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

---S. 115 & O.XLI, Rr. 18, 19--Revisional jurisdiction, exercise of- Service of some respondents in appeal effected--Proclamation against remaining respondents ordered--Appellants failing to deposit expenses of proclamation--Appeal against all respondents dismissed--Revision challenging such dismissal--Revision whether competent in view of alternate remedy available under 0. XLI, R. 19, C.P.C.---Order of dismissal of appeal against some respondents not falling under O.XLI, R.18, C.P.C. and said provisions, held, were not attracted in circumstances---Revisional jurisdiction in exceptional cases could be exercised notwithstanding the fact that aggrieved party had not exhausted alternate remedy available to it under law.

Ayyub Khan v. Muhammad Anwar Khan P L D 1961 A J K 21; Uttar Singh v. Karam Chand A I R 1919 Lah. 203 ref.

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

--S. 115 & 0 . XLI, R . 18--Revisional jurisdiction--Exceptional circumstances--Some respondents in appeal served and represented by counsel--Service of remaining respondents ordered through proclamation--Appellant not depositing expenses for proclamation--Appeal dismissed as Appellate Court refused to condone delay in depositing expenses of remaining respondents only pro forma defendants--No relief against them sought by appellants--They were to be benefited in event of setting aside of impugned decree in appeal--Appellate Court, held. could not legally dismiss appeal against respondents on whom service was effected and dismissal of whole appeal was unwarranted--Held further, that present case was certainly one of exceptional circumstances where revisional jurisdiction had rightly been invoked--Revision was, therefore, accepted and case remanded for decision on merits.

Syed Jamshed Ali for Petitioners.

Dilawar Mahmood for Respondents Nos. 1 to 6.

Respondents Nos. 7 to 17: Ex parte.

Date for hearing: 10th November, 1985.

The petitioners submitted an application under section 12(2), Civil Procedure Code in the Civil Court challenging the decree, dated 30-5-1984 passed by the Court in a suit instituted by respondent No. 1 against Muhammad Aslam and others for specific performance of agreement of sale of land measuring 31 Kanals 9 Marlas situated in village Kanianwala Tehsil and District Sheikhupura. The petitioners' contention was that the aforementioned decree was passed on the statement of Muhammad Mansha respondent No. 17, who purported to act as their Mukhtar-e-Aam. According to the petitioners they had no knowledge of the institution of the suit nor had they appointed Muhammad Mansha as their Mukhtar-e-Aam. Respondent No. 1 had obtained decree in collusion with Muhammad Mansha and as such it was illegal, void and not binding on the petitioners. Respondents Nos. 7 to 16 who alongwith the petitioners were also co-heirs of Haji Allah Ditta, the owner of the land in question, were impleaded as respondents as they had not joined the petitioners in the application submitted by them under section 12(2), Civil Procedure Code. The petitioners also challenged registered sale-deed, dated 9-8-1984, which was executed and registered under the orders of the Court in execution of the impugned decree. Alongwith the application the petitioners filed another petition under Order XXXIV, Rule 1, C.P.C. for issuance of temporary injunction against respondents Nos. 1 to 6 restraining them from transferring or alienating the disputed land till their application under section 12(2), C.P.C. was disposed of by the Court. This application was, however, rejected by the Court, vide order, dated 20-3-1985. The petitioners filed appeal against the above order. Notice were issued to the respondents by the learned appellate Court. Respondents Nos. 1 to 6 put in appearance in the Court after service of notice but respondents Nos.7 to 16 were not served. The learned appellate Court directed that the service of the aforementioned respondents should be effected through proclamation in the newspaper, for which the petitioners were required to deposit necessary expenses. The petitioners, however, failed to deposit the requisite expenses within the time fixed by the Court with the result that when the appeal came up for hearing on 21-7-1985 the appeal was dismissed under Order XLI, Rule 18, C.P.C., although respondents Nos.1 to 6 were duly represented through their counsel on the date of hearing. The petitioners have called in question order, dated 21-7-1985 passed by the learned appellate Court, whereby their appeal was dismissed against all the respondents. Their contention is that the learned appellate Court has acted without jurisdiction in dismissing the appeal against respondents Nos.2 to 6 because the petitioners' default in depositing expenses for publication of proclamation for service of respondents No.7 to 16 could entail dismissal of their appeal under Order XLI, Rule 18, C.P.C. only against the above respondents.

2. Respondents Nos.1 to 6 have contested this revision petition and the learned counsel, who has appeared on their behalf, has submitted that the petitioners are not entitled to invoke the revisional jurisdiction of this Court in the matter because they have failed to avail of the alternate remedy under Order XLI, Rule 19, C.P.C. He has referred to Ayyub Khan v. Muhammad Anwar Khan P L D 1961 A J K 21. In this case it was held that a review petition under Order XLVII, Rule 1, C . P. C . by an appellant, whose appeal was dismissed, on account of his failure to deposit the necessary expenses for issuance of proclamation against the respondents within the period fixed by the Court, was not competent and that the proper remedy, under the circumstances was to move the Court through an application under Order XLI, Rule 19, C.P.C. In the present case the petitioners instead of filing an application under Order XL1, Rule 19, C.P.C. in the appellate Court have moved this Court under section 115 C.P. C. for setting aside the order of dismissal of their appeal. It is true that the alternate remedy available to the petitioners has not been exhausted but in the circumstances of the case the petitioners did not deem it proper to approach the learned Additional District Judge again after he had refused to condone the delay caused in depositing the expenses of publication of proclamation in Court, particularly when under Rule 19 they could seek the read mission of their appeal only if they had satisfied the Court that they were prevented by any sufficient cause from depositing the expenses ordered by the Court in time. As a matter of fact the order of dismissal of appeal against respondents Nos. 1 to 6 did not fall under Rule 18 of Order XLI, C.P.C. and, therefore, the provisions of Order XLI, Rule 19, C.P. C. were not attracted. Even otherwise in exceptional cases revisional jurisdiction can be exercised where alternate' remedy by way of suit or otherwise has not been availed of by the aggrieved party. Learned counsel for the petitioners has relied on Uttar Singh v. Karam Chand A I R 1919 Lah. 203 where the High Court, while dismissing the appeal filed against the order of dismissal of appeal under Order XLI, Rule 18, C.P.C. for failure of the appellant to deposit process-fee on the ground that the appeal was not competent had remarked that it was not a fit case for the. exercise of discretionary power of revision. Learned counsel for the petitioners has inferred from the above observation that the order of dismissal of appeal passed under Order XLI, Rule 1.8, C.P.C. is liable to be set aside in the exercise of revisional jurisdiction, if it is found that the order passed by the appellate Court was without jurisdiction. As noticed earlier the revisional jurisdiction under section 115, C.P.C. can be invoked in appropriate cases notwithstanding the fact that the aggrieved party has not exhausted alternate remedy available to it under law. The present case is certainly one of such cases, where the revisional jurisdiction of this Court has been rightly invoked by the petitioners. The learned appellate Court could not legally dismiss the petitioners' appeal against respondents Nos. 1 to 6 on account of the petitioners' failure to deposit requisite expenses for publication of proclamation against respondents Nos. 7 to 16 because service of respondents Nos. 1 to 6 had already been effected and they were duly represented through counsel when the order of dismissal was passed. Learned counsel for the petitioners has stated" that respondents Nos. 7 to 15 were proforma respondents as they had; been impleaded as respondents on account of their refusal to join the petitioners in the application filed by them under section 12(2), C.P.C. No relief had been sought by the petitioners against them and in the event of setting aside of the impugned decree they were to be benefited in the same manner as the petitioners. In view of the submissions made by the learned counsel for the petitioners, it is evident that the petitioner's appeal could proceed against respondents Nos. 1 to 6 even after the dismissal of their appeal against respondents Nos. 7 to 16, due to their failure to deposit necessary expenses for issuance of proclamation against them. The order of dismissal bf the whole appeal by the learned Additional District Judge was, therefore, unwarranted.

The upshot of the above discussion is that this revision petition is accepted and the order of dismissal of appeal, so far as it concerns respondents Nos. 1. to 6, is set aside and the case is remanded to the learned Additional District Judge for disposal on merits according to law. The parties are directed to appeal before the learned Additional District Judge, Sheikhupura, on 23-11-1985. Under the circumstances of the case no order is made as to costs.

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