Present: MALIK MUHAMMAD QAYYUM, J. RIAZUL HAQUE SHAIKH-AppeUant
ZULFIQAR HUSSAIN and 9 others
R.FA No. 41 of 1989, decided on 20.4.1999.
i) Civil Procedure Code, 1908 (V of 1908)–
—Ss. 115 & 96–Judgment and decree of District Judge in revisional jurisdiction-Competency of appeal against such judgement and decree- First appeal would be competent under S. 96 C.P.C. which provides that appeal would be competent only against judgment and decree passed by Court exercising original jurisdiction-District Judge having passed order in question, under revisional jurisdiction, appeal against the same would be incompetent in terms of S. 96 C.P.C. [P. 1218] A
(ii) Civil Procedure Code, 1908 (V of 1908)–
—O. VH, R 17 & Ss. 115 & 96-Plaint rejected in exercise of revisional jurisdiction by District Judge-District Judge’s such order did not suffer from any error, there was, thus, no justification made out for interfering with the same- [P. 1218] C
NLR 1985 Civil 325 ref. (ill) Constitution of Pakistan, 1973-
—Art. 199-Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993), S. 16-Civil Procedure Code (V of 1908), S. 96 prayer that appeal be allowed to be converted into Constitutional petition was rejected in as much as even if the same was allowed no useful purpose would be served as appeal was clearly abated under S. 16 Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993. [P. 1218] B
Malik Noor Muhammad Awan, Advocate for Appellant.
Mr. Muhammad Sharif Sahi, Advocate for Respondent No. 1.
Khawqja Muhammad Siddique, Advocate for Respondent No. 2.
Mr. YousafKazim Advocate for Respondents Nos. 3 & 4.
Mr. Taqi Ahmad Khan, Advocate for Applicant in C.M. 1 of 1997.
Date of hearing: 20.4.1999.
This is an appeal against the order dated 15.4.1989 passed by the learned District Judge, Lahore whereby he set aside the order of the trial Court dated 27.4.1988 and rejected the appellant’s plaint under Order 7, Rule 11 CPC on the ground that the same was barred by Section 70 of the Cooperative Societies Act, 1925 since no notice before filing of the suit was given to the Registrar, Cooperative Societies.
2. The learned counsel for the appellant has been asked to show that since the plaint had been rejected in the exercise of revisional jurisdiction by the learned District Judge, Lahore, how could regular first appeal under Section 96 CPC be filed. He in reply has cited Mst Tamizun Nisa v. Mst. Parveen Fatima (NLR 1985 Civil 325), wherein has it been held that against the order passed in the exercise of revisional jurisdiction rejecting plaint of the suit, the appeal to the High Court would be competent.
3. With due deference to the learned Judge, who decided the above cited case, I am unable to agree with him for the reason that a first appeal lies under Section 96 CPC which provides that the appeal’ would be competent only against the judgment and decree passed by a Court exercising original jurisdiction. Admittedly, the District Judge was not exercising original jurisdiction but passed the order under revisional jurisdiction, the appeal was dearly incompetent.
4. The learned counsel for the appellant prays that this appeal be allowed to be converted into a Constitutional petition. I am not inclined to grant this request inasmuch as even if the same is allowed no useful B purpose will be served as this appeal has clearly abated under Section 16 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. It is not denied that the Services Cooperative Credit Corporation is party to the suit and has been declared as Undesirable Cooperative Society and the Punjab Cooperative Board of Liquidation was appointed its Liquidator.
5. Be that as it may, the view taken by the learned District Judge does not suffer from any error and as such there is no justification made out for interfering with it. I have purposely refrained from going into the facts of the case in detail lest the rights of the parties before the Cooperative Judge should be prejudiced.
In view of what has been said above, this appeal fails and is dismissed with no order as to costs.
(A.A.T.) Appeal dismissed.