2004 PLP 1474 (MLD)

By this common order, I intend to dispose of Civil Revision Petitions Nos.38 of 2004 and 43 of 2004 arising out of same and common judgment dated 17th February, 2004 rendered by Additional District Judge‑III, Quetta dismissing the appeal filed by the plaintiff (Petitioners in Civil Revision Petition No.38 of 2004) upholding the order of Civil Judge‑II, Quetta dated 13th February, 2004.

2. Briefly stated, facts of the case are that the petitioner in Civil Revision Petition No.38 of 2004 (herein after called plaintiffs) filed a suit for declaration and permanent injunction against the respondents/defendants. The grievance of the plaintiffs was that in order to select Cricket team for Balochistan Province for participating in Quaid‑e‑Azam Trophy initial 52 players were nominated to participate in the trial for final selection and in those 52 players the names of defendants Nos.2 to 7 were neither included nor they participated in the trial but to their utter dismay their names were included in the list of 25 players finally selected for the team. According to the plaintiff the selection of 25 players was based on mala fide and their names were dropped illegally ignoring the criteria of selection, depriving them from participating in the matches of Quaid‑e‑Azam Trophy and further breaking their chance of selection in Pakistan National 'Team or participating in Cricket League of England. The following reliefs were claimed in the plaint:‑‑ "It is, therefore, respectfully prayed that a decree may kindly be passed in favour of plaintiffs and against the defendants in following terms:‑‑ (i) That the plaintiff are entitled to participate in Quaid‑e‑Azam Trophy being lawful selected. (ii) That the defendants Nos.2 to 7 are not eligible to participate in Quaid‑e‑Azam Trophy scheduled to be held in near future and injunction may kindly be issued by restraining defendants Nos.2 to 7 by participating in Quaid‑e‑Azam Trophy and defendant No.8 be directed to produced record of the plaintiffs and defendants. (iii) The defendant No.8 be directed to hold re‑trial for the selection of team, from Balochistan enabling players who are qualified to participate Quaid‑e‑Azam Trophy. (iv) Injunction may kindly be issued the matches of Balochistan Region may kindly be postponed till the decision of suit. (v) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded.

3. Alongwith the plaint an application under Order 39, rules 1 and 2, C.P.C. was also filed praying therein to stop the matches of Balochistan Region scheduled to be held in Quaid‑e‑Azam Trophy till the decision of the suit. Initially the learned Civil Judge granted ad‑interim injunction as, prayed but later on vide order dated 13th February, 2004 modified the order and only restrained defendants Nos.2 to 7 from participating in the tournament. The appeal filed by the plaintiffs against the above‑said order was also dismissed by the Additional District Judge III, Quetta vide impugned order.

4. I have heard the learned counsel for the petitioners as well as respondents and also minutely perused the impugned order. The learned counsel for the plaintiffs contended that after holding the existence of prima facie case in favour of the plaintiffs the interim injunction as prayed for, ought to have been granted in favour of the plaintiffs. He further submitted that the balance of inconvenience was also in favour of the plaintiffs as due to illegal selection of the other players in place of the plaintiffs; they were deprived of their chance to be considered for selection in National Team as well as to participate in league matches of England. According to learned counsel irreparable loss was also going to be caused to the plaintiff. He referred to the judgments reported in (1999 CLC 66) and (PLD 1996 Lah. 442).

5. On the other hand, Ch. Mumtaz Yousaf Advocate for the defendants, urged that the relief granted by the trial Court and upheld by the Appellate Court was not claimed by the plaintiffs in their application filed under Order 39, rules 1 and 2, C.P.C. as such; the interim injunction restraining defendants Nos.2 to 7 from participating in the tournament was illegal and in excess of jurisdiction.

6. The learned counsel in support of his contentions referred to the judgment reported in (PLD 1970 SC 139) and (2001 CLC 713).

7. I have carefully considered the respective contentions of the learned counsel for the parties in the light of available record and the impugned orders. At the very out set it would not be irrelevant to observe that the jurisdiction vested in this Court under section 115, C.P.C. is primarily meant for correction of errors made by the subordinate Courts in exercise of their jurisdiction and not those which, are made in their discretion unless it is shown that the discretion so vested in them have been exercised arbitrarily or fancifully. In this regard, I am fortified by the observations of the Honourable apex Court made in the judgment reported in (PLD 1970 SC 139), reproduced herein below:‑‑ "It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily. This was obviously not the position in the present case in which the learned Additional District Judge has chosen to exercise his discretion on sound principles of law, consistently with facts and circumstances of the case. "

8. The perusal of orders passed by the trial Court as well as appellant forum shows that both the learned counsel after prima facie finding defendants Nos.2 to 7 not selected in accordance with rules and procedure, restrained from participating in the tournament whereas refused to stop the matches of Balochistan region scheduled to be held in the tournament because admittedly the other 19 players selected for the team were amongst the 52 persons initially nominated for trial and they had also participated in the trial for final selection. They were also not party in the suit, as such any interim injunction passed as prayed in the application would amount restraining them from participating in the tournament, adversely affecting them which could not be passed behind their back. Moreover, admittedly the tournament is being held on Pakistan basis and several teams from all over the Pakistan are participating in it and if any injunction stopping the matches of Balochistan region, is granted, it would naturally affect the whole schedule of the tournament causing greater inconvenience to a number of teams as well as to organizer of the tournament. Both the lower Courts after considering all the aspects of the case refused to grant injunction as prayed in the application and instead granted interim injunction restraining the defendants. Nos.2 to 7 from participating in the tournament who were prima facie found having not been selected in accordance with rules and procedure, which orders are just and appropriate in the light of peculiar facts and circumstances of the instant case and could not be termed as arbitrary or fanciful warranting interference by this Court in exercise of revisional jurisdiction.

9. So far contention of the learned counsel for the respondents/defendants that the relief granted by the trial Court not have been granted as it was never asked for, it is suffice to observe that in view of provisions contained under Order 7, rule 7, C.P.C. the Courts are not precluded to grant any relief though not specifically claimed, which it think just and appropriate and the justice of the case demands. Similarly the Court is empowered to mould' and grant the relief appropriate in the circumstances of the case. The Honourable Supreme Court in the judgment reported in (PLD 1968 SC) 1 observed, as under:‑‑ "The fact that a further prayer was added subsequently did not mean that a new case was started on the day, for, a Court is always entitled to give such relief as the justice of the case demands. The prayer for a mandamus was already there and the new relief added was only in the nature of a consequential relief." In view of above discussion, I find not merits in both the revisions, which must fail. Herein above are the reasons of my short order dated 11th March, 2004; whereby the Revision Nos.38 of 2004 and 43 of 2004 were dismissed in limine: H.B.T./25/Q Revisions dismissed.