Sheikh FAQIR MUHAMMAD vs MUHAMMAD DIN

1. ' SALEEM AKHTAR, J.---This appeal by the leave of the Court arises from the following facts.

2. ' The respondent purchased vacant plot by registered sale-deed dated 6-7-1978 for a consideration of Rs,9,000. The appellant whose house is contiguous to the disputed property filed pre-emption suit against the respondent on 26-4-1979 claiming that the custom for pre-emption existed in the locality where the suit property is situated and being the owner of the contiguous property he has a preferential right to purchase the same which right is not possessed by the respondent. The suit was decreed by the trial Court and the respondent's First Appeal before District Judge failed. The respondent then filed a revision petition in the High Court which was accepted by the impugned judgment whereby both the judgments of subordinate Courts were set aside and the appellant's suit was dismissed.

3. Leave was granted to consider the question that revision petition was not maintainable as a second appeal lay to the High Court from the judgment of the District Judge and as the appeal had not been filed the appellant was deprived of his right to object to the non-maintainability of appeal on the ground of limitation. From the facts involved in the case it is clear that the judgment passed by the learned District Judge was appealable under section 102, C.P.C. This section was amended by Ordinance X of 1980 whereby clause (b) provided that when the amount or value of the subject-matter of the original suit does not exceed rupees fifty thousand, no second appeal shall lie. By Ordinance X instead of two thousand, fifty thousand was added therefore at the time of filing the suit in 1979 section 102, C.P.C. Provided for a second appeal in case the subject-matter of the original suit exceeded rupees two thousand. Relying on Pakistan International Airlines Corporation v. Pak Saf Dry Cleaners PLD 1981 SC 553 it was contended that the parties were entitled to the right of appeal vested in them at the time of institution of the suit. There can be no cavil with this proposition of law which has been upheld by this Court in the above judgment. Position thus crytallizes that the respondent had the right to file a second appeal and no revision lay under section 115, C.P.C. As held in PLD 1970 SC 506 a revision does not lie where the order is appealable with the District Court. Even in cases where second appeal lies, to the High Court revision will not be maintainable against that judgment and decree.

4. ' It is contended that the revision application could have been treated as a second appeal. In that event as contended by the learned counsel for the appellant the period of limitation provided for filing a second appeal having expired the respondent would be required to make an application for condonation of delay. This exercise would require enquiry for determination of facts whether sufficient cause for condoning the delay has been made out. Such determination can hardly be made here.

5. ' The learned counsel for the appellant contended that the question of maintainability of revision application was argued but we find that in the impugned judgment no reference has been made to this contention. The judgment had been announced after prolonged delay which may have caused this discrepancy. In these circumstances, we allow the appeal, set aside the impugned judgment and remand the case for re-hearing by the High Court.