P L D 2015 Balochistan 135
Before Muhammad Noor Meskanzai, C.J.
SALEH MUHAMMAD and 6 others ---Petitioners
versus
ARZ MUHAMMAD and 9 others ---Respondents
Civil Revision No.204 of 2012, decided on 24th April, 2015.
(a) Civil Procedure Code (V of 1908) ---
----Ss. 47, 104 & 115 ---Balochistan Civil Disputes (Shariat Application) Regulation, 1976,
Regln. 4(2) ---West Pakistan Civil Courts Ordinance (II of 1962), S. 18 ---Revision against order
passed in execution of decree ---Maintainability ---Compete nt forum ---Conversion of revision into
appeal or vice versa ---Re-conversion ---Rules ---Stage of conversion ---Limitation ---
Determination ---Defendants filed the present revision petition against order of executing court
whereby their objection petition had be en dismissed ---Defendants contended that impugned
order was governed by provisions of Dastoor -ul-Amal Diwani. Kalat, 1952, and the present
revision petition was competent before High Court thereunder ---Validity ---Suit had been filed
under provisions of Bal ochistan Civil Disputes (Shariat Application) Regulation, 1976 and not
under Dastoor -ul-Amal Diwani, Kalat, 1952 ---In terms of S.18 of Civil Courts Ordinance, 1962,
either revision or appeal was competent before Majlis -e-Shoora under Regln.4(2) of Balochis tan
Civil Disputes (Shariat Application) Regulations, 1976 ---Objection raised and decided was a
question that related to execution, discharge or satisfaction of decree, which fell within ambit of
S.47, C.P.C. and impugned order passed by executing court wa s an appealable order under S.
104, C.P.C. ---Revision could be converted into appeal and appeal could be converted into
revision ---Proceedings could be re -converted if necessary ---Present revision was not competent
before High Court, and if the same was no t converted into appeal, defendants would be deprived
of the right of hearing before competent forum ---No legal embargo existed to convert revision
into appeal from date of its institution ---Revision petition had been filed within time ---Revision
petition was converted into appeal by High Court and was transferred to Majlis -e-Shoora for
decision.
(b) Administration of justice ----
----Conversion of proceedings ---Legal proceedings ---Conversion of revision into appeal and vice
versa ---Object ---Prime purpo se and paramount consideration of legal proceedings is to do justice
between parties subject to competency of court and to achieve this object the nature of
proceedings are always of secondary consideration, because too much adherence to tech
nicalities, w hich impede course of justice, cannot be countenanced by court ---One type of
proceedings can conveniently be converted into another type of proceedings to avoid multiplicity
of proceedings or failure of justice.
(c) Balochistan Civil Disputes (Shariat A pplication) Regulations, 1976 ----
----Regln. 4(2) -Civil Procedure Code (V of 1908), Ss. 115 & 96 --West Pakistan Civil Courts
Ordinance (II of 1962), S.18 ---Dastoor -ul-Amal Diwani, Kalat (1952) ---Appeal/revision ---
Maintainability ---Order passed by executi ng court ---Defendant contended that impugned order
was governed by provisions of Dastoor -ul-Amal Diwani, Kalat, 1952, and revision was
competent before High Court thereunder ---Suit had been filed under provisions of Balochistan
Civil Disputes (Shariat Appl ication) Regulation, 1976 and not under Dastoor -ul-Amal Diwani,
Kalat, 1952 ---In terms of S.18 of West Pakistan Civil Courts Ordinance, 1962 either revision or
appeal was competent before Majlis -e-Shoora under Regln.4(2) of Balochistan Civil Disputes
(Shar iat Application) Regulation, 1976 ---Impugned order passed by executing court was
appealable.
(d) Civil Procedure Code (V of 1908) ---
----Ss. 47 & 104 ---Objections dismissed by executing court ---Remedy ---Orders from which
appeal lies ---Objection raised and decided was a question that related to execution, discharge or
satisfaction of decree, which fell within ambit of S.47, C.P.C. and was an appealable order under
S.104, C.P.C..
Muhammad Ismail v. Raja Muhammad Younis 2003 CLC 1252; Liaqat Ali v. Bas hiran
Bibi and 9 others 2005 CLC 11; Mst. Noor Jahan v. Mst. Roshan Jahan and 6 others 1994 SCMR
2265; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859 and Abdul Aziz
and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164 rel.
Tahir Ali Baloch for Petitioners.
Taj Muhammad Mengal for Respondents.
Date of hearing: 20th March, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. ---Instant revision petition is directed
against the order dated 26th June, 2012 passed by Qazi, Dalbandin . whereby the execution
application filed by the respondents was allowed.
2. Precise facts for the disposal of instant revision petition are that the respondents Nos.1 to
6. instituted a suit for possession of Gawandan Mosooma Zainoi Durjanwal, situated at
Kalbairak, in the Court of Qazi, Dalbandin against the petitioners and respondents Nos.7 to 11.
Initially the learned Qazi dismissed the suit, however, on filing appeal by the respondents Nos.1
to 6, before the learned Majlis -e-Shoora. Chagai at Noshki the same was accepted and the case
was remanded to the Qazi. Dalbandin with direction to decide the suit afresh.
3. After remand the petitioners and the respondents Nos.7 to 9 contested the suit by way of
filing written statements. The learned Qazi frame d issues and after recording evidence pro and
contra again dismissed the suit vide judgment and decree dated 17th September, 1999. The
respondents Nos.1 to 6 feeling aggrieved of the above referred judgment preferred an appeal
before the learned Majlis -e-Shoora, Chagi at Noshki which was accepted vide judgment and
decree dated 13th January, 2000. The petitioners filed Civil Revision No.55 of 2000 before this
Court which too was dismissed vide judgment dated 5 -1-2009. The petitioners still feeling
aggrieved of the judgments and decrees approached the Hon'ble Supreme Court by way of filing
Civil Petition for leave to appeal No.266/2009. The Hon'blc Supreme Court vide order dated 4th
June, 2009 besides directing for maintaining status quo granted leave. The ope rative portion of
the above referred order is reproduced herein below: --
"We have also examined the record with the eminent assistance of learned Advocate
Supreme Court which requires to be re -evaluated in order to see as to whether the same has been
examined with diligent application of mind and settled norms of justice by the learned appellate
court or otherwise? Leave is accordingly granted. To be fixed during next session. Meanwhile
status quo is directed to be maintained."
4. The respondents on 10 th May, 2012 filed an execution application in the Court of Qazi,
Dalbandin. Notice of the execution application was served upon the petitioners, they appeared
before the executing court and filed objection petition calling in -question the competency and
maintainability of the application. It was contended that the matter is sub judice before the
Hon'ble Supreme Court of Pakistan and the apex Court has directed to maintain status quo, as
such the execution application filed by the respondents Nos.1 to 6 is not entertainable. However,
the learned executing court vide order dated 26 -6-2012 directed for execution of the decree by
way of delivering the possession of the property to respondents Nos.1 to 6, hence this petition.
5. Heard. Learned counsel for the petitioners submitted that the Hon'ble Supreme Court has
directed for maintaining status quo, therefore, there was no occasion for the executing Court to
have had issued directions for execution of the decree. Learned counsel further contended that
specifi c objection in this regard was raised before the executing court, yet the latter by mis -
interpreting the order of Hon'ble Supreme Court issued directions for execution of the decree
which amounts to contempt of Court and the order impugned is void without lawful authority
and liable to be set aside.
Learned counsel for the respondents strenuously opposed the submissions by submitting
that as the status quo order dated 4 -6-2009 passed by the Hon'ble Supreme Court was till next
date and the petitioners fai led to produce any order passed by the Hon'ble apex Court extending
the status quo order, as such, the executing court rightly accepted the execution application.
6. I have considered the arguments advanced by the learned counsel for the parties and
perused the record with their eminent assistance. The present controversy has conceived a couple
of controversial and complicated legal question: --
i. Whether the imp ugned order is appealable?
ii. If appealable whether this revision is convertible into appeal?
iii. If converted whether from the date of institution or .from the date of conversion and what
will be the impact of limitation?
7. Admittedly, an executi on application for execution of the Decree dated 17 -9-1999 was
filed and objection with regard to competency of the application was raised. The executing court
heard the arguments and rejected the objections. In my considered opinion the objection raised
and decided is a question that relates to execution, discharge or satisfaction of the decree and
thereby falls within the ambit of section 47 Civil Procedure Code and an appealable order within
the meaning of section 104, C.P.C. For the sake of facility sec tion 104 C.P.C is reproduced: --
"104. Orders from which appeal lies. --- 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. --
3 [.......]
4 [(f) an order under S.35A:
(ff) an order under Section 47;]
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the
arrest or detention in the civil prison of any per son except where such arrest or detention is in
execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules;
5[Provided that no appeal shall lie against any order specified in clause 6[(f)] save on the
ground that no order, or an order for the payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this section."
8. No doubt, the impugned order is not a decree yet appealable under section 104 Civil
Procedure Code. By holding the view I am fortified by the dictum laid down in the judgment
titled as 'Muhammad Ismail v. Raja Muhammad Younis' reported in 2003 CLC (Lahore) 1252
(relevant at page - 1253 -54), wherein it was observed as under:
"The order was, therefore, passed in relation to execution of the said decree. This order is
squarely covered by section 47, C.P.C. being a lis between the parties to the suit in which the
decree was passed. This being so, the order was appealable under section 104(1)(ff), C.P.C. So
far as the said judgment is concerned. it dealt with an order urged to be covered by section
I04(1)(h), C.P.C. The learned Additional District Judge has therefore, refused to exercise the
jurisdiction vested in him of hearing and dec iding the appeal filed by the petitioner. This revision
is allowed. The result would be that the appeal filed by the petitioner shall be deemed to be
pending before the learned District Judge, Rawalpindi, who shall requisition records, summon
the parties a nd hear and decide the said first appeal in accordance with law."
9. It is pertinent to observe that at the eve of hearing preliminary arguments, a specific
question regarding maintainability of revision petition, was posed. Learned counsel for the
petitioner on the very said date emphasized and insisted on the maintainability of petition on the
ground that impugned order is governed by the provisions of Dastoor -ul-Amal Diwani, Kalat
1952 and under the Dastoor revision is competent before High Court. The perusal of record
reflects the stance of learned counsel was factually incorrect. The suit was filed before Qazi,
Dalbandin under the provisions of Balochistan Civil Disputes (Shariat Application) Regulation
Act, 1976 and not under the Dastoor -ul-Amal Diwa ni Kalat. 1952. Section 4 of the Shariat
Regulation Act, 1976 defines the court:
"4. Courts for adjudication of disputes under this Regulation. - (1) Notwithstanding
anything contained in section 3, there shall be the following Courts, namely: --
(a) the Court of Qazi, which shall be the Court of original jurisdiction in respect of
disputes wherein the subject -matter in amount or value does not exceed fifty thousand rupees;
and
(b) the Majlis -e-Shura, which shall be the first appellate court in respe ct of judgments,
decrees and orders of the Court of Qazi, and shall also be the court of original jurisdiction in
respect of all disputes wherein the subject -matter in amount or value exceeds fifty thousand
rupees.
(2) Every Majlis -e-Shura shall be deem ed to be a District Court within the meaning of the
Code."
10. Legally the pecuniary jurisdiction for entertaining suits by the Qazi under Shariat
Regulation, 1976 is rupees fifty thousand. Keeping in view this legal position, admittedly, within
the mean ing of section 18 of Civil Courts Ordinance either revision petition or appeal, in any
case, is competent before Majlis -e-Shoora at the strength of section 4(2) of Shariat Regulation,
1976.
In view of the above discussion it can safely be concluded that the impugned order is
appealable, so, the first issue stands resolved in affirmative.
11. Now, the next question is whether one type of proceedings could be converted into
another type of proceeding? There is no cavil to the proposition that prime purpo se, paramount
consideration and basic theme of the legal proceedings is to do justice between the parties; and to
achieve this object; of course, subject to competency of the Court, the nature of the proceedings
are always of secondary consideration, becau se too much adherence to technicalities, which
impede the course of justice cannot be countenanced by the court, therefore, one type of
proceedings can conveniently be converted into another type proceedings just to avoid
multiplicity of proceedings or fai lure of justice. By holding the view I am fortified by the dictum
laid down in the judgment titled as 'Liaqat Ali v. Bashiran Bibi and 9 others' reported in 2005
CLC 11 (relevant at page -24), wherein it has been held as under: --
"32. We will also like t o observe that rules of procedure are intended to foster justice,
technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a
tyrant master. And, to avoid failure of justice and multiplicity of litigation, one type of
proceedings could be converted into another type of proceedings."
12. Adverting to second limb, whether the circumstances of this case justify the conversion
of instant revision into appeal under section 104, C.P.C. So far as the conversion of an appeal
into a revision or vice versa is concerned, the law stands settled that a revision can be converted
into an appeal and an appeal can be converted into revision. So much so, if necessary the
proceedings could be re -converted. Admittedly, in this case revisi on against the impugned order
is not competent and a party may not be deprived of the right of having an opportunity of hearing
by a competent forum just on the basis of technicalities. If this revision is not converted into an
appeal, resultantly the peti tioner shall be deprived of the right of hearing in a case wherein the
question of interpretation of the order of Hon'ble apex Court by the executing Court is involved
of course such a case, cannot be left at the mercy of technicalities, therefore, I feel no legal
difficulty nor there is any legal bar, hitch or impediment in converting the instant civil revision in
to an appeal keeping in view the facts and circumstances of this case. In this regard I am fortified
by the dictum laid down in the judgments of Hon'ble apex Court in case titled as 'Mst. Noor
Jahan v. Mst. Roshan Jahan and 6 others' reported in 1994 SCMR 2265, relevant observations
wherefrom reads as under: --
"5. We are convinced that although the order dated 3 -4-1991 of the trial Court was no t an
appealable order, yet under section 115(2), C.P.C. the District Judge had revisional power to deal
with it, so it will be deemed that the appeal was actually heard and decided as a Revision. In this
view of the matter order dated 26 -10-1991 of the Dis trict Judge could be treated as a revisional
order precluding further interference by the High Court under section 115(4), C.P.C. and as such
impugned order/judgment is without jurisdiction/authority.
6. As far the alternate argument of the learned coun sel, the learned District Judge had the
legal authority to interfere with the order dated 3 -4-1991 as a revisional Court, therefore it was/is
not possible to declare/hold that the order dated 26 -10-1991 passed by him was without lawful
authority and of no legal effect. The case -law cited by: the learned counsel for the respondents is
quite distinguishable.
7. Resultantly the petition is converted into an appeal and allowed. The impugned
order/judgment of the High Court is set aside and that of the learne d District Judge is restored
with no order as to costs."
Similarly, in the case titled as 'Muhammad Hanif and others v. Muhammad and others'
reported in PLD 1990 SC 859 (relevant at page 864). it has been observed as under:
"The aforenoted circumstan ces fully justify it. Accordingly, there is no force in the
ground relating to the supply of the relevant copies so as to create a bar for conversion of the
Revisions into Regular Second Appeals on the assumption that this would also influence the
question of limitation."
14(sic) Now adverting to last limb i.e. question of limitation. the nature of the impugned order
clearly reveals that it does not require the affixation of an enhanced court fee and the revision
petition has been filed within time. there fore, there is no legal hitch or embargo to convert this
revision into appeal from the date of its institution, reliance is placed on the case titled as 'Abdul
Aziz and others v. Sheikh Abdur Rahim and others' reported in PLD 1984 SC page -164 (relevant
at page -168), where it has been observed as under:
"In the case before us the High Court has allowed the revision to be treated as second
appeal. The only point in issue is from what date this revision should he treated to be converted
into a second appeal , from the date a misconceived civil revision petition was instituted, from the
date a request was made for its conversion or from the date that it was allowed to be converted
and registered as a second appeal. We find that as no other formality had to be completed in the
nature of deficiency in court -fee to be made up or condition to be satisfied, e.g. the initial bar of
limitation, the treatment has to be from the date that the revision petition was instituted".
In the light of above discussion, the pe tition stands converted into appeal under section
104, C.P.C. and transferred to the file of Majlis -e-Shoora, Chaghi at Noshki. therefore, the
Majls -e-Shoora, Chagai at Noshki shall decide the appeal within two months after receipt of this
judgment as suff icient time was already been consumed.
SL/61/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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