P L D 1971 Lahore 690 (PLP)

Date of hearing: 28th January 1971. In a pre‑emption suit pending before the learned Civil Judge, Muzaffargarh, one of the dates of hearing fixed for evidence of the parties was 11‑7‑1963. On that date neither the plaintiffs nor their counsel appeared and the suit was consequently dismissed in default towards the fag‑end of the Court hours. An application (without quoting any provision of law) was filed for its restoration on 20‑7‑63 pleading that the plaintiffs 'had reached Muzaffargarh late and learnt that since their counsel was busy in connection with some other case in another Court, therefore, their suit had been dismissed in default. Pleading that their absence was not intentional, they prayed that the suit should be restored. This application was contested and on the pleading of the parties, the learned Civil Judge framed an issue to the following effect :‑ (KIA MUQADAMA KE BARAMDAGI KE KOE MAQOOL WAJAH HAI) The plaintiffs produced Amir Muhammad (A. W. 1); Nawab (A. W. 2) and one of the plaintiffs Khan Muhammad himself appeared in the witness‑box as A. W.

3. From the side of the respondents, there appeared two witnesses, namely Nazir (R. W. 1) and Sultan (K. W. 2) (one of the respondent himself). The learned Civil Judge, after going through the evidence of the parties, held that in the application for restoration, the plea taken was that the plaintiffs had reached Mazaffargarh late; whereas in the evidence, effort had been made to show that Khan Muhammad one of the plaintiffs had reached the Court precincts earlier and was present near about the Court room when the case was being called and that he went to fetch his lawyer but by the time the lawyer could appear, the suit had been dismissed. The learned Civil Judge did not believe the plaintiffs' version and not being satisfied with the cause put forward, refused to restore the suit. The plaintiffs filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Muzaffargarh, on 20‑5‑

64. The plaintiffs have come up in revision petition to this Court.

2. Learned counsel took me through the evidence in this case and frankly admitted that he could not support the case of his client there from but argued that even though there did not exist any sufficient cause, still the learned Civil Judge possessed inherent jurisdiction to restore the suit which he should have exercised in the instant case in order to do substantial justice between the parties. So far as the conclusions drawn from the evidence are concerned it is well‑settled that they cannot be taken exception to in the exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure, by this Court unless they were fanciful and arbitrary. Reference may be made to N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26) where the relevant passage in the head note reads as follows :‑ "Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final: The section empowers the High Court to satisfy itself upon three matters: (a) That the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdic tion; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justification whatsoever for the view that section 115 (c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. Where the High Court interfered on the ground that the subordinate Court had made a serious mistake in the construction of a will Held that the order of the High Court was without jurisdic tion and must be set aside." To the same effect is Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (P L D 1970 S C 288) where the High Court had interfered while exercising revisional jurisdiction in an inter locutory matter in order to correct an error of the trial Court but the Supreme Court observed :‑ "The revision petition filed by the appellants should, therefore, have been dismissed on the ground only that it was not competent in law, we appreciate the anxiety of the learned Judges to correct an error which has occurred in the trial of a suit. This, however, does not justify transgressing the boundaries of their jurisdiction vested by law." Similarly, in Shahzaaa Muhammad Umar Beg v. Sultan Mahmood Khan and another (P L D 1970 S C 139) it was held that High Court should not inter fere in discretionary matters under section 115 of the Code of Civil Procedure unless the discretion is found to have been exercised fancifully or arbitrarily. In the instant case, since the view taken by the learned Courts below finds support from the record and is backed by reasons, there is no justification to interfere with the same in the exercise of the revisional jurisdiction under section 115 of the Code of Civil Procedure. The suit is of pre‑emption which is a piratical right and even from this point of view, there is no justification to interfere with rights which may have vested in the defendants due to the negligence of the plaintiffs. There is not an iota of evidence explaining the absence of the counsel. The counsel was not e produced as a witness nor his clerk to show his master's engagements. Looked at, from whatever point of view, no case is made out for interfering with the view taken by the two Courts below on the evidence before them.

3. The result is that this revision petition is dismissed leaving the perties to bear their own costs. Petition dismissed.