1992 PLP 1036 (CLC)

(e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Jurisdiction when invoked, had to be exercised by Courts below flawlessly and without blemish‑‑‑If same would not be exercised so, it lay within revisional ambit of the Court invested with powers under S. 115, C.P.C. not only to correct strict jurisdictional errors, but also all or any illegalities and even material irregularities‑‑‑Courts below admittedly had not seen the matter in correct perspective and there was manifest transgression in the exercise of jurisdiction conferred by law‑‑‑Whole concept of law had been illegally approached and a patent lapse had been occasioned in not sifting and assessing pleas advanced by applicant‑‑‑Material irregularities were also committed by Courts below resulting in miscarriage of justice‑‑‑Orders of Courts below, would warrant recall. Sabir Hussain Qazilbash for Applicant. Nemo for Respondents. Date of hearing: 15th January, 1991. I have heard Mr. S.H. Qazilbash in these Civil Revision Applications at length. I have also gone through the impugned orders of the learned Courts below. According to the facts set out in the orders of the two learned Courts, taking the plaintiffs' cases on face value, there were leases in each of the two suits to the benefits of which each of the plaintiffs was entitled. It was from these lease‑hold lands that, allegedly, the plaintiffs were being evicted and had. rushed to Court, seeking protection of title to such leases and possession. The applicants/defendants' pleas, in response, before the learned Courts were that the leases had been lawfully terminated, the lands stood acquired for the public purpose covered by K.DA. Scheme No.41 code‑named Surjani Township, eviction of the plaintiffs had already taken place on assumption of possession in terms of and pursuant to service of notices under MLOs 130 and 202 and the suits themselves were barred,* no statutory notices under Article 131 of the K.DA. Order, 1957, having been served. Besides, the plaintiffs in other litigations aliened namely, in the Constitutional jurisdiction etc. had also failed. The learned two Courts below‑have at length discussed the question of liability of the plaints to be rejected on application under Order VII, rule 11, C.P.C. and have found that the same on their tenor could not be rejected. Simultaneously, as regards the' grant or refusal of interim injunction, the facts considered for rejection of the plaints have been taken for granted, which was wrong. It is well‑established on long standing authority that in so far as an application under Order VII, rule 11, C.P.C. is concerned (subject to minor exceptions) the facts in the plaint alone can be looked at and the plaint can be accepted or rejected as being barred or non‑maintainable only on such facts. The position of grant or refusal of an interim injunction is, however, totally different. For the purpose of the availability or absence of a prima facie case in relation to an exercise under Order XXXIX, rules 1 and 2, C.P.C. the facts canvassed by both the sides have to be examined and it is on the preponderance of facts, as based on documentary material and averments m the way of affidavits that the concept of arguable case has to be determined. In other words, while for the purposes of Order VII, rule 11, C.P.C. the Court is generally restricted to the averments in the plaint, which, for those limited purposes, are deemed to be admitted on all sides, such is not so in the concept or Order XXXIX, rules 1 and 2, C.P.C. and the Court is required to travel beyond the four corners of the plaint to determine, though tentatively as to on* what facts, as appearing on the record, the finding is to be based. The spectrum of Order XXXIX, rules 1 and 2, is thus, simultaneously, not only broader but more comprehensive. The allegations in the plaint and the other averments of the plaintiffs seeking injunction have thereunder to be not only assessed but tested for grounding a finding of prima facie case. Therefore, it was incumbent upon the two Courts below to examine all the relative facts on record for the purposes of considering under Order XXXIX, rules 1 and 2, C.P.C. independently of what emerged on a bare reading of the plaint for what may be sacrosanct for the purposes of Order VII, rule 11, C.P.C. may not emerge to be so far determination of a prima facie case in the context of Order XXXIX, rules 1 and

2. Emphasising this I do no more than repeat the evidence but even the obvious may bear repetition when the error is not common and the results are so disastrous. In that the matter has not been approached in the correct perspective, there is manifest transgression in the exercise of jurisdiction conferred by law. Jurisdiction when invoked has to be exercised flawlessly and without blemish. If not, it lies within the revisional ambit of the Court invested with powers under section 115, C.P.C. not only to correct strict jurisdictional errors but also all or any illegalities and even material irregularities. The whole concept of law having been illegally approached and a patent lapse having been occasioned in not sifting and assessing the pleas advanced by the applicants, material irregularities were also committed in the two suits resulting in the miscarriage of justice. The orders of grant of injunction by the two Courts below would, therefore, clearly warrant re‑call. Additionally, it has been contended by the learned counsel for the applicants that the plaintiff/respondent No.1 in each of these revision applications has been defrauding the members of the public by projecting title to lands, which no longer vests in him, by luring innocent third parties to obtain spurious transfers from him. Such acts of commission or omission, according to the learned counsel, have acquired premium on account of the above orders and on account of the endless pendency of the suits, without any material progress since as long as 1982. As spelled out in the impugned orders of the learned two Courts below, it is manifest that even preliminary issues could be struck, inter alia, on the question about the service of due notices under Article 131 of the KDA. Order, the invocation or the applicability of M.L.Os 130 and 202, lawfulness or otherwise of termination of leases, factual and effective handing over of physical possession of the suit lands to the applicant‑Authority, besides, failure in other proceedings, which may have attracted the principle of res judicata. Apart from all else, even if this was done by the learned two Courts below there can be little doubt that these controversies would have ended by now. There was ample scope under Order XIV, rule 2, C.P.C. for so doing. In view of what has been said above, it would be meaningless to remand these revision applications for consideration of the grant or refusal of an interlocutory injunction or even to determine that question afresh at this stage in revision for that is likely to open another doorway to additional and fruitless litigation. 1t would, therefore, seem to be a better course and in order to modify the impugned orders of injunction, passed by the learned two Courts below and to say that the same shall be operative for and be effective only upto a specified period. Such will only be a period of six months from the date hereof. On the other hand, the learned trial Court shall distinctly frame preliminary as well as issues on merits in the foregoing terms on the basis of due material on which issues can lawfully be framed but in the event issues have already been struck the learned trial Court may reframe or modify them so as to separate issues of a preliminary character from other controversies, if any, and decide them either separately or otherwise, as be convenient, assuring only that all avoidable delays are precluded. This, however, does not imply that the preliminary issues and issues on merits may not be decided side by side and together if that can also be done without undue delay. Such decision would be rendered by the learned trial Court within a period of four months. In view of the apprehensions expressed by the learned counsel for the applicant Authority about the misuse of the continuing interim orders in the relevant suits and the pendency of such suits, the applicant Authority would be free to publicise the correct position of the matter in the news media in consonance with the true facts germane to these controversies and these lands. In terms of the foregoing the above revision applications are allowed to the exrtent indicated. H.B.T./K‑267/K . Revision applications allowed.