1983 PLP 2163 (CLC)

Haji Saadullah Khan Mian Khel for Petitioners. H. Azia‑ur‑Rehman Baluch for Respondents. Date of hearing : 22nd September, 1982. The facts giving rise to this revision are that Muhammad Raza Khan (petitioner) instituted the present suit against .Awal Khan and others (respondents) for possession by pre‑emption of agricultural land measuring 25 Kanals 1 Marla out of 32 Kanals 1 Marla comprising of Khasra No. 767 situated in village Shamoni Khatak, Tehsil Laki, District Bannu on payment of Rs. 1,000 as pre‑emption money.

2. The suit was instituted on 26th September, 1974 and on the same day the learned Civil Judge ordered the plaintiff to deposit Rs. 1,500 as pre‑emption money upto 2nd November, 1974. On 2nd November, 1974 defendant No.1 (petitioner) was present with his counsel but as the pre: emption money had not been deposited, the plaint was rejected under section 23 (4) of the N.‑W.F.P. Pre‑emption Act, 1950. On the same day i.e. 2nd November, 1974, the plaintiff/petitioner submitted an application seeking review of the order on the ground that he had gone to Lahore for tabligh and had returned yesterday evening. That he was not made aware by his counsel about the last date for the deposit of the pre‑emption money, and that on appearing in Court he came to know about the dismissal of the suit in default. Thus, he prayed that by review of the order of rejection of the plaint, the suit should be restored and he may be permitted to deposit the pre‑emption money on the same day. However, vide order dated 29th January; 1975 the learned Civil Judge dismissed his application on the ground that the plaintiff failed to show sufficient cause for non‑deposit of the pre‑emption money within the period fixed by the Court and that the order of rejection of plaint being a decree the plaintiff's remedy was by way of filing an appeal and not an application for review.

3. The plaintiff petitioner feeling aggrieved, preferred an appeal before the District Judge Bannu which was, however, dismissed on 23rd October, 1975. Hence this revision petition.

4. From the perusal of the record it is clear that the Court, by order dated 26th September, 1974, directed the plaintiff to deposit the pre emption money upto 2nd November, 1974 which meant that the plaintiff could deposit the pre‑emption money in time within the working hours of the Court on 2nd November, 1974. But it appears that the Court was under an erroneous impression that the plaintiff was bound to deposit the money before 2nd November, 1974 and his failure to do so made his plaint liable to rejection under section 23 (4) of the N.‑W.F.P. Pre‑emption Act, 1950.

5. The learned counsel for the respondent raised a legal objection that under Order XLVII, rule 7, C. P.C. the appeal of the plaintiff before the District Judge being incompetent, it should be deemed a revision petition which having been dismissed, no second revision was competent before the High Court under section 115 (4), C. P. C. On merits, however, the learned counsel admitted that the order of the trial Court rejecting the plaint under section 23(4) of the N.‑W.F.P. Pre‑emption Act was erroneous because the plaintiff could have deposited the pre‑emption money till the last working hour on 2nd November, 1974. But he argued that the application for review was not supported by an affidavit and the prayer made therein was for the restoration of the suit as if the suit was dismissed in default, of appearance, and Thus it is urged that the application could not have been entertained by the trial Court.

6. The learned counsel for the petitioner argued that the plaintiff was entitled to deposit the pre‑emption money till the last working hour of the Court on 2nd November, 1974 and the Court was not justified in rejecting the plaint under section 23 (4) of the Pre‑emption Act, Particularly, when the plaintiff/ petitioner bad submitted an application during the work ing hours of the Court seeking permission for the deposit of the pre‑emption money. The learned counsel, however, conceded that no appeal was competent under Order XLVII, rule 7, C. P. C. against the order of rejection of the review petition, but urged that the learned District Judge never treated it as a revision and hence the objection that the present revision in the High Court amounts to second revision is without any substance.

7. From the above facts it is clear that the learned trial Court had rather acted in haste in rejecting the plaint under section 23 (4) of the N.‑W.F.P. Pre‑emption Act on the date on which the plaintiff could have deposited the pre‑emption money. The application for review was sub mitted by the plaintiff on the same day seeking permission of the Court for the deposit of the pre‑emption money. The application for review was competent as the error was apparent on the face of the record. It is obvious that the plaintiff was entitled to deposit the money upto the last moment of the working day on 2nd November, 1974. But the Court instead of allowing the application had rejected the same on erroneous grounds holding that no sufficient cause was shown by the plaintiff for extension of time for deposit of money and that the plaintiff should have sought the remedy of appeal instead of filing the review petition. The fact that the application for review was not supported by an affidavit would not be material as the plaintiff was not required to show sufficient cause fob the non‑compliance with the order, of the Court as his application was not for extension of time and he only sought permission to deposit they money within the time fixed by the Court.

8. No doubt the appeal was incompetently filed before the District Judge as the impugned order was only revisable but it is clear that the District Judge never treated it as a revision and dismissed the appeal as being incompetent. The learned District Judge also erroneously considered the review application of the plaintiff as one for the extension of time for the deposit of the pre‑emption money.

9. There is no dispute that the present revision should have been directed against the order of the trial Court whereby the prayer for review was declined. But when the record of the case is before the Court there is nothing to prevent the Court from exercising its revisional jurisdic tion to avoid miscarriage of justice. The learned trial Court by dismissing the review application and disallowing the prayer for the deposit of the pre‑emption money had acted illegally and with material irregularity in the exercise of its jurisdiction. It is well‑settled that if any of the conditions contained in clauses (a), (b) and (c) of section 115, C. P. C. is satisfied in a given case, the Court in the exercise of its revisional jurisdiction car, interfere with the order complained of. Thus, when the record of the case is before the Court and the Court is seized of the matter in the exercise of its revisional jurisdiction, it can in accordance with section 115 C. P. C. "make such order in the case as it thinks fit".

10. Therefore, for the aforesaid reasons, the revision petition is accepted, the orders of the Courts below are set aside with the result that the review application of the plaintiff petitioner is accepted and the order of the trial Court dated 39th January, 1975 rejecting the plaint under section 23 (4) of the N.‑W.F.P. Pre‑emption Act stands vacated. The case is remanded to the trial Court for decision on merits after providing an opportunity to the plaintiff‑petitioner for the deposit of pre‑emption money. No order as to costs. The learned trial. Court is directed to dispose of the suit as early as possible. M.Y.H. Petition accepted.