1989 PLP 2987 (MLD)

(i) Moosa Bhunji v. Hashwani Sales and Services Ltd. & another (PLD 1982 Karachi 840). (ii) Muhammad Munir v. Ahmad Ally Memon & 2 others (PLD 1982 Marachi 425). (iii) R. G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmed & 3 others (PLD 1983 Karachi 11) In the above cases, it was held, inter alia. that breach of restrictive covenants in respect of leases of Urban Lands could be resisted by the lessor. In the instant case, only the lessor, namely the K.M.C. could have cause of action to resist the commercial building. The case of the respondents is that the K.M.C. had no objection for raising commercial building. The learned counsel for the respondents stated at the bar that the respondents had already deposited conversion charges in this behalf. The respondents 1 to 5 have also filed an undertaking which reads as follows:- "Under Administrative Instruction No. 57 PSDJ/KDA/82/26, dated 21st July, 1982 'Shahrah-e-Faisal and Main Clifton Road have already been notified to be commercialized. The land in question belongs to K.M.C. and Karachi Municipal Corporation under letter of Director Land K.M.C. No. DL/CLS/FT/88/319, dated 2-11-1988 Plot No. 13 FT-4, Frere Town facing main Clifton Road, Karachi as per plan has allowed it to be used as commercial. But it is undertaken that user of plot will be subject to above." But the Courts below have found as a fact that the plaintiffs-respondents have established a prima facie case inasmuch as cogent and positive material has been brought before the Court to lead to a reasonable conclusion that the respondents applied to the applicant for approval of the plan for construction of one plus two storeyed residential-cum-commercial building. Both the Courts below having come to the conclusion that the respondents have established a prima facie case and balance of convenience is also in their favour, they thought it is a fit case where a temporary injunction would be justifiable to issue. On this count the trial Court granted the application for temporary injunction. Appellate Court rejected the appeal. Mr. Mubarak strenuously urged before me that both Courts are guilty of committing jurisdictional error inasmuch as they have not considered material which has been put before them for consideration. Before proceeding in this respect it would be necessary for us to consider as to what has been brought before the Court and what both the Court below have considered. To repeat once again, it was positive contention of the plaintiffs that they had submitted a letter dated 21-1-1987 alongwith duly-filled-in form and plan to the Director-General who ordered to process and report. Obviously there was no material before the Courts which could justify the inference that plan was not annexed to letter but was submitted on 19-1-1987. Both the Courts below came to the conclusion and in my opinion rightly, when they considered the circumstances particularly flowing from averments made in the plaint, application under Order 39 and affidavit in support thereof. It is pertinent to note that at the time of hearing before the appellate Court when the case is made out for the first time that the plan was not annexed to the letter dated 21-1-1987 but was actually submitted on 19-1-1987 only for residential building. In fact the controversy started when the appeal came up for hearing. The plaintiffs/respondents have come before the Court that the plan was annexed to the letter dated 21-1-1987. The applicant neither approved the plan nor rejected the same within sixty days as provided by Regulation

13. A notice under clause (3) of Regulation 13 was duly served. The plan is deemed to be approved. Both the Courts below rightly held that the respondents have complied with the provisions of Regulation

13. Both the Courts held that there was clear material available on record which would justifiably lead to the conclusion that the plan was approved. This is obviously in Finding of fact. It appears that the balance of convenience ties not in favour of the applicant but in favour of the respondents. Further the costs of materials aye escalating This aspect has not been lost sight of by the Courts below. The question here is whether the High Court has jurisdiction to entertain a revision under Section 115, CPC, against an interlocutory order of the Court: below. Section 115, CPC expressly limits it to three cases mentioned therein. All three relate to jurisdiction. It will, therefore, be necessary to examine the meaning of jurisdiction. It is defined in Halsbury's Laws of England (Hailshw, Edition) Volume 8 page 531 to mean: "By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted." ??????????? The distinction between an error of fact or law committed in the exercise of jurisdiction and an inherent lack of jurisdiction is brought out by the Privy Council in (76)2 Cal. 131: 3 IA. 221 (P.C.) in the matter of Hajee Abdoollah at page 141: "In the first case "(that is, when a Court of appeal is correcting an error of law made by a lower Court)" the Appellate Court reverses the order, because the Judge has erred in the mode in which he has exercised a judicial discretion; in the latter case "(that is, when the order is made without jurisdiction)", it quashes the order, because there was no discretion at all to be exercised." This analysis reveals, to my mind, that cases like the present can in no event fall within clauses (1) and (b) of Section 115. 1 turn now to clause (c): "To have acted in the exercise of its jurisdiction illegally or with material irregularity." I am clear that the words "illegally' and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to the material defects of procedure. and not errors of either law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit. It must be something independent of the decision itself; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached. In T.A. Balakrishna Udayar v. Vasudeva Ayyar (AIR 1917 P.C. 71) the Privy Council in dealing with Section 115 said: "It will be observed that section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." Those words appear to me to be emphatic and to be free from any sort of ambiguity. But even if there is difficulty, it is resolved by the illustrations given by their Lordships. One is: "????.if the Civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders??" Another at page 74: "An order made in such a matter in disregard of the requirements of natural justice, such, for instance, as proceeding without giving the member sought to be removed notice, or affording him an opportunity of defending himself." This was the view of the Privy Council as early as 7884 under the Old Code of Civil Procedure. Their Lordships said, construing Section 622 corresponding to Section 115, "The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it whether they decided it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity." The questions which lower Courts had to decide in that case were of res judicata and what is now Order 2, Rule 2 under the present Code of Civil Procedure. The lower Courts there held that the suit was not barred for either reason and proceeded with the trial. The Court of Judicial Commissioner entertained a revision and set aside the orders of the lower Courts on the ground that they were wrong. The Privy Council held: "The Judicial Commissioner had no jurisdiction in the case." ??????????? And this was not because the lower Courts were right but because whether they were right or wrong they had jurisdiction and accordingly the Judicial Commissioner had no jurisdiction to sit in judgment over them in revision. This decision was followed by the Privy Council five years later. The headnote in (89) 16 Cal. 747; 16 IA. 104 (Muhammad Yusuf Khan v. Abdul Rahman Khan) runs "A decision by judgment of a competent Court whether right or wrong which by law is final and without appeal, where the Court has not acted in the exercise of its jurisdiction illegally, or with material irregularity; cannot be set aside under section 622, C.P.C." This was reiterated for the third time in (15) 37 All. 485:. AIR 1915 P.C. 99 (Rajwnat Prasad v. Ram Ratan) at pages 494, 495: "Their Lordships think it is very little and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction. The former has reference to the merits of the case." Now it is pertinent to observe that with these three decisions before it the Legislature did not see fit to alter Section 622 in material respect when it enacted Section

115. I take it that that was done with deliberate intent and I think it is elementary that Courts in Pakistan are expected faithfully to carry out the intention of the Legislature and to follow the decisions of the Privy Council and Supreme Court. In N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (AIR 1949 P.C. 156), it was held as under: "Section 115 applies only to causes in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters : (a) That the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, it breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law." In the case of Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (PLD 1970 S.C. 288) the Supreme Court approved the decision of the Privy Council. In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 S.C. 139), the Supreme Court held: "???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 ?????? " In S. Zafar Ahmed v. Abdul Khaliq (PLD 1964 Karachi 149), a Full Bench of the erstwhile High Court of West Pakistan, Karachi Bench held: "The central idea, the dominant aspect and the controlling consideration underlying section 115, is that the High Court must always be in a position to ensure that the Courts subordinate to it do not exceed their jurisdiction, do not decline their jurisdiction, and while acting in the exercise of their jurisdiction do not act in a manner contrary to law or in a manner not warranted by law and capable of prejudicing the case of one party or the other." The said Bench further held: "Section 115 of the Code of Civil Procedure 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 case -?whether legal of factual--for review of the merits of a case that appears to it to be erroneous. Section 115 is not concerned with these matters. It is, on the contrary, concerned only with the exercise of jurisdiction. If no jurisdiction that is not vested is exercised ; if no jurisdiction that is vested is declined and if in the exercise of a jurisdiction that is vested, no one has acted illegally or with material irregularity, the question of using powers under section 115 does not arise, however gross an error of law or fact might have been committed in the determination of the merits of the claim and however grave the injustice might be. The converse is not always true. The word used in the opening part of section 115 is "may". The Court is not bound to act under that section, though it is hard to imagine cases falling under clause (a) and the first part of clause (c) in which the Court, on being satisfied that a jurisdiction not vested is being exercised, or that illegal action is being taken in the exercise of jurisdiction, will still refrain from exercising its powers under section

115. With reference to (b) and the second part of (c), however, there is no difficulty in thinking of examples where a Court, in spite of being satisfied regarding the failure to exercise a jurisdiction which is vested, or the grossness of an irregularity of the procedure adopted in the exercise of jurisdiction, would still refrain from exercising its powers under section

115. In such cases, if the Court is of the opinion that no injustice has been done or is likely to be done, it may refuse to act under section

115. The ideas of justice is thus relevant to the provision of section 115 only as an additional factor affecting the discretion of the Court. Nor does the concluding portion of section 115 "the High Court may make such order in the case as it thinks fit", enlarge the discretion of the Court." In the case of Malik Khuda Bakhsh and another v. Syed Hamid Ali Shah (1981 SCMR 196) the Hon'ble Supreme Court held as under: - "??..the revisional jurisdiction under section 115, C.P.C. is meant primarily. for correcting errors made by the subordinate Courts in exercise of jurisdiction and not those which are made in their discretion unless the discretion is found to have been exercised fancifully or arbitrarily". In the case of Abdul Hamid v. IIIrd Additional District Judge (1986 CLC 335) a Division Bench of this Court held: "A perusal of the above provisions would show that the scope of section 115 of Civil Procedure Code is limited to cases where the subordinate Court has exceeded its jurisdiction or has declined to exercise the jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. No doubt if a Court has jurisdiction to decide a matter on facts or law it has the jurisdiction to decide a matter on facts or law it has the jurisdiction to decide one way or the other and the fact that a superior Court is of the opinion that the decision arrived at by the Court below is incorrect, does not mean that decision is without jurisdiction. But when the point on which erroneous decision has been given is based on points, which affect the Court's capacity to entertain the case or to proceed further with it, the erroneous decision if acted upon would result either in the illegal assumption of jurisdiction or illegal or erroneous exercise of it. A revision petition based on casuistic arguments cannot be entertained as section 115 is not designed to meet unsubstantial points of form". In Allah Ditta v. Gul Muhammad, etc. (1984 CLC 672) a Single Bench of Lahore High Court (BWP) held:-- "?.the view taken if erroneous cannot be subject to a challenge within the scope of section 115 CPC as nothing is involved as to the exercise of jurisdiction in any way as enumerated under section 115 CPC". This Court cannot, therefore, in exercise of its jurisdiction under Section 115, Code of Civil Procedure, correct errors of fact however gross they may be unless it has relation to the jurisdiction of the Court whose order/judgment is impunged. It is not the case of the applicant that the trial Court had no jurisdiction to pass the order which it had passed. It is also not the case of the present applicant that the learned Additional District Judge had no jurisdiction to entertain and decide the appeal. No question of jurisdiction or defect of procedure is thus involved in the case. It is not shown that the Courts below have ignored any relevant provision of law or even any relevant fact. The grant of interim injunction is a discretionary relief. True, it is that the discretion must be exercised reasonably and not arbitrarily or capriciously. Hence, if it is not made out that the Courts below have acted arbitrarily or with caprice in granting interim injunction, their discretion shall not be lightly interfered with under Section 115, Code of Civil Procedure. It was pointed out in Wazir Sunder Singh v. Musammat Farida Khanum (AIR 1920 P.C. 132) that the mere possibility of the revisional Court coming to a different conclusion on the same facts and evidence will not justify interference in revision. In the case in hand the applicant has failed to make out that the Courts below have acted illegally or with material irregularity in the exercise of jurisdiction. Having reached the conclusion that the respondents have made out a prima facie case and even on the ground of the balance of convenience and irreparable injury, the respondents would be entitled to the interim relief sought for by them, the trial Court exercised the jurisdiction in their favour. On appeal the learned Additional District Judge also declined to interfere with the discretion. In my view, the discretion had not been exercised arbitrarily, capriciously or illegally. I therefore see no reason to interfere with the impugned judgment/order. The learned counsel for the applicant contended that the notice under Order 43 Rule 3 CPC was proper and duly served. On the other hand Mr. Muhammad Sharif submitted that the notice was not in accordance with the provisions of Order 43 Rule

3. In order to appreciate the contentions of the learned counsel for the parties, it is advantageous to reproduce Order XLIII Rule 3 C P C which reads as under: -

3. Notice before presentation of appeal.

????? ` (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give. notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain - an acknowledgment of receipt thereof for the, information of the Appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs of dismissal of the appeal in limine." It consists of two parts. The first part relates to issuing of the notice and the second part relates to receipt of notice. In the instant case the order of the trial Court was passed on 25-6-1987. The appeal was presented on 30-7-1987. The notice is dated 29-7-1987 and the postal receipt is dated 20-7-1987. The affidavit is dated 29-7-1987. The notice is dated 7?9-1987. The notice was duly served upon the respondents on 8-9-1987. The personal affidavit is dated 10-9-1987 and the appeal was admitted on 12-9-1987. In the case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 S.C. 693) the Hon'ble Supreme Court analysed Rules 3 and 4 of Order XLIII at page 700 in paras. 16, 17 and 18 which read as under:?

16. The purpose of this revision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal.

17. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal with a view to getting it dismissed in limine; in case he succeeds in doing so he may even be awarded costs.

18. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limini stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule (2) of rule 3 would be rendered futile, inutile and nugatory. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against-an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, alongwith the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering to him a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of acknowledgement receipt should not be entertained". The dictum laid down in the above case was followed by a Division Bench of this Court in the case of Messrs Haji Suleman Goawala & Sons Ltd. v. Usman and 13 others (1985 CLC (Karachi) 168). It seems that the provisions of Rules were not complied with in this case. The issuance of the notice and its service on the respondents was obligatory as held by the Hon'ble Supreme Court. The applicant in this case has failed to discharge this obligation. The appeal was heard by the learned Additional District Judge on merits also. The learned counsel for the respondents had fairly conceded that the judgment of the appellate Court be set aside to this extent only. In view of this concession the appeal was competent and ought not to have been dismissed on this ground. Before parting with the revision, I-direct the trial Court to dispose of the suit within four months from receipt of this judgment on merits in accordance with law after recording evidence of the parties and after hearing the arguments of the learned counsel for the parties. The revision application, therefore, fails and is accordingly dismissed. In the circumstances of the case, the parties shall. bear their own costs. It may be mentioned that this judgment may be construed not to have decided the issues involved in the suit; which will finally be determined on full appraisement of evidence that may be adduced by the parties. H.B.T./K-136/K Revision dismissed.