2001MLD414 (PLP)

Ch. Abdul Ghani for Appellant. Ch. Muhammad Hussain Jahania fox Respondents This R.F.A. has been filed to call in question the‑judgment and decree, dated 2‑10‑1999 passed by Additional District Judge, Khanewal whereby, the application of the respondents under Order 7, rule 11, C.P.C. was accepted and the suit filed by the appellant for possession through pre- emption was rejected,

2. The facts giving rise to the present appeal are that Khan Muhammad appellant has filed a suit for possession through pre‑emption on a sale of land measuring 8 Kanals situated in Chak No.133/16‑L, Tehsil Mian Chanu against the defendants/respondents. During the trial, the respondents filed an application under Order 7, rule 11, C.P.C. before the trial Court. The Court obtained reply of the application. Two ‑applications under Order 1, Rule 10, C.P.C. and Order 6, Rule 17, C.P.C. were filed by the plaintiff and the trial Court vide order, dated 8‑5‑1999 dismissed the application filed by the respondent under Order 7, rule 11, C.P.C. and accepted both the applications under Order 1, rule 10‑and Order 6, Rule 17, C.P.C. filed by the plaintiff/appellant (herein).

3. Feeling aggrieved the respondents preferred a revision petition which came up for hearing before the District Judge who vide the impugned order, accepted the application under Order 7, Rule 11, C.P.C. filed by the defendants/respondents (herein) and rejected the plaint.

4. At the very outset, learned counsel for the respondents objected that the judgment impugned has been passed in revisional jurisdiction of the District Court, therefore, the appeal in the present form against the revisional judgment is not maintainable. He relies on case of Abdul Razaq v. Customs Authority (1995 CLC 1435).

5. On the other hand, learned counsel for the appellant opposed the arguments of learned counsel for the respondents contending that the Additional District Judge has passed the judgment in exercise of its original jurisdiction, therefore, appeal under section 96, C.P.C., against the rejection of a plaint is maintainable. He referred sections 17 and 18 of the Civil Court Ordinance, 1962.

6. I have heard the arguments of the learned counsel for the parties and perused the record.

7. The application under Order 7, rule 11, C.P.C., was filed by the respondents in the trial Court which was dismissed and that order of dismissal was assailed by the respondents in revision and the Additional District Judge in exercise of its revisional jurisdiction rejected the plaint under Order 7, Rule 11, C.P.C. Under section 96, C.P.C., appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. The appeal to the High Court would lie only if the Court by exercising original jurisdiction has passed the judgment. In the instant case the Additional District Judge has rejected the plaint in exercise of his revisional jurisdiction and not in exercise of his original jurisdiction because the trial Court had dismissed the application filed by the respondents for rejection of plaint under Order 7, Rule 11, C.P.C. The arguments advanced by the learned counsel for the respondents having force, therefore, in agreeing with the dictum laid down in the case of Abdul Razzaq (supra) by the learned counsel for the respondents I am of the view that the present appeal is not maintainable against the judgment passed by the Additional District Judge in exercise of its revisional jurisdiction, hence the same is dismissed. However, the appellant may avail of the alternate remedy under the law and the office is directed to return the original documents/certified copies of the Annexures to the learned counsel for the appellant after retaining the photostat copies of the same. Q.M.H./M.A.K./K‑55/L Order accordingly.