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Civil Revision No. 107 of 1960, decided on 8th January 1963.

Revision competent even where rift of appeal not exercised.

--Provisions of O. XXII not applicable to revision petitions‑Revision not liable to be dismissed solely because legal representatives of deceased were not brought on record in time‑Interest of deceased likely to be affected by decision of revision petition :High Court has discretion to call upon contesting respondent or petitioner to implead their legal representatives.

Ajudhia Pershad‑Ram Pershad v. Sham Sunder and others A I R 1947 Lah. 13 considered.

Sikpndar Khan v. Muhammad Zuber and others P L D 1962 Pesh. 195 and Baksho and another v. Plaro and others A I R 1920 Sind 120 rel.

-- Applicable to all forms of actions and all kinds of reliefs‑Strict compliance with provision of section necessary‑Order, passed by officer in his official capacity‑Merely because order is alleged to be illegal and unjust would not convert order into unofficial act --Erroneous view taken by Court in interpreting provisions of S. 80 Open to interference by High Court in revision after amendment of Civil Procedure Code, 1908 by Code of Civil Procedure (Amend ment) Ordinance (XLIV of 1962).

Bhagchand Dagdusa Gujrathi and others v. Secretary of State for India A I R 1927 P C 176 and A I R 1927 Mad. 166 ref.

Court of Wards, Hyderabad v. Mst. Shahzadi Begum P L D 1960 Kar. 70 not fol.

Section as amended applicable to revision petitions instituted prior to but pending at time of amendment‑Code of Civil Procedure (Amendment) Ordinance (XLIV of 1962), S. 59.

Jamaluddin H. Ahmed for Appellants.

Muhammad Sidiq Nizamani for Respondents.

Date of hearing : 8th January 1963.

This civil revision has arisen out of the judgment of Mr. Abdul Wali M. Makhdum, First Class Sub‑Judge, Sukkur, dated the 30th of March 1959, in Suit No. 5 of 1959. By this judgment the learned Subordinate Court has issued a permanent injunction against the petitioners in respect of a house situated at Ghotki left by one Jumanmal who had migrated to India.

2. Respondent Ghulam Kadir in the above‑mentioned suit claimed that a was in possession of the said house since January 1957 under the orders of the Mukhtiarkar, Ghotki, and was not liable to be evicted in view of section 29 of the Displaced Persons Compensation Act of 1958. He further claimed that the order of the District Rehabilitation Officer allotting

the said house to respondent Manzoor Ali Khan was illegal and the order of his eviction passed by the Rehabilitation Commissioner, petitioner No. 3, dated the 22nd of December 1958 and restoring its possession to respondent No. 2 was void and ultra vires inas much as no notice was given to him and it was passed his back and in violation of the express provisions of section 29 of the above‑mentioned enactment.

3. The suit was resisted on behalf of the petitioners and Manzoor Ali Khan, respondent No. 2, both on merits and legal grounds. It was pleaded on behalf of the petitioners that the suit ‑ was not maintainable against them as no notice un er

section 80, C. P. C. was given to them before the institution of

the suit. It was further pleaded that the suit was barred under

sections 17 and 18 of the Pakistan Rehabilitation Act of 1956.

On merits it was contended that respondent No. 1 was not

protected under section 29 of the aforesaid enactment as he was

in unlawful possession of the house in dispute. On the pleadings

of the parties the following issues were settled

(1) Whether the suit is maintainable in law

(2) Whether the suit is barred by the provisions of Rehabi litation Act and section 80, C. P. C.

(3) Whether the plaintiff is a trespasser or in lawful possession of the house in suit

(4) To what relief, if any, is the plaintiff entitled (5) What should the decree be

4. The learned Subordinate Court on issue No. 1 found that the suit was maintainable. He further found that the suit was not barred by the provisions of the Rehabilitation Act and section 80, C. P. C. On merits his decision is that the plaintiff/ respondent No. 1 was not a trespasser and was in lawful possession of the house in question.

5. Ordinarily the petitioners should have attacked this judgment by filing an appeal before the District Judge of Sukkur, but they failed to do so. Instead they have filed the civil revision under consideration and have challenged the finding of the learned Subordinate Court both on questions of law and facts.

6. Mr. Nizamani, the learned counsel for respondent No. 1, has taken two preliminary objections on the maintainability of the revision application. His first objection is that as an appeal in the present case lay from the judgment of the Subordinate Court to the High Court, no revision is maintainable under section 115 of the Civil Procedure Code. The second objection is that Manzoor Ali Khan, respondent No. 2, died during the pendency of the revision application and therefore the revision application has abated. On the first objection, the learned counsel for respondent No. 1 had to concede that an appeal against the judgment of the learned Subordinate Court had to be filed before the Learned District Judge Sukkur and therefore the revision is not barred under section 115 of the C.P. C. In law, revisional jurisdiction can be exercised by the High Court where no appeal lies to it. The fact that an appeal lies to the lower Court is not a bar to a revision under the above-mentioned provision of law. The first objection, therefore, must fail.

7. In support of his second preliminary objection, that as no legal representative was brought of respondent No. 2, who died about 1 years ago, the revision has abated, the learned counsel has relied on a Full Bench decision of the Lahore High Court in the case of Ajudhia Pershad Ram Pershad v. Sham Sundar and others (A I R 1947 Lah. 13). It will, however, be noticed that the view that failure to bring before the Court the representatives of a deceased respondent, whose interests are likely to be affected, should the petition succeed, is such a default and sufficient for dismissing the revision petition, is only ,of Cornelius, J., as he then was, and was not subscribed by the other two learned Judges namely, Din Muhammad, J. and Ram Lall, J. Din Muhammad, J. in his order observed that on the debatable question, whether the provisions of Order XXII, Civil Procedure Code apply to petitions for revision, he declined to express any opinion in that case specially as it was not necessary for its disposal. Ram Lall, J. also agreed with Din Muhammad, J. It is, therefore, clear that the view expressed in the Full Bench decision is only of a learned Single Judge of the Lahore High Court. Mr. Jamal uddin, the learned counsel for the State, has referred me to a decision of a learned Single Judge of this Court at Peshawar in the case of Sikandar Khan v. Muhammad Zuber and others (P L D 1962 Pesh. 195). In that case Ortcheson, J. held that principles of abatement are not applicable to revision petitions. This view is also supported by a decision of the Sind Judicial Commissioner's Court in the case of Baksho and another v. Piaro and others (A I R 1920 Sind 120.). In that case a Division Bench held that‑

"The theory of abatement is inapplicable to revision appli cations, and the provisions of Order XXII do not apply to such applications."

I am in respectful agreement with the view expressed in the Peshawar and Sind cases. It appears to me also that the provisions of Order XXII, C. P. C. are not applicable to revision applications and if a party has failed to implead the legal representatives of a deceased respondent within the time prescribed by law, the revision petition is not liable to be dismissed solely on the ground that the legal representatives were not brought on the record in time. It is open to the High Court in such cases, if the interest of the deceased party is likely to be affected by the decision of the case in the revision petition, to call upon the contesting respondents or the petitioners to implead their legal, representatives. If the petitioners or the respondents fail to carry out such order it will then be open to the High Court to dismiss the revision petition on the ground of non‑prosecution. In the present case, however, the order to be passed in the revision petition is not likely to have any material effect on the interest of the legal representatives of respondent No. 2. It is, therefore, not necessary to direct the contesting respondent or the petitioners to get his legal representatives impleaded as parties to these proceedings. In this view of the matter the second preliminary objection raised by the contesting respondent must also fail.

8. On merits, Mr. Jamaluddin, the learned counsel for the petitioners, has urged before me that the learned Subordinate Judge's finding that the suit was not barred under section 80, C. P. C. is erroneous and cannot be upheld. The learned counsel contended that the contesting respondent challenged the orders of the Rehabilitation Commissioner and Deputy Rehabilitation Commissioner passed in their official capacity. He further contended that since relief was also claimed against the Government of Pakistan and the Government of West Pakistan in respect of the house in dispute, section 80, C. P. C. was fully applicable to the suit filed before the learned Subordinate Court and the suit having been instituted without such a notice was liable to be dismissed. In support of his contention reference was made at the Bar to the decision of the Judicial Committee in Bhagchand Dagdusa Gujrathi and others v. Secretary of .State for India (AIR 1927 P C 176). It was held in that case by their Lordships of the Privy Council that‑

"The view that plaintiff can bring his suit before the two months' time prescribed has expired in the case of suits against officials for acts purporting to be done in discharge of their duties, when part or the whole of the relief claimed is an injunction, is not correct."

It was further held by their Lordships that section 80 is to belt strictly complied with and is applicable to all forms of action and all kinds of relief.

9. It will be useful to reproduce the view of the learned Subordinate Judge on this aspect of the case, which is as under

"Now I must come to section 80, C. P. C. This is a case in which the lawful occupant of a house is threatened with dispossession by illegal order of the authorities. I repeat that the orders are illegal in view of the mandatory provisions of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. As a matter of fact the Commis sioner himself has issued a circular warning his subordinates against dispossession of occupants in contravention of this same section 29. This circular is Exh. 42. This shows that the Commissioner himself has acceded to that position that no lawful occupants could be ejected. On the other hand Exh. 41 shows that the Commissioner wanted the defendant Mansoorali to be given the possession of this house at all costs. This order is absolutely contrary to the spirit of his own circular Exh. 42. The Commissioner has issued another letter to the D. R. C. dated 2‑2‑59. This letter Exh. 4,3 directs the D. R. C. not to entertain fresh appeals or Revisions in respect of Urban Evacuee Properties. All this is sufficient to show that it was the plaintiff's right not to be disturbed in the possession of this house and that the moves for his disposses sion contemplated by the defendant, were all illegal and ultra vires. Therefore section 80, C. P. C. will not come into play as it is not intended to protect non‑official acts made under the colour of office. The Commissioner had himself issued circulars not to disturb the occupants in view of section 29 and yet in this case, he deemed it fit to pass the ejectment order against the plaintiff without even issuing a notice to him. This order by itself is against natural justice and I do not feel that it can be protected by the provisions of section 80, C. P. C. Moreover this was a case of some threatened act and not a completed act. On that account also section 80 will not apply as reported in A I R 1927 Mad. 166."

It will be noticed that the learned Subordinate Court did not apply section 80, C. P. C. because he was of the opinion that it was not intended to protect unofficial acts made under the colour of office ; the impugned order was against the principles of natural justice ; and the case before him was of some threatened act and not a completed act. The grounds given by the learned Sub ordinate Court for not attracting the provisions of section 80, C. P. C. are not sound in law and are directly in conflict with the view taken by their Lordships of the Privy Council in the above‑mentioned case. The decision given in A I R 1927 Mad. 166 was prior to the decision of the Privy Council. There was some conflict of opinion on the question of the threatened acts, but that was finally resolved by the Privy Council in the above mentioned decision. The contesting respondent in the suit before the learned Subordinate Court challenged the orders) passed by the Rehabilitation Commissioner and the Deputy Rehabilitation Commissioner in their official capacity. Merely because these orders according to the learned Subordinate Court were illegal or unjust, would not convert them into unofficial acts. In these circumstances, the view of the learned Subordinate Court that section 80 was not applicable to the case before him cannon be upheld and must be set aside.

10. Mr. Nizamani, however, contended that the learned Subordinate Court in holding that the notice under section 80, C. P. C. was not necessary had not committed any illegality or material irregularity in the exercise of his jurisdiction and therefore revision under section 115, C. P. C. was not competent. The learned counsel in support of his contention has referred me to one of my decisions in the case of Court of Wards, Hyderabad v. Mst. Shahzadi Begum (P L D 1960 Kar. 70). It was held by me in that case that merely because a Subordinate Court takes an erroneous view in interpreting the provisions of section 80, C. P. C. it does not invest itself with the jurisdiction which is not vested in it and does not commit any illegality or material irregularity in the exercise of its jurisdiction and the provisions of section 115 were not applicable in such case.

11. Had there been no amendment made in section 115, C. P. C., I would have hesitated in interfering with the judgment of the Subordinate Court on the erroneous view taken by him on the interpretation of section 80, C. P. C. But unfortunately for the contesting respondent the provisions of sections 80, C. P. C., in view of the recent amendment in the Civil Procedure Code, have materially changed. Formerly the High Court was competent to interfere with the judgments of the Subordinate Courts on the revision side only on three grounds namely (i) if the Subordinate Court had exercised jurisdiction not vested in it by law ; (ii) to have failed to exercise a jurisdiction so vested in it ; and (iii) to have acted in the exercise of its jurisdiction illegally or with material irregularity. But under the recent amendments three further clauses have been added to sub section (i) namely, clauses (d) to (f), which formerly were incorporated in section 100 of the Civil Procedure Code in respect of second appeals and have conferred much wider power in the revisional jurisdiction vested in this Court. Thus now under the above‑mentioned clauses it is open to the High Court to interfere in revision with the orders of the Subordinate Courts if it is found to have decided a matter contrary to law or usage having the force of law, and therefore now in revision an erroneous decision of the Subordinate Court can be interfered with.

12. Mr. Nizamani further contended that the amendment in section 115 is not applicable to the present case because it was instituted much before the amendment. The learned counsel, however, had to concede in view of the provisions of section 59 of Ordinance XLIV of 1962, that the provisions of the said Code as amended by that Ordinance as far as practicable apply to all appeals, revisions and other proceedings pending before any Court immediately before the promulgation of that Ordinance. The revision petition clearly falls within the category of "other proceeding" pending before a Court and the amended provisions are applicable with full force to the revision under consideration. The objections raised by the learned counsel, therefore, have no force and are rejected.

13. It was brought to my notice that after the decision of the learned Subordinate Court the house in dispute has been transferred under the Displaced Persons Compensation Act of 1958 to respondent No. 1 and this decision might affect his case in respect.of the transfer alleged to have been made in his favour. This apprehension is unfounded because the result of interference in this revision is only this much that the plaint filed by res pondent No. 1 will stand rejected as the suit was instituted without complying with the provisions of section 80, C. P. C. This will not debar respondent No. 1 to institute a fresh suit against the petitioners or such other parties who interfere with his valuable right in respect of the property in dispute in any way. This decision will not in any way affect the right of the petitioners on merit.

14. In the result the revision is allowed with no order as to costs.

K. B. A.

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