MUHAMMAD SAMIULLAH KHAN Versus ADDITIONAL DISTRICT JUDGE, SARGODHA

The petitioner, through the institution of the present writ petition has challenged the order dated 7‑9‑2000, whereby the learned Additional District Judge, Sargodha, while exercising powers under section 115, C.P.C., dismissed the revision petition, filed by the petitioner and maintained the judgment dated 2‑3‑1993, passed by the learned Civil Judge, through which he accepted the petition filed by Sh. Muhammad Ikram Ullah Khan, respondent No. 3, under section 12(2) of the Code of Civil Procedure.

2. The case in hand has a checkered history with complicated facts, which have elaborately been given in the revision petition and are not necessary to be reiterated for the disposal of the present revision petition. In nutshell, the petitioner has challenged an order, invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, passed by a revisional Court in exercise of its powers under section 115, C.P.C. and thus, the question arises for determination is as to whether the Constitutional petition is competent and maintainable against the revisional order passed in civil litigation.

3. In support of the above proposition to contend that a Constitutional petition is maintainable and competent against a revisional order, the learned counsel has relied upon Hassan Din v. Hafiz Abdus Salam PLD 1991 SC 65. However, the deeper reading of the said judgment manifests that the same is of no avail to the learned counsel of the petitioner. It has been held that mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitutional petition. I have myself searched the case‑law on the said proposition, which is summarized as under.

4. It has been held in Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 Supreme Court 131 that a Constitutional petition is not competent because neither the order passed by executing Court nor by the District Judge in exercise of his revisional jurisdiction could, by any stretch of imagination, be said to be illegal or having been passed, without lawful authority. It was further observed that there is a increasing tendency to file Constitutional petitions even when the Court whose orders are challenged had the jurisdiction to pass those orders.

5. While dealing with the proposition in hand the Honourable Supreme Court has held in Muhammad Zahoor and another v: Lal Muhammad and 2 others 1988 SCMR 322 that:‑‑

"We are, therefore, not in a position to lay down the wide proposition that the Constitutional jurisdiction of the High Court is not at all invokable in respect of an order passed by a Civil Court. In saying so we do not in the least mean to water down the general observations made in the aforesaid decisions discouraging vexatious and incompetent Constitutional petitions filed against final orders passed by the Civil Courts within the ambit of their jurisdiction unless the order is wholly void or coram non judice. "

6. After considering and relying upon the aforesaid case‑law, amongst others, the Honourable Supreme Court in a case reported as Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 came to the conclusion that a revisional order arising out of a civil litigation could not be challenged in writ petition.

7. From the resume and joint reading of the law declared, hereinbefore enumerated, I am of the considered view that if an order passed by a District Judge in exercise of revisional jurisdiction, is although illegal, but passed with jurisdiction, then the same cannot be assailed in a Constitutional petition and if an order passed by the revisional Court is wholly void or coram non judice, of course, a writ petition, against such a revisional order, would be competent. Except for such orders in no other case an order passed by District Judge as a revisional Court can be challenged through filing of the Constitutional petition.

8. In the above perspective, when the learned counsel was asked to show, how the impugned order dated 7‑9‑2000, is void or without jurisdiction, the learned counsel. Half-heartedly tried to argue that as the application under section 12(2), C.P.C., challenging the judgment and decree passed in the year 1960, was wrongly entertained by the learned Civil Judge, therefore, the decision rendered by the learned Civil Judge, which was affirmed by the revisional Court is without jurisdiction. The argument of the learned counsel is misplaced and devoid of any force. The fact as highlighted by the learned counsel hardly proves that the order of the learned Additional District Judge is either void or without jurisdiction.

9. I have also minutely perused the order dated 7‑9‑2000, rendered by the learned Additional District Judge, and I am of the considered view that; the said order is neither void nor without jurisdiction and the same has been passed by the learned Additional District Judge having jurisdiction in the matter.

10. In view of the above reasons and conclusions, under the facts and circumstances of the present case, the writ petition is not competent and maintainable under the law, which, is hereby dismissed in limine.

Q.M.H./M.A.K./M‑683‑L Petition dismissed.