P L D 2011 Peshawar 53 (PLP)

YAHYA AFRIDI, J.

This Revision Petition is directed against the judgment and order passed by the learned Additional District Judge-III, Charsadda, dated 24-6-2006, whereby the appeal of the present petitioner was dismissed and the judgment and order of the trial court dated 21-6-2005 was maintained.

2. The essential facts leading to the present revision petition are that the present respondents instituted a suit for, inter alia, possession of property measuring 4 marlas (disputed property"), which in the first round came up to this Court in Civil Revision No.801 of 2000. The said petition was by this court vide judgment dated 25-2-2005 remanded back to the trial Court for appointment of local commission to verify "whether the four marlas of land claimed by the respondent is in possession of the petitioner or not". Accordingly, the judgments and decrees of the courts below were set aside and the trial Court appointed a local commission to ascertain the said fact. The commission submitted its report. Before the trial Court could further proceed the present petitioners filed another application for appointment of another local commission to ascertain the improvements made by the petitioner on the disputed property. The said application was resisted by the present respondents. The trial Court rejected the said application of the petitioners vide impugned order and judgment dated 25-6-2005. The petitioners being aggrieved thereof impugned the same in appeal, which too was dismissed by the Additional District Judge-III Charsadda vide its order and judgment dated 24-6-2006. Both the Courts below were of the view that the application for the appointment of local commission for ascertaining the improvement, was delaying tactic and the same would prolong the proceedings. However, the present petitioner was provided an option to seek again for his request in case a final decree for his dispossession was passed by the trial Court. It may be noted that this Court brought to the attention of the learned counsel representing the parties that the main trial is still pending and the present application for appointment of a local commission has taken them the prolonged period of five years and hence there was a need for settling, at least the said issue, in an amicable manner. But both sides declined the said resolution and insisted on decision of the present revision petition on merits.

4. The learned counsel for the petitioner vehemently argued that the impugned orders of the courts below were illegal as the same were in complete violation of section 47 of the Code of Civil Procedure, 1908 ("C.P.C."); that after passing of a decree, the executing court could not go behind the decree and determine the improvements made by the present petitioner on the disputed property; and that a specific Issue No.11 was framed by the trial Court, which required that a local commission be constituted for just resolution of the said issue.

5. The learned counsel for the respondent on the other hand took very serious objection to the jurisdiction of this court to entertain the present revision petition. He explained that the order of rejection of appointment of local commission passed under Order XXVI, Rule 9 of C.P.C. was not an appealable order under Order XLIII, Rule 1, C.P.C. and the appeal so filed and decided was to be deemed as a revision. Hence, a second revision was not competent under section 115(4) of C.P.C. Reliance was placed on judgment of this court rendered in C.R. No.308 of 2009 titled Muhammad Rauf v. Khurshid Alam decided on 7-6-2010.

6. The valuable arguments of the learned counsel for the parties have been duly noted and the available record thoroughly considered.

7. This court agrees with the contention of the learned counsel for the respondent that an order of rejection of appointing a local commission passed under Order XXVI, Rule 9 of C.P.C. is not an appealable order under Order XLIII, Rule 1 of C.P.C. Thus the order passed by the Additional District Judge, Charsadda dated 24-6-2006 would be deemed as a revision exercised by the said court under section 115 of C.P.C. Once revisional jurisdiction has been exercised by the District Court under section 115 of C.P.C. this court lacks the jurisdiction to entertain the order passed by the revisional court in revisional jurisdiction. In this regard the provisions of subsection (4) of section 115 of C.P.C. are clear, which provides that:-- "No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court." This issue has been dealt upon by this Court in its judgment of Muhammad Rauf's case, ibid, wherein this Court has sought reliance on Mst. Noor Jehan v. Mst. Roshan Jehan and others (1994 SCMR 2265), where the august Supreme Court of Pakistan has held:-- "(4) We have examined the matter carefully. We find that the application of the petitioner for restoration of the suit was dismissed under Order IX, Rule 3, C.P.C. The petitioner/ plaintiff applied for the restoration of suit under Order IX, Rule 4, C.P.C. The application was dismissed on 3-4-1991. No appeal is provided in the Civil Procedure 'Code against this order. The appeal filed by the petitioner before the learned District Judge was, therefore, not maintainable. At the same time the learned District Judge under section 115(2), C.P.C. was authorized to send for the record of the case and examine the correctness of the order dated 3-4-1991 of the trial Court. Distinction is to be made between a case where there is a total absence of jurisdiction/authority in the court to hear and decide the cause before it and a case where the same court has the jurisdiction to deal with the lis under some other provisions of the Code/Law. The instant case does not suffer from want of jurisdiction authority/power of the District Judge ab initio. He has simply committed an irregularity, in that, he heard the lis as an appeal. The respondents participated in the proceedings before the learned District Judge. They did not raise any objection about his jurisdiction to hear the case or about maintainability of the appeal. Now it does not lie in their mouth to say that the learned District Judge had no authority at all to hear and decide the lis before him. Had there been a total lack of jurisdiction of the District Judge to send for the record and examine the correctness of the order dated 3-4-1991 of the trial Court, either as an appellate court or as a revisional court, then, of course, the order passed by him would have been a nullity in the eye of law. "(5) We are convinced that although the order dated 3-4-1991 of the trial Court was not an appealable order, yet under section 115(2), C.P.C. the District Judge had revisional power to deal with it, so it will be deemed that the appeal was actually heard and decided as a Revision. In this view of the matter order dated 26-10-1991 of the District Judge could be treated as a revisional order precluding further interference by the High Court under section 115(4), C.P.C. and as such impugned order/judgment is without jurisdiction/authority." "But the present petition is second revision as the first was entertained and decided by the learned appellate court. Learned counsel In view of the above facts and precedent law, the present petition being second revision petition is not maintainable, same is dismissed and judgment and order of the appellate court is maintained with no order as to costs." (Emphasis provided).

8. In view of the above findings and the clear annunciation of law as settled by the august Supreme Court of Pakistan, this Court does not have the jurisdiction to entertain the present petition in its revisional jurisdiction as it would be against the clear command of section 115(4) C of the C.P.C.

9. In the peculiar circumstances of the case, this Court does not have the jurisdiction to entertain the present petition in its revisional jurisdiction. Accordingly, this revision petition is thus dismissed. No order as to costs. H.B.T./388/P Petition dismissed.