1989 PLP 1588 (MLD)

The sole point, therefore, that arises for my consideration in this revision is whether the appellate Court exceeded its jurisdiction in interfering with the order of the trial Court passed in its discretion. It is well established that while dealing with discretionary order passed by the trial Court like the one in question, allowing the applications filed by the respondents 1 to 4 and the applicant, the first appellate Court can interfere with such an order only when it finds that the order passed is opposed to the well established principles in the exercise of judicial discretion or when it finds that the order passed by the trial Court is arbitrary, capricious or perverse and not when the first appellate Court finds that on the facts on record it can come to different conclusion that the one arrived at by the trial Court. The appellate Court cannot substitute its own discretion when the discretion exercised by the trial Court is legal and proper. The first appellate Court exceeds its jurisdiction and acts with material irregularity in the exercise of its jurisdiction, if does so. I would proceed to appreciate the facts on the record in the light of the arguments addressed before me. It is not in dispute that the respondents 1 to 4 jointly hold lease‑hold rights in respect of plots Nos.G‑1 and G‑2, Block No‑4, Clifton, Karachi. It is also not in dispute that the original plans for construction of flats on the said plots were approved by the applicant for plot No.G‑1 on 3‑1‑1985 and for plot No.G‑2 on 26‑3‑1985 and these plans were for ground plus two floors. However, it is the case of the respondents No.1 to 4 that since they proposed to construct on the plots four storeys (ground plus three floors) blocks, they subsequently submitted to the applicant for approval structural plan and the applicant approved the structural plan of four storeys for plot No. G‑2, on 21‑4‑1985. The applicant on the one hand‑denied that the structural plans of four storeys blocks of buildings have been approved for plot No.G‑2 on 21‑4‑1985 while on the other hand it admitted that the elevation of column has not been deleted due to oversight. The learned Senior Civil Judge found that the structural plan in respect of plot No. G-2 annexed to the plant is not in respect of plot No.G‑2, Block 4 but in respect of plot No.G‑2, Block

5. The learned Additional District Judge examined the structural plan annexed to the plaint and found that the structural plan showed ground floor, first floor, second floor and third floor. I have also perused the plans annexed to the memo of revision and I find that the structural plans show first, second and third floors. The learned counsel for the respondents 1 to 4 stated at the bar that block 5 printed on these plans is by mistake or printing error as would appear from the approval letter dated 21‑4‑1985. I have perused and found that block 5 has been corrected as block 4 in the handwriting of; sanctioning authority who has initialled the correction. It is pertinent to note that Mr. Saeed Hassan also placed reliance on this letter. As these plans clearly show number of storeys as ground plus 3 floors, as such there is no substance in the contention of Mr Saeed Hassan that the plans do not specify the number of storeys. As stated earlier, the learned Senior Civil Judge found that the architectural plans submitted by them to the applicant on 22‑11‑1986 are not annexed to the plaint and no receipt was annexed to the plaint. The respondents 1 to 4 annexed photostat copies of two letters dated 20‑11‑1986 with the acknowledgement of the applicant as annexures P/1 and P/2 to the counter affidavit filed by the respondents 1 to

4. Copies of these letters are also annexed to the Memo of Revision as annexure `O'. I have perused these annexures. A perusal thereof shows that the respondents Nos.l to 4 had enclosed 5 prints for approval of 3rd floor with each of the letters. Thus by reading these two letters, it becomes very clear that in addition to the ground plus two floors, the respondents 1 to 4 proposed to construct ground plus three floors. The trial Court erroneously held that the respondents 1 and 2 had only sent building plans for ground plus two floors only. The trial Court erroneously held that the structural plans were not in respect of plot NO.G‑2: Block No.5. It is in that view that the trial Court held that the respondents 1 to 4 did not make out a prima facie for issuance of temporary injunction against the applicant and the respondents 1 to 4 did not have an arguable case and the balance of convenience was also against the respondent Nos. 1 to

4. As against that, the first appellate Court has in my considered view, rightly held that the structural plan was in respect of G‑2, Block 4 and the respondents 1 to 4 submitted to the applicant plans for approval of 3rd floor on the said plots and the applicant did not send any communication within sixty days from receipt of the plans. Therefore, the first appellate Court was justified to hold that prima facie the plans shall be deemed to be approved. In support of this finding the first appellate Court placed reliance on the decisions reported in AIR 1927 Madras 24, 1970 DLC 512 and PLD 1987 Lahore

171. These judgments do support the view taken by the first appellate Court. The first appellate Court has held that the respondents 1 to 4 had made out a prima facie case for issuance of injunction restraining the applicant from demolishing the 3rd floor and the applicant had failed to make out a prima facie case for an injunction against respondents 1 to

4. The first appellate Court has rightly held that the finding of the trial Court is neither based upon proper reasoning nor its supported by material on record. That being so, it is obvious that the first appellate Court had jurisdiction to interfere with the discretionary order passed by the trial Court because trial Court's appreciation or application of principles of such law is erroneous. The trial Court has not considered all the necessary ingredients while granting all the three applications. The first appellate Court has considered all these aspects. That makes it clear that the order passed by the trial Court is not properly based on its judicial discretion, in accordance with the well-established principles of law. In N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (AIR 1949 PC 156) it was held as under:‑‑ "Section 115 applies only to cases 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, in breach of some provisions 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". The above judgment was followed in the case of Court of Wards Hyderabad v. Mst. Shahzadi Begum (PLD 1960 (W.P.) Karachi 70). In the case of Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (PLD 1970 SC 288) the Supreme Court approved the decision of the Privy Council. In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 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 Ahmad 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 or factual‑‑for a view 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 injustuce has been done or is likely to be done, it may refuse to act under section

115. The idea 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 Habib Bank Ltd., Karachi v. Zaki Muhammad Siddique and 2 others (PLD 1979 Karachi 179) it was held: "????..The exercise of such power, even if erroneous, would not attract the provisions of section 1.15 of the Code of Civil Procedure as far as the first clause of the said section is concerned. Normally absence of jurisdiction connotes an absence of power to deal with a particular case of exercise of powers in excess of powers conferred by law. Since Court has the power to grant leave or to refuse leave it cannot be said that the order is one without jurisdiction. The next question is whether the jurisdiction has been exercised illegally or with material irregularity. Whether an order of a Court proceeds on illegality or with material irregularity, the question would always depend upon the provision of law that have been disregarded. Often times the adoption of a precisely prohibited course is construed as an illegality. Obviously this is not so in the instant case. It then remains to be seen whether the District Judge acted with material irregularity. The words "material irregularity" have come up for consideration by the superior Courts of this country and a fair summary of the decisions would indicate that a Court would be said to have acted with material irregularity when it commits an error of procedure which may affect the ultimate decision in the case. The illegality must be in the manner of arriving at a decision as distinct from arriving at a conclusion. If a Court has jurisdiction, its conclusions whether on a matter of law or fact, cannot be questioned in revision, unless such conclusions affect the decision of a case". 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 Farid Khan v. Atiqur Rehman and another (PLD 1983 Karachi 510), Mr. Saleem Akhtar, J., Held: "???..The power of the High Court, is exercise of revisional jurisdiction, to look into the evidence may be with a view to determine whether the subordinate Court has assumed the jurisdiction which it had not or declined to exercise the jurisdiction it had or acted illegally or with material irregularity in the exercise of its jurisdiction. The revisional Court, however will not disturb the concurrent finding of fact of subordinate Courts or substitute its own appreciation of evidence for that of the trial Court unless such conclusions of facts are based on no evidence at all, or if no opportunity was given to the party to substantiate the respective contentions. If the finding of fact is based on incorrect approach of and applicability to the provisions of law the High Court has the power to interface and correct this mistake.? In Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) the Hon'ble Supreme Court observed asunder:‑‑ "The above enunciation of the scope of the revisional powers vesting in the High Court clearly shows that, no interference was called for in this case and in upsetting the conclusion of the Courts below on the question of fagt try means of a re‑examination of the evidence in revision the High Court unfortunately overstepped the limits of its jurisdiction". 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". It is not in dispute that the respondents 1 to 4 had completed third floor (4th sotrey) structure prior to 13‑10‑1987. The respondents 1 to 3 were allowed to complete the rest of the work on the third floor at their own risks. The learned counsel for the applicant and respondent No.5 stated before the Division Bench of this Court on 10‑12‑1987 that "they will feel satisfied if the respondent No.1 gives a written undertaking in this Court that they will demolish the disputed 3rd floor (4th storey) in the event of dismissal of the suit instituted by them before the lower Court or in the event of decision in that suit that the construction thereof was without approved plan". The respondent No.3 who was present in Court and Mr. Manzoor‑ul‑Arfin counsel for the respondents 1 to 4 accepted that offer of the learned counsel for the applicant and the respondent. No.5 and filed undertaking before the Division Bench. The undertaking‑ was recorded. In view of this undertaking the application filed by the applicant seeking injunction restraining the respondents 1 to 4 from raising further construction has become infructuous. The application filed by the respondents 1 to 4 restraining the applicant from removing or demolishing or dismantling the building, construction and structure or any part thereof has also become infructuous in view of categorical statement of the learned counsel for the applicant and the respondent No.5. Mr. Mansoor‑ul‑Arfm stated at the bar that the respondents No.1 to 4 have already booked flats on the (under construction) 3rd floor as such the second application has also become infructuous. Moreover, the respondents 1 to 4 have given undertaking to demolish the 3rd floor (4th storey) in the event of dismissal of the suit instituted by them or in the event of decision in that suit that construction thereof was without approved plan. The respondents 1 to 4 have also undertaken to incorporate this undertaking in the possession order issued to the purchasers. In the circumstances, therefore, the first appellate Court had not exceeded its jurisdiction and rightly exercised its jurisdiction in disturbing the order passed by the trial Court. No such arbitrary exercise has been pointed out by the learned I counsel for the applicant. It is thus difficult to interfere with the decision of the first appellate Court. The foregoing discussion, I am of the view that the learned first appellate Court has exercised its jurisdiction on sound principles of law on the materials placed before it. In such circumstances, this Court has no power to interfere with such judgment of the first appellate Court. Before I part with this case, I would like to make it clear that whatever observations made by the trial Court, the first Appellate Court and by me while disposing of the applications filed by the respondents Nos.1 to 4 and the applicant, Miscellaneous appeal and this revision application should not affect in any way the disposal of the suit itself on merits. The trial Court is directed to decide the main suit: according to merits and in accordance with law within four months from the date of receipt of the order. For the aforesaid reasons the Revision is dismissed. In the circumstances of the case there will be no order as to costs. A. A./K‑137/K??????????? Revision dismissed.