1994 PLP 2265 (SCMR)

Date of hearing: 23rd August, 1994. MUHAMMAD MUNIR KHAN, J‑‑‑This petition for leave to appeal which is directed against the judgment dated 19‑9‑1993 passed by the High Court of Sindh, Karachi, arises out of the facts that on 23‑12‑1981, Mst. Noor Jahan, petitioner, filed a suit for rendition of accounts and permanent injunction against the respondents in the Court of Senior Civil Judge, Karachi. The suit was dismissed in default under Order IX, Rule 3, C.P.C. on 31‑3‑1990. The application filed by the petitioner under Order IX, Rule 4, C.P.C. for the restoration of .the suit was dismissed by the same Court on 3‑4‑1991. The petitioner then filed. an appeal against the order dated 3‑4‑1991 before the District Judge, Karachi South, who, vide order dated 26‑10‑1991 accepted the appeal, set aside the order of the dismissal of the application for restoration of the suit and restored the suit. Feeling aggrieved thereby, the respondents filed a revision application in the High Court of Sindh, Karachi, which was accepted on 19‑9‑1993 with the result that not only the application for restoration of the suit was dismissed but the suit also stood dismissed in default, hence this petition.

2. On 23‑12‑1993 when the petition came up before this Court for hearing, notice was issued to the respondents as to why the petition should not be converted into an appeal and allowed for the reasoning that appeal to the District Judge being incompetent, the order of the District Judge could be treated as a revisional order precluding thereby further interference by the High Court by the impugned judgment.

3. In response to the notice, the learned counsel for the respondents has made the following submissions:‑‑ (i) That neither the prayer was made by the petitioner for converting the appeal into revision nor the learned District Judge suo motu treated the appeal as revision. He rather, heard, considered and decided the cause as an appeal. (ii) That since no appeal lies against the order dated 3‑4‑1991 of the trial Court, therefore the order dated 26‑10‑1991 of the District Judge passed as an appellate Court was/is a nullity in the eye of law, being without authority/jurisdiction/power. So the High Court was not precluded from interfering with it under section 115, C.P.C. In the alternative, the learned counsel for the respondents argued that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the constitution of Islamic Republic of Pakistan was quite competent to interfere with the revisional order of the District Judge. In this connection he has relied on Sajjad Ahmad and another v. Muhammad Bashir and 10 others PLD 1979 Lah. 304, Mian Usman Saigol v. Thai Development Authority, Bhakkar and 2 others 1980 CLC 1296, Aamer Saeed v. District Judge and others (1985 CLC 2680) and Muhammad Younus and another v. Muhammad Yayub and 3 others PLD 1978 Lah. 723).

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 authorised 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 participate 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 lay 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.

6. As far the alternate argument of the learned counsel, the learned District Judge had the legal authority to interfere with the order dated 3‑4‑1991 as a revisional Court, therefore it was/is not possible to declare/hold that the order dated 26‑10‑1991 passed by him was without lawful authority and of no legal effect. The case‑law cited by: the learned counsel for the respondents is quite distinguishable.

7. Resultantly the petition is converted into an appeal and allowed. The impugned order/judgment of the High Court is set aside and that of the learned I District Judge is restored with no order as to costs. A.A./N‑395/S Order accordingly.