ABDUL GHAFFAR Versus JAMALUDDIN

1. This Revision Petition is directed against the order of Mr. Abdul Mateen Khan, VItth Additional Sessions Judge, Karachi, dated 30‑5‑1985 whereby he dismissed the appeal of the applicant against the order of Mr. Abdur Rasool Memon, XXIO Civil Judge, Karachi, dated 14‑1‑1985, dismissing the application o: the appellant under section 12(2) of C.P.C.

2. Brief facts of the case are that Muhammad Hussain father of the respondent Jamaluddin, had filed this suit for possession and mesne profits against the appellant Abdul Ghafoor in respect of a Cabin on Plot No. R‑87/137‑4‑78, behind United Bank 1st Floor Burns Road Karachi, claiming to be the attorney of his son respondent Jamaluddin. On the request of the appellant, it was averred that, the respondent allowed him to run his business in the said cabin at a licence, fee of Rs.

100. In July, 1979, the respon0ent revoked the licence and asked the appellant to vacate the cabin. On the refusal of the appellant to do so, the respondent filed the suit.

3. The suit was contested by the respondent. He admitted that he had taken the cabin from the appellant, who was its owner. He, however, alleged that he had taken the same on rent of Rs. 100 per month. According to him the respondent was pressing him to enhance the rent. On his refusal to do so he had filed the suit. Issues were framed on the pleadings of the parties, which included the dispute as to the relationship of the landlord and tenant between them and as to whether the appellant was licensee or tenant. After a full‑fledged trial, the learned Civil Judge, held that the appellant was licensee in the said cabin and that the said licence was revoked by the respondent. Hence he was liable to vacate the cabin as well as to pay the licence fee or the mesne profits. No appeal was filed against this judgment which was delivered to 20th March, 1983. The respondent therefore, filed an execution application for enforcing the above judgment whereupon the appellant filed an application under section 12(2) of C.P.C. read with section 47 on 24‑11‑1984. He alleged that the decree was obtained by fraud and misrepresentation, as Muhammad Hussain, had not obtained power of attorney from his son Jamaluddin, on whose behalf he had signed and verified the plaint. The application was dismissed by the learned Civil Judge on the ground that no fraud or mis‑representation was committed by the respondent. The application under section 12(2) of C.P.C. was also not maintainable because the judgment had already attained finality and could not be set aside on such technical and formal grounds. Against this order an appeal was filed before the Additional District Judge, Karachi, Mr. Abdul Mateen which too was dismissed by him. Against this order the present Revision Application was filed.

4. I have heard Mr. Sibghatullah Hamid, Advocate for the appellant. His arguments in brief are as follows:‑‑----

(1) No proceedings in the nature of the proceedings of a suit were conducted by the learned Civil Judge while disposing of the application under section 12(2) of C.P.C. Only counter‑affidavit was taken arguments .were heard and application was decided.

(2) Mohammad Hussain father of the respondent who had filed a suit representing to be the attorney of his son Jamaluddin, had not produced any power of attorney in the trial Court.

(3) The power of attorney which he has produced before the 1st appellate Court that is Additional District Judge was not attested by a magistrate or notary public. Reliance was placed in P L D 1982 Kar. 71 and A I R 1944 Bom. 200.

(4) The production of power of attorney before the appellate Court amounted to production of additional evidence which could not have been taken without giving the appellant an opportunity to rebut the same.

(5) The appellant was a tenant and not a licensee. The respondent should have made the rent application before the controller and should not have filed the suit. Reliance was placed on P L D 1969 S C 106, P L D 1957 Kar. 892 and 918 and P L D 1959 Kar. 25.

5. Let me point out at the very outset that the scope of a revision application is very narrow. The revisional Court cannot go beyond A grounds mentions in section 115 of C.P.C. In this connection it will be useful to reproduce section 115 of the Civil Procedure Code.

115. (1) 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 exercised a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material regularity.

6. The High Court may make such order in the case as it thinks fit:

7. Provided that, where a person makes an application under this subsection he shall in support of such application furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such applications without calling for the record of the subordinate Court.

(2) The District Court may exercise the power conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the sub‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order under subsection (2) by the District Court."

8. A perusal of the above provisions would show that the scope of section 115 of Civil Procedure Code is limited to cases where the subordinate Court has exceeded its jurisdiction or has declined to exercise the jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. No doubt if a Court has jurisdiction to decide a matter on facts or law it has the jurisdiction to decide one way or the other and the fact that a superior Court is of the opinion that the decision arrived at by the Court below is incorrect, does not mean that decision is without jurisdiction. But when the point on which erroneous decision has been given is based on point which affects the Court's capacity to entertain the case or to proceed further with it, the erroneous decision if acted upon would result either in the illegal assumption of jurisdiction or illegal or erroneous exercise of it. A revision petition based on casuistic arguments cannot be entertained as section 115 is not designed to meet un‑substantial points of form. Reference in this connection may be made to P L D 1966 Dacca 105.

9. In P L D 1979 Kar. 475 it was held that a Judge hearing revision application under section 115, C.P.C. does not enjoy the same power as enjoyed by an appellate Court under section 107, C.P.C. Hence if a revisional Court allows a revision on any one of the conditions which are not specified in section 115, C.P.C., its judgment is without lawful authority and liable to be set aside. In this case, the Civil Judge had decreed a suit filed under section 9 Specific Relief. Act and had refused to adjudicate the issues regarding right or possession of defendant based on title. Additional District Judge Sukkur, allowed a revision and remanded the case for a decision on those issues thus converting the suit to one under section 8 of Specific Relief Act. In a Constitutional petition filed by the plaintiff my learned brother Ajmal Mian, J. sitting on a D.B. of our High Court with Fakhruddin Ibrahim, J. set aside the order of the Additional District Judge.

10. In a latest ruling reported in 1985 C L C 2099 my learned brother Saeeduzzaman, J. held that preparation of paper Book required by rules 198 to, 201 of Sind Civil Courts Rules was only for convenience. Non‑compliance thereof does not render the decision defective or illegal and the. High Court cannot interfere with such an order in revision.

11. In yet another latest ruling reported in 1983 C L C 2238 my learned brother Hyder Ali Pirzada, J. has held that revisional Court could not constitute itself as Court of Appeal and could not reverse judgment unless the same was perverse or had overlooked essential evidence.

12. In Raunaq Ali's case reported in P L D 1973 S C 236 this principle has been explained irt detail. It has been held that where finality is given by statute to the decision of certain tribunal the decision in such a case cannot be called in question in any proceeding, by an other tribunal or body of limited jurisdiction. It was at the same time clarified that only when a tribunal was acting beyond clear sphere allotted to it by law, the action was nulity in the eyes of law. The superior Court would refuse to perpetuate something patently unjust and unlawful. Not only that but the scope of enquiry in this case is further limited by the fact that the judgment in the main case was a contested judgment in which all these points were raised in trial Court and were decided against the appellant against which he has chosen not to file any appeal and has allowed the same to attain finality. I am therefore, afraid that the above objections cannot be allowed to be raised for the first time in these proceedings by the applicant. It would only be treated as an attempt of a drowning man to catch at a straw, in order to protect his unauthorised possession over 'the disputed cabin.

13. Now let me take up his objections one by one. So far as his first objection is concerned, it may be pointed out that the petitioner's counsel has himself stated that in the learned trial Court counter‑affidavit was filed in reply to his affidavit and then arguments of both sides were heard before passing the orders. He has not alleged that he had requested the Court to allow him to lead any evidence in addition to the affidavit filed by him or to cross‑examine the respondent on his counter‑affidavit. Hence he cannot complain that he was not allowed to lead any evidence or to test by way of cross‑examination the veracity of the evidence of the other side. Under these circumstances it is clear that the learned trial had fully complied with the, requirements of procedural law in deciding the application under section 12(2), C.P.C. and the objection of the appellant does not carry any weight.

14. As regards his second, third and fourth objections which relate to the power of attorney it may be pointed out that in the title of the suit Mohammad Hussain, son of Nabi Bux has shown himself to be the legally constituted attorney of Jamaluddin. He had verified the plaint and given the evidence in the suit, as an attorney and had never impersonated himself as plaintiff.

15. Appellant had never taken any objection in the written statement regarding the authority of Mohammad Hussain, to file this suit and to continue with it under Order III, rule 1, C.P.C. any appearance application or act in any Court, required or authorised by law to be made or done by a party in such Court, can also be made or done by his agent holding power, of attorney or by a pleader, on his behalf.

16. According to Order VI, rule 15 as well as rule 86 of Sind Civil Court Rules not only a party but even a person who is not a party but is acquainted with the facts of the case can also verify the pleadings.

17. No doubt according to rule 85 Sind Civil Courts Rules when party appears by a recognized agent, it is required to submit in the Court a power of attorney and the Chief Ministerial Officer is to examine the power of attorney and to make entry at the foot of the proceedings.

18. I have also seen the plaint. I agree that no power of attorney, was produced alongwith the plaint and no permission of the Court was sought to verify plaint. There is also no note at the foot of the plaint that the power of attorney was verified by the C.M.O. But these are only technical and formal defects.

19. In the application filed by the appellant under section 12(2). C.P.C. the only objection taken was that the plaintiff himself never appeared personally before the Court and throughout the proceedings he was "impersonated" by another person without being duly constituted attorney or without filing any power of attorney.

20. The respondent has filed the objections to this application and produced the photostat copy of the power of attorney before 1st appellate Court. It has been argued by the otherside, that this power of attorney is not attested by any Notary Public, Oath Commissioner or by any Magistrate and learned counsel for the appellant has relied on P L D 1982 Kar. 71.

21. This ruling does not apply to the present case. It is distinguishable because in that case the objection was taken at the very beginning before the trial Court on the legality of the power of attorney but in this case no such objection was taken before the trial Court during the proceedings of the suit.

22. The respondent has produced the original power of, attorney during the course of argument. The power, of attorney was executed on 27th December, 1978 authorising Muhammad Hussain, to file case against the licensee. I have already stated that non‑production of the power of attorney alongwith the plaint is a technical defect and is curable. It does not amount to fraud or misrepresentation specially when the principal ratifies the act of the agent. The attorney is already dead and the appeal is now being continued by the actual plaintiff who had also filed the execution application. After the production of power of attorney the technical defect has been remedied and there is therefore, no ground for treating the proceedings as fraudulent.

23. The last objection of the learned counsel for the applicant was that this was not the case of licence but that of a regular tenancy and therefore, the applicant should have filed an ejectment petition before the Rent Controller and should not have filed this suit. In this connection it may be pointed out that the question of the contract being a lease or licensee was already contested before the trial Court and a finding of fact was given against the applicant that the contract was a licence and not a lease. The finding was allowed to become final as no appeal was filed against it. This point cannot be agitated again in these proceedings which are an application under section 12(2), C.P.C. and a revision application against the same.

24. In these circumstances I am satisfied that the trial Court as well as the 1st appellate Court correctly appreciated the legal and factual aspects of the case.

25. Hence I am clearly of the view that both the lower Courts were perfectly justified in dismissing the application and the appeal of the applicants. I also agree with both the lower Courts that the applicant) is only interested in protecting the proceedings and is trying to continue` his unlawful possession over the disputed cabin, as long as possible.

26. Hence I dismiss the Revision application and direct that the execution proceedings should continue.

27. A . A . ????????????????????????????????????????????????????????????????????????? Revision dismissed.