P L D 1969 Peshawar 294 (PLP)

I have formed the opinion that for the proper and effectual decision of the case whether Compartment No. 1 forms part of the Hill Estate or it belongs to the property claimed by the plaintiff, some responsible officer of Survey of Pakistan should be commissioned to go on the spot and after necessary demarcation submit a report on the point whether Compart ment No. 1 is within the Hill Estate, or not. I, therefore, direct the Additional Registrar to write a letter to the Survey or General of Pakistan asking him to depute a responsible officer under him to conduct the necessary survey. The officer nominate by the Survey or General should visit the spot after issuing notices to the parties. The Survey or General should be requested to give the date on which the officer nominated by him proposes to conduct the required survey to the Additional Registrar who would at once inform all the parties concerned including the D. F. O. Tribal Division, Hazara and D. F. O. Siran to be present personally or through their representatives at the time of demarcation. (3) The sum of Rs. 1,000 (one thousand); Rs. 500 by the plaintiff; and Rs. 500 by the petitioner should be deposited to meet the estimated commission fee within a week. (4) The Addl: Registrar in the letter should impress on the Survey or General the necessity of nominating the officer as early as possible. (5) Fifty‑two trees already lying cut and converted should be lifted by the petitioner provided he furnishes security to the extent of Rs. 25,000 (twenty‑five thousand) to the satisfac tion of the Add]. Registrar that in case these trees are not found to be situate in the Hill Estate he would reimburse the plaintiff for the difference of the prevailing price. (6) The order of the trial Court restraining the petitioner from cutting further trees in Compartment No. 1 is to continue." On 13‑5‑1968, an application was made before the learned Single Judge with the prayer that the record of the case may be sent to the trial Court with a view to enabling it to decide the question whether Compartment No. 3 is within Bheleja Hill. The order of the trial Court in appointing Commissioner on this point was suspended. On 14‑6‑1968, the matter came up again for hearing before the same learned Single Judge and he modified his order dated 3‑5‑1968 to the following effect :‑ "After hearing the learned counsel, I modify my order dated 3‑5‑1968 to this extent that the officer nominated by the Survey or General to conduct demarcation proceedings should submit a report not only in regard to Compartment No. 1, but also in regard to Compartment No. 3 and he should also clearly say in the report (1) Whether the 52 trees which are already felled and are lying on the spot purporting to be in the Hill Estate and other standing trees which have been marked also purported to be in the Hill Estate are actually in the Hill Estate, or in the Bhelija Estate. (2) I further direct that the officer nominated by the Survey or General should also get assistance from the Revenue Officers and the record‑of‑rights of Bhelija Estate as also Hill Estate, but it should be made clear that the officer conducting the survey and nominated by the Survey or General would form his independent opinion as to the situation of the Hill Estate or the Bhalija Estate from the survey record and the boundaries shown in the settlement records of Bhelija Estate or the Hill Estate would not binding on him.

2. As regards the prayer that the money already deposited is to be recovered from the contractor should not be paid to either party, I do not think any order is called for at this stage. The petitioner should make a fresh application if on the report of the Survey Officer it is found that any part of Compartment No. 1 or Compartment No. 3 is situate in Bhelija Estate"

4. Mufti Muhammad Idris, learned counsel for the petitioner, does not press the revision petition. As a matter of fact, the revision petition has no merit. It is to be remembered that it was all along the case of the plaintiffs that the Court of Wards which was managing the property of the late Muhammad Rustam Khan, the Khan of Hill, had no jurisdiction, whatsoever, to have managed the land in dispute which was not in the ownership of the late Muhammad Rustam Khan. The property was leased out by the Court of Wards in favour of Qazi Abdul Kafeel and it was here that the Court had to adjudicate upon as to whether the land which was leased out by the Court of Wards treating the property as that of Muhammad Rustam Khan belonged to the plaintiffs‑respondents as claimed by them, or that it was the property of Muhammad Rustam Khan deceased. A temporary injunction was claimed by the plaintiffs‑respondents that till the decision of the suit the trees from the land may not be cut. A Commissioner was appointed and on the basis of the report of the Commissioner the temporary injunction was granted in respect of Compartment No. 3 of the land, and the petitioner was restrained from cutting the trees till the disposal of the suit.

5. Now, the question for determination is whether the circumstances of the case interlocutory injunction should have or should not have been issued. The two Courts below unani mously agreed that the temporary injunction should have been issued. The question whether temporary injunction should have been issued, as held in Feroze Din v. Abdul Hamid and others (P L D 1969 Lah. 89) "is subject to certain conditions being satisfied, and is mainly a question of individual judgment and approach. The mere fact that in the instant case, the discretion has not been properly or even wrongly exercised by the lower appellate Court will not lay a foundation for interference by the High Court in its revisional jurisdiction. At the highest the order is erroneous. It is well settled that there a Court has jurisdiction to determine a question and it determines that question, it cannot be said that it had acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law".

6. It was argued that in the instant case the discretion has been wrongly exercised by the two Courts below which made the order bad and open to revision. The order may be erroneous, but the two Courts had the jurisdiction in the matter and it matters little that they acted illegally or with material irregularity. The Privy Council decision m Amir Hassan Khan v. Shev Bakhsh Singh (11 I A 236) is a leading case on the subject. The same view was reiterated in Bal Krishna v. Waso Dewa (44 I A 267). The question relating to the pre‑requisites for the exercise of revisional jurisdiction by the High Court was recently considered by this Court in Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 249). It was ruled in that case that‑ "Section 115, C. P. C. does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be correct view of the merits of a case .for a view which appears to be erroneous. Section 115 is not concerned with these matters. It is on the contrary concerned with the exercise of jurisdiction." On this question the learned Chief Justice who wrote the leading judgment summed up his conclusion, relevant to these two cases as follows :‑ "It seems appropriate to take this opportunity to state clearly a few guiding rules of practice which are liable to be overlooked when dealing with particular cases :‑ (a) . (b) Since the power conferred by section 115, Civil Procedure Code, is meant for correcting errors made by subordinate Courts in relation to the existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court." The learned Single Judge in Chambers Muhammad Gul, as he then was, rightly observed in Feroze Din v. Abdul Hamid ‑that he felt bound by the above dictum of their Lordships.

7. This being the position, the unanimous finding of the two Courts below that it was a fit case where the temporary B injunction should have been issued cannot be challenged in this revision petition filed under section 115 of the Civil Procedure Code.

8. It was urged by the learned counsel for the petitioner that the order dated 3‑5‑1968 passed by Faizullah Khan, J. as he then was, and order dated 14‑6‑1968 passed by the same Judge may be implemented by the lower Court. The lower Court will please go through the orders, and if he feels the necessity of acting upon these orders he may avail of the ‑services of the nominee of the Survey or General in getting demarcated the disputed area. The learned Senior Civil Judge will take special care that the disposal of this case is no longer delayed. He will give his special attention to the case and if necessary he may resort to day to day hearing in this case. The revision petition is disposed of accordingly. No order as to costs. S. A. H. Petition rejected.