also it has been provided that District Judge would be competent to entertain the revision application in case the value of the suit does not exceed the limits of appellate jurisdiction of District Court. From the above discussion, it may be observed that though the High Court and District Court have concurrent jurisdiction for entertaining the revision application, it would be in consonance that provisions of section 15 read with section 18 of Sindh Civil Courts Ordinance, 1962 and section ~115(2) of the Civil Procedure Code, that the revision application should have been preferred before the Court of District Judge, Nawabshah. Accordingly, this revision application is directed to be returned to the applicants to be preferred before the District Judge, Nawabshah. A.A /S-932/K Order accordingly.