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Revision Application No. 215 of 1968, decided on 23^rd August 1971.

S. 115 read with O. VII, r. 11 and Ss. 2(2) & 96‑Revision‑Impugned order passed under O. VII, r. 11 amounting to "decree" within definition given in S. 2(2)‑Appeal against such order' not filed before District Court‑Revision petition, held, not competent, in circumstances of case.

Municipal Committee, Bahawalpur v. Shaikh Aziz Ellahi P L D 1970 S C 506 fol.

Mian Muhammad Latif v. The Province of West Pakistan P L D 1970 S C 118 and Mansab Ali v. Amir and 3 others P L D 1971 S C 123 distinguished.

Nasim Farooqi for Appellant No. 1.

Khalid Anwar for Respondent No. 1

Syed Mazhar Ali for the State.

Date of hearing : 23rd August 1971.

This is a revision against the order of the learned Third Civil Judge First Class, Karachi, dated 22‑8‑1968, whereby the plaint in the suit filed by the applicants herein was rejected under Order VII, rule 11, C. P. C.

2. The learned counsel for the respondent No. 1 has raised a preliminary objection to the maintainability of this revision petition. His contention is that since the impugned order was passed under Order VII, rule 11, C. P. C. whereby plaint in the suit was rejected, therefore. this order amounted to a decree within the definition of the word "decree" as given in section 2, subsection (2) of the Civil Procedure Code, as such an appeal lay to the District Court under section 96 of the Code of Civil Procedure which in this case admittedly has not been filed therefore the present revision petition is incompetent. It might be mentioned here that by the impugned order under Order VII, rule 11, C. P. C. the learned Civil Judge has rejected the plaint on the ground that the suit was barred by section 11 of the Sind Revenue Jurisdiction Act, 1876 as according to him the plaintiffs had not made departmental appeals against the orders of the Commissioner of Karachi, respondent No. 2. In support of his contention the learned counsel for respondent No. 1 has relied upon a decision of the Supreme Court in the case of Municipal Committee, Bahawalpur v. Shaikh Aziz Ellahi (P L D 1970 S C 506). In this decision it is clearly held that if a decree or order passed by the trial Court is appealable to the High Court directly or after taking appeal before the District Judge, a revision without availing of remedy by such appeal is incompetent. It will be seen that this authority is on all fours with the contention raised by the learned counsel for respondent No. 1.

3. In opposition, the learned counsel for the appellants has argued that the impugned order under Order VII, rule 11, C. P. C. could not be considered a decree because It was not passed on the merits of the facts involved in the case as was the requirement of law to make it fall under the definition of decree and that it was concerning the right of the applicants to sue the respondents. I am afraid this contention does not impress me as it will be noticed that the very definition of a decree provided in section 2, subsection (2), C. P. C. clearly lays down that rejection of a plaint shall be deemed to include a decree as such this contention is of no avail to the applicant's counsel. The second argument raised by the learned counsel for the respondent No. 1 was that the order passed by the Commissioner, Karachi, respondent No. 2 suffered from an illegality because before passing that order the applicants, who were the opposite -party, were not given an opportunity for hearing, therefore against such an order a civil suit lay and the jurisdiction of the civil Court was not ousted. In support of his contention he cited and relied upon a decision of the Supreme Court reported as Mian Muhammad Latif v. The Province of West Pakistan (PLD1970 S C 118) wherein it has been laid down as follows :-

"There is no doubt that under section 11 of the Sind Revenue Jurisdiction Act, 1876, ordinarily a party in revenue matters should exhaust all his remedies byway of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. The civil Courts have jurisdiction to examine into cases where statutory tribunal has not acted in con firmity with the fundamental principles of judicial procedure."

4. It will be seen that this argument concerned itself with the merits of the facts of the case and would be available only if the present revision petition was competent or it could be raised in the appeal from the impugned order. This argument is, therefore, of no avail to counsel for applicant. The learned counsel has also cited a third Supreme Court decision reported as Mansab Ali v. Amir and 3 others (PLD 1971 S C 123) but obviously the case referred to therein is a criminal case which has no anology to the facts and circumstances of the present case as such this decision is of no help to the applicant's case.

5. For the foregoing reasons I find that the preliminary objection raised as to the maintainability of this revision petition is sustainable in law as such I dismiss this revision petition as being incompetent.

6. I might also state before closing this order that the learned counsel for applicant put a cross argument that since the order of the Commissioner, Karachi, respondent No. 2 which was the order challenged in the suit suffered from a patent illegality as mentioned above, therefore, this Court should exercise its suo motu power to entertain a revision petition. But I do not find myself in agreement with him and consider that this is not a fit case in which suo motu powers should be exercised.

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