1985 PLP 1925 (CLC)

Respondents' suit for restoration of possession filed under section 9 of the Specific Relief Act was decreed by the trial Court on 24-5-1983 and even though it is specifically provided in section 9 itself that the decree passed thereunder would not be open to be appealed against, Yet, the petitioner filed an appeal which came to be heard and dismissed by Sh. Saeed Ahmad, Additional District Judge, Gujrat on 1-11-1984. It is surprising that neither the learned Additional District Judge nor the learned counsel for the parties were alive to the aforesaid provision. The petitioner has now come up to this Court in revision thereagainst.

2. Learned counsel appearing in support of this revision petition has contended that even though the solitary question in this case was as to whether or not the plaintiffs-respondents had been dispossessed within a period of six months before the suit, yet, none of the seven issues set down for trial in the suit specifically covered this controversy. This plea was also taken in the appeal below where it was repelled with reference to issue No. 6 which, learned counsel points out, is only a general issue relating to the entitlement of the plaintiffs for the decree prayed for and the field thereof is not any larger than issue No.7 relating to relief. He rightly points out that one of these two issues is only redundant and, as such, could not have furnished a basis for the learned Additional District Judge to repell the contention. There, no doubt, is substance in the submission of the learned counsel which has been unjustifiably repelled by the learned Additional District Judge because an issue has to be specific, according to the pleas raised in the pleadings. In this view of the matter, the contention deserves to be sustained but since the learned Additional District Judge did not have the jurisdiction in law to entertain or decide an appeal against the trial Court's decree, therefore, his judgment is liable to be simply ignored. The trial Court's judgment is also equally futile because none of the seven issues tried by it covers the controversy germane to the suit and they, rather, relate to such matters as are not within the scope of the suit under trial before it. Hence, the trial Court's judgment and decree are also unlawful and have to be disregarded.

3. However, the exercise of revisional jurisdiction being only discretionary, since the petitioner did not only fail to point out the excesses of jurisdiction committed by the trial Court but has also been instrumental in usurpation of jurisdiction by the learned Additional District Judge, therefore, I am not persuaded to entertain this revision petition despite the existence of jurisdictional defects, pointed out above. More so, because the petitioner has got a remedy provided to him by law in filing a regular suit. It may, however, be observed that for the foregoing reasons neither can the findings recorded by the learned Additional District Judge prejudice the petitioner in the suit to be filed nor can even the adjudication made by the trial Court stand in his way.

4. For the foregoing reasons this revision petition is disposed of with the above observations. M.Y.H. Revision dismissed.