Case Law: CPC 15 & 115 and Punjab Pre‑emption Act (I of 1913)

 (a) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Plaintiffs pre‑emption suit dismissed as barred by limitation on preliminary issue‑‑‑Trial Court's finding having been upheld in appeal plaintiffs plea in revision was that his suit having been filed on 15‑4‑1972, within one year of the date of attestation of mutation i.e. 17‑4‑1971, was well within time and there was no justification to dismiss it as barred by time as also because of his ownership in the estate coupled with contiguity his suit was not hit by the decision of Supreme Court in Said Kamal Shah's Case reported as PLD 1986 SC 360‑‑‑Plaintiff, in his plaint, had claimed his superior right of pre‑emption on the basis of being collateral of vendor and ,not as a co‑owner in estate‑‑‑Plaint did not contain the plea that plaintiff was owner in estate or his ownership in estate was coupled with contiguity‑‑Plaintiff had also not filed any application for the amendment of plaint till the time of arguments‑‑‑Plaintiff thus could not contend that he was either the owner in estate or his ownership in estate was coupled with contiguity‑‑‑No decree for possession by pre‑emption having been passed in plaintiffs favour before 1‑8‑1986, no decree could now be passed in his favour and as such remand of case to Trial Court for further proceedings in suit would be merely a wastage of time.

Ahmad and others v. Abdul Aziz and others Civil Review Petition No.80‑R of 1988 PLD 1989 SC 771 and Said Kamal's case PLD 1986 SC 360 ref.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 115‑‑‑Revisional jurisdiction, excersie of‑‑‑Essentials‑‑‑High Court in its discretion could refuse to entertain or accept revision application in suitable case even though requirements of S. 115, CPC are satisfied‑‑‑Circumstances in case justifying non‑exercise of revisional jurisdiction stated.

The revisional jurisdiction under section 115 CPC is discretionary in nature and ordinarily be exercised only as last resort for‑an aggrieved party.

High Court may in its discretion refuse to entertain or accept revision application in suitable cases, although the subordinate Courts appear to have exercised a jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested or to have acted in exercise of its jurisdiction illegally or with material irregularity. The High Court would be justified in not exercising its revisional discretion in the circumstances for example, when the impugned order is just and proper; where substantial justice has been done between the parties; where there is an inordinate delay in invoking the revisional jurisdiction; where the suit was filed with ulterior motives and not in good faith and where the relief sought for in the revision application, will be of no utility, ineffective, fruitless or infructuous or further proceedings in the suit will be merely a wastage of time.

Malik Muhammad Hussain Awan for Petitioner.

Nemo for Respondent.

Date of hearing: 9th October, 1989.

ABDUL GHAFOOR KHAN VS TASSAWAR HUSSAIN SHAH
1990 M L D 213
[Lahore]
Before Muhammad Munir Khan, J
ABDUL GHAFOOR KHAN‑‑Petitioner
versus
Syed TASAWAR HUSSAIN SHAH‑‑Respondent
Civil Revision No. 968‑D of 1989, heard on 09/10/1989.

JUDGMENT

On 15‑4‑1972, Abdul Ghaffar Khan petitioner filed suit for possession by pre‑emption of agricultural land measuring 1 Kanal equal to 20/383 share out of Khata No. 523, situate in village Dawoodkhail Pacca, Tehsil and District Mianwali, on the ground of being collateral of vendor, against Syed Tasawar Hussain Shah respondent. The suit was resisted. As many as 7 issues were framed. The parties led their evidence. As a result of its finding on issue No.1 which is as under:‑‑

"Whether the suit is barred by limitation? OPD.?

The trial Court dismissed the suit on 20‑12‑1974 as barred by time. The learned trial Judge was of the view that since the suit was bound to fail, in view of his finding on the aforesaid issue alone, therefore, the remaining issues should not be discussed. The appeal filed by the plaintiff/petitioner was dismissed by the learned District Judge, Mianwali, on 8‑5‑1975. Hence this revision.

2. The learned counsel for the petitioner contended that since the suit land was part of a joint Khata and was not capable of admitting physical possession and the possession of respondent before the attestation of the mutation, if any, was not under the sale, therefore, the suit filed by the petitioner on 15‑4‑1972 within one year of the date of the attestation of mutation i.e. 17‑4‑1971, was well within time and as such there was no legal justification to dismiss it as barred by time. The learned counsel also argued that the ownership of the petitioner in the estate was/is coupled with contiguity, therefore, in view of recent pronouncement by the Supreme Court in case Ahmad and others v. Abdul Aziz and others, Civil Review Petition No. 80‑R/88 PLD 1989 SC 771, the suit filed by him is not hit by the decision in Said Kamal's case PLD 1986 SC 360 and is likely to succeed. The learned counsel prayed that the case be remanded to the trial Court for decision on the remaining issues. Since the learned counsel for the respondent pleaded no instructions, so order for ex parte proceedings against the respondent was passed today.

3. I have considered the submissions made by the learned counsel with care. I do not feel inclined to exercise discretionary power of this Court under section 115 CPC in aid of the petitioner. In the plaint, he has claimed his superior right of pre‑emption on the basis of being collateral of vendor and not as a co -owner in the estate. It has nowhere been stated in the plaint that he was owner in the estate or his ownership the estate was coupled with contiguity. He has not filed any application for the amendment of plaint till today. So it could not be contended that he was either the owner in the estate or his ownership in the estate was coupled with contiguity. Since no decree for possession by pre‑emption was ever passed in his favour before 1‑8‑1986, therefore, no decree can now be passed in his favour and as such remand of the case to the trial Court for further proceedings will be futile and further proceedings in the suit will be merely a wastage of time. The revisional jurisdiction under section 115 CPC is discretionary in nature and ordinarily be exercised only as last resort for an aggrieved party. Section 115 CPC reads as under:‑‑

S.115 CPC‑‑‑(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."

Bare reading of the section shows that the High Court may in its discretion refuse to entertain or accept revision application in suitable cases, although the subordinate Courts appear to have exercised a jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested or to have acted in exercise of its jurisdiction illegally or with material irregularity. The High Court would be justified in not exercising its revisional discretion in the circumstances for example, when the impugned order is just and proper; where substantial justice has been done between the parties; where there is an inordinate delay in invoking the revisional jurisdiction; where the suit was filed by ulterior motives and not in good faith and where the relief sought for in the revision application, will be of no utility, ineffective, fruitless or infructuous or further proceedings in the suit will be merely a wastage of time.

4. Pursuant to the above discussion, the revision petition is dismissed, leaving the parties to bear their own costs.

AA./A‑779/L.Revision dismissed.