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Criminal Revision No. 106 of 1967, decided on 8th July 1969.

, O. XXXIX, rr. 1 & 2 read' with S. 115‑Interlocutory injunction‑Revision‑Contention that discretion in issuing temporary injunction had been wrongly exercised by both lower Courts and thus order was open to revision ‑Held, both Courts having jurisdiction in matter cannot be said to have acted illegally or with material irregula rity‑Unanimous decision of two Courts below holding case fit for issue of temporary injunction‑Cannot be challenged in revision.

Feroze Din v. Abdul Hamid and others P L D 1969 Lah. 89 ; Amir Hassan Khan v. Shev Bakhsh Singh 11 I A 237 ; Bal Krishna v. Waso Dewa 44 I A 267 and Zafar Ahmad v. Abdul' Khaliq P L D 1964 Kar. 149 rel.

Mufti Muhammad 1dris assisted by S. Usman Ali Shah for Petitioner.

Peer Bakhsh Khan for Respondents Nos. 1 to 123.

Muhammad Afzal Khan Bangash for Respondents Nos. 124 to 127.

Respondents Nos. 130 to 132, 134 to 141 and 142 : Ex parte.‑

Date of hearing : 8th July 1969.

This is a petition under section 115 of the Civil Procedure Code directed against the order of the District Judge, Hazarak dated 9‑10‑1967, whereby in appeal the order of the learned Senior Civil Judge dated 8‑9‑1967 was upheld in holding that the learned trial Court rightly exercised its discretion in issuing the temporary injunction.

2. The temporary injunction was claimed in a suit brought by the respondents in respect of land measuring 56183 kanals 19 marlas, situated in the estate of Bhaleja, Tehsil Mansehra, District Hazara. The suit of the plaintiffs was to the effect that they were owners of the land in dispute and that the Court of Wards was not competent to get its possession in any manner or to receive its income. Respondents Nos. 2, 3 and 4 are the heirs of Muhammad Rustam Khan deceased, the Khan of Hill, whose estate was looked after by the Court of Wards, respondent No. 1. The heirs of the deceased Muhammad Rustam Khan, it was the plaintiffs case, occasionally interfered with the right of ownership of the plaintiffs‑respondents, and. the particular grievance of the plaintiff ‑respondents was that the Manager Court of Wards, entered into a private contract with one Qazi Abdul Kafeel in respect of the forests situated in Bhaleja estate in pursuance of which Qazi Abdul Kafeel started exploiting the forest on payment of nominal price. It was in this suit that a temporary injunction was asked for by the plaintiffs respondents restraining. Qazi Abdul Kafeel from cutting the trees. The temporary injunction was resisted by the contractor on the ground that in pursuance of a valid contract entered into with the Manager of the Court of Wards he had engaged labour in great strength for the exploitation of the forest, and in case he was restrained from catrying out the contract he would suffer a great loss in terms of money. It may be noted here that in the original' suit Qazi Abdul Kafeel was not a party. It was by the order of this Court dated 23‑6‑1967 he was impleaded as a defendant under rule 10, Order I, C. P. C. Qazi Abdul Kafeel then filed a written statement. On 17‑7‑1967, the Extra Assistant Settlement Officer Batagram was appointed a Commissioner to the spot and find out whether compartments 1 and 3 were in "Hill Estate", i.e. estate for which Qazi Abdul Kafeel was a contractor or in Bhaleja estate which belonged to the plaintiffs. The Commissioner submitted his report dated 29.7‑1967 and thereafter the learned Senior Civil Judge granted temporary injunction prayed for as far as Compartment No. 3 was concerned. In granting temporary injunction, the learned Senior Civil Judge held that "in case the injunction is not issued the plaintiffs will suffer an immediate loss, because once trees are cut then cannot be regrown; if the plaintiffs win the case, but if the plaintiffs lose the case defendant No. 20 will still find the trees to cut. Further more defendant No. 2(I has also the alternative of not making payment to defendant No. 1 for the goods which defendant No. 1 failed to pass on to him". The learned District Judge in appeal upholding the order of the learned Senior Civil Judge found that the balance of convenience lay in favour of the plaintiffs‑respondents.

3. In revision in this Court, the learned Single Judge in Chambers passed certain orders , which it will be necessary to reproduce. The mattar came up for hearing before the learned Single Judge in Chambers. Faizullah Khan, J. as he then was, on 20‑10‑1967, on which date the petition was admitted and notice was issued to the parties. It next came up for hearing on 8‑4‑1968, and the learned Single Judge passed the following order

After hearing the learned counsel for the petitioner at some length, I have formed the opinion that for the proper decision of the case it is essential that the D. F. O. Tribal Division, Hazara, may be summoned along with the map of the Hill Estate of Compartments Nos. 1 to 16, survey map, the previous record of the Hill Estate as also the record of the Manager, Court of Wards of the Estate of late Nawab Rustam Khan of Hill, for a date to be fixed by the office.

Next the matter came up for hearing on 16‑4‑1968, but the order is not relevant and need not be reproduced. It is the order dated 3‑5‑1968 which needs verbatim reproduction. It i . to the effect :‑

"The D. F. O. Tribal Divn., Hazara has brought the required documents.

(2) After hearing the learned counsel at some length.

I have formed the opinion that for the proper and effectual decision of the case whether Compartment No. 1 forms part of the Hill Estate or it belongs to the property claimed by the plaintiff, some responsible officer of Survey of Pakistan should be commissioned to go on the spot and after necessary demarcation submit a report on the point whether Compart ment No. 1 is within the Hill Estate, or not. I, therefore, direct the Additional Registrar to write a letter to the Survey or General of Pakistan asking him to depute a responsible officer under him to conduct the necessary survey. The officer nominate by the Survey or General should visit the spot after issuing notices to the parties. The Survey or General should be requested to give the date on which the officer nominated by him proposes to conduct the required survey to the Additional Registrar who would at once inform all the parties concerned including the D. F. O. Tribal Division, Hazara and D. F. O. Siran to be present personally or through their representatives at the time of demarcation.

(3) The sum of Rs. 1,000 (one thousand); Rs. 500 by the plaintiff; and Rs. 500 by the petitioner should be deposited to meet the estimated commission fee within a week.

(4) The Addl: Registrar in the letter should impress on the Survey or General the necessity of nominating the officer as early as possible.

(5) Fifty‑two trees already lying cut and converted should be lifted by the petitioner provided he furnishes security to the extent of Rs. 25,000 (twenty‑five thousand) to the satisfac tion of the Add]. Registrar that in case these trees are not found to be situate in the Hill Estate he would reimburse the plaintiff for the difference of the prevailing price.

(6) The order of the trial Court restraining the petitioner from cutting further trees in Compartment No. 1 is to continue."

On 13‑5‑1968, an application was made before the learned Single Judge with the prayer that the record of the case may be sent to the trial Court with a view to enabling it to decide the question whether Compartment No. 3 is within Bheleja Hill. The order of the trial Court in appointing Commissioner on this point was suspended. On 14‑6‑1968, the matter came up again for hearing before the same learned Single Judge and he modified his order dated 3‑5‑1968 to the following effect :‑

"After hearing the learned counsel, I modify my order dated 3‑5‑1968 to this extent that the officer nominated by the Survey or General to conduct demarcation proceedings should submit a report not only in regard to Compartment No. 1, but also in regard to Compartment No. 3 and he should also clearly say in the report

(1) Whether the 52 trees which are already felled and are lying on the spot purporting to be in the Hill Estate and other standing trees which have been marked also purported to be in the Hill Estate are actually in the Hill Estate, or in the Bhelija Estate.

(2) I further direct that the officer nominated by the Survey or General should also get assistance from the Revenue Officers and the record‑of‑rights of Bhelija Estate as also Hill Estate, but it should be made clear that the officer conducting the survey and nominated by the Survey or General would form his independent opinion as to the situation of the Hill Estate or the Bhalija Estate from the survey record and the boundaries shown in the settlement records of Bhelija Estate or the Hill Estate would not binding on him.

2. As regards the prayer that the money already deposited is to be recovered from the contractor should not be paid to either party, I do not think any order is called for at this stage. The petitioner should make a fresh application if on the report of the Survey Officer it is found that any part of Compartment No. 1 or Compartment No. 3 is situate in Bhelija Estate"

4. Mufti Muhammad Idris, learned counsel for the petitioner, does not press the revision petition. As a matter of fact, the revision petition has no merit. It is to be remembered that it was all along the case of the plaintiffs that the Court of Wards which was managing the property of the late Muhammad Rustam Khan, the Khan of Hill, had no jurisdiction, whatsoever, to have managed the land in dispute which was not in the ownership of the late Muhammad Rustam Khan. The property was leased out by the Court of Wards in favour of Qazi Abdul Kafeel and it was here that the Court had to adjudicate upon as to whether the land which was leased out by the Court of Wards treating the property as that of Muhammad Rustam Khan belonged to the plaintiffs‑respondents as claimed by them, or that it was the property of Muhammad Rustam Khan deceased. A temporary injunction was claimed by the plaintiffs‑respondents that till the decision of the suit the trees from the land may not be cut. A Commissioner was appointed and on the basis of the report of the Commissioner the temporary injunction was granted in respect of Compartment No. 3 of the land, and the petitioner was restrained from cutting the trees till the disposal of the suit.

5. Now, the question for determination is whether the circumstances of the case interlocutory injunction should have or should not have been issued. The two Courts below unani mously agreed that the temporary injunction should have been issued. The question whether temporary injunction should have been issued, as held in Feroze Din v. Abdul Hamid and others (P L D 1969 Lah. 89) "is subject to certain conditions being satisfied, and is 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 there 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".

6. It was argued that in the instant case the discretion has been wrongly exercised by the two Courts below which made the order bad and open to revision. The order may be erroneous, but the two Courts had the jurisdiction in the matter and it matters little that they acted illegally or with material irregularity. The Privy Council decision m Amir Hassan Khan v. Shev Bakhsh Singh (11 I A 236) is a leading case on the subject. The same view was reiterated in Bal Krishna 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 considered by this Court in Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 249). 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 matters. 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."

The learned Single Judge in Chambers Muhammad Gul, as he then was, rightly observed in Feroze Din v. Abdul Hamid ‑that he felt bound by the above dictum of their Lordships.

7. This being the position, the unanimous finding of the two Courts below that it was a fit case where the temporary B injunction should have been issued cannot be challenged in this revision petition filed under section 115 of the Civil Procedure Code.

8. It was urged by the learned counsel for the petitioner that the order dated 3‑5‑1968 passed by Faizullah Khan, J. as he then was, and order dated 14‑6‑1968 passed by the same Judge may be implemented by the lower Court. The lower Court will please go through the orders, and if he feels the necessity of acting upon these orders he may avail of the ‑services of the nominee of the Survey or General in getting demarcated the disputed area. The learned Senior Civil Judge will take special care that the disposal of this case is no longer delayed. He will give his special attention to the case and if necessary he may resort to day to day hearing in this case. The revision petition is disposed of accordingly. No order as to costs.

S. A. H. Petition rejected.

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