1979 PLP 823 (CLC)

The main point in this case is whether an appeal is competent under Order XLVII, rule 7 read with Order XLIII, rule 1, C. P. C. against an order passed for review of a revisional order of the District Judge under section 115, C. P. C. which itself is given finality by that section.

2. Briefly, the facts are that a suit filed by Mst. Rashid Begum respondent to pre-empt a sale in favour of the petitioner was dismissed under Order IX, rule 8, C. P. C. on 5th May, 1975. Her application for restora tion was allowed by the trial Court subject to payment of Rs. 100 as costs which was accepted by the petitioner and thereafter he participated in the further proceedings.

3. Notwithstanding, however, the acceptance of the costs, the petitioner filed a revision petition in the District Court which was allowed by Ch. Muhammad Nasim, Additional District Judge, by his order dated 31st January, 1978. He set aside the order of the trial Court and dismissed the application for restoration. This order was, however, reviewed by the impugned order dated 27th April, 1978, on a review application of the respondent on the ground that having once accepted the costs subject to which the order of restoration was passed, the petitioner was estopped from filing the revision application.

4. This appeal was admitted but the question of its maintainability was left open. This question has caused a lot of anxiety but I regret that none of the learned counsel rendered any assistance on this important point which would affect the institution of several appeals in future also.

5. Now the legal position is that by the Law Reforms Ordinance, 1972, the power of hearing revision against the order of the trial Court was conferred upon the District Court in a case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of a District Court. It was further provided that where a petition has once been filed either before the High Court or a District Court no further petition shall be made to either of them and no proceedings in revision shall be entertained by the High Court against an order made by the District Court in exercise of this newly-conferred jurisdiction. The jurisdiction of the District Court to hear appeals extended to cases of Rs. 25,000 but it has now been extended to cases of the valuation of Rs. 50,000 by the Punjab Civil Courts (Amendment) Ordinance XX of 1978.

6. It would thus be clear that finality has been attached to an order passed by the District Court in exercise of the revisional jurisdiction and where once the jurisdiction of that Court is invoked in a petition under section 115, C. P. C. the jurisdiction of the High Court is completely ousted. But Order XLVII,: rule 1, C. P. C. allows the review of even an order passed under section 115, C. P. C. Order XLII, rule 7 allows an appeal though on restricted grounds, against an order of grant of an application for review. Similarly, Order XLIII, rule 1(w) makes an order of grant of an application for review appealable. In these circumstances, if the rules referred to above permitting an appeal against grant of application for review are applied liberally, these can be no objection to the maintainability of this appeal. But what would give rise to a serious anomaly is that while the order of revision passed by the District Court is immune from any interference by the High Court. the review of such an order should attract the appellate jurisdiction of this Court.

7. The point, therefore, is as to what is exactly the scope of review ; whether review is altogether a separate category or while exercising the review jurisdiction, the Court has to act in exercise of the same jurisdiction by exercise of which the order to be reviewed was passed. To put it more succinctly whether the Court exercising the appellate jurisdiction or revisional jurisdiction would till be deemed to be exercising that very jurisdiction while reviewing its own orders or decrees. It will be advantageous to refer to Muhammad Naimullah Khan v, Ihsan Ullah Khan (14 All. 226) in this respect. In that case, an application to amend the decree was heard and decided by one of the two Judges since the other Judge had ceased to be a Member of the Bench. It was held by the Allababad High Court that "no appeal from such order would lie". It was observed by Edge, C. J. that - "Our brother Tyrrell, in making the order for the amendment of the appellate decree of this Court in the case, was acting in the exercise of the appellate jurisdiction of the Court, Mahmood, J., who agreed with the conclusions arrived at by Edge, C. J., but on grounds given in his separate judgment, observed at pages 235 and 236:- "To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree or order non-appealable, such decree or order can be made the subject of consideration by the whole of this Court under the Letters Patent, is to hold that wherever no appeal lies to this Court the ceremony of presenting it to this Court to a Single Judge of this Court, who would undoubtedly reject the appeal, makes it the subject of consideration by a Bench of the Court. It seems to me that it would be defeating the whole policy of the statute as to the finality of decisions." Muhammad Hassan Khan v. L. Bikhari Lai and others (A I R 1950 All. 534) is another case which is helpful. In that case the first appellate Court reviewed its appellate order and the appeal filed against the final order was dismissed by a learned Single Judge in the High Court. In a Letters Patent Appeal it was argued that such an appeal was competent without the permission of the Single Judge since such permission was required only if the Judge had been exercising appellate jurisdiction, but where he had passed an order in exercise of his jurisdiction in review such permission was not a condition requisite for filing the appeal. While determining the question, the Court observed that "it was true that the order appealed against was not passed on `appeal', but there was no doubt that it was passed by the lower Appellate Court in the exercise of its appellate jurisdiction. The case came up before that Court and it became seized of it as a Court of appeal and the application for review was filed before it by invoking its jurisdiction as a Court of appeal to set aside its previous order and to rehear the appeal. The learned Single Judge having refused leave for appeal, the appellant had no right to file it and the appeal was, therefore, not maintainable." Ghulam Hussain v. Ghulam Mustafa (P L D 1967 Lab. 439) is the authority of the High Court of West Pakistan wherein it was held that- "The test, it would thus appear is not the actual matter which is decided by the Judge but the main jurisdiction, under which the main case came in the High Court -wherein the ancillary matters later on arose. Once the source of the High Court jurisdiction with regard to the main case has been ascertained rest of the proceedings though regulated by different provisions on the subject remain to be proceedings in the same jurisdiction under which the case came up in the High Court." Similarly, in Mohan Lai and another v. Amar Chand (A I R 1935 Lah. 815) the jingle Judge of the High Court dismissed the appeal for default and also dismissed the application for restoration. It was held that "when the learned Judge of this Court, therefore, dismissed the appeal `for default' he confirmed the judgment and decree of the lower appellate Court and in refusing to set aside that order, he declined as it were to re-open the case or in other words to withdraw his order confirming the decree of the lower appellate Court. The order of refusal, therefore, was made in respect of the appeal and this had been in the exercise of the appellate jurisdiction". Similar view was taken in Muhammad Shafi and others v. Din Muhammad and others (P L D 1951 Lah. 397).

8. It is, therefore, clear that while exercising the ancillary jurisdiction under Order XLVII, rule 1, read with section 115, C. P. C'.. the learned Additional District Judge was still exercising the revisional jurisdiction. BY the order which was reviewed he had allowed the revision petition put by the order in review he had dismissed the same. In this view of the matter, the finality given by section 115 to his orders remains intact nor the High Court, whose jurisdiction in a case of which its cognizance has been taken under section 115 by the District Court is ousted, can have any-'t jurisdiction to interfere with or set aide an order, or to adjudicate upon the incorrectness of the order refusing to exercise revisional jurisdiction. The refusal to exercise revisional jurisdiction on the part of the learned Additional District Judge amounts to confirming the order of the trial Court in exercise of its revisional jurisdiction. The provisions of section 115, C. P. C. conferring finality to the order of the District Court and excluding the jurisdiction of the High Court to sit in judgment over it thus override the provisions of Order XLIIf, rule 1(w). If a different view is held, that would lead to the serious anomaly which has already been pointed out. It has always been the intention of the Legislature not to allow any interference against the revisional order of the High Court also. Thus there is a specific bar under e clause 10 of the Letters Patent of the High Court against an appeal to the Bench of two Judges or more from an order of a Single Judge passed in exercise of revisional jurisdiction. The same finality has been granted by section 115 to the revisional order of the District Court.

9. The provisions of Order XLVII, rule 7 and Order XLIII, rule 1,' C. P. C. have not been construed as conferring an absolute right of appeal against the order of grant of review application. In fact, there is almost uniformity on the point that wide jurisdiction given to the appellate Court under Order XLIII, rule 1(w) is curtailed and it is subject to the provisions c of Order XLVII, rules 4 and 7, C. P. C. It has been held that an order granting review is open to attack on the grounds mentioned in Order XLVII, rule 7, C. P. C. Ran Singh v. Milkiat Singh (A I R 1934 Lab. 617 =148 1 C 1126), Srinivasa Aiyanger v. Official Assignee, Madras (A I R 1927 Mad. 641) Vundo Lal v. Punchanon (A I R 1918 Cal. 618), Lachman Das v. Mutsaddi Lai (A I R 1917 All, 76). Similarly, in a large number of cases it has been held that these provisions are subject to provisions of clause 10 of the Letters Patent and an appeal under that clause against an order passed by a Single Judge under Order XLVII, rule 4 is not competent without certificate under clause 1 of the Letters Patent. Ghulam Hussain v. Ghulam Mustafa is an authority in which the entire case law is discussed.

10. There are cases in which the provisions of Order XLIII, rule 1(w), C. P. C. are subjected to the provisions of Order XLVII, rule 1 or clause 10 of the Letters Patent. It can safely be concluded on this analogy that section 115, C. P. C. which ousted the jurisdiction of the High Court or any other Court to interfere with the order of the District Court passed in revision and also to entertain another revision petition against the same E order of the subordinate Court, overrides the provisions of Order XLIII, rule 1 and Order XLVII, rule 7, C. P. C. The impugned order is not, therefore, open to appeal.

11. It may be stated that an appeal lies only on very restricted ground under XLVII, rule 7, C. P. C. Where an ordinary appeal does not lie in P view of the restrictive provisions of Order XLVII, rule 7 the Court may nevertheless treat the appeal as revision. Jan Muhammad v. Amolak Ram (A I R 1934 Lab. 301), Kanshi Ram v. Diwan Chand (A I R 1933 Lab. 169), Sikandar Khan v. Buland Khan (A I R 1927 Lab. 435) and Atra v. Chajju (49 P W R 1911). Similarly, if the Court refuses to exercise review jurisdiction arbitrarily or on grounds unsustainable in law such an order would also be revisable under section 115, C. P. C. If it is held that the order of review of revisional order of the District Court is appealable to the High Court it will also have to be held that the order of review would be revisable by the High Court where it is not appealable, thus opening the way for bypassing the provisions about ouster of High Court's jurisdiction under section

115. In fact, in the latter category of cases it would be open to the persons against whom the order is passed in revision by the District Court to apply for review and after dismissal of the petition to approach the High Court for doing what the Court was barred from. Such an intention cannot be ascribed to the Legislature. I am clear in my mind that the impugned order is not appealable.

12. The learned counsel for the respondent submitted that even if an appeal be competent under Order XLVII, rule 7, C. P. C. against the revisional order of the District Court it will not be competent where the order is passed in contravention of clauses (a) and (b) to the proviso to Order XLVII, rule 4, C. P. C. This rule provides that an application for review cannot be granted without notice to the opposite-party. Moreover, it cannot be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him, when the decree or order was passed or made, without strict proof of the a allegation.

13. Rule 7 provides that an appeal against the grant of an application for review lies only when the order of review is in contravention of provisions of rule 2, or in contravention of the provisions of rule 4 or after the expiration of the period of limitation prescribed therefore and without sufficient cause. It may be stated that rule 2 deals with the Judge before whom an application for review can be filed.

14. The learned counsel argued that in the present case the judgment is based upon an error apparent on the face of the record, which is not one of the grounds on which the appeal can be competent. This argument is unexceptionable. I have already cited cases in which it has been held that an appeal under Order XLIII, rule 1 is subject to the provisions of Order XLVII, rule 7, C. P. C. It has further been held in a number of cases that where the order of review is based on the basis of and error apparent on the face of the record, no appeal is competent. Kesho Rain v. Bhawandas (155 1 C 130), Keshab Prasad Mandal v. Janesa War Prasad Mandal (1811 C 455), Shidramappa v. Gurushantappa (A I R 1929 Bom. 183) and Shaukat All v. Mt. Shakila Bano (A I R 1926 All. 492). In fact, there are a number of cases but I have cited only a few cases from different High Courts to show that the preponderant view of many High Courts upon this particular question is against the applicability of Order XLVII, rule 1, C. P. C.

15. Although rule 4 of Order XLVII provides for cases in which no application can be granted but it also provides that "where the Court is of opinion that the application for review should be granted it shall grant the same". But rule 7 provides that an appeal lies only in case of contravention of the provisions of rule

4. The language of this rule, therefore, applies only to clauses (a) and (b) to the proviso to rule 4 that in certain cases an application shall not be granted. It is the contravention of the provisos, therefore, which could attract rule 7.

16. The power of review can be exercised on a number of grounds, e.g. error apparent on the face of the record, on the discovery of fresh evidence in the circumstances detailed in rule 1, Order XLVII or for any other sufficient reason. The words "or for any sufficient reason" have been held to be ''. ejusdem generis with the earlier two grounds. Since rule 4 does not refere to the first ground of error apparent on the face of record but confines itself only to the proof of the second, it will be clear that no appeal would b competent if the review order is based on the first ground of error apparent on the face of the record. 1, therefore, agree with the argument of the learned counsel for the respondent that the appeal is not competent for this reason also.

17. This appeal is, therefore, dismissed but the parties are left to bear their own costs, S. A. H. Appeal dismissed.