P L D 1971 Supreme Court 536 (PLP)

M. R. KHAN, J.-This appeal, by special leave, raises the sole question whether the High Court, in the exercise of its revisional Khan, jurisdiction under section 115 of the Code of Civil Procedure, is competent to make an order in reversal of the order complained of, without calling for the record of the case. This point bas arisen in the following circumstances. The respondents Nos. 1 and 2 herein as plaintiffs brought a suit on the 26th September 1969, against the present appellants for a declaration that they are the co-sharers in respect of the land in dispute and are in possession thereof and for a permanent injunction restraining the defendants from interfering with their possession. On the same date, an application was made under Order XKXIX, rule 1 of the Code of Civil Procedure for a temporary injunction restraining the defendants from interfering with the plaintiff, possession till the disposal of the suit. On the 29th September 1962, the trial Court made an order for maintaining the status quo. On the 10th October 1969, the defendants (appellants herein) made an objection against the prayer for a temporary injunction. On the 11th November 1969, the defendants made an application alleging that the plaintiffs had taken away the maize crop from the land in suit in contravention of the order as to the maintenance of status quo. This grievance was repeated by the defendants in their next application made on the 14th November 1969. On that date, the defendants made also a prayer for appoint ment of a Commissioner for local inspection. On the 1st December 1969, the defendants made a further complaint that the plaintiffs had taken away the maize and cotton crop from the land. In that application, a prayer was also made for the appointment of a receiver. Instead of appointing a receiver, the trial Court granted a temporary injunction on the 1st December1969. In making this order, the trial Court proceeded on, the footing that the defendants, in their applications, dated the 11th November 1969 and the 1st December 1969, had admitted the plaintiffs' possession and that the defendants' counsel also made a concession on the 1st December 1959 in this regard. On the defendants' appeal, the Additional District Judge, Multan, by his order, dated the 28th April 1970, reversed the trial Court's order. In the appeal, it was contended on behalf of the defendants that the trial Court was under an erroneous impression that the plaintiffs were in possession of the suit land. The appellate Court took the view that as the suit land was admittedly in possession of tenants, the defendants, who had obtained a deed of sale m respect of that land from the respondent No. 2, should be considered to be in possession on the basis of title and, in that view of the matter, allowed the appeal and rejected the prayer for a temporary injunction. The plaintiffs went on revision against the appellate order of the Additional District Judge. The revision was admitted for regular hearing, but the records of the trial Court and the appellate Court were not called for. Then, on the 11th June 1970, a learned Single Judge of the former High Court of West Reham Ali Pakistan, Lahore, after hearing the learned counsel of both the parties, accepted the revision, set aside the order of the appellate Begum Court and restored the trial Courts order granting a temporary injunction. M. R. Khan, Leave was ranted in this case to consider the legality of the order of the High Court as it was made without calling for the records of the subordinate Courts. Raja Said Akbar, learned counsel for the appellants contends that the High Court cannot exercise its revisional jurisdiction under section 115 of the Code of Civil Procedure unless the record of the case has been called for and it is there before the Court. In support of this contention, he has cited the cases of Balakrlshna Udayar v. Vasudeva Ayyar (1), Gurdevi v. Md. Bakhsh (2), Venkatagirl Ayyangar v. Hindu Religious Endowments Board, Madras (3) and Zafar Ahmad v. Abdul Khaliq (4). It appears that in none of these cases the precise question which is involved in this appeal was considered and decided. It was only in the case of Zafar Ahmad v. Abdul Khaliq that the Full Bench of the former High Court of West Pakistan made a passing reference about the necessity for calling for the record while exercising the revisional power under section 115 of the Code, but it was not the view of the Full Bench that the revisional jurisdiction can be exercised only after the record has been called for; rather it was observed in this case that the High Court has a discretion to call for or not to call for the record. An answer to the point raised shall be found in the very provisions of section 115 of the Code of Civil Procedure. Section 115 reads thus "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 the jurisdiction illegally or with material irregularity the High Court may make such order in the case as it thinks fit." This section enables the High Court, in a case in which no appeal lies, to call for the record of any case to correct certain classes of errors of jurisdiction committed by the subordinate Courts. The exercise of the revisional jurisdiction is warranted if the Court by which the case was decided appears to have acted in the exercise of a jurisdiction not vested in it by law, or to have failed to have exercised a jurisdiction vested in, or to have exercised its jurisdiction illegally or with material irregularity. In order to exercise the revisional jurisdiction, the High Courtl,4 (1) I L R 40 Mad. 793 (P C) (2) A I R 1943 Lah. 65 (3) P L D 1949 P C 26 (4) P L D 1964 Kar, 149 eau for the record as enjoined by section 115 of the Code, but the exercise of that jurisdiction is not conditional upon an order calling for the record. This is evident from the fact that even if the record has been called for the High Court cannot exercise the revisional jurisdiction unless any of the conditions contained in clauses (a), (b) and (c) of section 115 has been satisfied in a given case. On the contrary, if any of these conditions is satisfied in a given case, then, the High Court may, in the exercise of such jurisdiction, interfere with the order complained of, whether or not the record of the case has been called for. Section 115 is an enabling provision and the power conferred thereby is discretionary. That being so, the High Court, strictly legally speaking, cannot be said to be incompetent to exercise its revisional jurisdiction without calling for the records of the subordinate Courts. If true copies of all the material documents are furnished before the High Court, the question of calling for the records of the subordinate Courts will hardly arise. If, however, all the material documents are not so furnished, then, prejudice may be occasioned by the order made in revision, but, for that reason alone, the order itself will not be incompetent or without jurisdiction, the calling for the record not being a condition precedent to the exercise of the power under section

115. The question raised in this appeal should, therefore, be answered in the affirmative. In other words, the High Court, in the exercise of its revisional jurisdiction, is competent to make an order reversing the order complained of,' without calling for the record of the case. The learned counsel for the appellants submits that in this case the revisional order of the High Court has indeed caused prejudice to his clients. He has pointed out that in none of their applications made before the trial Court, the appellants admitted the possession of the plaintiffs-respondents. It is submitted that the trial Court as also the learned Single Judge of the High Court erroneously assumed that the appellants had admitted the plaintiffs' possession in their applications made before the trial Court. It appears from the order of the learned Single Judge that he assumed that the appellants had admitted the plaintiff's' possession in their applications before the trial Court. Such an assumption with regard to the plaintiffs' possession had also been made by the trial Court. As stated earlier, the appellants made three applications before the trial Court on the 11th November 1969, 14th November 1969, and the 1st December 1969. These applica tions have been included in the paper book. None of these applications appears to contain any positive admission of the appellants about the plaintiffs' possession. In fact, none of these applications was before the learned Single Judge as the record of the trial Court had not been called for. Nor copies of those applications were there before the High Court. Accordingly, the learned Single Judge had not the advantage of seeing for himself the contents of the applications relied on by the trial Court. The learned Judge appeared to have put reliance on what the trial court bad stated about the plaintiffs' possession in respect of the suit land. Thus there appears to be substance in the contention of the learned counsel that the riigu %-volt, s .a.lulG W V- - -_ trial Court's record and the passing of the revisional order by it without examining the appellants' applications filed in the trial Court, has caused prejudice to the appellants. The trial Court relied also on an alleged concession made by the appellants' counsel with regard to the plaintiffs' possession. This alleged concession was also relied on by the learned Single Judge, but the appellants' counsel, who had appeared in the trial Court, swore an affidavit in the first appellate Court explaining the nature of the concession and the circumstances in which he had made it, but that affidavit was not before the learned Single Judge as the record of the appellate Court had not been called for either. As the High Court's revisional order in this case was made without having taken into consideration the contents of the appellants' applications in the trial Court and their counsel's affidavit in the appellate Court, the appellants have a legitimate grievance against the revisional order, although that order cannot be said to have been made without jurisdiction. In the circum- e stance, I would, for the ends of justice, allow the appeal, set aside the revisional order and remand the case to the High Court for rehearing the revision after taking into consideration all the material documents contained in the records of the subordinate Courts. Having regard to the point of law involved, I would leave the parties to bear their own costs. Status quo as to possession shall be maintained till the rehear ing of the revision. WAHEEDUDDIN AHMAD, J.-I agree. SALAHUDDIN AHMED, J.-I agree. G, B, A, Appeal accepted.