1994 PLP 814 (MLD)

A.F. Mokarim for Appellant. S.M. Muslim Naqvi for Respondent-. Date of hearing: 28th November, 1983. This revision arises out of judgment dated 4-7-1974 passed by the 1st Additional District Judge, Karachi, in C.M.A. No.207 of 1971, whereby the C.M.A. No.207 of 1971 was dismissed by judgment/order dated 4-7-1974. The brief facts which give rise to this revision are as under:-

2. That the applicant filed a suit for declaration and permanent injunction against the respondent Corporation seeking a declaration that they are in lawful possession of property of Survey No.714, Survey Sheet No. K-13-II S-II, Lyari Quarters with its permanent structure since long and a permanent injunction seeking to restrain tile respondent .Corporation directly or through its employees or persons claiming through it from interfering with the possession of the applicants or to demolish the exiting construction on the plot in suit. The applicant is duly registered firm carrying on charcoal business on the plot in suit and in occupation thereof for the last 25 years. The respondent has been granting licences to carry on the business of charcoal to the applicants. On 1-1-1965 the respondent Corporation passed a resolution deciding to grant 99 years lease to the occupants of the land at the rate of Rs.6 per square yard. The applicants, therefore, claimed that by virtue of this resolution they are entitled to the lease of the plot and construction made thereon. It was stated by 'the applicants that the respondent Corporation carried out survey of the said area and was taking necessary steps for implementation of its resolution in respect of grant of 99 years lease to the applicants and other plot holders. All of a sudden about 2 days prior to the institution of the suit some employees .of the respondent Corporation' visited tile site and wanted to disturb the possession of the applicants and have threatened to demolish the structure. The applicants, therefore, filed a suit being Suit No.1688 of 1971 in the Court of VIth Civil Judge, 1st Class, Karachi. It was averred that no show-cause notice was served on the applicants and the respondent Corporation had no authority to demolish the permanent structure in a summary manner. Alongwith the plaint the applicants moved an application under Order XXXIX, rules land 2, C.P.C. seeking temporary injunction pending decision of tile suit which was resisted by the respondent Corporation. The case of respondent Corporation as disclosed in their counter-affidavit is that the premises in dispute were offered .on temporary lease to one Allah Wasaya on 14-10-1954 vide resolution No.393, dated 23-7-1954 but the said Allah Wasaya neither paid the rent nor executed any lease deed. Therefore, the respondent Corporation determined the grant vide notice dated 19-1-1964 as it was required for public purpose. The said Allah Wasaya instead of handing over the vacant possession filed a Suit No.62 of 1964 oil 13-2-1964 which was ultimately dismissed in 1.970 by the IXth Civil Judge alongwith seven other suits filed by different charcoal dealers. It was averred by the respondent that the applicants have no privity of contract with the Corporation and the applicants are neither lessees nor licensees of the Corporation as such they have no vested right to reoccupy the plot in suit. As regards the occupation the respondent averred that on 25-8-1971 they had taken over the vacant possession of the said plot and temporary structure standing thereon had already been removed. As regards to the resolution it was explained that the respondent will regularise only those structures which were not hit by the lay out plan and which exist since long. In the present case though the respondent according to their own showing had taken over possession the question of regularisation did not arise as the plot in dispute was reserved for public market. After hearing the learned counsel for the parties and considering material on record the learned Civil Judge vide his order dated 11-10-1974 dismissed injunction application and vacated the order passed earlier maintaining status quo. The applicants being aggrieved by the said order dated 11-10-1974 preferred an appeal being C.M.A. No.207 of 1971 before the District Judge, Karachi, which was ultimately transferred to the Court of 1st Additional District Judge, Karachi.

3. After hearing the learned counsel for the parties and examining the relevant documents on record of the lower Court, the learned Ist Additional District Judge dismissed the appeal by his judgment dated 4-7-1974 and confirmed the order passed by the learned VIth Civil Judge, Ist Class, Karachi.

4. The applicants being aggrieved with the judgment dated 4-7-1974 have preferred this revision on the grounds mentioned in the memo. Of revision.

5. Mr. A.F. Mokarim, the learned counsel for the applicants has contended that the judgment and order of the Courts below are contrary to law and facts on the record of case. In support of his arguments he has relied on 1980 C L C 513, 1980 C L C 1830, P L D 1981 S C 545, 1982 C L C 1647, 1982 C L C 2188, P L D 1975 Kar. 608, P L D 1975 Kar. 373 and P L D 1983 S C 693.

6. On the other hand, Mr. Muslim Naqvi, learned counsel for the respondent Corporation has urged that the concurrent findings of the learned Courts below cannot be interfered in revision. He has also urged that the discretion exercised by the learned Courts below cannot be interfered in revision. In support of his arguments the learned counsel has relied on the following decisions.. P L D 1978 Lah. 1124, P L D 1970 S C 139, P L D 1981 Kar. 613, P L D 1972 Kar. 571, P L D 1983 Lah. 546, P L D 1983 Lah. 365 and P L D 1981 C L C 901.

7. It is clear from the record that the applicants were dispossessed on 25-8-1971 prior to the filing of the suit. The learned Ist Additional District Judge appointed Mr. Khuda Bux Umrani Advocate as Commis sioner to inspect the site and submit his report. In his report dated 23-1-1974 he submitted that the property in dispute was an open big plot of land covered by cement blocks walls on three sides and the plinth level wall of southern side. The report of the Commissioner was silent on the point as to which of the parties was in actual or constructive possession of the premises. That report even otherwise was not capable of explicit reliance for the reason that the site was inspected in the absence of any notice to the respondent Corporation and the survey number inspected by the Commissioner shown in his report is 715 whereas the number of plot in suit shown in the plaint is

714. As such the report which was submitted by the Commissioner was ignored by the learned Ist Additional District Judge. It is pertinent to note that the plots were allotted to one Allah Wasaya and not to the applicants firm. No license or lease in respect of the plot in suit was issued in favour the applicants firm and the respondent Corporation specifically pleaded there was no privity of contract between the parties. Applicants have not brought any document on record of the lower Courts to show the plot was leased out to them or that they have at any time paid the land rent to the respondent Corporation. The learned Courts below to the conclusion that no prima facie case has been made out. I have perused the record with the assistance of the learned counsel for the Parties and gone through the judgment/order of the learned Court below and find that the Courts below have exercised discretion judicially.

8. I have referred at some length to the reasons upon which the Courts below based their conclusions because it must, in my opinion, be borne in mind that I have asked to interfere in this case wit orders made by the Courts below in the exercise of their discretion. That discretion must of course be exercised judicially and not arbitrarily but if these have been exercised judicially this Court cannot, in m opinion, substitute its decision for that of the Courts below, for a was stated by Asquith L.J., in Bellenden v. Sattar Waite, 1948 (1) AER 343 at 345. "We are here concerned with a judicial discretion, and it is of the essence of such a descretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere. That is, I think, the principle which emerges from the decision of the House of Lords in Evans v. Bartlam 1937 A . C . 473 and Osenton v . Johnston & Co. v . Johnston 1942 A.C. 130."

8. The discretion exercised by the Courts below should not be interfered with in revision. The Courts below must have the discretion to decide the questions for themselves, and unless the Courts below travel beyond the limits within which discretion may be reasonably exercised, or in other words, unless it can be said that the Court below have taken a perverse or absurd view, the exercise of the discretion by the Courts below will not be interfered with in appeal much less in revision.

9. In cases falling under this class the exercise of discretion by the trial Court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court. These principles are well-established; but as has been observed by Viscount Semion L.C. in Charles Osenton & Co. v. Johnston 1941-2 A.E.L.R. 245 at page 250 as follows:- "The law as to the reversal by a Court of Appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty which arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. If, however, the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified."

10. Mr. Muslim Naqvi, learned counsel for the respondents has raised a preliminary objection that no revision lies in this case. He has contended that the case is not covered by section 115, C.P.C. as the learned Additional District Judge and the learned Civil Judge have neither exercised the jurisdiction not vested in them by law nor have failed to exercise the jurisdiction so vested in them nor have in any way acted in the exercise of their jurisdiction illegally or with material irregularity. According to the learned counsel at most the decision can be said to be an erroneous decision on a question of law and there are concurrent findings of facts and on that ground no revision lies to the High Court.

11. After hearing the learned counsel for the parties, I am of the opinion that the preliminary objection must prevail. The leading decisions on the question of the scope of section 115, C.P.C. are two decisions decided by their Lordships of the Privy Council reported in N.S. Venkatagiri Ayyanger and another v. The Hindu Religious Endowments Board Madras A I R 1949 P C 156, P L D 1949 P C 26 and Joy Chand Law Bahu v. Kamal Ali Shah Choudhry and others A I R 1949 P C 239 and P L D 1949 P C

114. Their Lordships in these two cases reiterated the views expressed in I L R 11 Cal. 6 and A I R 1917 P C 71 that section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusion of law or fact in which no question of jurisdiction is involved. In Umer Dad Khan and another v. Tila Muhammad Khan and 14 others P L D 1970 S C 288, the Supreme Court of Pakistan approved the decision of Privy Council.

12. There can be no two opinions that the learned Courts below had the jurisdiction to grant or refuse temporary injunction. The exercise of such power, even if erroneous would not attract the provisions of section 115 of the Code of Civil Procedure as far 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 power conferred by law. Since Court has power to grant injunction or to refuse injunction it cannot be said that the order is without jurisdiction. Whether an order of a Court proceeds on illegality or with material irregularity, the question would always depend upon the provisions 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 Courts below acted with material irregularity.

13. The learned Additional District Judge appears to have examined the case more elaborately in the light of the material on record.

14. 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 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 that decision of a case. It is well-settled that where a Court or tribunal has jurisdiction and it determines the question, it cannot be l said that it acted illegality or with material irregularity because it camel to an erroneous decision on a question of fact or even law.

15. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and with "material irregularity" as used in this clause do not cover either errors of facts or law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in my view, relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or law, after the prescribed formalities have been complied with.

16. In the circumstances mentioned above, it appears to me that the Courts below were justified on the materials placed before them t arrive at the tentative findings on the basis of which they refused the relief of temporary injunction and no interference is called for in the revisional jurisdiction of this Court. It was held in Muhammad Umer Beg v. Sultan Muhammad Khan P L D 1970 S C 139, that the limited jurisdiction In revision under section 115, C.P.C. 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 arbitrary. No such arbitrary exercise has been pointed out by the learned counsel for the applicant. It is, thus, difficult to interfere with the decision of the learned Courts below. From the foregoing discussion, I am of the view that the subordinate Courts have exercised their discretion on sound principles of law on the materials placed before them.

17. The result is that this revision stands dismissed with no orders as to costs. M.Y.H. Petition dismissed.