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Civil Revision No. 42 of 1961, decided on 11th March 1969.
, 5.115 & O. XLI, r. 22 IRevision against appealable decree‑Not competent remedy by appeal exhausted‑Civil Judge passing decree in terms of arbitra tor's award‑Petitioner failing either to appeal to District Judge under section 17 or 39 (1) (vi), Arbitration Act, 1940 or to file cross‑objection challenging such decree in appeal filed by plaintiff ‑decree‑holder challenging such decree in matter of costs‑Revision petition filed under S. 115, C. P. C., held, not competent‑Arbitra tion Act (X of 1940), Ss. 17 & 39(1)(vi).
Suppu Nayakan v. Perumal Chetty A I R 1917 Mad. 285; Shair Ali v. Jagmohan Ram and another A I R 1931 All. 333 (2); Mahara;a Bahadur Ram Ran Vijay Prashad Singh v. Kishun Singh and others A I R 1944 Pat. 54; B. Manmohan Lal and others ;v. B. Rai Kumar Lal and others A I R 1946 All. 89; Paru churu Thirumala Satyanarayancharyulu and another v. Vannava Ramalingam and others A I R 1952 Mad. R6; Maqbool Alam Khan v. Mi. Khodaija Begum A I R 1949 Pat. 133; N. S. Vankata giri Ayyangar and another v. The Hindu Religious Endowments Board, Madras P L D 1949 P C 26 and Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another P L D 1963 S C 147 rel.
, O. XLI, r. 22‑Cross 'objection‑Right to file cross‑objection‑Respondent can file cross .objection challenging whole decree even though decree as a whole ‑net subject of appeal.
'Under Order KLI, rule 22, C. P. C. any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of the service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the :Appellate Court .may see fit to allow.
Firm Bansi Dhar Kunji Lal v. Lalta Prasad and another A I R 1934 All. 543 and Ramasray Singh and others v. Bibbisan Sinha and others A I R 1950 Cal. 372 rel.
Abdul Rauf Khan for Petitioners.
S. G. Ali Shah for Respondents Nos. 1‑3, 5 and 10.
S. Chiragh Shah, Attorney of L. Rs. of Deceased‑Respondent No. 7.
Respondent No. 4 in person (Attorney of L. Rs. of Deceased Respondent No. 6).
Dates of hearing: 3rd and 17th February 1969.
This revision petition is directed against the judgment and decree dated 26‑10‑1960, whereby the Senior Civil Judge, Peshawar, overruled the objections of the defendant‑petitioners and upheld the arbitration Award.
2. A summary of the facts will be sufficient to understand the background. Syed Sikandar Shah died long ago. He was survived by a widow Mst. Asgbar Bibi, Syed Murtaza Shah (plaintiff‑respondent No. 1), Syed Jafar Shah (plaintiff‑respondent No. 2), Syed Abdullah Shah (defendant‑respondent No. 4), Syed Buzarg Shah (defendant‑respondent No. 5), Syed Dilawar Shah, defendant (now dead) as sons and Mst. Razia Begum (defendant respondent No. 7) as a daughter. Syed Sikandar Shah left residential property consisting of a house, known as Sikandar Shah Building, and a serai consisting of kothas and courtyard;. situated outside Katcheri Gate, Peshawar City. After the demise of Syed Sikandar Shah, the shari shares in the above property devolved on his widow, sons and a daughter. The widow Mst. Asghar Bibi had sold her share to her sons, Syed Murtaza Shah and Syed Dilawar Shah. Except Syed Jafar Shah, Syed Murtaza Shah, Syed Abdullah Shah, Syed Buzarg Shah and Syed Dilawar Shah, had transferred their respective shares in favour of their respective wives, namely, Mst. Arshad Begum, Mst. Almas, Begum, Mst. Channo Bibi and Mst. Farida Khatoon. Mst. Farida Khatoon, wife of Syed Dilawar Shah, died in the year 1956. Her share of the dowered property devolved on her' husband Syed Dilawar Shah, her minor son Khawar Hussain, alias Khawar Ali Shah (petitioner No. 1), and two minor daughters Mst. Nighat Rehana alias Izzat Khatoon (petitioner No. 2) and Mst. Nighat Roz alias Itrat Khatoon (petitioner No. 3). On 16‑2‑58 all the co‑sharers of the disputed property made a joint reference in writing (Exh. P. 1/1), whereby they appointed Mistri Sher Muhammad, respondent No. 9 (now dead) as an Arbitrator to effect the partition of the aforesaid joint property amongst them in accordance with their shares. This deed of reference was duly signed by all the parties. The Arbitrator assigned distinct and separate shares to each co‑sharer by his Award, dated 21‑9‑58 (Exh. P. W. 1/2) specifying the, shares so allotted to each co‑sharer. All the parties to the reference signed the Award. This Award was subsequently written on a stamped paper and the same (Exh. P. 1/3) was duly registered on 27‑2‑59. On 26‑3‑59 Syed Murtaza Shah, his wife Mst. Arshad Begum, and his brother Syed Jafar Shah plaintiffs made an application in the Court of Senior Civil Judge, Peshawar for filing the Award and passing a decree in accordance with its terms. The said application was resisted by respondents 1 to 6 of the application. Syed Dilawar Shah and Mst. Razia Begum died during the pendency of the proceedings and they were represented by their legal heirs, on record. The respondents attacked the Award on various grounds. The Chief ground amongst them are, that it was illegal and opposed to justice, that the Arbitrator had effected the partition by means of drawing of lots‑a method which is contrary to law, that he has included a kitchen out of a vacant site in the house allotted‑ to Syed Murtaza Shah, petitioner No. 1, giving him the right to construct a projection over the joint and common path and that he has given the Award at the instance of Syed Murtaza Shah, petitioner No. 1. The learned Senior Civil Judge considered the various objections at length, and by his judgment dated 26‑10‑1960, held as under :‑
"In the present case I have considered all the facts and circumstances of the case and I do not think that any ground of misconduct has been strictly proved on account of which I can set aside the Award. 1, therefore, overrule the above objections and uphold the Award."
On the same day he wrote another short judgment which is :‑
"The Award has been upheld by my order of even date and I accordingly grant petitioners a decree against the respondents in accordance with its terms. Parties are directed to bear their own costs."
3. Syed Murtaza Shah, Syed Jafar Shah and Mst. Razia Begum plaintiffs lodged an Appeal No. 1/13 on 2‑1‑1961 in the Court of District Judge, Peshawar, praying that the costs of the lower Court as well as that of, the appellate Court should be allowed to them. In this appeal Khawar Ali Shah, Mst. Nighat Rana and Mst. Nighat Roz, the present petitioners, were placed as respondents. This appeal was dismissed by the District Judge, Peshawar, on 30‑1‑61. A copy of the order sheet dated 30‑1‑61 will be relevant for the purpose of this revision
"Appellant No. 1 in person with S. Rafaqat Ali Shah Advocate for all the appellants, respondents Nos. 1, 2, 5, 6, 7 and 16 in person with Reader of the Court of S. S. J., Peshawar, as guardian‑ad litem, respondents Nos. .5, 6 and 7 with Mr. Abdur Rauf Khan Advocate for respondents Nos. 1‑16 present and beard. Respondent No. 17 though served is absent and is proceeded against ex parte. Vide my judgment on the file, the appeal is dismissed, leaving the parties to bear their own costs throughout. Announced."
It may be noted that Mr. Abdur Rauf Khan Advocate is also representing the petitioners in this revision.
4. The learned counsel for the respondents raised preliminary objections
(1) That a revision petition under section 115, C. P. C. is not competent, as according to the jurisdictional value of the suit the first appeal lay to the Court of District Judge, which was not availed of, and
(2) That the special and extraordinary powers under section 115, C. P. C. should not be exercised in favour of interference, because the petitioners had also another remedy by way of cross‑objections in the appeal which was lodged before the District Judge, and the same was not pursued.
Both the objections appear to be well founded.
5. As noted above, the learned Senior Civil Judge, Peshawar by his judgment dated 26‑10‑1960 had overruled the objections and upheld the Award and also by another judgment of the same date the Award was upheld and accordingly a decree was granted in favour of the plaintiffs against the respondents in accordance with its terms. The judgment pronounced according to the Award followed by a decree is appealable under section 17 of the Arbitration Act solely on the ground that the decree is in excess of, or not otherwise in accordance with, the Award. The order refusing to set aside an Award is appealable under section 39 (1) (vi) of the Arbitration Act. The value for purposes of jurisdiction in the suit has been fixed at Rs. 4,682. Thus the defendant‑petitioners could prefer an appeal in the Court of A District Judge either under section 17 or under section 39 (t) (vi) of the Arbitration Act, within the period of limitation of thirty days. A scrutiny of the notes of the Copying Department on the copy of judgment filed with this revision petition shows that an application for the copy of the judgment was made on 25‑I 1‑60, and the copy was prepared and delivered on 5‑12‑60. Thus the defendant‑petitioners could prefer this appeal up to 5‑12‑69. The plaintiff's had instituted the costs appeal on 2‑I‑61.
The present petitioners were served through their next‑friend Mst. Muhammadi Begum in that appeal on 27‑1‑61. Thus this judgment was in possession of the present petitioners when the costs appeal was heard and they were represented by Mr. Abdur Rauf Khan Advocate on 30‑1‑61. No cross‑objections were presented by the petitioners against the decree or order in that appeal. It appears that the petitioners having lost the period of limitation of the appeal, or the chance of presentation of the cross‑objections, lodged the present revision on 30‑1‑61, which is the date of the pronouncement of the judgment of costs appeal in the Court of the District Judge, Peshawar.
6. In Suppu Nayakan v. Perumal Chetty (A I R 1917 Mad. 285), it was held:
"Where there is an appeal to the District Court and a second appeal to the High Court, section 115, Civil P. C., cannot apply."
in Shair Ali v. Jagmohan Ram and another (A I R 1931 All. 333 (2)), it has been held:‑
"The right to file a revision under section 115, C. P. C. is dependent upon the fulfilment of the condition that no other remedy by suit, by application or by appeal is available to the applicant. It is a recognised rule of procedure that the special and extraordinary remedy by invoking the revisional powers of the Court could not be exercised unless as a last resource for an aggrieved litigant."
in Maharaja Bahadar Ram Ran Vijay Prashad Singh v. Kishun Singh and others (A I R 1944 Pat. 54), it has been observed :‑
"The decree under execution was a rent decree passed by a Munsif in a suit valued at Rs. 99‑ 15‑3. As the amount claimed in the suit exceeded Rs. 50, an appeal lay from the order of the Munsif dismissing the rent execution case to the District Judge. No such appeal was filed, but an application in revision was presented directly to the High Court against the order of the Munsif dismissing the execution case Held that under section 1 l5, Civil P. C., no revision lay against an order which was appealable and therefore the revision application was not maintainable."
In B. Manmohan Lal and others v. B. Raj Kumar Lal and others (A I R 1946 All. 89), it was observed :‑
"An order directing amendment of the decree under section 8, U. P. Debt Redemption Act, was passed in 1941. The amendment order was passed without jurisdiction. The decree amended was passed in 1931. The decree‑holder preferred a revision application against such in the bona fide belief that a remedy by way of appeal was not open to him Held that the revision application should be dismissed."
In Paruchuru Thirumala Satyanarayancharyulu and another v. Yannava Ramalingam and others (A I R 1952 Mad. 86), it has been held :-----
"Where an order directing payment of additional court‑fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. The proper remedy is only by way of an appeal against the order rejecting plaint which is a decree under section 2 (2) and is appealable as such. Once an appealable order in the form of an order rejecting the plaint is passed a revision petition cannot also be filed against the earlier order demanding additional court‑fee. Such a petition is against the well- established principles of procedural law."
In Maqbool Alam Khan v. Mst. Khodaija Begum (A I R 1949 Pat. 133), it has been held at page 137, paras. 18 and 19 :‑
"It follows that an appeal lay to the District Judge from the order of the Munsif.
In my opinion this application in revision is incompetent and must be dismissed, but there will be no order as to costs."
In N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (PLD 1949 PC 26), it has been held that section 115, C. P. C. applies only to cases in which no appeal lies. In Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another (P L D 1963 S C 147), it has been held :
"Under the Code of Civil Procedure a distinction has been made between a revision petition' and an appeal'. Under section 115 of the Code of Civil Procedure a revision petition only lies where an appeal does not lie."
7. Under Order XLI, rule 22, C. P. C. any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decide against him in the Court below, but take any cross‑objection to it the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of the service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow. I am of the view that the present petitioners in the capacity of respondents in the costs appeal, referred to above, could attack the decree or order passed by the Senior Civil Judge, Peshawar.
8. In (Firm) Bansi Dhar Kunji Lal v. Lalta Prasad and another (A I R 1934 All. 543), at page 546, it has been observed :‑----
"The last argument made was that in any case this matter cannot be raised by way of cross‑objection; that the period for filing an appeal had elapsed when the cross‑objection was filed, and that defendants 1 to 3 were not making any objection to any part of the decree of the lower Court, as that decree dismissed the claim of the plaintiff against these defendants with costs.
But in my opinion these defendants may take any cross objection to the decree on the ground that it omits to give them: the relief which they asked for in the set‑off a decree for Rs. 212-12‑0. They could have filed an appeal against the decree on the ground of this omission. As they have been respondents in this appeal, under Order XLI, rule 22, they are: entitled to take any cross‑objection to the decree which they could have taken by way of appeal' ."
In Ramasray Singh and others v. Bibbisan Sinha and others (A I R 1950 Cal. 372), it has been held :
The right to file a cross‑objection is not subject to the respondent's acceptance of some part of the decree as good. He can do so even when he challenges the whole of the, decree.
9. As a result of the above discussion, the preliminary, objections prevail. I, therefore, dismiss the revision petition with no order as to costs.
A. E./K. S. A. Petition dismissed.
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