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Civil Revision No. 56 of 1984, decided on 11th May, 1986.

---O.XXXIX, Rr. 1 & 2 and S.115--Specific Relief Act (I of 1877), S.42--Suit for declaration and permanent injunction--Plaintiff-petitioner seeking declaration to effect that he was illegally dispossessed- by respondents from plot in question whereas respondent claiming that petitioner was encroacher--Findings of Trial Court as well as Appellate Court arrived at against petitioner appearing to be well considered and all relevant aspects of case appearing to have been taken into consideration and their decisions neither arbitrary nor capricious--Even on facts petitioner having no case--Interference declined in revisional jurisdiction.

Malik Khuda Bux and another v. Syed Hamid Ali Shah 1981 S C M R 196 and Shahzada Muhammad Umer Beg v. Sultan Mehboob Khan and another P L D 1970 S C 139 rel.

Zahir Hussain Chishti for Petitioner.

S.M. Muslim Naqvi for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 11th May, 1986.

This revision calls into question the judgment and decree passed by the learned VIth Additional District Judge, Karachi, dated 27-10-1983.

2. Briefly stated, the facts of the case are that the applicant filed a suit No. 865/82 against the two respondents seeking declaration that the action of respondent No.1 in dispossessing the applicant from the plot near Government Secondary School, Malir, Karachi, was illegal. A permanent injunction was also sought to restrain the respondents from raising construction on the property. It was alleged in the suit that the said plot had been allotted to the applicants by the Director of Sports Government of Sind. Alongwith the plaint, the applicants also filed an application under Order 39 Rules 1 and 2, C P C for grant of temporary injunction against the respondents pending disposal of the suit. Counter affidavit was filed on behalf of the respondent No.1 wherein it was stated that the land in question was the property of the K:M.C. and the same had been marked as amenity plot as per K.D.A. Master Plan. The respondents also questioned the locus standi of the concerned Officer of the Education Department, to allot the plot in question to the respondents. According to the respondents the plot was required for construction of a fire station and the applicants were encroachers in respect of the plot which was a public property and as such they were not entitled to any relief.

3. The learned Civil Judge came to the conclusion that there was no valid allotment of the plot in favour of the applicants and that the applicants had failed to make out a prima facie case in their favour for grant of temporary injunction. It was further held that as the plot was meant for public purposes, as such no permanent injunction could be granted in respect thereof even under the provision of section 56 of the Specific Relief Act.

4. The applicants filed appeal before the learned VIth Additional District Judge, Karachi, who also came to the same conclusion and dismissed the appeal vide his judgment dated 7th October, 1983.

5. I have heard Mr. Zaheer Hussain Chishti, learned counsel for the applicant and Mr. Muslim Naqvi, learned counsel for the respondent No.1. None appeared on behalf of the respondent No.2.

6. The only ground urged by Mr. Chishti has been that both the learned lower Courts have failed to exercise their discretion properly in the matter. The argument of Mr. Muslim Naqvi, on the other hand, has been that since the discretion exercised by the two learned Courts below was neither fanciful nor arbitrary therefore, their decisions cannot be interfered with in the exercise of revisional jurisdiction.

7. I have perused the order passed by the learned Civil Judge as well as the appellate judgment of the learned VIth Additional District Judge, Karachi. The decisions appear to be well considered and all the relevant aspects of the case appear to have been taken into consideration. In short, these decisions by no means can be described as arbitrary or capricious. Mr. Muslim Naqvi has relied upon Malik Khuda Bux and another v. Syed Hamid Ali Shah 1981 SCMR 196 and Shahzada Muhammad Umer Beg v. Sultan Mehboob Khan and another P L D 1970 S C 139 wherein it has been held that discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.

8. As I have stated, nothing fanciful or arbitrary can be found in the orders of the learned Courts below, the matter does not call for interference in the exercise of revisional jurisdiction by this Court.

9. Even on facts Mr. Muslim Naqvi has drawn my attention to the letter dated 23rd February, 1982, a photo copy of which was filed by the applicant alongwith the plaint. This letter which is claimed to be the basis for filing the suit nowhere shows that the plot in dispute had been allotted to the applicant at any stage as the letter only contains a request to the Mayor, K.M.C. to allow Mujahid Sports Club to utilise the plot for sports activities.

10. For the aforesaid reasons I find no force in this revision which is hereby dismissed.

11. Before parting with this case I would like to mention that according to the allegations made by the applicants, this appeal has originally been allowed by the learned VIth Additional District Judge, Karachi, but later the order was altered to that of dismissal. Therefore, at the time of admission of this appeal, in view of such allegations, remarks were called for from the learned Additional District Judge which were received and placed on record of this case. In her comments, the learned Judge has explained that this matter was in fact heard alongwith another appeal and it was the other appeal which had been allowed and this appeal was dismissed. However, erroneously the learned Judge made an endorsement on the file; "appeal allowed" instead of "appeal disallowed". According to the learned Judge such mistake was on account of oversight and inadvertence.

I am satisfied that this explanation is sufficient and nothing can be found in the file of the case before the learned Additional District Judge to suggest that this appeal had originally been allowed. In fact, the order sheet dated 27-10-1983 clearly shows that this appeal had been dismissed. Therefore, the allegations made by the applicants are not well founded.

M. Y. H. /M-135/K Petition dismissed.

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