P L D 1996 Peshawar 51 (PLP)

4. The said judgment and decree of the Senior Civil Judge was challenged by the respondents who filed an appeal before the District Judge, Tank (Mr. Abdul Sattar Khan). The appeal was accepted, alongwith others, and the findings of the learned lower Court were set aside by the District Judge who ordered that the plaint be returned, in all the. suits, to the petitioners/plaintiffs for presenting the same before a proper forum.

5. Not contended with the order of the District Judge, the petitioner(s) has challenged its validity/vires before this Court by filing this revision petition for the redress of his grievance.

6. Mr. Muhammad Iqbal Khan Kundi, Advocate, learned counsel for the petitioner(s) present and heard. Record of the case perused with some degree of care.

7. The learned counsel for the, petitioner(s) submitted that the lower appellate Court has wrongly accepted the appeal(s) and has returned the plaint(s) for presentating the same before a proper forum, i.e., the. Tribunal constituted under the N.W.F.P. Public Property (Removal of Encroachment) Act, 1977. According to him the lower appellate Court has committed an error by not rejecting the appeal(s) filed by the respondents and has also thus committed material irregularity and acted illegally. According to him, the order of the lower appellate Court is, therefore, liable to be set aside and that of the trial Court restored.

8. It may be stated at the very outset that section 115, C.P.C. does not confer any substantive right to the petitioner because a "Revision" is a matter between the higher and subordinate Court and the right to move, a petition in this respect, by the petitioner is merely a privilege. It has probably escaped the notice of the learned counsel for the petitioner that section 115, C.P.C. applies only to cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction. The provisions of section 115, C.P.C. cannot be invoked against conclusion of law or fact which do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be, either on a question of fact or law unless the decision involves a matter of jurisdiction.

9. Needless to mention that it a Court has jurisdiction, then in that case, it has the jurisdiction to decide one, way or the other, and erroneous conclusion of law or fact can only be corrected in appeal, but a revision will not be competent on such a ground. In other words the High Court may interfere where the subordinate Court has:-- (i) exercised jurisdiction not vested in it, or (ii) failed to exercise jurisdiction vested in it, or (iii) acted in the exercise of its jurisdiction illegally or with material irregularly.

10. Where the aforesaid conditions are not satisfied, the High Court would not interfere in its revisional jurisdiction. Section 115 (1)(c), C.P.C., is only applicable to the erroneous exercise of jurisdiction and not to erroneous decisions. If a Court has jurisdiction to decide a case, it can decide one way or the other. The learned counsel for the petitioner has failed to show that she lower Appellate Court had no jurisdiction to decide the appeal or that his decision is against some mandatory provision of law and thus nullity and accordingly liable to be set aside.

11. Besides, it may be mentioned here that the jurisdiction vested in the High Court under section 115, C.P.C. is discretionary in nature and, therefore, the High Court will not interfere, under this section, to correct every irregularity in the exercise of such jurisdiction except where grave injustice or hardship I would result on account of its non-interference. Learned counsel for the petitioner has not been able to convince me as to what type of injustice has been caused or what type of hardship would be faced by the petitioner if the revisional jurisdiction is not exercised. Seen in this context, the lower Appellate Court had the jurisdiction to decide the appeal filed by the petitioner and it has, therefore, committed no illegality or material irregularity. The learned lower Appellate Court was definitely vested with such jurisdiction and has exercised the same by ordering the return of the plaint(s) vide its order dated 5-9-1995 against which the present revision petition has been filed.

12. It is an admitted fact that the property in question belonged to the respondents which was leased out to the petitioner(s) for a period of 33 years. The lease period has already expired and in this respect a vacation notice was duly issued to the petitioner(s) under section 3 of the N.W.F.P. Public Property (Removal of Encroachment) Act; 1977. After the receipt of the said notice, it may be pointed out, that the petitioner(s) was bound to prefer a Review Petition under section 4 of the Act mentioned above before the Government or any authority or officer, who had issued such order and the Government, or as the case may be, the Authority or Officer as aforesaid, after considering the Review Petition and after giving the petitioner(s) an opportunity of being heard, may confirm, modify or vacate the order. A perusal of sections 12 and 13 of the Act ibid would show that the Government is competent to constitute a Tribunal consisting of District Judge/Additional District Judge/District Magistrate/Additional District Magistrate to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purposes of this Act. Further, section 11 of the said Act puts a bar on the jurisdiction of a Civil Court to deal with such like cases. For the sake of convenience, sections 11, 12 and 13 of the Act ibid are reproduced as under:-- "Section

11. Bar of jurisdiction and abatement of suits.--(1) No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined for the purposes of this Act, or anything done or intended or purported to be done under this Act. (2) All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the coming into force of this Act: Provided that a party to such suit, appeal or application may, within thirty days of the coming' into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined. Section

12. Tribunal.--(i) Government may, by notification in the official Gazette, constitute a Tribunal and specify the area in which such Tribunal shall exercise its jurisdiction. (ii) The Tribunal constituted under subsection (i) shall consist of a District Judge, or Additional District Judge, or District Magistrate, or Additional District Magistrate, with experience of not less than three years as such Magistrate, as Government may appoint. Section

13. Exclusive Jurisdiction.--A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act.,"

13. Since the petitioner(s) lessee, after the expiry of the period of 33 years of lease, continues to remain in occupation of the property in question, therefore, the petitioner(s) is an unauthorized occupant within the meaning of section 20)(1) of the Act referred to above.

14. In the circumstances mentioned above, I am of the considered view that no reason exists and none indeed has been made out as to why this Court should interfere, in its revisional jurisdiction, with the findings arrived at by the lower Appellate Court, which has not acted illegally or with material irregularity in the exercise of jurisdiction vested in it.

15. This revision petition, in my opinion, does not merit consideration and is accordingly dismissed in limine. C. M.No.104 of 1995: Since the revision petition has been dismissed in limine, therefore, this petition has become infructuous and is disposed of as such. A.A./1887/P Revision dismissed.