IQBAL Versus MUHAMMAD IQBAL
ORDER
Shameer, the father of the petitioner‑plaintiff Iqbal, was one of the three vendors of 22 Kanals and 1 Maria of agricultural land situated in village Hassam, tehsil Jhang; sold in favour of Muhammad lqbal defendant‑respondent No. 1 by means of mutation No. 498 sanctioned on 31‑10‑1967, which had even been successfully pre‑empted later by Ghulam Farid respondent No. 2. The petitioner Iqbal filed a usual declaratory suit on 16‑9‑1980 against five persons under the Punjab Customary Law to have the alienation of the ancestral land held by the vendors declared ineffective against the interests of the reversioners after their deaths. There is no record available in this file with regard to the proceedings held in the suit for a period of almost three months and there, however, is the trial Court's order dated 9‑12‑1980 wherein it is recited that defendant No. 1 is ex parte already but defendants Nos. 2 to 4 who were personally present on the last date had not put in appearance and are not even represented, hence, they too are placed ex-parte and, without either making any mention of defendant No. 5 or even recording any evidence, trial Court proceeded to order also that the plaintiff's suit is decreed under Order IX, rule 6 of the C.P.C. This file does not show any proceeding to have been taken against such a decree passed by the trial Court. It, however, appears that the said pre‑emptor respondent Ghulam Farid, who had been arrayed by the petitioner as defendant No. 5 in his suit, had in the meanwhile sued out for execution of his pre‑emption decree wherein the petitioner Iqbal put in an objection petition bearing the date 16‑7‑1984 on the basis of his declaratory ex parte decree dated 9‑12‑1980 to pray that the warrant issued already for delivery of possession may be recalled to dismiss his execution petition. After obtaining a reply thereto, learned Senior Civil Judge, Jhang who was seized of the matter rejected the petitioner's objection‑petition by his order dated 7‑6‑1987 for the reason that the decree under custom passed in his favour had become ineffective by operation of law.
2. Petitioner took an appeal thereagainst to the District Court at Jhang which was heard and dismissed on 20‑7‑1987 by Mr, Mumtaz Munawar Khan Niazi, Additional District Judge for the assumption that the provisions of rule 3 of Order XLIII of the C.P.C. had not been complied by the petitioner inasmuch as although he has given notice to Muhammad Iqbal respondent, yet, he has dispatched registered letter through postal service to Ghulam Farid respondent No. 2 but not obtained from him any acknowledgment receipt thereof before filing the appeal. This approach is altogether incorrect because the order appealed against had not been passed during the pendency of any suit and there could not arise any question of compliance with A the requirements of Rule 3 (ibid). The logic of the appellate Judge is also too perverse to be in the need of exposition. It is not always possible for a litigant to exact an acknowledgment from his opponent about service of notice and all that he may be expected to reasonably do is to approach a post office with a notice for service on his adversary. How then has the appellate Judge been led to the conclusion that requirement of law, though not actually attracted to this case, had not been complied? I have not been able to comprehend even the magnanimity shown by him to the petitioner about filing another appeal. His own minimum obligation was to have attended to the reasons contained in the judgment impunged before him and therein the learned Senior Civil Judge had clearly observed that the petitioner's decree under the Customary Law had lost efficacy. How could the appellate Judge give the liberty in this situation that the petitioner may file a fresh appeal?
3. There is no doubt that the Additional District Judge concerned has exercised his appellate jurisdiction illegally as also with material irregularity in this case but still the petitioner cannot make any capital out of it because the declaratory decree under Custom does not, by its terms, even purport to create title in any one in the alienated land and much less any in the plaintiff‑petitioner Iqbal. On the contrary, it merely saves the right of inheritance from the effect of the alienation when it opens out and the petitioner could not claim any right in presentee in the land in dispute on the basis of that decree which had even been declared void and of no effect by virtue of the provision made by the Punjab Ordinance XIII of 1983. Petitioner cannot base any conceivable right thereafter upon such a decree.
4. Since the petitioner does not have even a semblance of right of any kind in the land involved in the pre‑emption decree sued out to be executed by Ghulam Farid, therefore, he has no occasion to approach this Court and much less so for exercise of revisional jurisdiction which does not become liable to be exercised either as a matter of mere course or upon discovery of any error or illegality and not necessarily so even if such an error or illegality be referable to exercise of jurisdiction by the lower Court and Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore P L D 1954 Lah. 575 may be cited in favour of refusal to exercise revisional jurisdiction in appropriate cases and there is no doubt that the present one is an eminently just case for refusal to exercise revisional jurisdiction in aid of the petitioner.
5. Result of the foregoing is that this revision petition is found to be frivolous and is accordingly dismissed in limine.
A.A./I‑38/L Revision dismissed.