PAGE 2813 (PLP)

SYED ABDUR REHMAN, J.‑‑By this constitution petition order dated 30‑4‑1985 passed by the District Judge, Khairpur has been challenged. The petition was dismissed by short order on 22‑4‑1986. These are the reasons for the above decision.

2. Petitioner Laiq alongwith one Ghulam Rasool had filed a suit claiming that agricultural land bearing Survey No. 135 of Deh Mithan Fakir, Taluka Kotdi exclusively belongs to petitioner Laiq. In addition he had got share with some other persons in Survey Nos. 134, 117, 118 and 471 of the same deh. It was further stated that respondents Nos.4 to 6 are near relatives of co‑plaintiff Ghulam Rasool and defendants Nos.17 and 18 are his sisters. Respondent No.6 by deceitful means got the mutation of the land in favour of respondents Nos.4 to 6 and on the strength of same illegal mutation the said respondent and others attempted to obtain loan from Agricultural Development Bank by creating encumberance on coming to know about the said illegal acts in March, 1975. The petitioner and co‑plaintiff Ghulam Rasool filed an appeal before the Deputy Collector, Khairpur, who rejected the same as being time‑barred and directed them to civil Court. Hence the suit, respondents Nos.4 to 6 contested the suit and claimed that the land bearing survey Nos. 134, 117, 118 and 471 was their ancestral property. The Khats stands in their names since 1970. They were in peaceful possession and enjoyment since the death of their father who was in possession and enjoyment thereof before that. They have further stated that Survey No. 135 also belongs to them and they have been mortgaging the same with the bank and are entitled to get it from the bank. The remaining defendants had not contested the suit and had fallen in line with the petitioner. On the pleadings of the parties, the learned Senior Civil Judge, Khairpur framed as many as 12 issues and after taking into consideration the evidence led by the parties dismissed the suit by judgment dated 31‑5‑1983.

3. Against this judgment the petitioner filed an appeal before the District Judge, Khairpur which came to be heard by Ist Additional Sessions Judge, who set aside the judgment and decree and remanded the case to the trial for deciding matter afresh after given reasonable opportunity to the petitioner and co‑plaintiff as well as to the other side to lead further oral or documentary evidence, as according to him certain important documents were not produced by them on issue No.5 with regards to the origin of the title. The parties were directed by the First Additional District Judge to appear before the trial Court on 21‑4‑1984. In spite of the direction of the first appellate Court and the notices issued by the trial Court, the parties did not appear nor they led any further evidence, hence the learned Senior Civil Judge by his order, dated 5‑8‑1984 again dismissed the suit in accordance with the previous judgment. An application under Order IX, Rule 9 C.P.C. was made by the petitioner and plaintiff for restoration of the suit under Order IX, Rule 9, C.P.C. It came to be heard on 18‑9‑1984. On this date also the petitioner and co‑plaintiff and their Advocate remained absent. The learned Senior Civil Judge, therefore, dismissed the application for non‑prosecution as well as on the ground that since the suit was dismissed on merit, hence application under Order IX, Rule 9, C.P.C. was not competent. Against this order the petitioner and co‑plaintiff filed revision before the District Judge, Khairpur. The learned District Judge after narrating the history of the proceedings pointed out that the last order passed by the learned Senior Civil Judge was an appealable order and the appellant should have filed an appeal application was not competent. He explained the scope of section 115, C . P. C . and rightly pointed out that in revision application it is to be seen whether the subordinate Court has exercised the jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Since he was of the view that the learned Senior Civil Judge has not exercised the jurisdiction which was vested in him according to law, therefore, he dismissed the revision application.

4. We have heard Mr. Abdul Latif Gabole Advocate for petitioner and Mr. Ali Aslam Jafri Advocate for respondents.

5. The order of District Judge which has been challenged before us holds that no revision application lies in this case because there are no two‑opinions on the proposition that where an immediate appeal against the impugned order was competent, no revision petition could be filed. The Advocate for the respondents Mr. Ali Adam Jafri cited before us P L D 1970 S C 506 Municipal Committee, Bahawalpur v. Sh. Aziz Elahi, which went to the extent of holding that even in a case where no direct appeal would lie to the High Court but the second appeal alone was competent then also revision petition was not maintainable. The Supreme Court overruled the decisions in the case of S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq reported in PLD 1959 B.J. 10 and Abdul Waheed v. Allah Din reported in P L D 1960 Kar. 472 and held as follows:‑ "The trend of judicial opinion is now to the effect that if a decree of an order which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent. This view is also sound on general principles, for, if the framers of section 115 of the Code of Civil Procedure had been of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word 'from' and not 'in before the words 'which no appeal lies thereto'. To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure‑ laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word 'appeal' used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The words 'no appeal lies thereto' are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an 'appeal' is held to include a second appeal, then no difficulty is created by the word 'thereto.

6. We are, therefore, of the clear view that the learned District Judge was perfectly justified in dismissing the revision application of the petitioner. Even otherwise the conduct of the petitioner in the past has been reprehensible. After the dismissal of the suit he went in appeal to the District Court where from the suit was remanded for leading additional evidence. He did not appear on the date of hearing and did not lead any evidence whatsoever and, therefore, the learned Senior Civil Judge was compelled to dismiss his suit once again. Although he was given sufficient opportunity by the learned Senior Civil Judge, to lead additional evidence but he did not avail of the same. He had then made an application for restoration of the suit which was dismissed because he again remained absent on the date fixed for hearing of that application. Thereafter, he filed the present revision application instead of filing an appeal which was dismissed by the District Judge as shown above. It may be pointed out that the constitutional jurisdiction provides equitable relief to those persons only who come to the Court with clean hands. It does not provide and relief to those persons, who come to the Court with own unclean hands or who are the guilty of latches and indolence or improper conduct. A . A . Petition dismissed.