2006 PLP 216 (CLC)

MAULVI ANWARUL HAQ, J.

This is an application for re-hearing Writ Petition No.6106 of 2005 which was decided by me on 17-10-2005 in the factual background, circumstances and the reasons stated in the said judgment which need not to be reproduced here and the same be read as a part thereof.

2. I have heard the learned counsel for the applicant.

3. Now, before proceed further, I may note here that the learned Additional District Judge had dismissed a civil revision filed against a decree passed in a suit filed under section 9 of the Specific Relief Act, 1877 on the sole ground that according to the said learned Additional District Judge a revision in such a matter lies only to the High Court.

4. Learned counsel for the applicant have argued that revision was not competent at all before the learned Additional District Judge or even before this Court. According to them at the time when the said law, i.e. Specific Relief Act, 1877 containing section 9 was promulgated the Code of Civil Procedure was not in existence and in any case there was no revisional power available to any Court either at the provincial level or district level and, as such the revision was not competent. It has further been argued that since said section 9 itself provides an alternate remedy by way of a suit under section 8 of the said Act to establish title and recover possession, the availability of the said remedy would constitute a bar to the exercise of the revisional jurisdiction by this Court or by a learned District Judge and consequently the learned Additional District Judge.

5. I have given some thought to the said contention of the learned counsel and find the same wholly frivolous and baseless.

6. The Specific Relief Act (Act I of 1877) was promulgated on 7-2-1877.

7. Now, the first Code of Civil Procedure was promulgated in the year 1859 (Act VIII of 1859). This was followed by the Code of Civil Procedure, 1877 (Act X of 1877) thereafter the Code of Civil Procedure 1882 (Act XIV of 1882) was enacted and finally the present Code of Civil Procedure (Act V of 1908) was enacted.

8. The first Code of 1859 was amended in the year 1861, inter alia, to add section 35 which conferred revisional powers on the High Court in the provinces. This provision was re-enacted as section 622 in Act X of 1877 and further re-enacted as section 622 in Act XIV of 1882. Finally section 115 (presently section 115(1) without proviso) was enacted in the present Act V of 1908.

9. The Honourable Supreme Court of Pakistan while examining the amendment brought in section 115, C.P.C. vide section 13 of the Code of Civil Procedure (Amendment) Ordinance 1980 in the case of Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496recapitulated briefly the history of said jurisdiction as follows at page 509 of the report:- "

2. Section 115 of the Code of Civil Procedure basically declares the inherent powers which a High Court at the apex has in respect of superintendence over Courts subordinate to it, specially those which are subject to its appellate jurisdiction. Under the Charter Act of 1861 the High Courts in the Presidency Town of Bengal, Bombay and Madras were granted the powers of superintendence over subordinate Courts subject to their appellate jurisdiction. Section 115 of the Code of Civil Procedure is the extension of that principle in respect of the High Courts not situated in the presidency towns. With the amendment provided by the Law Reforms Ordinance, 1972, a similar power has been granted to the District Courts in respect of cases decided by Courts subordinate to such District Courts in which no appeals lie and the amount or the value of the subject-matter thereof do not exceed the limits of the appellate jurisdiction of such District Court. In Pakistan, therefore, the supervisory power not only exists at the apex in the provinces with the High Courts, but also at the semi apex level in each of the districts with the District Courts."

10. It will, thus, be seen that the revisional jurisdiction was very much in existence when the said Act I of 1877 containing said section 9I was promulgated.

11. So far as the second contention is concerned, the same is also without any basis. Section 115 is to operate on its own terms. Once conditions laid down in subsection (1) of section 115, C.P.C. exist, this Court and the District Court provided the amount or value of the subject-matter does not exceed the limits to appellate jurisdiction may make such order in the case as it thinks fit. Now, what is being termed as an alternate remedy is in fact a declaration in section 9 that any decision taken under the said section 9 would not constitute a bar upon any person from filing suit to establish his title to such property and to recover possession thereof. However, it has been clearly stated in section 9 that no appeal shall lie from any order or decree passed in a suit filed under said section and similarly, no review will be allowed. Now, section 115 would become attracted as the primary condition for exercise of the revisional jurisdiction is that no appeal should lie to this Court or to the District Court against the decision of a Court subordinate to this Court or to the District Court. Thereafter the exercise of jurisdiction is dependent upon existence of all or any of the three conditions mentioned in subsection (1) of section 115, C.P.C. Having, thus, heard the learned counsel for the applicant the applications are accordingly dismissed. A copy of this order immediately be remitted to the learned District Judge, Khanewal. H.B.T./M-1424/L??????????????????????????????????????????????????????????????????? Application dismissed.