1985 PLP 2435 (CLC)

This is a Revision Application under section 115, C.P.C. against udg the order, dated application 14-5-1980 of passed the appellant under Order IX, rule 113, Karachi o on an app C.P.C.

2. The facts, briefly stated are that on 28-8-1979 a suit for possession and mesne profits was filed by the respondent against the appellant as well as one. Abdul Rashid which was decreed as ex parte on 27-11-1979, after holding the service good on the applicant as well as the said Abdul Rashid, by publication. On 28-2-1980 the applicant filed an application under Order. IX, rule 13, C.Y.C. for setting aside the said ex parte decree. Abdul Rashid also filed an application on the same date for the same purpose. These applications by the order, dated 14-5-1980 were dismissed by learned Civil Judge. It appears that Abdul Rashid did not file any appeal or revision against the said order. The appellant has, however, filed the above Revision in this Court against the said order.

3. Mr. Nooruddin Ramzan learned counsel for the respondent has raised a preliminary objection as to the maintainability of this Revision Application. He submitted that after the ex parte decree was passed on 27-11-1979 there were two remedies open to the appellant, namely, he could file a regular Civil Appeal under section 96, C.P.C. or the application under Order IX, rule 13, C.P.C. The applicant however, chose to file an application under Order IX, rule 13, C.P.C. Now, as against the order passed under Order IX, rule 13, C.P.C., the appellant ought to have filed a Miscellaneous Civil Appeal under Order XLIII, rule 1(d), C.P.C. Revision to this Court was not maintainable as the appellant did not file the appeal provided under Order XLIII, rule 1(d), C.P.C. He placed his reliance on the decisions reported as Municipal Committee Bahawalpur v. Sh. Aziz P L D 1970 S C 506 and Ibrahim v . Mst. Kulsoom Begum 1973 S C M R

589. On the other hand, Mr. Muhammad Asar learned counsel for the appellant placed his reliance on a decision reported as Manager Jamu and Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678.

4. The decision P L D 1975 S C 678 cited by the learned counsel for the appellant is distinguishable as, firstly, the question of limitation is not in controversy in the present case and secondly, no circumstance was shown for exercising discretionary jurisdiction vested in this Court. I find that the decision as reported in 1973 S C M R 598 applies to the present case on all fours.

5. Mr. Muhammad Asar, however, submitted that his application was heard on 26-4-1980 and adjourned for 30-4-1980 for order by the Link Judge of Court No. XVII Civil Judge, Karachi. On 30-4-1980 it was adjourned to 4-5-1980 for reargument by the learned Court of XVllth Civil Judge but he was not served with any notice for rearguments. I find no force in this contention as on 26-4-1980, the matter was adjourned to a fixed date i.e. 30-4-1980 on which date he was required to appear without any notice. The matter, thereafter, was adjourned on different dates by the learned Court, but the appellant was absent on all these dates. The impugned order was ultimately passed by the learned Civil Judge, on 14-5-1980 in the absence of the appellant and his counsel.

6. Mr. Muhammad Asar learned counsel for the appellant lastly submitted that this revision application may be treated as an appeal and forwarded to the District Court to hear the same as Miscellaneous Appeal under Order XLIII, rule 1(d), C.P.C. I might have considered the request if the appeal was competent to this Court and convert the same as requested by the learned counsel.

7. In the result, I find no force in this revision application which is dismissed but, in the circumstances, there will be no order as to costs. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.