P L D 1993 Karachi 623 (PLP)

For hearing of C.M.A. 631 of 1993: This case was taken up in the earlier part of the day as well when Mr. S. Amjad Hussain was not present, on a plea that he was busy in the Supreme Court of Pakistan. The case was kept aside. It has been taken up again and now it is 12-40 p.m. The Court is in vacation currently. There is no further word from Mr. Amjad Hussain. Mr. Mazhar Imam is anxious to proceed. An application, substantially similar to that listed above (CMA 9S3 of 1992), was filed by the respondents on 21-10-1992 but because, through an order dated 8-3-1992, it had already been desired that hearing of the main Revision Application be ensured after the winter vacations that year, on 122-11-1992, when C.MA- 953of 1992 came up, order was passed that such C.M.A. may be taken up with regular hearing of the case. The matter has been pending since and has not been heard but for no fault of the respondents. On going through record, it is evident that a decree for mesne profits has been allowed at the rate of Rs.150 per month from 18-2-1972 onwards and the total sum currently outstanding on that score, accordingto C.M.A. 631 of 1993 listed today, is Rs.40,

455. Respondents through such CNL4, have prayed that the petitioners, as a condition of stay, be directed to deposit that amount with the Nazir of the Court. Now, it is a condition precedent for grant of stay of a decree in exercise of appellate jurisdiction that security for due compliance of the decree appealed against is furnised: Order 41, rule 5(3), C.P.C. In the absence of a prohibition, express or implied, why should it be not so in relation to civil revisions? Revisional jurisdiction L% a part of the general appellate jurisdiction: Shankar v. Krishna, AIR 1970 SC

1. If anything, the scope of powers in civil revisional jurisdiction is mare limited than that in an appeal. Section 115 of the Code of Civil Procedure stands in isolation in the statutory scheme. Comprehensiveness as to procedural attributes is none of the virtues of the provision. As a result, invocations of equitable postulates of the Code have to be followed. Thus while no power to review a revisional order is deducible on the language of section 115, C.P.C. itself, jurisdiction to review such an order has been taken as implicit. Muhammad Rafique v. Rashida Begurn 1979 CLC

823. Likewise, sections 141 and 151, C.P.C. have been applied, where necessary, to resolve procedural bottlenecks in the exercise of revisional powers: Municipal Committee, Jhelum v. Muhammad Shafi, 1971 SCMR

740. Reverting to the matter in hand, there is no specific power to grant stays in civil revisions. Such matter is circuitously dealt with in applicable subsection (1) of section 115 in the Code by providing for calling of record but reasons for so doing are required to be spelled out by the revisional Court. Therefore, strictly speaking, even if the conditionalities as to security in Order 41, rule 5, C.P.C., may not apply to civil revisions, the revisional Court, by way of positive powers for grant of interim relief, has to fall back on section 151 or even section 141 of the Code, in neither of which cases a blanket power to grant stays of regular decrees can be readily inferred. The exercise of such power cannot, therefore, on any plane of reasoning, be in total oblivion of other provisions of the Code envisioning similar situations. Further, it is one thing to pass an unconditional order of stay when no one objects but it is quite another to overlook invocation of equitable powers in the Code, when under altered circumstances something which has assumed the proportions of an injury is sought to be redressed. The Court should never be slow in minimising the damage, which may have resulted upon the passage of an earlier, apparently, harmless order. On facts, it is obvious that when the order of stay was confirmed on 8-3-1992, expectation was that the case would be decided, soon after the advent of the year 1993. Such decision, however, has not come about for no apparent fault of the respondents. On the contrary the respondents, on the dates that the case was listed, had been insisting for hearing. 'they are, therefore, clearly entitled in equity, for being protected while this Revision Application is pending. Accordingly, in the interests of justice, the petitioners are directed to furnish security in the sum of Rs.40,000 to the satisfaction of the Nazir of the Court towards the decree of mesne profits granted against ,them. Security to be furnished within a period of six weeks. Such security would be a condition for continuation of stay. In case the required security is not furnished the stay presently in operation would be vacated. CMA 631 of 1993, in the result, is disposed of. While this order was being dictated Mr. Amjad Hussain has appeared and been heard. He asserts that the impugned judgment and decree are illegal. If that be so, the question still remains to be examined. Law will take its own course in due time. Meanwhile, the judgment and decree stand, though under challenge. Respective interests of the parties require to be protected during pendency, which has prolonged beyond anticipation. Henc the above order upon due hearing of both sides. A.A./M-1855/K' Order accordingly.