2006 PLP 1228 (CLC)

SYED MANZOOR HUSSAIN GILANI, J.

This appeal with leave of the Court is filed against the decision of a learned single Judge High Court, dated 30-5-2005 passed in Writ Petition No.122 of 2005, at Muzaffarabad.

2. The detail of the facts which gave rise to the filing of the present appeal is not required as the appeal is to be decided on a very short legal point. However, necessary facts for perceiving that legal point are that in a civil suit filed by respondents Nos. 1 and 2 in the Court of Civil Judge, Bagh in relation to Khasra No.49, measuring 76 Kanals, 3 Marlas, the learned Civil Judge while formulating the issues on 25-2-2004, treated issues Nos.l to 3 as preliminary and decided the same on 8-5-2004, declining to reject the plaint under Order VII, rule 11 of the Code of Civil Procedure on the ground that `the dispute is of factual nature which A cannot be resolved without recording evidence', This order was challenged through a revision petition before the District Judge, Bagh, who accepting the revision petition on 3-12-2004, rejected the suit under Order VII, rule 11 of the Civil Procedure Code. This order was challenged through a writ petition in the High Court by the respondents, which was accepted and the judgment of the District Judge was vacated resultantly restoring the order passed by the trial Court with the direction to the trial Court to proceed with the matter in accordance with law.

3. We have heard the learned Advocates for the parties and gone through the judgments of the Courts below.

4. The writ petition was not maintainable as adequate alternate remedy was available to the respondents under the Civil Procedure Code. Para.7 of the judgment of the learned Judge High Court through which jurisdiction under section 44 of the Constitution is assumed, reads as follows: "Subsections (2), (3) and (4) reproduced above reveals that the same power has been conferred on the District Judge which are exerciseable by this Court under subsection (1) of section 115, subsection (4) postulates that no proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Judge, which means that the order of the District Judge is final. As no appeal is competent against the order made under the above provision of law, therefore, a writ is only remedy and the Court can examine the order of the subordinate Court almost on the grounds covered by section 115 of C.P.C. In AJK this Court is also vested with the provisional powers under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949..."

5. Viewing the opinion of the learned Judge in light of the provisions of law incorporated in section 115 of the Civil Procedure Code, it appears that the learned Judge has erred in holding that "no appeal is competent against the order made under the above provision of C law". The opinion of the learned Judge is based on interpretation of subsection (4) of section 115 of the Civil Procedure Code. In learned Judge's opinion:

"No proceedings in revision shall be entertained by the High Court against the order made under subsection (2) by the District Court."

6. What is prohibited by the law is that the revision petition is not entertainable against the order passed by the District Judge under subsection (2) of section 115 of the Civil Procedure Code. It, in other words, means when an order passed by the District Judge in revision against the order passed by a Court subordinate to the District Court in which no appeal lies, the second revision is not entertainable in the High Court against the order passed in revision by the District Court. The appeal is not prohibited by subsection (2) or any other section of the Civil Procedure Code. The learned Judge has wrongly attributed to the provision of law that "no appeal is competent". While a revision is not competent, hence the jurisdiction assumed under section 44 of the Constitution is beyond the scope of subsection (2) of section 44 of the Constitution under which an order can be made when "no other adequate remedy is provided by law".

7. The appeal under the Civil procedure Code is an adequate remedy provided by law, hence the petition under section 44 was not entertainable. Moreover, multi-farious proceedings in relation to the same matter under different laws multiplies conflicts and ensues multiplicity of litigation, which is not the essence of law. A restraint is to be exercised by the Court while exercising jurisdiction under section 44 of the Constitution, moreso, when alternate remedy is available under normal procedure which is cheap, efficacious and quick as well.

8. The learned Advocate for the respondents raised an objection that the District Judge has dismissed the suit while he could at the most reject the suit not dismiss it under Order VII, rule 11 of the Civil Procedure Code, on account of which the order passed by the District Judge was bad in law, and as no decree was prepared, the respondents were misled to file writ petition instead of remedy provided by the Civil Procedure Code. The contention of the learned Advocate is misconstrued. There is no doubt that the District Judge has used the word but it is specifically incorporated in the last two lines of the order of the, District Judge that the suit is dismissed under "Order VII, rule 11" of the Civil Procedure Code. Under Order VII, rule 11 of the Civil Procedure Code the plaint is rejected and it hardly matters if the Judge used the words "Dismissed" instead of "Rejected", when the provision of law is specifically mentioned. Be that as it may, the appeal alone was competent against the order of the District Judge, whether it was dismissal or rejection of the suit. Under subsection (2) of section 2 of the Civil procedure Code the rejection of the plaint operates as a decree, while dismissal is followed by a decree, which in any case is appealable under the Civil Procedure Code. In view of above, the finding recorded by the learned Judge of the High Court through the impugned order in exercise of its writ jurisdiction is hereby vacated, leaving the order of the District Judge in field which is open to challenge subject to the relevant laws in field. The appeal is accepted with costs. H.B.T./7/SC(AJ&K)??????????????????????????????????????????????????????????????????????????? Appeal accepted.