P L D 1980 Peshawar 22 (PLP)

This is an application to revise a decision of the lower appellate Court dated 6th June 1979, by which the Court maintained the judgment and decree of a Civil Judge, Peshawar dated the 20th January 1976. The application arises under the following circumstances;- Faiz Gul was the owner of 15 kanlas 16 marlas of land compromised in Khasra Nos. 105, 106, 107 and 108, situated in the area of Buniadi, a village in Peshawar Tehsil. On his death, he was succeeded by a widow Mst. Dawai, four sons, namely, Wahid Gul, Shahzad Gul, and Sher Gul, and two daughters Mst. Dohara and Mst. Khalai. They inherited his pro perty in accordance with Shariat. Sometime after, Mst. Khalai also died leaving behind two daughters, namely Mst. Basri and Mst. Kalai. By a registered sale-deed Shabzad Gul, Gul Sher, Mst. Dobara and Mst. Dawai, sold their share measuring 11 kanal:, 12 marlas to Fazale Noor and Fazal Gul plaintiffs/applicants and their brother Muhammad Jamil. Then Wahid Gul, by a registered sale deed, sold 5 kanals 12 marlas, to the plaintiffs which also included the share of his sister Mst. Khalai. On the basis of this sale, the plaintiffs instituted a suit in the Court of a Civil Judge Peshawar, for possession of 5 kanals 12, marlas of land so purchased by them. The defendant to the suit, who is the respondent before me, opposed the claim on the grounds giving rise to as many as five issues, which need not be reproduced here. The trial Judge, after recording all the evidence which the parties wished to adduce, came to the conclusion that Wahid Gul was the owner of 2 kanlas 15 marlas of land only which he was competent to sell and consequently, by his judgment dated 20th January 1976, granted plaintiffs a decree for possession of the same area, i e. 2 kanals, 15 marlas leaving the parties to bear their own costs. An appeal was filed by the plaintiffs assailing the judgment and decree of the trial Court. The appeal, however, failed and was dismissed by an Additional District Judge, Peshawar, on the 6th of June 1979. The order of dismissal so passed is now being complained of before me. The learned counsel for the applicants urged that in a private partition, the share of Mst. Khalai in the suit land had fallen to the lot of Wahid Gul as was evident from the statement of her brother Shahzad Gul recorded by the trial Court in the present case on 12th of November 1975, a copy of which is annexed to this Application for Revision, and that this fact having not been taken into consideration by the two Courts below, it must be held that the said Courts acted illegally and without jurisdiction. He next argued that the Courts below, by ignoring this important piece of evidence, must also be regarded as having committed a material irregularity in the exercise of their Jurisdiction by not applying their minds judicially to the question before them. It was suggested that these facts would justify the High Court to exercise its revisional powers under section 115, Civil Procedure Code. The question that arises for consideration, and on the determination of which the fate of this revision application hinges, is whether this Court has any power to interfere with the impugned decisions in the exercise of its revisional jurisdiction conferred by section 115; Civil Procedure Code. It may be stated at once that the powers of the High Court under this section can only be invoked in cases in which no appeal lies to the High Court, provided the case has been decided by any Court subordinate to such High Court and subordinate Court appears;- (1) to have exercised a jurisdiction not vested in it by law; or (2) to have failed to exercise a jurisdiction vested in it by law; or (3) to have acted -in the exercise of it's jurisdiction illegally or with material irregularity. It will be seen that the limit of interference placed by this section on High Court's power to interfere in it's revisional jurisdiction is confined to a non- exercise of jurisdiction where jurisdiction exists, exercise jurisdiction and exercise of jurisdiction where it does not exist, and to irregular exercise of jurisdiction by the subordinate Courts. Tire High Court, under this section, cannot interfere unless there has been a defect going to jurisdiction, or an illegality or material irregularity in the exercise of jurisdiction . It is in my view, manifest that in the present case the Courts below had jurisdiction to make the decisions, which they made. They had power to deal with the parties before them and had also power to deal with the subject matter before them. The Courts were also possessed of power to make decisions of the nature, which they made. In the circumstance, it cannot be said that the Courts either exercised a jurisdiction not vested in them by law or that they failed to exercise a jurisdiction so vested. It being so, the present case does not come within the purview-of clause (a) and clause (b) of section 115, Civil Procedure Code. The next question is whether in making the decisions complained of, the two Courts below committed any illegality or material irregularity in the exercise of their jurisdiction. Clause (c) of section 115, which has reference to illegal and irregular exercise of jurisdiction, contemplates cases other than those mentioned in the first two clauses of the section. With a view to arriving at the tests properly applicable to enable me to answer the question, I may point out that the section applies to jurisdiction alone, the irregular exercise of it, or the illegal assumption, of it. The section is not directed against conclusions of law and fact in which the question of jurisdiction is not involved. For instance, it is an "illegality to frame an issue on a point of fact expressly admitted by the defendant and to dismiss the suit on the ground that the fact is not proved. Similarly, it is an "illegality" if a Court passes a decree on an unstamped hundi. It would be a "material irregularity" if a Court, taking a mistaken view of the questions at issue, proceeds to determise an issue which does not really arise in the case and basis its decision of the case on a determination of that issue. It is also a material irregularity to treat the delivery of a summons by post to a person who was not shown to have been the defendant as good service, and to pass a decree ex parte against the defendant on that footing. This clause has reference to such like cases and cannot be stretched to cover those cases where correctness or error on a question of fact or law is involved. In the present case, the question whether! Wahid Gul was the owner of 5 kanals 12 marlas or of 2 kanals, 15 marlas, of land, was a question of fact and this was also one for the decision of the Courts below and had actually been decided by them. The Courts, upon consideration of the entire evidence including the testimony of Shahzad Gul, came to the conclusion that Wahid Gul was the owner of not more than 2 kaaals 15 marlas of land. The learned counsel for the applicants has not been able to show that the conclusion so arrived was erroneous. But even if it is taken for granted that this finding of fact was erroneous, it will make no material difference for the short and good reason that an erroneous finding on a point of fact can have no reference to the irregular exercise of jurisdiction or the illegal assumption of it. It follows, therefore, that in the given circumstances, the High Court has no jurisdiction to interfere under its revisional powers. In the result, I am of the opinion that this Court has no power to interfere under section 115, Civil Procedure Gode, with the decisions of the two Courts below. I will, for the reasons given above, dismiss the application in limine. S. Q. Application dismissed.