Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Revision Petition No. 128 of 1980, decided on 30th March, 1987.
--Ss .96 & 115--Revision--Appealable order--Revision against such order, would not lie.--[Revision (civil)].
--O.VII, R.10--Constitution of Pakistan (1973), Art.199--Return of plaint--Petitioner's plaint instead of returning to him for presentation to proper Court was dismissed on ground of lack of territorial jurisdiction--Petitioner without availing remedy of appeal against such order, filing revision--Conversion of revision into constitutional petition--Objection that impugned order being appealable and appeal having not been filed against the same, revision could not be treated as constitutional petition--Order being illegal if revision application was not converted into constitutional petition, High Court, held, would be permitting an illegal order to stand--Treating revision as constitutional petition order was quashed and deficit court-fee directed to be paid within 15 days.
Usman Ghani Rashid for Petitioner.
Rao M. Shakir Naqshbandi for Respondent.
Date of hearing: 30th March, 1987.
This Revision application has arisen under the following circumstances.
2. The applicants filed a suit under Order XXXVII, rules 1 and 2, C.P.C. for recovery of Rs. 36,895.95 from the respondent. A written statement was filed wherein objection was taken to the territorial jurisdiction of the learned trial Court on the basis of which a preliminary issue was framed by the learned trial Court and by order, dated 26-11-1979, the objection raised in the written statement was accepted. However, instead of ordering return of the plaint to the plaintiff, the learned trial Court dismissed the suit of the applicants. The order of the trial Court has now been impugned in this revision application.
3. Mr. Usman Ghani Rashid, learned counsel for the applicant, has assailed the order of the learned trial Court on two grounds. Firstly, according to him, the trial Court did possess jurisdiction to try the suit, and secondly even if the learned trial Court did not possess jurisdiction, the plaint should have been returned to the applicant for filing the same before a proper Court having jurisdiction in the matter.
4. So far as the argument is concerned, Mr Shakir Naqshbandi, learned counsel for the respondent has no answer for the same, but his contention has been that the revision application by itself is not maintainable since the order of dismissal of the suit by the learned trial Court was a decree against which an appeal lay under section 96 of C.P.C. Since the applicant did not avail the right of appeal, the present petition was not competent. Reliance has been placed by the counsel on Municipal Committee Bahawalpur v. Sh. Aziz Elahi PLD 1970 S C 506 and Sh. Azizul Hasan and another v. Malik Ghulam Muhammad 1971 S C M R 123.
5. So far as the question of maintainability of this revision is concerned, there can hardly be any cavil with the proposition that a revision cannot lie if the order is appealable under section 96 of the C.P.C. Even Mr. Usman Ghani Rashid himself very fairly conceded to the same legal position. He has, however, requested that this revision petition may be treated as constitutional petition in the interest of justice as the order passed by the learned trial Court is per se illegal.
6. So far as the request of Mr. Usman Ghani Rashid is concerned, it can hardly be denied that the order passed by the learned trial Court is erroneous. The question, however, is, whether this revision can be treated as a constitutional petition for granting the same relief to the applicant as prayed by him in the revision application. It may be pointed out that the request made by Mr. Usman Ghani Rashid has been vehemently opposed by Mr. Shakir Naqshbandi. He has submitted that since an appeal against the order was competent, which was not filed by the applicant, a valuable right had accrued in favour of the respondent and consequently, the revision application cannot be converted into a constitutional petition. His further submission was that in this way a party cannot be permitted to circumvent the normal procedure provided by the C.P.C. since Court fee payable on an appeal is much higher.
7. Although the objections taken by Mr. Shakir Naqshbandi are not completely without substance, but in case the applicant's request is refused and this revision application is not converted into a constitutional petition this Court would be permitting an illegal order to stand. Moreover, the applicant would also be deprived of the amount of court-fee which he had affixed on the plaint at the time of filing of the suit. I am, therefore, of the opinion that the request made by Mr. Usman Ghani is justified.
8. For the aforesaid reasons I treat this revision as a constitutional petition and quash the impugned order holding it to be without lawful authority and of no legal effect and the plaint shall be returned to the applicant by the trial Court for presentation to the proper Court. Since the court-fee payable on a constitutional petition has not been paid, the applicant is directed to pay the deficit court-fee within fifteen days of passing of this judgment and in case of failure to do the same, this judgment will not take effect and the application filed by the applicant would be deemed to have been dismissed. The parties are left to bear their own costs.
M.A.K./S-74/K
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer