2001 PLP 579 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115, O.XXXIX, Rr.1, 2 & O.XLIII, R. 1 (viii) ‑‑‑Revision‑‑‑Maintainability‑‑‑Filing of revision in High Court instead of appeal‑‑ Valuation of suit was fixed as Rs.400 in the plaint‑‑‑Application under O.XXXIX, Rr.1 & 2, C.P.C. was dismissed by the Trial Court‑‑‑Instead of filing appeal in the Lower Appellate Court, the plaintiff filed revision petition in High Court‑‑‑Validity‑‑‑Where the valuation of the subject‑matter for the purposes of jurisdiction was fixed at Rs.400 by the plaintiff, revision was to be filed before the Lower Appellate Court‑‑‑Revision was not maintainable in circumstances. Ch. Muhammad Ashraf Wahlah for Petitioners. Jari Ullah Khan for Respondents. The dispute in this petition arises out of a suit for declaration and injunction filed by the petitioners against the respondents, during the course of hearing of which the petitioners applied for the grant of temporary injunction restraining the respondents from alienating the land in dispute and from raising the construction thereon. That application was dismissed by the learned trial Court on 3‑6‑2000.

2. Surprisingly the petitioners instead of challenging that order in appeal under Order 43, Rule 1(viii), C.P.C. filed a Constitutional petition in this Court, which was registered as Writ Petition No. 13053 of 2000. Subsequently an application was filed by the petitioners (C.M. No.889 of 2000) for permission to withdraw the aforesaid petition with liberty to file a fresh petition, if need be. That application is still pending in the aforesaid petition. However, on 1‑9‑2000 the petitioners filed this revision petition challenging the order of the trial Court dated 30‑6‑2000 whereby the petitioners' application for temporary injunction had been dismissed.

3. Two preliminary objections have been raised by the learned counsel for the respondents, firstly that the order being appealable under Order 43, Rule 1, C.P.C. the revision petition was incompetent and, secondly, that if at all revision petition was to be filed, it should have been instituted in the Court of District Judge, Faisalabad, as the value of the subject‑matter for the purposes of jurisdiction was fixed at Rs.400 by the petitioners.

4. Both these objections are well‑taken. There is nothing on the record to show that as to why the petitioners instead of filing an appeal against the order of the trial Court before the District Court, firstly came in writ petition and then in the revision before this .Court. Confronted with this proposition the learned counsel for the petitioners has relied upon an authority of the Supreme Court in Naseem Ahmad and others v. Air Botswana (Pvt.) Ltd. and others 1993 SCMR 64 to contend that in exceptional cases revision petition was maintainable notwithstanding that the remedy of appeal beingl available. There cannot be any cavil with the legal proposition advanced by the learned counsel for the petitioners. It is to be seen that no where in this petition it had been explained that what were the circumstances which have obliged the petitioners to file the Constitutional petition before this Court. The only explanation given is that earlier the plaint was rejected by the Lower Appellate Court and the revision against that order was dismissed by this Court and it was only the Supreme Court which had passed an order for revival of the plaint. This hardly furnishes any ground for bypassing the forum prescribed by law. The mere fact that an earlier occasion the Supreme Court of Pakistan had interfered in the matter does not confer any right upon the petitioners to approach this Court directly by bypassing the provision of law.

5. Even if it be assumed that the petitioners could file the revision without first invoking the appellate jurisdiction of the District Court, even then this petition would not lie in this Court as admittedly the valuation of the subject‑matter for the purpose of jurisdiction was fixed at Rs.400 by the petitioners/plaintiff himself; No reason has again been stated as to why the revision was not filed before the District Court. In view of the above this petition has no force. It is dismissed in limine. Q.M.H./M.A.K./T‑18/L Revision dismissed.