2001 PLP 1712 (YLR)

S. 115

Revision

Scope

Case decided-- Where order passed by Trial Court did not fall, within the purview of the term "case decided", the revisional jurisdiction could not be competently invoked. Raja Muhammad Akram for Petitioner. Ch. Shahid Saeed and Syed Muhammad Naqi for Respondents The petitioner/plaintiff filed a suit for declaration that the plaintiff is owner in possession of the Church known as St. Andrews Church alongwith a piece of land measuring 28 Kanals 15 Marlas with all construction, building and superstructure, as specified in the site plan attached with the plaint and for permanent injunction restraining the defendants and their employees, workers and subordinates, in any manner interfering in the possession of the plaintiff. Alongwith the suit, an application under Order 39 Rules 1 and 2, C.P.C. for the grant of temporary injunction was also moved, with the following prayer:

"It is, therefore, respectfully prayed that a temporary injunction be issued restraining the defendants/ respondents, their officers, employees and workers from interfering with possession of the applicants of the suit property till the disposal of the suit." Suit and application were resisted by the respondents and the learned Civil Judge vide order, dated 21-9-1995, disposed of the application, the operative part of the order reads as follows" "In case, the respondents are not restrained from ejecting the petitioner from the suit property, there is an apprehension of loss in favour of the petitioner. The petition is, therefore, with force and substance, I, therefore direct the respondents to refrain from doing further proceedings till the disposal of the present suit." Thereafter, the respondents filed an application under section 151 for the clarification of the order, dated 21-9-1995, praying therein that the respondents had moved an application to the revenue authorities for the demarcation of the property. The Collector Lahore visited the spot for demarcation of the disputed property but was not allowed to enter the premises by the plaintiff/petitioner on the pretext that status quo order has been passed by the Court. This application was resisted by the petitioner and the learned trial Court vide order, dated 7-10-1998 has held as under:

"The above appraisal of the case, in no way, in my view dis-entitle the defendants Railway to get the disputed place demarcated through revenue department, which duty the revenue department under the law is competent to perform, hence the petition has basis to determine the conflict, therefore, the order passed by my predecessor, dated 21-9-1995 was not bar in seeking demarcation of the property in dispute. Application is, therefore, granted accordingly.

2. The learned counsel for the petitioner contends that as per the written statement of the respondents, there is no dispute between the parties about the demarcation of the property in question and it shall be a futile exercise to seek demarcation of the property through the revenue department. It is further contended that as the attempt of the respondents seeking demarcation is beyond the scope of written statement, therefore, any material created or report prepared by the revenue department in pursuance of the demarcation shall not be admissible in evidence under the law and cannot be looked into by the Court. Reliance has been placed on Atlantic Steamer's Supply Company versus M.V. Titisee and others (PLD 1993 SC 88). On the Court question about the competency of the revision, if the impugned order is a "case decided" within the purview of section 115, reliance has been placed on Bashir Ahmad Khan versus Qaisar Ali Khan and 2 others (PLD 1973 SC 507), Haji Sakhi Dost Jan versus Pakistan Narcotics Control Board and another (1998 SCMR 1798) and Muhammad Ismail v. District Judge Sargodha and 4 others (1981 CLC 361). It is contended that the expression "case decided" does not mean that disposal of the lis finally, but includes decision of a subordinate Court in respect of any state of facts after judicially considering the same.

3. Arguments of the learned counsel for the parties heard. As regards the question whether the demarcation sought by the respondents from the revenue department is beyond the scope of their pleadings and therefore, any material created or report prepared by the authorities shall be inadmissible in evidence, to my mind, is a proposition, which is pre-mature. The respondents for the time being have not adduced any report of the revenue authorities on the basis of demarcation yet to be conducted by the revenue department, rather has simply made a request to the Court to clarify its earlier order that, such order is not a bar in the way of the respondents to seek the demarcation from the department independently without there being any intervention of the Court. Consequently to pre-suppose that the demarcation if conducted by the revenue department, the report shall necessarily be against the petitioner and shall also be adduced as an evidence in the case, is hypothetical and self assumptuous, therefore, the rule agitated that the case beyond the scope of the pleadings cannot be built up by a litigant is not attracted to the matter in hand. The respondents under the law have independent right to seek the demarcation of the suit property, notwithstanding to fact that the matter of demarcation, is related to the issues between the parties and covered by the scope of their pleadings in the present litigation or not. By virtue of the injunction order granted by the Court, on 21-9-1995, which has been clarified through the impugned order, the only restraint put upon the respondents is from interfering in the possession of the petitioner or initiating any proceedings against the petitioners in this behalf. In no way, such order barred the respondents to independently seek the demarcation of the property under the law. Consequently, the earlier order has rightly been clarified by the learned trial Court through the impugned order, which does not suffer from erroneous exercise of jurisdiction or shown to have been passed with material irregularity, so as to attract the revisional jurisdiction of this Court.

4. As regards the question of competency of the revision petition, suffice it to say that the order clarifying the earlier order by the Court is not an order through which, any state of fact has been judicially determined by the Court, in any manner affecting the rights of the parties qua the present litigation. The judgments cited by the learned counsel for the petitioner on their own facts are distinguishable. In the instant case, the Court below has clarified the order and I have no hesitation to hold that such order does not fall within the purview of the expression "case decided" and consequently, the revisional jurisdiction cannot be competently invoked. Therefore, I find that the present petition on merits as also on the question of competency fails and the same is hereby dismissed. Q.M.H./M.A.K./L-23/L Revision dismissed.