1989 PLP 1093 (SCMR)

MUHAMMAID AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by a plaintiff decree‑holder, against the acceptance by the High Court of a Civil Revision filed by the respondents. It had arisen out of execution proceedings, As stated by the learned counsel, the petitioner had riled a suit for declaration and. a mandatory injunction with regard to his occupancy of the site in dispute belonging to the respondent No.2, on Tehbazari basis. The said respondent did not contest the suit and it was decreed. On the question of execution of the so passed decree in petitioner's favour, as further contended by the learned counsel, the respondent Committee contumaciously started disregarding the Civil Court's decree. Not only this, the Chairman of the Committee also passed a formal order on 9‑1‑1983 with a view to nullify the decree. Accordingly. the matter was agitated by the petitioner before the trial Court through an execution application. It was rejected. The learned District Judge, however, allowed the petitioner's appeal. On respondents' Civil Revision, the appellate order was set aside by the High Court. Therefore, this petition for leave to appeal. After hearing some arguments wherein the learned counsel vehemently contended, inter alia, that the High Court had no jurisdiction under section 115 C.P.C. to interfere with the appellate order, we brought to the notice of the learned counsel that the order passed by the Chairman of the Committee on 9‑1‑1983 is such that it might not be possible for this Court to grant discretionary relief to the petitioner. The following part of the said order is relevant in this behalf:‑‑ "Today I visited the site .............................. The site is abutted on the busy road ................ The site is not absolutely suitable to be given on Tehbazari or on any other basis. It is stated by the Attorney of Qamar‑uz‑Zaman (the present petitioner) that there is decree of Civil Court in his favour to hold the site on Tehbazari or rental basis. All such encroachments fall under the discretion of the Municipal Committee and no encroachment can be held or continued without the consent of the Municipal Committee. There is absolutely no construction on the site nor Oamar‑uz‑Zaman or his attorney is in possession of the site. It is open road and public is entitled to use it to its entirety. In the public interest, I hold that no encroachment can be allowed on site in question. I order accordingly and direct Oamar‑uz‑Zaman or hip attorney not to make any encroachment on the site stated above." The underlined part of the above order would show that it was passed mainly on the basis that if in case the Tehbazari arrangement is continued, it will be against public interest. It is a part of open road and the public is entitled to use it in its entirety. In these circumstances, even if legal and technical questions with regard to the said order and the scope of revisional power of the High Court might need examination, we do not consider it a fit and proper case for exercise of discretion by this Court in petitioner's favour. That being so, it is not a lit case for the grant of leave to appeal. The same, therefore, is refused. AA./Q‑23/S Leave to appeal refused,