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Civil Revision No.421 of 1985, decided on 15th June, 1987.

---S.115--Specific Relief Act (I of 1877), S.9--Revision, competency of--Order or decree passed by Trial Court in suit filed under S.9, Specific Relief Act, 1877, being not appealable, Appellate Court below contrary to provision of that section admitted appeal for hearing rejecting objection application of petitioner with regard to competency of appeal--Resection of objection with regard to competency of appeal, being revisable despite pendency of. appeal, contention of respondents that since there was no 'case decided' by Appellate Court below within contemplation of S.115, C.P.C. was repelled by High Court in exercise of revisional jurisdiction.

Abdul Rehman and 4 others v. Iftikhar Ahmad P L D 1973 Kar. 177 ref.

---S.115--Specific Relief Act (I of 1877), S.9--Appeal filed contrary to prohibition of S.9 of Act I of 1877--Effect--Such appeal being not entertainable and there being no jurisdiction available to Appellate Court below, appeal, held, should have been declined to be entertained by Court below and objection to competency of appeal should have been decided--High Court deplored ignorance of Court below about legal provisions and non-application of judicial mind before passing impugned order.

Walayat Hussain Haidari for Petitioner.

Muhammad Akram Kh. for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 15th June, 1987.

In a suit for restoration of possession of house Nc.336-A Model Town,' Gujranwala filed by respondent No.1 under Section 9 of the Specific Relief Act, he was required by the trial Judge by his order dated 11-6-1983 to pay a court-fee of half the value of the suit house (determined as Rs.5,30,000.00) before 25-10-1983, on which date the suit itself was dismissed under Order VII Rule 11 of the C.P.C. for non-payment of court-fee.

2. Contrary to the provision made in Section 9 itself to the effect that, an order or decree passed in a suit filed under this section will not be open to be appealed against, respondent No.1 took an appeal against the trial Court's decree to the District Court Gujranwala which came up before Sheikh Muhammad Elahi, Additional District Judge. Therein the petitioners, who were the two defendants in the original suit, put in an application dated 27-6-1984 to submit that the appeal was liable to be dismissed for non-payment of court-fee and also for want of jurisdiction. This application was considered by him and he came the conclusion that the appeal was not liable to be rejected without making an investigation into the true valuation and rejected the application by his order dated 2-2-1985 to set down the appeal for hearing of arguments on merits on 14-2-1985, without attending to the objection with regard to the competence of the appeal itself.

3. The said two defendants have now come up to this Court on revision against the order passed in the appeal below by the Additional District Judge and the third defendant, Nazir-ul-Hassan Naqvi, has been arrayed herein as respondent No.2 who has been placed ex parte vide order dated 20-4-1987.

4. The civil revision is contested by the plaintiff-respondent No.11 with the submission that since there is no 'case decided' by the appellate court within the contemplation of section 115 of the C.P.C. therefore, revisional jurisdiction of this court would not get attracted. There is no force in this contention and even though the premises of this argument is not incorrect, yet, it is unavailing in the circumstances of this case because the question of jurisdiction raised before the Additional District Judge has been simply by-passed by him to set down the appeal for further proceedings and therein is not made a mere omission to decide the question of jurisdiction, one way or the other, but also an implied decision about the existence of jurisdiction comes into existence in such a contemplation to further proceed with the appeal. Furthermore, as has been held in Abdul Rehman and 4 others v. Iftikhar Ahmad P L D 197.3 Karachi 177) rejection of objection with regard to competence of appeal with reference to jurisdictional value is revisable despite the fact that the appeal itself was pending and had not been determined .by the subordinate court, therefore, contention of the learned counsel is repelled.

5. The appeal filed contrary to the prohibition contained in section I, 9 of the Specific Relief Act was not entertainable and 'there is no' jurisdiction available tc the Additional District Judge for being exercised therein. The appeal should have been declined to be entertained. Ignorance of the Additional District Judge about the E very law whereunder this litigation had originated is only deplorable and whereas he was expected to have applied a judicial mind before passing the order impugned herein, it is surprising that he has not considered it necessary to even go through this short section in spite of the objection to the competence of the appeal clearly raised in the petition which 110 has purported to decide.

6. The result is that this civil revision succeeds and the order dated 2-2-1986 passed by the learned Additional District Judge, Gujranwala is hereby set aside. The parties are, however, left bear their own costs.

H.B.T./T-19/L Revision accepted

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