MUNICIPAL COMMITTEE, BAHAWALPUR Versus SH. AZIZ ELAHI

1. HAMOODUR RAHMAN, C. J . This appeal, by special leave, arises out of a judgment of a learned Single Judge of the High Court of West Pakistan dismissing a petition under section 115 of the Code of Civil Procedure on the ground that the same was not maintainable.

2. The said revision petition under section 115 of the Code of Civil Procedure came to be filed in the following circum stances:-

3. The respondent, who was a retired Chief Sanitary Inspector of the appellant‑Municipality, filed a suit on the 15th of March 1963, against the Municipality and the Provincial Government for the recovery of a sum of Rs. 10,718‑8.0 on account of the difference between the salary actually paid to him up to his retirement in 1962 and the salary alleged to have been promised to him at the time of his appointment.

4. The said respondent was a Sanitary Inspector at Rai‑Bareli in India drawing a monthly salary of Rs. 200 in the scale of Rs. 150‑10‑300 but when he migrated to Pakistan in 1949, he was employed by the appellant‑Municipality as its Chief Sanitary Inspector in the time scale of Rs. 125‑5‑150/10‑220. The respondent, however, claimed that he was expressly promised at the time of his employment that he would be given the same pay that he was drawing in India. When his pay was fixed at Rs. 150 per month in the scale above‑mentioned he lodged a protest but continued to serve the Municipality and kept on making representations demanding pay at the rate of Rs. 220 per mensem from the beginning till his retirement in 1962. Since the Municipal Committee, Bahawalpur, did not pay any heed to his demands, he filed the suit from which this appeal arises.

5. The Province of West Pakistan did not either enter appearance in or contest the suit, but the Municipal Committee contested the suit on various grounds and the following issues were framed on the pleadings of the parties:‑

(1) Whether the suit is barred by time?

(2) Whether notice given by the plaintiff to the defendant is not valid?

(3) Whether the plaintiff is entitled to recover an amount of Rs. 10,718‑8‑0 from defendant No. 1 as arrears of pay?

(4) Relief.

6. The trial Court found all the issues in favour of the said respondent and decreed the suit for Rs. 10,718‑8‑0 with costs on the 9th November 1964.

7. The Municipal Committee, Bahawalpur, did not take any steps to file an appeal against this judgment and decree during the prescribed period of limitation, but after the expiry of a period of 3 months on the 8th of February 1965, filed a revision petition in the High Court.

8. A preliminary objection was raised in the High Court to the maintainability of the petition under section 115 of the Code of Civil Procedure on the following grounds:‑

(i) that since a second appeal lay to the High Court from the decision of the Senior Civil Judge, Bahawalpur, the revision was not competent, and

(ii) that, in any event, since the Municipal Committee could have filed an appeal before the District Judge, but did not do so, within the period of limitation prescribed, it ought not to be allowed to invoke the revisional jurisdiction of the High Court.

9. In the High Court the preliminary objection was sought to be resisted on the ground that in the present case since no immediate appeal lay to the High Court itself from the decree of the learned Civil Judge, hence section 115 of the Code of Civil Procedure did not bar a revision to the High Court. In support of this con tention reliance was placed on two decisions of two learned Judges of the West Pakistan High Court itself, sitting singly, in the cases of S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq (P L D 1959 B J 10) and Abdul Waheed v. Allah Din (P L D 1960 Kar. 472).

10. In both these cases the view taken was that the words "in which no appeal lies thereto" occurring in section 115 of the Code of Civil Procedure mean that the appeal must lie directly to the High Court. If an appeal lay to a District Judge and only a second appeal lay to the High Court, then the High Court would not be incompetent to entertain a revision from the order of the trial Court direct where no appeal had been filed before the District Judge.

11. In the case of Ghulam Shahbaz Shah no decisions were noted or referred to but in the case of Abdul Waheed, Waheeduddin Ahmad, J. noticed the earlier case as also a large number of decisions of the British Indian High Courts, and came to the conclusion that the words "no appeal lies thereto" must refer to an "immediate appeal against the impugned order to the High Court itself and cannot be interpreted to include an immediate appeal to a subordinate Court".

12. The learned Judge deciding the instant case did not find it possible for him to agree with the above decisions, because, in his view, it would be necessary to add the words not being a second appeal' to section 115 if it was sought to interpret the same as authorising a revision petition in all cases in which a first appeal did not lie to the High Court. The expression `no appeal', he thought, encompasses all sorts of appeal and, therefore, if an appeal, even though it is a second appeal, lies in a case, it cannot be said that 'no appeal' lies to the High Court.

13. The learned Judge also thought that to adopt any other interpretation would lead to a number of "anomalous situations", for, then "an aggrieved judgment‑debtor may, if he finds that a decree is without jurisdiction, not file any appeal and invoke the revisional jurisdiction of the High Court and thus circumvent the provisions of (a) the Court Fees Act and (b) the Limitation Act, and deprive the unsuccessful party of an opportunity to canvass the correctness of the order of the High Court by way of a further appeal under clause 10 of the Letters Patent". The revision was, accordingly, dismissed.

14. Leave was granted in this case because of the difference in opinion on this question in the High Court itself.

15. It appears that apart from the, above two cases, another learned Judge of the West Pakistan High Court has also taken the same view with regard to the interpretation of the words "no appeal lies thereto" in the case of Abdur Rashid v. S. Abdur Rahim ( P L D 1959 Lah. 806 ). It was there held by Changez, J., that these words "do not exclude the High Court's revisional jurisdiction if the appeal lies to the District Court and not to the High Court" but it was also cautioned that though a revision would be permissible, it would not generally "be entertained unless there are exceptional circumstances".

16. It appears that on this question there has been considerable divergence of judicial opinion even from before the Partition of this sub‑continent and a number of High Courts have since tried to resolve this difference of opinion by referring the question to their respective Full Benches. I propose, therefore, to examine these Full Bench decisions alone.

17. The first of these was in 1931 when a Full Bench of the Allahabad High Court in the case of Radha Ram Datt v. Abbas Ali Biswas and others (A I R 1931 All. 294), after reviewing in detail the entire case law on the subject, came to the conclusion that although section 115 of the Code of Civil Procedure "clearly contemplates a case where no appeal lies either in the form of a first appeal or a second appeal from a decree or from an interlocutory order under section 104 and Order XLIII of the Code of Civil Procedure", but an order under Order IX, rule 13 of the Code of Civil Procedure not being a decree within the meaning of section 2(2) of the Code is revisable by the High Court under section 115 of the Code of Civil Procedure, even where the impugned order has been passed by a Munsif.

18. The next Full Bench decision is from Patna where in a case, in which an appeal lay from an order of a Munsif to the District Judge, no appeal was filed but a revision application was presented directly to the High Court, it was held that the revision was not maintainable. Vide Maharaja Bahadur Ram Ran Vijay Prashad Singh v. Kishun Singh and others ( A I R 1944 Pat. 54 ).

19. In 1946 the Allahabad High Court again, by a majority of 3 to 2, re-affirmed that the word "appeal" in section 115,C. P. C. was not restricted to a first appeal but included a second appeal. Vide B. Manmohan Lal and others v. B. Rai Kumar Lai and others (A I R 1946 All. 89).

20. The next Full Bench decision is from Madras in the case of Paruchusu Satyanarayanacharyulu v. Vannava Ramalingam ( A I R 1952 Mad. 86), where it was held that a revision petition filed against an order rejecting a plaint for not putting in deficit court‑fees earlier demanded by the Court was not maintainable, as the order rejecting the plaint was a decree under section 2(2) of the Code of Civil Procedure, and an appeal, as such, was competent against the order. Therefore, the revision petition was not maintainable.

21. One of the learned Judges constituting this Bench had also pointed out that as no appeal lay from an order demanding payment of additional court‑fee, that order could have been challenged in revision, but if no revision petition was filed against the order demanding additional court‑fee before the plaint was rejected for non‑compliance with it, the remedy lay in appeal against the order rejecting the plaint and not in revision.

22. Next, in point of time, is the case of Swarupnarain v. Gopinath and another (A I R 1953 Raj. 137), where a Full Bench was constituted to consider this precise question, namely, as to what do the words "in which no appeal lies thereto" occurring in section 115 mean. The Full Bench, after considering almost all the relevant decisions, unanimously came to the conclusion that revision would be competent only if "no appeal lies from that order to the High Court, whether directly or indirectly. If there is a direct appeal to the High Court, namely, a first appeal, the revision will not be competent. Even if there is an indirect appeal, namely, a second appeal or the order in question can be taken in either first or a second appeal to the High Court by taking a ground of appeal under section 105, the High Court will not be competent to entertain a revision." Thus in the opinion of this Full Bench also the word "appeal" under section 115 of the Code of Civil Procedure included a second appeal.

23. In the case of The Custodian of Evacuee Property, New Delhi v. Nasiruddin and others (A I R 1962 Pb. 218), another Full Bench of the East Punjab High Court took the same view, namely; that a revision petition under section 115 of the Code of Civil Procedure is not "competent even in a case where an appeal lies, in the first instance, to the District Judge and not directly to the High Court".

24. From a review of the above Full Bench decisions it would now appear that the Allahabad, Madras, Rajasthan, East Punjab and Patna High Courts have all taken the view that appeal in section 115 of the Code of Civil Procedure includes a second appeal. This view also seems to find support from the decision of the Privy Council in the case of Venkatagiri v. The Hindu Religion Endowments Board, Madras (A I R 1949 P C 156). where Sir John Beaumont, who wrote the opinion of the Board, pointed out, after referring to the relevant decisions on the subject. that "section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final". It will be observed that the Privy Council made no distinction between first and second appeals.

25. So far as this Court is concerned, there is of course no direct authority on the point but in the case of Masta v. Sarang (P L D 1969 S C 261), there is an observation to the following effect:‑

26. "We do not think that it was open to the appellant to raise the question of his marriage with Mst. Maryam in the revision petition in the High Court. He did not appeal against the finding of the learned trial Judge on this point, although it was categorically found against him. The finding thus became final against him."

27. This too would seem to indicate that the opinion was that as no appeal in an appealable case had been preferred, no revision was possible.

28. From the above analysis I have come to the conclusion that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent.

29. Section 115 of the Code reads as follows:‑

30. "115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."

31. I am of the opinion‑that this‑‑view is also sound on general principles, for, if the framers of section 115 of the Code of Civil' Procedure had been of the opinion that a revision would be e incompetent only where an immediate appeal lay to the High Court, they would have used the word "from" and not "in" before the words "which no appeal lies." The hold otherwise would indeed, as observed by the learned Judge in the judgment under appeal, lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down fort preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time, as was actually done in the case under consideration. I also see no reason why the word "appeal" used in section 115 of the Code of Civil Procedure should be given the restricted meaning of a first appeal. The words "no appeal lies thereto" are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an "appeal" is held to include a second appeal, then no difficulty is created by the word "thereto".

32. On principle also I can see no valid reason for barring the revisional jurisdiction only where an appeal lies directly to the High Court. To adopt such a narrow interpretation would lead to the result that a party aggrieved from a decree or order from which an appeal lies to the District Judge would try to short circuit the procedure prescribed by the Code and come direct to the High Court. There is, of course, nothing in the Code to justify this nor am, I, in the absence of clear and express words, inclined to adopt a construction which is likely to result in complexity rather than simplicity of procedure.

33. Even in cases where the order or a decision sought to be challenged does not amount to a decree, the question will arise as to whether the High Court will, in the exercise of its discretion' under section 115 of the Code of Civil Procedure, favour inter ference if another remedy; which was open to a party, has not been pursued by him. The words used in section 115 are that the "High Court may call for the record" and, as such, it is not incumbent upon the High Court to call for the record in every case. As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised, the High Court will not, as a rule, interfere in revision. Thus an order under Order XXI, rule 52 of the Code of Civil Procedure, determining the priority between the decree‑holder and a third person or a decision under section 9 of the Specific Relief Act, which could have been challenged by a separate suit, will not ordinarily be interfered with in revision. This rule is not, however an inflexible one and it will, no doubt end upon the special circumstance of each case whether it will be followed or not. Normally, where the applicant has no other reined left, the High Courts are inclined to take a liberal view but where the case is one which does not which does not clearly fall under the terms of section 115; no revision can be entertained in any event.

34. Thus from either point of` view the present was a case in which the revision was rightly not entertained by the High Court. In the view I have taken, since the decision complained of was a decree in every sense of the term, a revision against it was not maintainable. Again even if a liberal view is taken, this was not, in any event, a fit case in which a revision should have been, entertained, for, clearly the appellant had, by its own negligence, allowed the appeal to become time‑barred. On its own admission in the petition for special leave, the copies of the judgment and decree were not obtained in time to enable the preferment of the appeal within the time limited in that behalf "owing to the fault of the Pairokar of the Municipal Committee," an employee or agent of the appellant. For such negligence of its servant or agent the appellant could hardly expect to escape liability.

35. For the reasons given above, I would dismiss this appeal with costs.

36. MUHAMMAD YAQUB ALI, J. ‑I agree.

37. SAJJAD AHMAD, J.‑ I agree.

38. S. Q. Appeal dismissed.