1987 PLP 1864 (CLC)

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L b 1970 S C 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 fol. Muhammad Ilyas Khan for Petitioners. Respondents Nos. 1 and 2 filed a suit for declaration and permanent injunction about their title in a house and a plot bearing an area of 1 kanal 1 marla 150 sq.ft. comprising of Khasra Nos. 1889, 1902, 1905, 1906 and 1907 situated opposite Lachman Das Building, outside Shah Alam Gate, Lahore. It was alleged in the suit that this is an erstwhile evacuee‑property and had been transferred to the plaintiffs on 9‑12‑1976 by the Settlement Department under Settlement Scheme No. VIII and yet, the defendants, who included the present petitioners and respondent No. 3, intended to forcibly dispossess them from it. Alongwith their suit, they also filed an application for issuance of a temporary injunction to restrain interference in their possession of the property. The defendants entered contest and filed only a written reply dated 12‑3‑1987 to the petition but did not file any written statement whereabout it was stated in para. 2 of the written reply that it shall be filed later on. Learned trial Judge considered the application and, finding the plaintiffs to be in possession of the property in dispute and faced with the apprehension of suffering irreparable loss on account of their threatened dispossession, issued the temporary injunction prayed for by his order dated 15‑3‑1987.

2. An appeal thereagainst filed by the defendant‑petitioners was heard and dismissed by a learned Additional District Judge by his order dated 7‑6‑1987 by affirming the conclusions of the trial Court for the reasons that the appellants before him had not filed any documentary proof in support of their contention and had not even cared to file any counter‑affidavit to contradict the one filed by the plaintiff‑applicants and repelled their contentions with the observation as under:‑‑ the contention of the learned counsel for the appellants that WAPDA is in possession of the plot is not proved on record. They have failed to show under what capacity they claim to be in possession, whether they are owners or lessees from the Provincial Government which, according to the appellants is the real owner of the suit property." The said defendants have now come up to this Court on revision.

3. Learned counsel wants to rely upon a report dated 16‑3‑1987 made by the Tehsildar, Lahore City on an application filed before him by the Executive Engineer, petitioner No. 2 and has also produced copies of the Jamabandi for the year 1983‑84 alongwith a copy of Aks Shajra Qishtwar relating to the year 1940‑

41. These copies were issued on 11‑3‑1987 and they could not have been placed on the record of the trial Court and do not appear to have even been relied upon in the appeal below inasmuch as learned Additional District Judge has clearly recorded in para. 6 of his judgment impugned herein that no documentary proof had been produced by the appellants before him. The said report of the Tehsildar has come into existence after the decision of the appeal below. Since exercise of revisional jurisdiction is limited to the correction of errors of jurisdiction committed by the Courts below, therefore, by its very nature it is capable of being exercised with reference to the record as it existed before the lower Court in so far as it cannot be reasonably urged that the lower Court may be held to have committed such an error with reference to a document which was actually never produced before it. Therefore, in my view there is no scope of entertaining fresh documents in civil revisions and the documents placed by the petitioners of their own on this record at pages 37 to 41 are refused to be entertained.

4. The defendants had entered appearance in the trial Court to contest the petition for grant of temporary injunction and in their written‑reply submitted thereto they have themselves stated that they shall file the written‑statement later on and thus they have chosen not to enter contest on the merits of the claim of the plaintiff respondents because there is not made any averment on the point and it is limited merely to denying the existence of a good prima facie case and the likelihood of the plaintiff‑applicants suffering loss.

5. Since the two Courts below have, upon due consideration of the rules governing the grant of temporary injunctions, come to the conclusions that the plaintiff‑applicants have got a good prima facie case and are also likely to suffer irreparable loss and injury, therefore, the orders concurrently passed by the two Courts below in exercise of their discretionary jurisdictions cannot be considered to have been passed either fancifully or arbitrarily within the scope of the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (P.L.D. 1970 S C 139) and re‑affirmed in Kanwal Nain and 3 others v. Fateh Khan and others (P.L.D. 1983 S C 53), to become amenable to the exercise of revisional jurisdiction.

6. There is no force in this Civil Revision which is accordingly dismissed in limine. A . A . / W‑8 / L Revision dismissed.