P L D 1969 Lahore 89 (PLP)

This order will dispose of Civil Revisions Nos. 328 and 329 of 1964, which arise out of the same dispute pending between the parties in the trial Court, in the circumstances set out below.

2. The petitioner and the respondents in the two revisions are co‑sharers in certain land measuring 107 kanals 3 marlas 208 sq. ft., situated in Sanda Kalan in the suburb of Lahore. The respondents filed Suit No. 190 of 1963 against the petitioner to restrain him from alienating the joint property. On the 27th January 1964, the parties filed a petition of com promise in the Court. The learned trial Judge upon recording statements of the parties in confirmation of the compromise, passed consent decree under Order XXIII, rule 3, C. P. C. According to the recitals in the petition of compromise it was admitted by the parties that they had taken possession of the areas falling to their respective shares.

3. On the 24th March 1964, the petitioner filed Suit No. 21/1 impleading the respondents in these two revisions, as the defendants, for a declaration that the compromise dated the 27th January 1964, between the parties was based on fraud, deception and misrepresentation and, therefore, was null and void. A consequential relief was also claimed for setting aside the order of the Court whereby the adjustment was recorded and a consent decree was passed. Along with the plaint the petitioner moved an application under Order XXXIX, rules 1 and 2, read with section 151, C. P. C. for the issue of interlocutory injunction against defendants in the suit forbidding them to alienate the disputed property pending a decision in the suit. The learned Civil Judge after hearing the parties granted the prayer vide order dated the 4th May 1964, because in his opinion the balance of convenience lay in favour of the petitioner, and that if the defendants were permitted to alienate the land during the pendency of the suit, it will cause ` unnecessary complications".

4. Aggrieved by the above order of the trial Judge, the two seta of defendants in the suit, filed two appeals (Nos. 182 and 198 of 1964) before the learned Additional District Judge, who accepted both the appeals and reversed the order of the learned trial Judge. While accepting the two appeals, the learned lower appellate Court observed that according to the terns of the compromise, each co‑sharer in the joint land had taken possession of his share before the compromise was recorded by the Court and a consent decree passed thereon. The learned lower appellate Court also referred to copies of 'roznamcha' and report of the Patwari and 'Khasra Girdawari' in confirmation of the fact that the parties had taken possession of their respective share in the joint land. It was further observed that it was debatable if the balance of convenience definitely lay in granting interlocutory injunction as prayed, for he thought that some of the defendants might be in financial straits with no asset to fall back upon except to convert their share in the property in money to tide over the period of difficulty. The suit might take years to decide and to prevent them from alienating the land might create difficult situation for them. The lower appellate Court also did not quite subscribe to view that it would cause irreparable injury to the petitioner, if he ultimately succeeds in his suit and the respondents in the meantime are permitted to alienate the shares fallen to their respective shares. Hence the two revisions by the petitioner plaintiff

5. The petitioner's learned counsel urged with considerable earnestness that while accepting the respondents' appeals the lower appellate Court bad trenched upon the merits of the case which is not permissible in considering an application for interlocutory injunction, and this has prejudiced the petitioner's case in the trial Court. It was complained that the lower appellate Court based his order on the 'roznamcha waqiati', the report of the Patwari and 'Khasra Girdawri' which could not form a valid basis of the decision, for these documents were not evidence in the case not having been brought on the record of the case in the trial Court. It was also urged that the view taken by the lower appellate Court that the balance of convenience lay against the issuance of interlocutory injunction against the respondents, was erroneous, for if the respondents were permitted to alienate the land which purported to have fallen in their respective shares under the impugned compromise, then it will only lead to multiplicity of suits which Courts must endeavour to obviate.

6. It is true that the learned Judge made certain observations touching merits of the case, but that was incidental to the disposal of the appeals before him. It is well‑established principle that a petitioner, for the grant of interlocutory injunc tion, has to satisfy the Court that he has prima facie case. If he has failed to do that and injunction is referred it will still be open to him to adduce evidence to the contrary to establish his case on merits for the main relief in the suit. So also about the reference to copies of roznamcha waqiati and the report of the Patwari and the Khasra Girdawari. Under Order XXXIX, rule 1, C. P. C. the Court may grant temporary injunction where conditions set out in clauses (a) and (b) of the rule are proved to exist "by affidavit or otherwise". It is not disputed that the documents referred to by the learned Additional District Judge were eminently relevant to the matter before him. The objection however, is that these documents were neither formally proved nor produced in the trial Court. Of these documents, Khasra Girdawari did not require any formal proof. The entries in the other two documents were also made by the Patwari in the official discharge of duties tending to show change of possession in accordance with the terms of consent decree.

7. Apart from the factual aspect of the case, the real question that falls for determination in these cases is : whether in the circumstances of the case it would be proper to revise the impugned orders which were entirely within the discretion of the Additional District Judge in the exercise of his appellate jurisdiction? It is not disputed that the question whether or not to grant interim relief to plaintiff under Order XXXIX, rules 1 and 2, C. P. C. was entirely discretionary with the trial Court which it exercised subject to the jurisdiction of the appellate Court. It may be true, that the trial Judge had also given some sound reasons in support of his order granting interlocutory injunction, particularly his observation regarding multiplicity of legal proceedings between the parties in the event of the success of the petitioner's suit, if the land in dispute is alienated by the respondents in the meantime. But those reasons in the opinion of the learned Additional District Judge did not outweigh the likely inconvenience to the respondents caused by the prohibitory order. The question whether in the circum stances of a case interlocutory injunction should have or should not have issued, is subject to certain conditions being satisfied, mainly a question of individual judgment and approach. The mere fact that in the instant case, the discretion has not been properly or even wrongly exercised by the lower appellate Court, will not lay a foundation for interference by the High Court in its revisional jurisdiction. At the highest the order is erroneous. It is well settled that where a Court has jurisdiction to determine a question and it determines that question, it cannot be said that it had acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law. The Privy Council decision in Amir Hassan Khan v. Shev Bakhsh Singh (11 I A 237) is leading case on the subject. The same view was reiterated in Bal Krishana v. Waso Dewa (44 I A 267). The question relating to the pre‑requisites for the exercise of revisional jurisdiction by the High Court was recently con sidered by a Full Bench of seven Judges of this Court in Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149). It was ruled in that case that "section 115, C P. C. does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be correct view of the merits of a case . . . . . . . for a view which appears to be erroneous. Section 115 is not concerned with these matter. It is on the contrary concerned with the exercise of jurisdiction . . . . . . ." On this question the learned Chief Justice who wrote the leading judgment summed up his conclusion, relevant to these two cases, as follows :‑ "It seems appropriate to take this opportunity to state clearly a few guiding rules of practice which are liable to be overlooked when dealing with particular cases :‑ (a) . . . . . . . . (b) Since the power conferred by section 115, Civil Procedure Code, is meant for correcting errors made by subordinate Courts in relation to the existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court." I feel bound by the above dictum of their Lordships.

8. Learned counsel for the petitioner, on the other hand, cited a Single Bench case Mst. Hamida Begum v. Karachi Development Authority (P L D 1967 Kar. 821) in support of the proposition that in a proper case an order refusing interlocutory injunction, even though discretionary, is revisable by the High Court, and that in the precedent case it was so revised. That case, however, proceeded on its peculiar facts. From a reading of the judgment it is difficult to avoid the impression that the learned Judge treated the impugned order before him as one having been made in exercise of colourable jurisdiction by the trial Court. After referring to some of the reasons given by the trial Judge in support of his order refusing interim injunction, the learned Single Judge observed as follows:‑ "This quotation shows that the learned Civil Judge was trying to catch any straw to justify vacating the order of injunction which he himself had passed on a finding that a prima facie case had been made out." Furthermore, in that case the question whether ordinarily an order passed under Order XXXIX, rule 1 or 2, C. P. C. is revisable, does not appear to have been debated before the learned Single Judge.

9. Abdul Shakoor v. Abdul Rasul (P L D 1963 Kar. 356) was also cited to show that a revision application against an interlocutory order was entertained by this Court after the Full Bench judgment in the case of Zafar Ahmad. This precedent does not advance the petitioner's case either, for the petition in that case was dismissed on merits.

10. Before I conclude, I think I must enter a caveat. From the above discussion I must not be understood as saying that in no case a revision would lie against an interlocutory order under Order XXXIX, rule 1 or 2, C. P. C. or for that matter against any other order which was within the discretion of a subordinate Court to make. It is possible to conceive of cases in which the discretion has been exercised mala fide or arbitrarily or for extraneous reason not germane to the case. The High Court in such cases is bound to interfere to set the matter right similarly, if a subordinate Court while exercising its discretionary jurisdiction has taken a procedural step which is contrary to a directory provision of the law or to a general principle of law which in the final result has given to one party an advantage over the other, which it would not have got but for the fact that that step was taken. Indeed, such exceptions are clearly deducible from Zafar Ahmad's case. The present are not such exceptional cases, though it may be, that the lower appellate Court to avoid multiplicity of proceedings might have as well granted temporary injunction prayed for. But on the pre cedents noticed above, that would not warrant interference in revisional jurisdiction.

11. For the foregoing reasons, I am constrained to dismiss the two petitions, leaving the parties to bear their own coats. Petitions dismissed.