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Civil Revision No.176 of 1982, decided on 9th October, 1983.

---Ss. 115 & O.XXXIX, rr. 1 & 2--Revision against order--Application under O.XXXIX, r.2, for temporary injunction, dismissed by Courts below--Concurrent findings of fact arrived at by Courts below after applying their minds to factual and legal aspects of matter and order passed by them neither fanciful nor arbitrary--Revision against order, held, not competent.

Rehm Ali and others v. Mst. Bibi Ji Begum and others P L D 1971 S C 536; P L D 1957 S C 186; N L R Civil 175; P L D 1970 S C 139; P L D 1964 S C 97; 1971 S C M R 321; N L R 1980 U C 212; AIR 1949 P C 156; 1982 C L C 1837; 1982 C L C 2397; 1982 S C M R 738; 1982 SCMR 843; 1982 S C M R 939; 1982 C L C 344; 1981 C L C 749; 1981 S C M R 196; 1982 SCMR 29; P L D 1983 S C 53; 1983 CLC 290; P L D 1983 Lah. 152; PLD 1977 Lah. 1354; 1979 S C M R 28; P L D 1981 Azad J & K 68; P L D 1970 Lah. 412; 1981 C L C 901; P L D 1981 Lah. 34; P L D 1981 Lah. 742; P L D 1965 Lah. 365; N.S. Venkatagiri Ayyanger and another v. The Hindu Religious Endowments Board, Madras A I R 1949 P C 156; P L D 1949 P C 16; Joy Chand Lal Bahu v. Kamal Ali Shah Choudhry and others A 1 R 1949 P C 239; PLD 1949 P C 114; I L R 11 Cal. 6 (P C) and A I R 1917 P C 71 ref.

--S. 115 & O.XXXIX,, rr. 1 & 2--Revision against order of Courts below refusing temporary injunction--Courts below having jurisdiction either to grant or refuse temporary injunction--Exercise of such power even if erroneous, held, would not attract provisions of S. 115, C.P.C.

---S. 115--Jurisdiction, absence of--Absence of jurisdiction normally, held, connotes an absence of power to deal with a particular case or an exercise of power in excess of powers conferred by law.

---S.. 115 (1)(c)--Revision--Word "material irregularity" in S.115 (1) (c), interpretation of--Court would be said to have acted with "material irregularity' when it commits an error of procedure which may affect ultimate decision in case as distinct from arriving at con clusion--If Court has jurisdiction, its conclusions, whether on matter of law or fact, could not be questioned in revision unless such conclusions affect decision of case.

---S. 115 (1) (c)--Word 'illegality and with material irregularity' in el. (c), held, do not cover either errors of facts or law and they not refer to decision arrived at but to manner in which it was reached.

---S.115 & O.XXXIX, rr. 1 & 2--Revision against order refusing temporary injunction--Orders of Courts below refusing grant of temporary injunction justified on material placed before them and Courts below exercising their discretion on sound principles of law--Interference declined in revision.

Azhar Ali Siddiqui alongwith M. Shafiq for Applicant.

Muslim Naqvi and A. Sattar Shaikh for Respondent.

Dates of hearing: 2nd, 3rd, 4th and 6th August, 1983.

This civil revision arises from the order of the learned IIIrd Addl. District Judge, Karachi, whereby he on 27th May, 1982, had dismissed the Miscellaneous Appeal of the applicant against the order, dated 15th August, 1978, passed by the learned IVth Senior Civil Judge and Assistant Sessions Judge, Karachi, who had dismissed application under Order XXXIX, rule 2,, C.P.C. filed by the applicant alongwith the plaint in Suit No.331 of 1978.

2. The facts giving rise to this revision petition are that the applicant filed suit for permanent injunction against the Deputy Commis sioner, Karachi, and Karachi Municipal Corporation in the Court of IVth Senior Civil Judge, Karachi, praying that the respondents may be restrained from interfering and trespassing from their lands and averred in the plaint that he is the owner in possession of various plots of sub-divided land, measuring about 7 acres, consisting part of old Plot No. 25, Sheet No. K-28, Trans Lyari Quarters, Karachi, now parts of Plots Nos. 31 to 37, 43, 44, 66 to 73, 93 to 244, 259 to 325 Sheet No:79, Liaquatabad, Karachi, which he purchased from Faqir Muhammad for valuable consideration by registered sale-deed in 1966. Alongwith the suit there was an application for the grant of temporary injunction restraining the respondent from interfering with or trespassing upon the suit property till the disposal of the suit. The learned Civil Judge, after hearing the parties dismissed the application on 15th August, 1978. Against this order the applicant preferred Miscellaneous Appeal only against K.M.C. which was heard by the Additional District Judge, Karachi, who vide his order, dated 27th May, 1982, dismissed the Miscellaneous Appeal.

3. The applicant filed the present revision against the respondent No.l. The applicant filed an application under Order 1, rule 10, C.P.C. praying therein that Deputy Commissioner may be impleaded as respondent No.2 in this revision. The application was granted by an order, dated 2-6-1982 and the name of the Deputy Commissioner was impleaded as respondent No.2.

4. I heard the learned counsel for the parties and have gone through the record of the Misc. Appeal and the record of the lower -Court.

5. Mr. Azhar Ali Siddiqui the learned counsel for the applicant has raised the following contentions.--

That the learned Court diction as vested.

(i) That the learned Courts below have acted in the exercise of their jurisdiction illegally or with material irregularity.

6. Mr. Sattar A. Shaikh, the learned A.A.-G., Sind, for respondent No.2 raised a preliminary objection that no revision lies in this case and he further contended that it is not a case for interference under section 115, C.P.C. as both Courts below have applied the minds to the factual and legal aspect of the matter and the orders are not fanciful and arbitrary and the findings of facts are concurrent.

7. Mr. Azhar Ali Siddiqui, the learned counsel for the applicant submitted that the applicant is the owner of the disputed suit land which he had purchased from Faqir Muhammad through registered sale deed. Only one photostat copy of sale-deed and one photostat copy of extract record of right are annexed to the plaint. Both documents show the Survey No. Chalta No.227, measuring about 119 sq. yards. Whereas the applicant has prayed for the injunction for 236 plots of land measuring 7 acres. Even in this Court, he has only produced some of the photostat copies of the sale-deed or extracts of record of rights.

8. I have gone through the order of the learned Civil Judge with the assistance of the learned counsel for the parties. The learned Civil Judge while rejecting the application under Order XXXIX, rule 2, C.P.C. has observed as follows:

"The plaintiff is also not clear in his plaint nor in his application or in his affidavit that in what way the defendants are interfering in his peaceful possession."

He has further observed that:

"The plaintiff has failed to make out the prima facie case in his favour nor there is an arguable case in his favour. Hehce no merits in this application."

9. I have also gone through the memo. of appeal, affidavit, counter-affidavit and rejoinder-affidavits, and the order of the Additional District Judge, Karachi, the applicant in para. 10 of the re-joinder -affidavit filed by him on 19-9-1978, stated that Deputy Commissioner, has not interfered and now I seek injunction only against K.M.C.

10. During the course of the arguments, the learned Additional Advocate-General, brought on record various orders of the Deputy Commissioner, Commissioner and the Board of Revenue. He also filed additional affidavit mentioning therein that the original entry in the record of rights was declared and the disputed land is still in the name of the Provincial Government.

11. In view of the decision in Civil Appeal No.212 of 1970 Rehm Ali and others v. Mst. Bibi Ji Begum and others reported in P L D 1971 SC 536, 1 have not taken these documents in consideration.

12. Mr. Azhar Ali Siddiqui, learned counsellor the applicant, has cited following cases in support of the case.

P L D 1957 S C 186, N L R Civil Page 175, P L D 1970 S C 139, P L D 1964 S C 97, 1971 S C M R 321, 1980 N L R Unreported Cases 212.

13. Mr. Sattar A. Shaikh, learned A.A.-G. hates cited following cases in support of the case.

A I R 1949 P C 156, P 1, D 1970 S C 139 and 288 Pesh. 22, Sub 232 1982, C L C 1837, 2397, 1982 S C M R 738 and 843, 939; 1982 C L C 344; 1981 C L C 749; 1981 S C M R 196; 1982 S C M R 29; PLD 1983 - S C 53; 1985 C L C 290; P L D 1983 Lah. 152 and P L D 1977 Lah. 1354.

14. Mr. Muslim Naqvi, learned counsel for K.M.C. has cited following cases.

1981 S C M R 196; 1979 S C M R 28; P L D 1981 Azad. J & K . P L D 1970 Lah. 412; 1981 C L C 901; P L D 1981 Lah. 34, 742 and PLD 1965 Lah. 365.

15. The learned counsel for the applicant urged that the photostat' copies of sale-deeds and extracts of record of rights which were shown to the learned Civil Judge and the fact that the details of seven acres were duly incorporated in para. 1 of the plaint as well as in para.l of the memo. of, appeal some of the photostat copies of sale-deeds or extracts of record of rights were brought on record of this application and this fact having not been taken into consideration by the two courts below, it must be held that the said Court acted illegally and without jurisdiction. He next argued that the Courts below, by ignoring the sale-deeds and extracts of record of rights must also be regarded having committed 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 power under section 115, C . P. C.

16. Messrs Abdul Sattar Shaikh, A.A.-G. and Muslim Naqvi, learned counsel for the respondents have raised a preliminary objection that no revision lies in this case. They contended that the case is not covered by section 115, C.P.C. as the learned Additional District Judge and the learned Civil Judge have neither exercised the jurisdiction nor vested in them by law nor have failed to exercise the jurisdiction so vested in them nor have in any way acted in the exercise of their jurisdiction illegally or with material irregularity. According to the learned counsel at most the decision can be said to be an erroneous decision on a question of law and there are concurrent findings of facts and on that ground no revision lies to the High Court.

17. After hearing the learned counsel for parties, I am of the opinion that the preliminary objection must prevail. The leading decisions on the question of the scope of section 115, C . P. C . are two decision decided by their Lordships of the Privy Council reported in N.S. Venkatagiri Ayyanger and another v. The Hindu Religious Endowments Board, Madras A 1 R 1949 PC 156; P L D 1949 P C 16 and Joy Chand Lal Bahu v. Kamal Ali Shah Choudhry and others A I R 1949 P C 239; P L D 1949 P C 114. Their Lordships in these two cases reiterated the views expressed in I L R 11 Cal. 6 P C and A I R 1917 P C 71 that section 115 applies to jurisdiction alone, the irregular exercise or non- exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which no question of jurisdiction is involved. In Umar Dad Khan and another v. Tila Muhammad Khan and 14 others reported in P I. D 1970 S C 288, the Supreme Court of Pakistan approved the decision of Privy Council.

18. There can be no two opinions that the learned Courts below had the jurisdiction to grant or refuse temporary injunction. The exercise of such power, even if erroneous would not attract the provisions of section 115, of the Code of Civil Procedure as far the first clause of the said section is concerned. Normally absence of jurisdiction connotes an absence of power to deal with a particular case or exercise of powers in excess of powers conferred by law. Since Court has power to grant injunction or to refuse injunction it cannot be said that the order is without jurisdiction. Whether an order of a Court proceeds on illegality or with material irregularity, the question would always depend upon the provisions of law that have been disregarded. Often times the adoption of a precisely prohibited course is construed as an illegality. Obviously, this is not so in the instant case. It then remains to be seen whether the Courts below acted with material irregularity.

19. The learned Additional District Judge appears to have examined the case more elaborately in the light of the material on record.

20. The words "material irregularity" have come up for consideration by the superior Courts of this country and a fair summary of the decisions would indicate that a Court would be said to-have acted with material irregularity when it commits an error of procedure which may affect the ultimate decision in the case. The illegality must be in the manner of arriving at a decision as distinct from arriving at conclusion. If a Court has jurisdiction, its conclusion whether on a matter of law or fact, cannot be questioned in revision, unless such conclusions affect the decision of a case. It is well settled that where a Court o tribunal has jurisdiction and it determines the question, it cannot be said that it acted illegality or with material irregularity because it camel to an erroneous decision on a question of fact or even law.

21. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and with "material irregularity" as used in this clause do not cover either errors of facts or law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in my view, relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or law, after the prescribed formalities have been complied with.

22. In the circumstances mentioned above, it appears to me that the Courts below were justified on the materials placed before them to arrive at the tentative findings on the basis of which they refused the relief of temporary injunction and no interference is called for in the revisional jurisdiction of this Court. It was held in Muhammad Umer Beg v. Sultan Muhammad Khan reported in P L D 1970 5 C 139, that the limited jurisdiction in revision under section 115, C.P.C. is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless 'the discretion is found to have been exercised fancifully or arbitrarily. No such arbitrary exercise has been pointed out by the learned counsel for the applicant. It is, thus, difficult to, interfere with the discretion of the learned Courts below. From the foregoing discussion, I am of the view that the subordinate Court have exercised their discretion on sound principles of law on material placed before them.

23. The result is that this revision stands dismissed with no order as to costs.

24. It is open to the plaintiff to file fresh application for temporary injunction alongwith affidavits and the relevant documents including photostat copies of sale-deeds and extract of record of rights before the trial Court. It will be open to the other parties to file further documents and affidavits. But it is clarified that the trial Court shall not be influenced by any observation made in this order and shall be free to decide the ease according to merits. However, the learned trial Court is directed to dispose of the Suit within six months.

M.Y.H. Petition dismissed.

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