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Writ Petition No. 1259 of 1984, decided on 23rd December, 1985.

(a) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Revisional jurisdiction, exercise of‑"Case decided", purport and connotation of ‑ Condition precedent for invoking revisional jurisdiction, held, would be that there should be a "case decided" by a subordinate Court and that no appeal should lie from that decision ‑Revisional jurisdiction could be exercised only if case falls under either of the cls. (a), (b) & (c) of S. 115, C. P. C.‑A case is said to be "decided" when Court considers any state of facts judicially and gives a decision relating to question in controversy between parties affecting their rights.‑[Words and phrases].

Bahadur Shah and 1 others v. Sharaf and 9 others P L D 197 3 Lah. 513; Bashir Ahmad Khan v. Qaiyer Ali Khan and l others P L Dp1973 S C 507 and Pyarchand and others v. Danger Singh A I R 1953 Rai. 9,Qvef.

(b) Civil Procedure Code (V of 1908)‑

‑‑ S. 115 & O. IX, R. 9‑Revisional jurisdiction, exercise of Application for restoration of suit still pending for decision before Trial Court‑Revision petition filed to challenge legality of proceed ings before Trial Court on ground that counsel conducting proceedings on behalf of petitioners was not legally authorized to do so‑Such plea having not been agitated before Trial Court. there was no decision given by such Court relating to any question in controversy‑Revision, held, was wholly incompetent.

‑‑ Art. 199‑Civil Procedure Code (V of 1908), S. 115‑Revisional jurisdiction, wrong exercise of‑Effect‑"Case decided"‑Notice of restoration application being only a formal order, held, was not a "case decided" ‑ Assuming jurisdiction in revision in a matter which was still pending adjudication before Trial Court and in quashing restoration application would amount to pre‑empting jurisdiction of Trial Court‑Such order of rovisional Court could not be sustained and would be struck down :a constitutional jurisdiction of High Court.

(d) Constitution of Pakistan (1973)‑‑

Art. 199‑Civil Procedure Code (V of 1908), O. III, R. 1‑Cons titutional jurisdiction, exercise of ‑ Dispute about power of attorney. ‑Plea that power of attorney was placed on record and was subsequently removed being a disputed question of fact, held, could only be determined in proper enquiry after taking evidence- Such exercise of enquiry into disputed questions of fact could not be undertaken in constitutional jurisdiction of High Court.

Moeen‑ud‑Din for Petitioners.

Shams‑ul‑Haq Ansari for Respondents Nos. 1 to 7.

Dates of hearing : 20th October and 24th November, 1985.

This petition under Article 9 of the Provisional Constitution Order, 1981, is directed against the judgment of the learned Additional District Judge‑111, Muzaffargarh, dated 23‑9‑1984 whereby petitioners' application for restoration of the suit pending before the trial Court was dismissed in exercise of the revisional jurisdiction.

2. Facts giving rise to this constitutional petition, briefly stated, are that Muhammad Arif Shah, predecessor‑in‑interest of petitioners Nos. 1 to 5, alongwith five others, namely, petitioners Nos. 6 to 10 herein, brought a suit for a declaration that they were the owners of the land in dispute. They also sought cancellation of a document registered on 22‑7‑1976 and prayed for possession of the suit land by way of consequential relief. The suit was pending in the Court of Senior Civil Judge. Muzaffargarh, when it was dismissed in default under Order IX, rule 8, C. P. C. on 7‑9‑1982. Petitioners moved an application for restoration of the suit stating therein that Muhammad Arif Shah plaintiff, who was prosecuting the case, died during the pendency of the suit and the petitioners had no knowledge about the proceedings with the result that the suit was dismissed in default. This application was filed on 4‑10‑1982 through Mr. Inam Karim Sheikh, Advocate. Respondents, who were the defendants in the suit, contested this application by submitting the reply thereto on 5‑4‑1983 which gave rise to the following issue :‑

Whether the applicants plaintiffs had any reasonable cause for non appearance on 7‑9‑1982

3. Both the parties led evidence on the aforementioned issue. Their evidence concluded on 8‑1‑1984. Matter was thereafter fixed for arguments and orders when the respondents preferred a revision petition before the District Judge on 7‑4‑1984 to challenge the proceedings in the restoration application pending before the trial Court. Precise grievance made in the revision petition was that the petitioners had not given any formal power of attorney to Mr. Inam Karim Sheikh, Advocate, who, therefore, had no lawful authority to file the application for restoration of the suit. It was stated in the revision petition "the power of attorney, as per certifi cation made by the officiai of the Court, has not been filed with the application". It was, therefore, submitted that the application for restora tion was not filed lawfully. Respondents also took objection to the conduct of the proceedings in the trial Court by alleging that the petitioners' counsel was "being marked present without formally appearing in the

Court." Prayer was thus made in the revision petition that "the proceed ings pending before the learned trial Court may kindly be declared to have been started illegally and without jurisdiction. The order dated 4‑10‑1982 and the subsequent orders which show the counsel for the respondents having put in his appearance on their behalf may be set aside and the petition dismissed".

4. Petitioners resisted the revision petition on two‑fold grounds. Their first objection was that the revision petition was not maintainable. Their submission on merits was that their counsel had filed the Wakalat nama in the trial Court but it was not available on the record.

5. Learned Additional District Judge, who heard the revision petition observed that it was not denied that the power of attorney in favour of Mr. lnam Karim Sheikh, Advocate, "is not lying on the file". He further found that according to the index of the lower Court's file, there were only 46 pages which were intact and, as such, no document or paper on the record was lost or removed. Conclusion was, therefore, drawn that the power of attorney in favour of Mr. Inam Karim Sheikh. Advocate, was never placed on the file. It was accordingly held that the presentation of the petition for restoration of the suit on 4‑10‑1982 as also the subsequent appearance/representation made by Mt. Inam Karim Sheikh, Advocate, were without lawful authority having been made by a counsel having no power or authority to represent the petitioners.

Learned Additional District Judge also took note of the respondents' contention that the petitioners' counsel Mr. Inam Karim Sheikh wa3 shown present on the same date in the Courts at Leiah as also in the Court of Senior Civil Judge, Muzaffargarh. An observation was, therefore, made that the counsel "has been marked present by learned lower Court whereas factually he was not present and was appearing elsewhere"

With these findings/observations, learned Additional District Judge took the view that it was a case of jurisdiction being exercised "with illegality and material irregularity" warranting interference in revisional jurisdiction, Taking this view of the matter, learned Additional District Judge allowed the revision petition and dismissed the petitioners' application for restoration of the suit vide the impugned judgment.

6. I have heard the learned counsel for the parties. Learned counsel appearing in support of this petition raised two‑fold contentions. His first contention was that when the respondents took the matter in revision, petitioners' application for restoration of their suit was still pending adjudication and the trial Court had not passed any order or given any decision on any aspect of the matter before it. There was thus no 'case decided' within the meaning of section 115, C. P. C. and as such revision petition filed by the respondents was not maintainable. Precise conten tion of the learned counsel was that the revision petition challenging the legality of the pending proceedings when there was no order even of an interlocutory nature passed by the subordinate Court could not have been entertained. Second contention raised by the learned counsel was that the petitioners had duly appointed Mr. Inam Karim Sheikh as their counsel and his p9wer‑of. attorney was also placed on the file and it was for this reason that no objection was taken by the respondents at any stage of the proceedings before the trial Court that the counsel acting on behalf of the petitioners had no power‑of‑attorney in his favour. According to the learned counsel, respondents raised this objection for the first time in the revision petition after they had removed the power‑of‑attorney from the file. Learned counsel vehemently asserted that respondent No. I had remained posted as P. S. I. in the Court of the learned Senior Civil Judge. Muzaffargarh where the petitioners' application for restoration was pending and Muhammad Nasir respondent No. 2 has been a process server in that Court.

7. Before proceeding to examine the contention regarding the maintainability of the revision petition, reference may usefully be made to the relevant portion of section 115, C. P. C. which is reproduced hereunder for facility of reference:‑

"115. Revision.‑(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

(2) The District .Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court."

8. It is quite clear from the language used in the afore‑quoted provision that the condition precedent for invoking revisional jurisdiction under section 115, C. P. C. is that there should be a case decided by a subordinate Court and that no appeal should lie from that decision. Unless these two conditions are satisfied, it is not competent for the revisional Court to entertain the revision petition muchless to interfere in the exercise of revisional jurisdiction. Needless to state that the revisional jurisdiction can be exercised only if the case falls under either of the clauses (a), (h) and (c) of section 115, C. P. C. As regards the competency of the revision petition, law is well‑settled that revision under section 115, C. P. C. lies against a 'case decided' which term though not defined in the Code of Civil Procedure has been the subject‑matter of interpretation in a large number of cases. A case is said to be decided when the Court considers any state of facts jurisdically and gives a decision relating to a question in controversy between the parties affecting their rights. Refer to Bahadur Shah and 2 others v. Sharaf and 9 others (PLD 1973Lah.513), Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 SC 507), Pyar chand and others v. Dangar Singh (A I R 1953 Raj. 90). Now in the instant case there was B admittedly no case decided by the trial Court when the respondents filed the revision petition. The only Us before the trial Court was the petitioner' application for restoration of their suit and that application was still pending. The issue raised to the revision petition regarding the want of authority of the petitioners' counsel to file and prosecute the restoration application was never agitated before the trial Court. There was thus no question of the trial Court having given any decision relating to any ques tion in controversy. That being so, the revision petition filed by the respondents to challenge the legality of the proceedings pending before the trial Court on the ground that the counsel conducting the proceedings on behalf of the petitioners was not legally authorised to do so was wholly in competent. Confronted with this position, learned counsel appearing for the respondents sought to argue that the trial Court had passed an order on 4‑10‑1982 which was specifically challenged by the respondents in the revision petition. I have seen the order in question. By this order, only a notice of the petitioners' restoration application was issued to the respondents. It was only a formal order which did not decide any question in controversy between the parties and as such it could not be said to be a case decided. It is thus quite clear that the condition precedent for invoking the revisional jurisdiction under section 115, C. P. C. namely that there should be a case decided by a subordinate Court, was lacking in this case. Learned Additional District Judge, therefore, acted without lawful authority in assuming iurisdiction in revision in a matter which was still pending adjudication before the trial Court and in quashing the restoration application on the ground which was never even urged before the lower Court. This, in fact, amounted to pre‑empting the jurisdiction of the trial Court. The impugned order of the learned Additional District Judge cannot, therefore, be sustained and shall have to be struck down.

9. As regards the second contention raised by the learned counsel for the petitioners, it may be observed that his submission that the petitioners had given power‑of‑attorney to their counsel Mr. Inam Karim Sheikh which was placed on the record and was subsequently removed by the respondents raises a disputed question of fact which can only be determined in a proper enquiry after taking evidence. This exercise cannot be undertaken in the present proceedings. I am, therefore, not inclined, to go into and deal with this contention in writ jurisdiction. The impugned order of the learned Additional District Judge having been set aside; case shall now go back to the learned trial Court where it shall be open to the parties, if so advised, to raise this question Needless to observe that if this question is raised before the trial Court, it shall be disposed of in accordance with law.

10. Upshot of the above discussion is that the impugned order of the learned Additional District Judge is declared to be without lawful authority and of no legal effect Resultant petitioners application for restoration of their suit shall be deemed to be pending before the trial Court which shall proceed to decide the same in accordance with law. This petition stands accepted with the observations aforementioned but with no order as to costs.

A. A. Petition accepted.

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