Saturday, 26 May 2012

Maintainability of Civil Revision against High Court Decision

PLJ 2012 Islamabad 90 (DB)

Present: Riaz Ahmed Khan and Muhammad Azim Khan Afridi, JJ.

TECHCORP HOLDING (PVT). LTD., ISLAMABAD--Petitioner

versus

KONNECT HOLDEN (PVT.) LTD., ISLAMABAD--Respondent

C.R. No. 387 of 2009, decided on 23.2.2012.

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

----Ss. 104, 115, O. VII, R. 11 & O. XLIII, R. 1--Civil revision was provided against judgment of sub-ordinate Court--Judgment of High Court cannot be assailed even in revision--Question of maintainability of revision petition--Revision would lie against an order of a Court sub-ordinate to High Court and a single judge taking cognizance of civil matter cannot be termed a Court of sub-ordinate to High Court for purpose of entertaining revision u/S. 115 of CPC--Impugned order was only assailable in I.C.A. and that revision petition was not legally competent and entertainable--Petition was dismissed.            [P. 93] C & D

Interlocustory Order--

----Scope of--Being an interlocutory order made by single judge of High Court, was appealable before Bench of two or more judges.    [P. 92] A

Civil Procedure (Amendment) Ordinance, 1980--

----S. 15--Interlocutory order--Purpose of appeals from interlocutory order passed by single judge of High Court to Bench of two are more judges--Validity--Interlocustory order passed by a single judge would be appealable u/S. 15 of Civil Procedure Amendment Ordinance, 1980.           [P. 93] B

PLD 1983 Kar. 527, 693 & 2000 SCMR 184, ref.

Mr. Muhammad Ashiq Khan, Advocate for Petitioner.

Mr. Tariq Aziz, Advocate for Respondent.

Date of hearing: 23.2.2012.

Judgment

Muhammad Azim Khan Afridi, J.--Techcorp Holding (Pvt) Ltd. hereinafter referred to as the petitioner instituted a suit for recovery of Rs.22,73,09,645/- against Konnect Holden (Pvt) Ltd. hereinafter referred to as the respondent, in this Court. The petitioner, instead of submitting written statement, made an application under Order VII, Rule 11, CPC for rejection of plaint on grounds mentioned therein. The said application was contested and, after hearing the arguments, the Hon'ble Judge in chamber rejected the same vide judgment and order dated 1.4.2009.

2.  Dissatisfied with the judgment and order referred to above, the petitioner has impugned the same in the instant revision petition.

3.  During hearing of the same, objection regarding maintainability of the revision petition was raised by the respondent.

4.  It was argued by the learned counsel for the respondent that the revision petition was not entertainable in view of Section 15 of Civil Procedure (Amendment) Ordinance, 1980, as such an interlocutory order was appealable. Reliance was also placed on case law reported in 2006 SCMR 595, PLD 2003 Supreme Court 124, 2000 SCMR 184, PLD 1993 Lahore 545, PLD 1983 Supreme Court 693, PLD 1983 Karachi 527, 2000 SCMR 39 and PLD 1996 Supreme Court 543.

5.  It was further argued that civil revision was provided against the judgment of subordinate Court and that the judgment of this Court cannot be assailed even in revision.

6.  Learned counsel for the petitioner, in response thereto, has argued that the impugned order was not assailable in appeal and as such only revision petition was competent against the same. He referred to Order XLIII, Rule 1 of CPC and argued that no appeal was provided against such an order. He further argued that Section 15 of Civil Procedure (Amendment) Ordinance, 1980 cannot annul the provisions of Order XLIII, Rule 1 of CPC unless the same is amended.

7.  We have heard arguments of learned counsel for the parties and perused the record.

8.  Order XLIII, Rule 1 of Civil Procedure Code, 1908 has specified and prescribed orders against which appeals lie under the provisions of Section 104 of the Code. Order VII, Rule 11 of CPC finds no mention in the said Order XLIII of the Code. The said Order cannot be, however, read in isolation to or independent of Section 104 of the Code as saving clause has been embodied in sub-section (1) of the said section which is reproduced herein in highlighted display for facilitation:--

Section 104(1) C.P.C.

"An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders".

9.  The aforestated provision of law has indicated in clear terms that an appeal would lie from an order expressly provided in the body of Code or by any other law for the time being in force.

10.  Section 15 of the said ordinance is also reproduced hereunder for ready reference and facilitation.

Section 15

Notwithstanding anything contained in Section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a single fudge of that Court in the exercise of it original civil jurisdiction.

11.  Civil Procedure (Amendment) Ordinance, 1980 was aimed at amending the Code of Civil Procedure, 1908 which stood amended in terms prescribed in the said Ordinance and as such Section 15 of the said Ordinance has become part and parcel of the Code for the purpose of appeals from interlocutory orders passed by a single Judge of the High Court, to a Bench of two or more Judges.

12.  The impugned order, being an interlocutory order made by a single Judge of this Court, was appealable before a Bench of two or more Judges.

13.  In case law reported in 2000 SCMR 184, it was held that orders passed by a Judge of the High Court in chamber in original civil jurisdiction accepting bid offered by the auction purchaser being an order passed in the course of execution of a decree was appealable in terms of Section 3 of Law Reforms Ordinance, 1972 and Section 15 of Civil Procedure (Amendment) Ordinance, 1980.

14.  In reported case PLD 1983 Supreme Court 693 it was held that the proceedings of civil nature before High Court were generally governed by CPC other than provisions which were specifically excepted and Section 15 of Civil Procedure (Amendment) Ordinance, 1980 was held applicable to such appeals.

15.  In reported case PLD 1983 Karachi 527 it was held that the term "interlocutory" would apply to application made during the pendency of action or to order of decree passed in action which does not finally dispose of rights of parties or which is made for progress of action.

16.  The case law referred to above, clearly indicates that interlocutory order passed by a single judge in chamber would be appealable U/S 15 of Civil Procedure (Amendment) Ordinance, 1980.

17.  Section 115 of the Code of Civil Procedure provides for revision against a case decided by Court subordinate to such High Court and in which no appeal lies thereto. Thus Section 115 of the Code by itself bars revision-in-cases in which an appeal lies and, additionally/revision would lie against an order of a Court subordinate to the High Court and a single Judge taking cognizance of a civil matter cannot be termed a Court subordinate to the High Court for the purpose of entertaining revision under Section 115 of the Code. We are fortified in our view by the case law in Malik Khurshid's case reported as 2006 SCMR 595 in which it was laid down that revision would lie to High Court against the decision or order of subordinate Court in which no appeal lies.

18.  For the above mentioned reasons we would hold that the impugned order was only assailable in Intera Court Appeal and that revision petition filed by the petitioner was not legally competent and entertainable. We, therefore, dismiss the revision petition in hand being incompetent and not entertainable.

(R.A.)  Petition dismissed

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