P L D 1984 Peshawar 180 (PLP)

This judgment in C. R. No. 97/82 shall also dispose of connected C. R. No. 98/82, as both the revisions arise out of the same judgment of the lower appellate Judge, dated 7‑1‑1982.

2. The facts of the case are that plaintiff‑respondent brought a suit for a declaration to the effect that a cheque No. 260198 for a sum of Rs. 53,290 issued to him in consequence of his running bill in respect of contract named `Widening and construction of Mardan‑Katlang Road" dated 3‑7‑1980 has correctly been issued by defendant‑petitioner No. 3 ; and that the defendant‑petitioners are not competent to stop payment there of ; that the plaintiff‑respondent is entitled to receive the said payment from the defendant‑petitioners ; that the defendant‑petitioners are not em powered to deduct any amount from the due payment to the plaintiff=res pondent. The plaintiff‑respondent also prayed for a mandatory injunction against the defendant‑petitioners directing them to make payment in the suit alongwith reasonable costs and profit. The defendant‑petitioners con tested the suit and on the pleadings of the parties the trial Judge framed as many as eight issue and after recording the evidence of the parties, as they wished to adduce, the trial Judge granted the declaratory decree only but refused to issue mandatory injunction in favour of the plaintiff‑respondent, vide judgment and decree dated 7‑5‑1981.

3. Dissatisfied with the above, the plaintiff‑respondent filed an appeal to the District Judge, Mardan, for issuance of a mandatory injunction against the defendant‑petitioners. The defendant‑petitioners also filed an appeal against the judgment and decree of the trial Court granting declaratory decree to the plaintiff respondent. Both the appeals were heard by the District Judge. Mardan, who vide the impugned single judgment, granted the mandatory injunction in favour of the plaintiff‑respondent and accepted his appeal and dismissed the appeal filed by the defendant petitioners.

4. Not content with the impugned judgment of the learned District Judge, Mardan, the defendant‑petitioners have preferred C. R. No. 97/82 for setting aside both the judgment and decrees of the lower forums and dismissing the suit of the plaintiff‑respondent. C. R. No. 98/82 was also filed by the defendant‑petitioners with a prayer that the judgment and decree of the lower appellate Court with regard to the grant of mandatory injunc tion in favour, of the plaintiff‑respondent may be set aside, and that of the trial Judge be restored.

5. I have heard the learned Advocate‑General on behalf of the petitioners and Mr. Firdaus Khan Durrani, learned counsel for the plaintiff respondent at great length, and have also perused the impugned Judgments of the Courts below with great care. The admitted facts in this case are that the plaintiff‑respondent is an approved Contractor of the P. W. D. Depart ment. It is also admitted that he had submitted tenders for the work known as 'widening and construction of Mardan‑Katlang road' which were ac cepted and contract for the said work was assigned to him. Consequently, a contract agreement was executed between the parties which is on the record. The plaintiff‑respondent undertook the construction and after hav ing completed some work submitted a running bill for a sum of Rs. 53,290 Measurements were taken, work completed was duly inspected and approved and finally a cheque for a sum of Rs. 53,290 was issued in the name of the plaintiff ‑respondent. It is also an admitted fact that this cheque was stopped by the defendant‑petitioners, as a result of the alleged outstanding amount of Rs. 50,079 against the plaintiff‑respondent in connection with some other work. It is also the case of the plaintiff‑respondent that the defendant‑petitioners bad no objection whatsoever to the work completed by the plaintiff‑respondent for which the running bill was passed and the cheque in question was issued. But I am afraid, this stoppage of the payment by the defendant‑petitioners to the plaintiff‑respondent is not warranted by law, or the contents of the agreement arrived at between the parties. Once me asurement of the work was taken, work completed by the contractor was inspected and approved and the running bill was accepted and ultimately the cheque in question was issued, then defendant‑petitioners Were not within their legal right to stop the payment of the cheque, especially when they have not cancelled the same. The Bank authorities were directed telephonically to stop the payment of the cheque in question, which in my opinion was totally illegal.

6. Learned counsel for the plaintiff‑respondent vehemently repelled the contention of the learned counsel for the defendant‑petitioners that there was an arbitration clause in the agreement and the plaintiff‑respondent should have submitted the case to the arbitrator. But as held and rightly too by the learned District Judge, Mardan while passing the impugned judgment and decree, it was the duty of the defendant‑petitioners to have raised this objection before filing their written statement, which they have filed after so many adjornments. A perusal of their written statement would also negate their contention as no such objection is appearing therein. I, therefore, in agreement with the lower appellate Judge bold that this objection of the defendant‑petitioners at this stage is baseless. It was also held in Muhammad 1dris and others v. Tobarak Hossain (P L D 1965 Dacca 260) as under :‑ "Arbitration Act (X of 1940), S. 34‑Expression 'before filing a written statement or taking any other step in the proceedings'‑Application for time to file written statement‑Amounts to taking 'steps in proceed ings‑Applicant deemed to have submitted to jurisdiction of civil Court and waived his right to arbitration." It, therefore, becomes crystal clear that by not taking any objection to, the jurisdiction of the civil Court before filing their written statement and 8 that too after seeking so many adjournments, the defendant‑petitioners have waived their right to refer the matter to the arbitration, and rather have submitted to the jurisdiction of the civil Court.

7. Reverting to the merits of the case, this Court while sitting in its revisional jurisdiction is not supposed to go into the question of C facts and evidence on record. There are so many authorities of the superior Courts in support of my above view. In Maqsood Ahmad and another v. Muhammad Aslam Muhammad Yusuf (P L D 1966 (W. P.) Pesh. 151) it has been held as under ‑‑ "Civil Procedure Code (V of 1908), S. 115 (C)‑Revision‑Court must be proved to have acted 'illegally' or with 'material irregularity Appraisement of evidence ‑Decision arrived at in proper exercise of jurisdiction even though erroneous in law or in fact‑No ground for revision." The next authority in this context is reported as Fazal Noor and an other v. Akhtar Munir (P L D 1980 Pesh. 22) wherein it has been laid down with respect to the jurisdiction. of this Court in revisional side :‑ Civil Procedure Code (V of 1908), S. 115‑Revision‑Jurisdiction of High Court‑Erroneous finding on a point of fact‑Can have no reference to irregular exercise of jurisdiction or its illegal assumption‑High Court, held, not possessed of jurisdiction to interfere with such finding in exercise of its revisional powers." Kanwal Nain and 3 others v. Fateh Khan and others (P L D 1983 S C 53) is another autho rity on the point which lays down as under :‑ "Constitution of Pakistan (1973). Art. 185 (3) read with Civil Procedure Code (V of 1908), S. 115‑High Court‑Revisional jurisdiction Inference drawn by lower Court wholly unfounded and proceeding upon assumptions not supported by record or pleadings of parties‑Lower Court in holding appellants to have had knowledge of title of Ist respondent inferring such from fact of parties having belonged to same baradari but not taking into consideration other weighty evidence of circumstances on record forming basis of finding recorded by Courts below‑Lower Court also wrongly observing property having been "admittedly" in exclusive possession of 1st respondent and such assumption not appearing to be sustainable by record‑Respondent even if supposed to have been renting out property such fact hardly sufficient to hold as notice of his exclusive ownership in context of other circum stances of case‑Held : Revisional powers‑Primarily intended for correcting errors made by subordinate Court in exercise of their jurisdiction‑Erroneous decisions of fact‑Ordinarily not revisable except when decision based on no evidence in admissible evidence or so perverse as to cause grave injustice‑No interference called for in case in hand‑However, Court in upsetting conclusions of Courts below on question of fact by means of re‑examination of evidence in revi sion overstepped limits of its jurisdiction." So keeping in view the above authorities of the superior Courts, I hold that this Court while sitting in its revisional jurisdiction, which is a limited one, is not able to help the defendant‑petitioners in any way. Learned Advocate‑General appearing for the n failed to make out a case for inter ference by this Court with the concurrent findings of the two Courts below.

8. The net result of the above discussions is that both these revisions are without any merits and deserve dismissal, and I order accordingly. No order as to costs. M. Z. M. Petition dismissal.