2017 PLP 188 (CLCN)

SHAHID MUBEEN, J.

Through this Intra Court Appeal the appellant has challenged the legality and validity of order dated 07.07.2015 passed by learned Single Judge in Chambers in Writ Petition No.27961 of 2013 whereby the petition was accepted and the case was remanded to the learned Senior Civil Judge Sargodha for decision afresh.

2. This case has a checkered history which has been elaborately stated in this Intra Court Appeal, which may be treated as part of this order. However, the facts necessary for the decision of this Intra Court Appeal are briefly stated as under:- The appellant filed a suit for mandatory injunction before the learned trial court on 05.11.2001 stating therein that he was owner in possession of land measuring 18-kanals 14-marlas situated in Kot Moman, Tehsil Bhalwal, District Sargodha and the same was acquired by the respondents for the construction of WAPDA offices and residences vide Award dated 29.04.1997. The appellant moved an application to the Collector Land Acquisition GSC Wapda, Lahore under section 18 of the Land Acquisition Act for sending the afore-noted Award to the court of competent jurisdiction for determining the actual amount of compensation, which was not decided by him according to law. Therefore, the appellant was compelled to file the said suit. The same was decreed vide judgment and decree dated 25.04.2011 passed by the learned Senior Civil Judge Sargodha. The respondents Nos. 1 to 3 moved an application under section 12(2), C.P.C. before the learned trial court for setting aside the judgment and decree dated 25.04.2011, which was dismissed vide order dated 20.02.2013. The respondents Nos.1 to 3 filed revision which was also dismissed vide order dated 09.09.2013 passed by the learned Additional District Judge Sargodha. The impugned orders dated 20.02.2013 and 09.09.2013 were challenged through Writ Petition No.27961 of 2013, which was accepted and the case was remanded to the learned trial court for decision afresh. Hence this Intra Court Appeal.

3. It is contended by the learned counsel for the appellant that the prohibition to entertain an Intra Court Appeal relates to appeals, reviews or revisions provided under the applicable law. He submits that in a situation like this, the provisions of section 12(2), C.P.C. utilized by the learned Single Judge in Chambers by alleging that fraud has been committed was not applicable, therefore, the contention was rejected and the provisions of C.P.C. were not attracted. He further submits that the order under appeal does not proceed on the premise that the order under section 12(2), C.P.C. was without jurisdiction. It proceeds on the premise that the application under section 12(2), C.P.C. was neither fully heard nor decided in accordance with law. He finally submits that writ jurisdiction is not meant for correction of ordinary orders passed by ordinary forum. It is meant only to interfere and correct the orders passed on the executive side. He, therefore, maintains that this Intra Court Appeal is competent and should be heard and decided on merits.

4. Arguments heard. Record perused.

5. As regards the first contention of the learned counsel for the appellant that the prohibition to entertain an Intra Court Appeal relates to appeals, reviews or revisions provided under the applicable law, the application for the setting aside of judgment and decree dated 25.04.2011 was filed under section 12(2), C.P.C. The order of dismissal of application under section 12(2), C.P.C. is not an appealable order. The appealable orders under the C.P.C. have been provided in section 104 which is as under:- "Section 104.-Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: [****] [(f) an order under section 35A; [(ff) an order under section 47;] (g) an order under section 95; (h) an order under any of the provision of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; [Provided that no appeal shall lie against any order specified in clause (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made] (2) No appeal shall lie from any order passed in appeal under this section." The other provision which relates to appealable orders is Order XLIIII, Rule 1, C.P.C. which is as under:- "

1. An appeal shall lie from the following orders under the provisions of section 104, namely: a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court; b) an order under rule 10 of Order VIII pronouncing judgment against a party; c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; d) an order under the rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; e) an order under rule 4 of Order X pronouncing judgment against a party; f) an order under rule 21 of Order XI; g) an order under rule 10 of Order XVI for the attachment of property; h) an order under rule 20 of Order XVI pronouncing judgment against a party; i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; [ii) an order under rule 62 or rule 103 of Order XXI relating to the right, title or interest of the claimant or objector in attached property;] j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; l) an order under rule 10 of Order XXII giving or refusing to give leave; m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction; n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; o) an order [under rule 2, rule 4 or rule 7] of Order XXXIV refusing to extend the time for the payment of mortgage money; p) an order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV; q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; r) an order under rule 1, rule 2 rule 4 or rule 10 of Order XXXIX; s) an order under rule 1 or rule 4 of Order XL; t) an order of refusal under rule 19 of Order XLI to readmit or under rule 21 of Order XLI to re-hear an appeal; u) an order under rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the Appellate Court; v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV; w) an order under rule 4 of Order XLVII granting an application for review."

6. The order of dismissal of application under section 12(2), C.P.C. is neither provided under section 104, C.P.C. nor under Order XLIII, Rule 1, C.P.C., hence the same is revisable under section 115, C.P.C. which is reproduced herein below:- "Section 115.-REVISION.

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit; Provided that where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. Provided further that such application shall be made within ninety days of the decision of the subordinate Court. which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any 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 the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."

7. In either way, if an application under section 12(2), C.P.C. is accepted or rejected, no appeal lies under section 104 read with Order XLIII, Rule 1, C.P.C. and only revision is competent under section 115, C.P.C. Reference may be made to 2004 YLR 1666. The acceptance or dismissal of application under section 12(2), C.P.C. is not a decree. Reference may be made to 1982 CLC 625, 1987 CLC 1501 and PLD 1983 Lahore

166. In the case in hand the law applicable is C.P.C. The order has been passed under section 12(2), C.P.C., therefore, revision is competent under section 115, C.P.C.

8. The provisions of Law Reforms Ordinance, 1972 is as under:- "

3. Appeal to High Courts in certain cases. (1) An appeal shall lie to a Bench of two or more Judges of High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan not being an Order made under sub paragraph (i) of paragraph (b) of that clause. Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order."

9. From bare perusal of proviso of subsection (2) of section 3 of Law Reforms Ordinance, 1972 it is clear that the Intra Court Appeal is not competent if law applicable provided for at least one appeal or one revision or one review to any Court or Tribunal or Authority against the original order. The original order in this case is order dated 20.02.2013 passed on an application under section 12(2), C.P.C., against which provision is provided under section 115, C.P.C., hence, the Intra Court Appeal filed by the appellant is not competent/maintainable in view of the said proviso of subsection (2) of section 3 of the Law Reforms Ordinance, 1972.

10. The other contention of the learned counsel for the appellant that writ jurisdiction is not meant for correction of ordinary orders passed by ordinary forum and it is only meant to interfere and correct the orders passed on the executive side has no basis. It is noteworthy that by time it has been settled that the High Court is empowered to issue a writ of certiorari to inspect the proceedings of lower/subordinate court to determine whether any irregularity has been committed by such court. Reference may be made to the case law reported as "Haji Wali Jan-Habib Jan through Proprietor Haji Wali Jan v. The District Council, Chagai through Administrator Nushki" (1999 CLC 1568).

11. In case titled as "Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs" (PLD 2007 Supreme Court 504), it has been held as under:- "

26. This Court, on several occasions, has held that the High Court in its constitutional jurisdiction can interfere with the judgment and order of the appellate Court if the view taken by the appellate Court was not only contrary to the established principles of law, but also contrary to evidence on record or had flouted the provisions of statutes or failed to follow the law relating thereto as held in the case of Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972.

27. The High Court in its Constitutional jurisdiction will not only to see that the inferior tribunals keep within their jurisdiction but also to see that they observed law, as held in the case of Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24.

28. In the case of Messers A.C.E. Enterprises through Khalid Pervez v. Additional District Judge, Lahore and others 1987 SCMR 1174, this Court while dismissing the petition filed against the judgment of the High Court whereby in its constitutional jurisdiction it has set aside the order of the appellate forum, it was observed that where the forums below fail to act in accordance with the enunciation of law made by the superior Courts, such an error can be corrected in the exercise of writ jurisdiction. Reliance was placed on the case of Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246.

29. In the case of Muhammad Hayat v. Sh. Bashir Ahmed and others 1988 SCMR 193, this Court, in a rent case, the plea raised that findings of the appellate Court were final and could not be interfered with in writ jurisdiction, repelled and it was held that the appellate Court having misread evidence on record, his findings which were based on misreading of evidence, stood vitiated and such order, held, was not immune from interference in writ jurisdiction.

30. In the case of Abdul Hamid v. Ghulam Rasul and others 1988 SCMR 401, when the findings of the District Judge in a rent appeal were found conjectural, based on misreading of record and on evidence taken out of context, by the High Court, were set aside by the High Court in constitutional jurisdiction and it was held by this Court that the High Court was justified in circumstances in interfering with the appellate order.

31. In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338, it was observed that where the District Court, which is the appellate Court, and it reversed the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with such finding by issuing writ of certiorari to correct the wrong committed by the appellate authority and the High Court can justifiably exercise its Constitutional Jurisdiction as the same is supervisory as well as in aid to subserve the cause of justice and to correct a wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject."

12. Sequel to the above, this Intra Court Appeal is not competent/maintainable under proviso to sub section (2) of section 3 of the Law Reforms Ordinance, 1972, as right of revision is provided under section 115 of C.P.C. on the dismissal of an application under section 12(2), C.P.C. The other contentions raised by learned counsel for the appellant need not to be discussed as same relates to the merits of the case. MH/M-350/L Appeal dismissed.