' The relevant facts of the case are that the petitioner in 1964 constructed his bungalow on Plots Nos. 3, 4, 5, 86 and 87, situated in Block No, 10, Mandi Town, Jauharabad. By investing substantial amount thereon. The Thal Development Authority, however, after completion of the bungalow, issued notice to the petitioner that the latter had encroached a public road, and asked him to remove the same otherwise the construction on the encroached land would be demolished.
2. The petitioner, apprehending demolition of the construction, filed a suit for injunction on 2nd November, 1967 against respondent No, 1 in the civil Court at Jauharabad. The Civil Judge framed twelve issues. Issues Nos. 9, 10 and 11, being relevant for the decision of this petition, are reproduced hereunder :-
(9) Whether the disputed part of the property is a necessary part of the building and if it is resumed, it will decrease the utility and value of the bungalow, if so, with what effect.
(10) Whether the defendant is estopped by conduct to resume the disputed portion of land after demolishing the construction over it.
(11) Whether the defendant is entitled to the disputed part of the property without compensation to the plaintiff.
' The learned trial Judge dismissed the suit on 15th June, 1968, but observed under issue No, 9 " The T. D. A. Has its sub-offices at Jauharabad. The construction work of the Bungalow continued for a period of one year as admitted by Raja Fazal Illahi Overseer D. W.
2. It was incumbent upon the defendant to have informed the plaintiff of his mistake. Had the plaintiff been apprised of the fact that certain encroachment had been made or were being made, the wrong could be set right. The action taken by the defendant is a belated one. The effect is that in case the defendant now intends to resume the possession of the disputed portion of the building, net loss shall result to the plaintiff. The defendant can no doubt resume the property but he shall pay a reasonable compensation to the plaintiff. In my view a sum of rupees fifty thousand is an adequate amount of compensation to be paid to the plaintiff in case the T. D. A. Is serious to resume the property..."
' Similarly under Issue No, 11 he further observed : "Undisputedly the disputed part of the building is inevitable necessity of the building for its full enjoyment and use. It is also unimaginable that a person may invest a huge amount over a construction for which he may not be sure about his own title. It shows that the plaintiff made constructions in good faith believing the disputed part to be his property. The defendant's officers are stationed at Jauharabad. They took no notice to check the disputed construction at any proper stage. Thus it appears that the defendant's servants contributed much to the plaintiff's encroachment. The alleged road is only a lay out in the town planning. It lies at the end of the town.
It does not vest in the P. W. D. Even Highway Laws are not applicable to this case. No public right is alleged in the road itself. On the other hand, the plaintiff constructed certain constructions in good faith. If he can be required to vacate, equity and justice demand that defendant should pay the costs and the damages so occurring to the plaintiff. It is in the evidence that half of the value of the building would be effected by demolishing the disputed spot. There was no separate issue on record to this effect. After considering the importance of the building and investment made over its construction, I firmly agree with the learned counsel for the plaintiff that the plaintiff is entitled to a cash compensation to the tune of rupees fifty thousand, in case he is obliged to demolish the disputed part and to surrender the vacant possession of the land. Such compensation could have been rightly claimed by the plaintiff had the defendant granted an opportunity to the plaintiff to explain his case before the Authority. This claim of the plaintiff is fortified specially when it is urged by the learned counsel for the plaintiff that his client was prepared to pay any amount of consideration for the disputed part as much as it may be assessed by the defendant. Under the circumstances, it appears to be just, fair and equitable that the defendant should not eject the plaintiff without payment of compensation, as stated above. I decide this issue accordingly."
' The judgment and decree dated 15th June, 1968 was not assailed in appeal, but after lapse of about seven years, on 19th June, 1975, a revision petition was filed before the District Judge, Sargodha, and the latter by the impugned order dated 13th July, 1976, deleted Issues 9 and 10 and findings of the trial Court thereon, but did not set aside the finding of the Civil Judge under Issue No, 11, referred to above.
3. Learned counsel for the petitioner. Contended that the judgment of the trial Court dated 15th June, 1968 was appealable and no appeal having been filed by respondent No, 1, the revision petition was not maintainable. It was also argued that the revisional jurisdiction under section 115, C. P. C. Was conferred upon respondent No, 3 with effect from 14th April, 1972, by Ordinance XII of 1972, and could not have been exercised retrospectively in respect of suit finally decided in 1968. On merits, it was argued that even the impugned order does not ensure to the benefit of respondent No, 1, because the learned District Judge did not set aside findings of the trial Court under Issue No, 11.
4. Learned counsel for the respondents, on the other hand, contended that the finding of the trial Court awarding Rs, 50,000 as compensation to the petitioner was without jurisdiction. It was submitted that where appeal was not filed against the judgment and decree, revision was maintainable. It was next argued that respondent No, 3 had rightly exercised revisional jurisdiction vested in him under section 115, C. P. C. And this Court would be reluctant to set aside the same in the exercise of Constitutional jurisdiction.
5. The consideration of the arguments advanced by the learned counsel for the parties, with reference to documents on the file, establishes that the judgment and decree dated 15th June, 1968 of the trial Court was appealable under section 96, C. P. C. But no appeal was preferred by respondent No, 1 during the prescribed period of limitation and instead, after lapse of seven years, filed revision petition before the District Judge.
' The revision petition was filed purportedly under section 115, C. P. C. As amended by Ordinance XII of 1972, which reads "115.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears :-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
(2) The District Court may exercise the powers conferred on the High Court by subsection (I) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."
Evidently the District Judge could only exercise discretion to call for record of the case decided by subordinate Court if the impugned order was not appealable under the Code. The impugned judgment been appealable was hit by subsection I.) of section 115, C. P. C. As such, the revision petition itself was not maintainable and the order of the District Judge was without jurisdiction.
' In Municipal Committee v. Aziz Elahi (1) it was observed by the Supreme Court : "......As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed, if the applicant was diligent but he has not done so, then the High Court should not entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised, the High Court will not, as a rule, interfere in revision.
' In Azizul Hassan v. Ghulam Mohammad (2) it was observed: "The trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and
(I) PLD 1970 SC 506
(2) 1971 SCM R 12 ' it is appealable under the Code, then irrespective of fact whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent."
6. The judgment and decree passed about seven years earlier having not been appealed had attained finality and the learned District Judge had no jurisdiction to interfere in revision, in past and closed matter.
7. The District Judge deleted issues 9 and 10 together with findings thereon, but did not upset the findings of the trial Court under issue No, 11, which practically endured for the benefit of the petitioner and rendered the impugned order ineffective.
8. In the result, this petition is accepted and the impugned order dated 13th 'July, 1976 passed by respondent No, 3 is declared to be of no legal effect. There will be no order as to costs.