1. ' This revision arises out of judgment dated 10-1-1984 passed by the IIIrd Additional District Judge, Karachi in CMA 5 of 1984 whereby the Civil Miscellaneous Appeal was dismissed and the order dated 29-12-1983 of the IInd Senior Civil Judge, Karachi was confirmed.
2. ' The brief facts of the case are that the petitioner is successor Khalifa in Tariqat of Ha'zrat El-Syed Abdul Kadir El-Gauslain (A.R) who was Shaikh-e-Tariqat and the petitioner at the request of some Mureedain and Muhibain decided to found a Khanqah of Kadria Order at Karachi. In order to acquire land a society under the name Markaz-e-Kadiria was formed and registered under the Societies Registra tion Act. In the said Society the said Shaikh-e-Tariqat was made Patron-in-Chief and the applicant was chosen by him elected by the members as Secretary General. The respondents 1, 2, 4 and 5 were members of the Managing Committee in addition to others.
3. Subsequently a plot of land bearing No. 2, Block 13-A, Gulshane lqbal, Karachi was acquired from KDA and construction was raised for Khanqah and the proposed institution having a library and Darul Uloom.
4. ' On 25-3-1976, the said Shaikh-e-Tariqat expired at Karachi and he was buried at Khanqah which was almost complete, although some construction was for the institution portion was in progress.
5. After his death, the petitioner being fully aware of the planning and will of the reverened Shaikh-e- Tariqat took into confidence other members of the Managing Committee and got his daughter Syeda Najda elected as Patron-in-Chief of the institution to be run by the said Society. The said planning and will of late Shaikh-e-Tariqat was also confirmed by the respondents 3 and 5. Since the reverened daughter of Shaikh-e Tariqat was living in Baghdad and had to shift to Karachi after about a year so at the recommendation of the petitioner she appointed respondent No. 5 to act in her absence and respondent No. 4 as convenor of Darul Uloom, it was also included in the said announcement. The late Shaikh-e--Tariqat had granted Sanad of Khalifa to about 25 persons including applicant and respondents 1, 2, 3, 4 and also to those who were not his Mureed, as Sanad was a sort of honour only. But Khirqa-e-Tariqat was awarded to the petitioner alone in December, 1973. This fact had caused heart-burning to respondents Nos. 1, 2 and 3. After the said announcement the said respondents alongwith some of their associates came out openly against the petitioner and started a campaign against him. It is averred in the plaint that respondent No. 5 took advantage of the differences between the petitioner and the respondents 1, 2 and 3 and exploited the situation in order to have full control over the Association and as well as on Khanqah.
6. The respondent No. 1 in order to make out a front against the petitioner secretly joined hands with the respondent No. 5 and helped him to make his son the respondent No. 6 as a member of the Managing Committee of the Society. The respondents Nos. 5 and 6 are neither Mureed nor Khalifa of the late Shaikh-e-Tariqat. In the month of October, 1981, the respondent No. 5 with the help of respondents Nos. 1, 2, 4 and 6 suspended the applicant from the post of Secretary-General illegally and without lawful authority. He was not allowed to function for about two years. The petitioner, however, continued to perform his duties and functions as successor Khalifa viz. arrangement of Weekly Mahfil of Giarween Sharif monthly Fateha, Urs and Giarween Sharif. The respondents 1, 2, 3 and 6 at the backing of respondent No. 5, have been interfering in the functioning of the applicant on the occasion of Urs and Giarween Sharif.
7. ' The petitioner challenged these actions by filing a Civil Suit No. 4456/83 against the respondents for a declaration and injunction. Alongwith the suit filed application for interim relief. The application for interim relief was, however, rejected by the Civil Judge on 29-12-1983.
8. ' The petitioner filed Civil Misc. Appeal No. 5/84 which was also dismissed by the learned A.D.J. by his judgment dated 16-1-1984.
9. ' The petitioner abovenamed being aggrieved against the Judgment dated 16-1-1984 has preferred this Revision petition on the grounds mentioned in the memo, of Revision petition.
10. ' Mr. Z.U. Ahmed the learned counsel for the petitioner has contended that the Courts below have failed to exercise jurisdiction vested in them by law and same have acted in the exercise of their jurisdiction both illegally and with material irregularity.
11. ' Mr. A. Samad appearing for respondent No. 4 submits that the revision petition is incompetent. He submits that when the Additional District Judge had the jurisdiction to decide the question involved, he had jurisdiction to decide it either rightly or wrongly.
12. 'The law, therefore, is that when a question of law having relation to jurisdiction, is erroneously decided by a subordinate Court and by such erroneous decision it assumed jurisdiction which it had not have, or refuses to exercise jurisdiction which it had, then it will be a case relating to the question of jurisdiction of the Court and that the decision can be interfered with by the High Court in its revisional powers under section 115 of the Civil Procedure Code (hereinafter called the Code), if it is erroneous. Whether principles of law governing issue of temporary injunction were correctly appreciated and applied to the facts of a particular case is a question of law that relates to jurisdiction. If the subordinate's appreciation or application of principles of such law is erroneous, it can be interfered under section 115 of the Code. It therefore cannot be said that the petition under section 115 of the Code is incompetent. This submission of Mr. Samad has no substance.
13. ' The question that arises for determination in this revision petition is whether the petitioner/plaintiff has made out a case for temporary injunction restraining the respondents from holding Urs in the name of Managing Committee or otherwise on 24th Rabiul Awwal for which the petitioner has already issued invitation cards and also not to interfere to obstruct or disturb in any way or manner in the duties and functions of the petitioner on the occasion of Urs and also not to interfere in all Khanqah functions viz. annual Giarween Sharif on the 11th Rabius-Sani Friday Mehfil and monthly Fateha on 24 of each Hijri month at Khanqah-e-Markaz El-Kadria. Any discontinuity in the said functions and performance of Khanqah shall seriously prejudice the interest of petitioner.
14. 'A temporary injunction can be issued under Order XXXIX ,rul 1 of the Code. Before a temporary injunction is granted, therefore, a Court must be satisfied that (1) the petitioner has a prima facie case, (2) protection is necessary from the species of injuries known c irreparable, before legal right can be established, and (3) the mischie or inconvenience likely to arise from withholding of injunction is greate than by granting it. It has to be seen in this case that the subordinat when it considers the case in the light of the ingredients specified above.
15. ' I consider that the contention raised by the learned counsel are such as have a direct bearing on the final disposal of the suit pending between the parites before the trial Court, and, therefore, any view expressed by me at this stage are likely to prejudice one side or the other. I would not, therefore, like to interfere in the matter at this stage. A decision on such a question even before evidence has been led by the two sides is generally hazardous. I do not think that it is fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its effect could be examined.
16. ' I would accordingly direct Civil Court to dispose of the Suit within a period of four months as soon as the order is received. The parties will put in appearance before the Court when issues will be framed and after recording evidence of the parties and after taking into consideration arguments of the learned counsel for the parties to decide it in accordance with law within four months.
17. ' It will be open to the petitioner to file fresh application for temporary injunction alongwith affidavit and the relevant documents. It will be open to the respondents to file further documents and affidavits. But it is clarified that the trial Court shall not be influenced by any observation made by the appellate Court or made in this order and shall be free to decide the main suit according to merits and in accordance with law within four months from the date of receipt of the order.
18. ' The above petition stands disposed of in the terms of the above Judgment.