2024 PLP 1740 (CLC)

AGHA FAISAL, J.

This writ petition has been filed essentially assailing an order in revision dated 12.03.2024, passed by the Court of the VI Additional District Judge Larkana in Civil Revision Application 10 of 2024 ( Impugned Order ). The said order had dismissed the revision against an order dated 08.12.2023 passed by the Court of the 1st Senior Civil Judge Larkana in Civil Miscellaneous Application 272 of 2023 in Execution Application 11 of 2022. Interestingly, ad interim orders have been obtained herein that have virtually suspended the execution proceedings and the same subsist till date. Heard and perused. It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further legal recourse is provided or precluded by the law1, and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. No such infirmity could be identified before this court in the order impugned; reproduced herein below: 12.03.2024 Being aggrieved and dissatisfied with the impugned order dated 8-12-2023 passed by learned 1st Senior Civil Judge Larkana in Civil Miscellaneous Application No.272 of 2023 in Execution Application No.11 of 2022 (Re: Muzaffar Hussain v. Azizullah and others) whereby dismissed the said application; hence applicants/defendants have preferred this revision application. Arguments heard and perused the record. It is evident that applicants/JDs have impugned the order dated 8-12-2023 passed by trial court, through which application of applicants/JDs under Order XLI, Rule 5(2), C.P.C. read with section 151, C.P.C. for stay of execution proceedings on the ground that civil revision application has been filed by applicants/JDs, was dismissed and applicants/JDs have prayed that impugned order is against the law and further prayed to allow the application and pass order for stay of execution proceedings. From passed of record, it is revealed that execution application No.11/2022 is pending for adjudication before trial Court. Admittedly, the applicants/JDs had filed civil appeal before the appellate court and prior to application under Order XLI, Rule 5(2), C.P.C., filed before trial Court, the applicants/JDs also filed an application under Order XLI, Rule 26, C.P.C. for stay of execution applicant and same was dismissed by the trial court and it is further admitted position that till today the applicants/JDs have not obtained any stay order from the appellate court or from Hon ble High Court of Sindh Circuit Court Larkana against the execution proceedings pending before trial court. As per Order XLI, Rule 5(2), C.P.C., it is very much clear that power of executing court to stay the execution proceedings is only up to the stage of filing appeal. Admittedly in this case, the applicants/JDs have already filed the same and the applicants/JDs have failed to obtain stay from the appellate court; therefore, trial court had no jurisdiction to stay the execution proceedings in absence of any stay order from the appellate court in favour of applicants/JDs; therefore, I am of the view that trial court has passed impugned order in accordance with law and same is not required to be interfered by this Court. Resultantly, instant civil revision being devoid of merits stands dismissed. While the petitioners counsel made no endeavor to identify any jurisdictional / patent infirmity in the Impugned Order, it is imperative to eschew such deliberation presently and advert to Section 115(4), C.P.C., which precludes the agitation of such matters before the High Court. Section 115, C.P.C. provides for the remedy of revision and subsection (2) thereof empowers the District Court to exercise powers of revision in respect of any case decided by a Court subordinate thereto. Subsection (4) thereof clearly explicates that no proceedings in revision shall be entertained by the High Court against an order made under subsection referred to supra by the District Court. Prima facie there is a statutory bar upon further escalation in the High Court of a matter determined per the aforementioned provision. The Impugned Order has admittedly been rendered per section 115(2), C.P.C. and petitioner s counsel has remained unable to advance any argument as to how this petition could be entertained in view of the statutory bar contained in section 115(4), C.P.C. It is settled law that Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision2 The Supreme Court observed in Arif Fareed3 that the objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. The judgment in Hamad Hasan4 deprecated such a tendency in no uncertain words and maintained that it was impermissible for Constitutional jurisdiction to be substituted for revisionary jurisdiction. No jurisdictional defect has been demonstrated by the learned counsel in the Impugned Order, therefore, no case for invocation of writ jurisdiction is made out. Even otherwise, invocation of writ jurisdiction in view of the bar contained in section 115(4), C.P.C. would prima facie disturb the conclusiveness ascribed to the finality of orders per section 115(2), C.P.C., and unwarranted interference could be construed as defeating manifest legislative intent. In view hereof, this petition is found to be misconceived, hence, dismissed along with all pending applications. The office is instructed to directly convey a copy hereof to the Court of the VI Additional District Judge Larkana and the Court of the 1st Senior Civil Judge Larkana. MQ/A-29/Sindh Petition dismissed. 1 Per Ijaz ul Ahsan, J in Gul Taiz Khan Marwat v. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391. 2 President All Pakistan Women Association v. Muhammad Akbar Awan reported as 2020 SCMR 260. 3 Per Amin ud Din Ahmed J in Arif Fareed v. Bibi Sara and others reported as 2023 SCMR 413. 4 Per Ayesha A. Malik J in M. Hamad Hassan v. Mst. Isma Bukhari and others reported as 2023 SCMR 1434.