--Suit for recovery of possession was dismissed--Ex-parte proceedings in revision petition--Dismissal of application for setting aside ex-parte decree--Non-receiving of any notice regarding pendency of revision petition-

 PLJ 2022 Lahore 351

Specific Relief Act, 1877 (I of 1877)--

----S. 9--Civil Procedure Code, (V of 1908), S. 12(2)--Suit for recovery of possession was dismissed--Ex-parte proceedings in revision petition--Dismissal of application for setting aside ex-parte decree--Non-receiving of any notice regarding pendency of revision petition--Miscarriage of justice--Revisional Court while passing impugned order completely overlooked second most important contention and objection of petitioner--Neither he received or served any notice nor it was in his knowledge about pendency of revision petition--Revisional Court failed to attend this objection while deciding application u/S. 12(2) C.P.C. which amounts to failure of complete adjudication and miscarriage of justice--Revisional Court should have given its findings with regard to this material proposition--Civil revision allowed.     [P. 354] B, C & D

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Revisional power--No doubt Section 115 of C.P.C. provided revisional power to High Court but same powers may be exercised by District Court whereby case decided by a Court subordinate to it.

                                                                                              [P. 353] A

Rao Jamshaid Ali Khan, Advocate for Petitioner.

Ch. Muhammad Jamal Nasir, Advocate for Respondent No. 1 and 2.

Ch. Muhammad Saeed Machra, Advocate along with Respondent No. 3.

Date of hearing: 23.9.2021.

 PLJ 2022 Lahore 351
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
LIAQAT ALI--Petitioner
versus
MOHAMMAD ARSHAD and 2 others--Respondents
C.R. No. 1153 of 2012, heard on 23.9.2021.

Judgment

Through this civil revision, the petitioner has assailed the order dated 31.10.2012 passed by the learned Additional District Judge, Jahanian District Khanewal whereby an application filed by the petitioner under Section 12(2), CPC was dismissed.

2. The facts in brevity are that Respondents No. 1 and 2 instituted a suit for recovery of possession regarding Ahata No. 30/16 measuring 7-marlas situated in Chak No. 113/10-R Tehsil Jahanian District Khanewal against Respondent No. 3 and petitioner. The Respondent No. 3 contested the suit by filing written statement, whereas the petitioner was proceeded against ex-parte. Learned trial Court after framing of issues invited the parties to produce their respective evidence. Both the parties produced their evidence pros and cons. After completion of trial the suit was dismissed by the learned trial Court vide judgment and decree dated 08.05.2010. Feeling aggrieved, Respondents No. 1 and 2 filed a revision petition whereby ex-parte proceedings were initiated against the petitioner and vide judgment and decree dated 07.03.2011 revision petition was accepted and their suit was decreed. The petitioner filed an application under Section 12(2) of the CPC for setting aside of judgment and decree dated 07.03.2011 on 08.10.2011 by stating that neither he was served through notices nor pendency of revision petition was in his knowledge and the respondents with fraud and collusion obtained the said ex-parte judgment and decree against the petitioner by concealing the real facts. He also urged that no revision lies in the District Court against the judgment and decree passed under Section 9 of the Specific Relief Act, 1877. After hearing the parties learned revisional Court dismissed the application vide order dated 31.10.2012. Hence, this civil revision.

3. Learned counsel for the petitioner states that the impugned order dated 31.10.2012 is against the facts and law and result of mis-reading and non-reading of record. While relying upon “Late Mst. Majeedan through Legal Heirs and another versus Late Muhammad Naseem through Legal Heirs and another" (2001 SCMR 345) prayed for acceptance of the revision petition.

4. Conversely, learned counsel for the respondents hotly contested the revision petition while arguing that learned revisional Court has passed the impugned order strictly in accordance with law; that the learned revisional Court has the jurisdiction to entertain the revision against the judgment/order passed in a suit filed under Section 9 of the Specific Relief Act, 1877.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

6. The Hon’ble Supreme Court of Pakistan in a case referred supra, while dealing with the proposition that whether appeal or revision is competent against an order/judgment passed in a suit for recovery of possession under Section 9 of the Specific Relief Act, 1877, observed that Section 9 of the Act (ibid) itself provides “That no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such or decree be allowed” and further observed that “A revision lie to the High Court under Section 115 of the Civil Procedure Code in respect of an order or decree made in a suit under Section 9 of the Specific Relief Act." No doubt Section 115 of C.P.C. provided revisional power to High Court but the same powers may be exercised by the District Court whereby the case decided by a Court subordinate to it. The learned Revisional Court rightly observed in this regard as under:

“Admittedly originally and basically, revisional jurisdiction has been conferred upon the High Court (sic) pecuniary limits, District Court was also allowed to exercise the revisional power of the High Court. From the plain reading of Section 115(2), the following ingredients have been found necessary to invoke the revisional jurisdiction of District Court:-

(i)       Case must have been decided by a Court sub-ordinate to District Court.

(ii)      Against that decision, appeal is not competent, and

(iii)     Amount or value of subject-matter of the case should not exceed the limits of appellate jurisdiction of District Court.

While the value of the suit for the purpose of jurisdiction was mentioned Rs. 24,000/- in Para No. 10 of the plaint and the

learned Revisional Court had rightly decided the matter between the parties."

The learned counsel for the petitioner failed to understand the case law referred by him, rather he misinterpreted it.

7. I have observed that the learned revisional Court while passing the impugned order dated 31.10.2012 completely overlooked second most important contention and objection of the petitioner whereby he challenged the judgment and decree dated 07.03.2011 passed by learned trial Court on the ground that neither he received or served any notice nor it was in his knowledge about the pendency of revision petition. The petitioner by raising this objection in his application stated that the respondents collusively by concealing the facts procured the decree dated 07.03.2011 as infact the said Ahata was, transferred by Respondent No. 3 in favour of the petitioner after receiving consideration amount and due to that reason she lost her interest to peruse the case. The learned revisional Court failed to attend this objection while deciding application under Section 12(2) C.P.C. which amounts to failure of complete adjudication and miscarriage of justice. The learned revisional Court should have given its findings with regard to this material proposition. In this view of the matter, this civil revision is allowed and the impugned order
dated 31.10.2012 is set aside. The case is remanded to the learned revisional Court to decide the application of petitioner under Section 12(2) of the CPC afresh after providing proper opportunity of hearing to the parties strictly in accordance with law within period of three months positively from the receipt of certified copy of order of this Court.

(Y.A.)  Civil revision allowed