' SARDAR SAID MUHAMMAD KHAN, J.--The two above-titled appeals have been directed against the judgment of the High Court dated 8-1-1978, whereby accepting the revision petition the order of the District Judge was set aside and temporary injunction issued by the trial Court was restored. We propose to dispose of both these appeals by a single Order.
2. This case has a chequered history behind it. In pre-partition days an incorporated Company was carrying on its business and its shareholders consisted of Hindus and Muslims. When the War of liberation started in 1947, the Hindu share-holders of the aforesaid Company migrated to occupied part of the State but the Muslim share-holders continued their business by plying their Vehicles in Azad Kashmir territory in the name of the aforesaid Company. In the year 1968, the Provincial Transport Authority out of three 'II' part route permits of the Company renewed only one 'B' Part route permit in favour of Taj Muhammad, appellant, whereas two 'B' part route permits were renewed in favour of respondents Nos. 1 to 4 (in appeal No, 74 of 1979). Taj Muhammad, appellant as a Managing Director of the Company filed an appeal before the Appellate Authority, under Motor Vehicles Act, challenging the renewal Order of two `13',Part permits in favour of respondents Nos. 1 to 4. The Financial Commissioner acting as Appellate Authority remanded the case to the Provincial Transport Authority with certain directions to make investigation with regard to certain controversial points and decide the matter afresh. The Provincial Transport Authority decided the case on 24-8-1971, whereby it divided the route permits amongst Taj Muhammad appellant and respondents Abdul Latif and three others and excluded respondents Nos. 5 to 15 from taking benefit of any permit issued in the name of the Company. Taj Muhammad appellant and respondents Nos.
5 to 15 (respondents in appeal filed by Taj Muhammad) being, aggrieved by the Order of the Provincial Transport Authorityaten 24-8-1971 filed separate appeals before the Appellate Authority ; the appellant Taj Muhammad also filed an application for suspension of the Order passed by the Appellate Authority till the decision of the appeal. Consequently, a stay order was issued by the Appellate Authority in terms that status, quo should be maintained. The respondents Nos, 1 to 4 filed a writ petition before the High Court challenging the validity of the stay order, but the same was dismissed by the High Court on 11-3-1972. Subsequently, the appeal was decided by the Appellate Authority vide its order dated 15-2-1973, whereby both the aforesaid appeals were accepted and orders of the Transport Authority dated 3-6 1968 and 15-8-1971, were set aside. The Appellate Authority directed that the route permits should be issued in the name of the Company and Management of the Company should be carried on by Taj Muhammad appellant. Respondents Nos. 1 to 4, who claimed to have purchased the shares of Company from some of the original share-holders, were advised by the Appellate Authority to seek the redress of their grievance from civil Court so as to establish that they were legal transferees of the shares of the Company ; and as such are the legal share-holders to the extent of the value alleged by them. Respondents Nos, 1 to 4 instead of seeking remedy by way of civil suit, preferred a writ petition in the High Court challenging the order of the Appellate Authority as being without lawful authority, inter alia, on the ground that the Appellate Authority had no jurisdiction to entertain and decide the appeal. The Division Bench of the High Court dismissed the aforesaid writ petition, entitled Abdul Latif and others. v. Financial Commissioner (Writ No, 9 of 1973), on 9-7-1973, observing that, prima facie, there was force in the arguments advanced by the counsel for the respondents that the Appellate Authority had the jurisdiction to decide the appeal. However, the learned Judges made observations to the effect that the points involved in the case require investigation into the facts and are complicated, as such these can be only decided by a civil Court. Consequently, Abdul Latif and others filed a civil suit in the Court of Sub-Judge Muzaffarabad seeking a declaration to the effect that they were lawful share-holders of S. R. T. ; that their Vehicles Nos. A. J. K. 1767 and A. J. K. 1895 were being lawfully plied on the route permits issued in favour of S.41.. T. ; and that the defendants may be restrained from interfering with their business of transport. The plaintiff Abdul Latif and others also filed an application seeking a temporary injunction under Order XXXIX, rule's 1 and 2 praying that injunction restraining the defendants from plying their Vehicles on the said route permits might be issued.- The learned Sub-Judge first issued a temporary injunction in the terms in which the same was sought but subsequently he amended his previous order and issued a temporary injunction to the effect that the plaintiffs shall continue plying their buses Nos. -A .1 K 767 and A J K 1895 as they had been previously doing and Taj Muhammad defendant would also ply -his vehicle. The order of the Sub-Judge, dated 13-11-1983, was challenged by way of appeal before the District Judge who accepted the appeal and set aside the order passed by the Sub-Judge. Consequently, a revision petition was preferred before the High Court and the learned Single Judge of the High Court accepting the same set aside the order of the District Judge and restored the order of the trial- Court. It is against this- order, passed in the revisional jurisdiction by the learned Single Judge in the High Court, that the present appeal-, by leave, has been preferred.
3. We have heard arguments and gone through the file. It has been argued by Raja Muhammad Hanif Bhatti, the learned counsel for Taj Muhammad and others, that the learned single Judge in the High Court has transgressed the limitations prescribed under section 115 of Civil Procedure Code by entering into the investigation of facts, by calling upon the parties to file affidavits in support of their respective contentions. The learned counsel has argued that revisional powers under section 115, C. P. C., are primarily intended for correcting errors made by the subordinate Courts and the High Court is not empowered to interfere. With a discretionary order if the same is not found fanciful or arbitrary. He has further urged that the revisional powers are not to be exercised by the High Court until and unless the case is covered by section 115, C. P. C. And the order challenged is, either without jurisdiction or, has been passed in a flagrant disregard to law.
The learned counsel has further argued that the mere fact that the High Court may draw different conclusions from the facts, in light of the record, is not sufficient to empower it to disturb the discretion exercised by the Courts below. The learned counsel has cited following authorities in support of his contention.
4. In Shah2ada Muhammad Uritar Beg v. Sultan Mahmood Khan (1), it was held that revisional powers under section 115, C. P. C. Are primarily intended for correcting errors made by the subordinate Courts in exerc Ise of the jurisdiction. It was further opined that order issuing temporary injunction by subordinate. Courts being discretionary cannot be interfered with, unless the same is found fanciful and arbitrary. It was further observed that while issuing an order of injunction against a public department the Court should seriously consider that the order does not disturb the working of such department.
5. In S. Zafar Ahmed v. Abdul Khaliq (2), it was held that revisional powers of the High Court under section 115, C. P. C. Are limited and same should not be exercised merely because ' the 'order was incorrect. It was further observed that the Court while exercising revisional jurisdiction should interfere only if the order is found without jurisdiction. The discretionary orders it was held, should not be interfered with because the revisional jurisdiction is to be exercised only where the impugned order is violative of any of the conditions envisaged under section 115, C. P. C.
6. In Kanwal Nain and others v. Faith Khan and others (3), it was held that the revisional powers of the High Court are primarily intended for correcting errors made by the subordinate Courts in exercise of their jurisdiction and an erroneous decision on question of fact is not open to revision except on the ground that the decision is based on no evidence, inadmissible evidence or is so perverse. As to cause grave injustice.
7. In Muhammad Hussain Munir and others V. Sikandar and others (4), a compat alive study of Article 98 and section 115, C. P. C. Was made and it was held that writ jurisdiction of the High Court being creation of Constitution stands on higher padestal as compared with revisional power under section 115, C. P. C. It was observed that order passed by the competent authority cannot be interfered with, even in exercise of writ jurisdiction, if the same is not found to be without lawful authority. The learned Judges also made a distinction between the appellate juris-
(1) P L D1970 SC 139 (2) PLD 1964 Kar. 149
(3) PLD 1983 SC 53 (4) PLD 1974 SC 139 diction and the revisional jurisdiction of the High Court and opined that the latter should not be equated with the former and has to be exercised only if a case falls within the ambit of section 115, C. P. C.
8. It has been argued by the learned counsel for the appellants that after the order of the Appellate Authority, the respondents Abdul Latif and others had to stop plying their buses on the route permits issued in the name of Company. The Order of the Appellate Authority was passed on 15-2- 1973, whereas the civil suit was instituted on 22-10-1973, after a delay of 8 months. Thus, he maintained that the plaintiffs-respondents were guilty of laches and their indolence was sufficient to disentitle them from any interim relief, especially so when after the order of the, Appellate Authority they had stopped plying their vehicles and were not vigilant to seek relief from the civil Court. The learned counsel has relied on Arts Council of Pakistan v. Riazuddin Pirzada (1), wherein the meanings of the word status quo were considered and it was opined that temporary injunction being equitable remedy should be refused when a party is guilty of laches. The learned counsel for the appellant has also urged that under section 66 of the Motor Vehicles Act, the jurisdiction of the civil Court is barred in the matter and as such the impugned order of the trial Court and that of the High Court issuing temporary injunction is violative of the said provision. In reply), it has been argued by the learned counsel for the respondents that the fact that the Company was divided into two parts, A and B, in the year 1957, and the plaintiffs-respondents were treated by the appellants as legal share-holders, as transferee from the original shareholders, establishes a prima facie case in favour of plaintiffs-respondents justifying the issuance of temporary injunction in their favour. The learned counsel for the respondents has also argued that the jurisdiction of the civil. Court is not barred when the order of an authority or tribunal is challenged on the basis of lack of jurisdiction or on the basis of mala fides. He has relied on cases reported as Ghulam Hussain v.
Nasrullah and other* (2), Sh. Inayat Ullah and others v. M. A. Khan and others (3), Abdul Rauf and others V. Abdul Hamid Khan and others (4) and Muhammad Jamil. Asghar v.\,The Improveinent, Trust Rawaipivdi (5), in support of his contention that despite the bar of jurisdiction under section 66 of Motor Nk.Thicles Act, the civil Court had the jurisdiction in the matter be-' cause in the instant case it has been specifically averred in the plaint that Financial Commissioner was not competent to hear and dispose of' the appeal as the appellate authority, for the reason that the Order challenged before him was not an appealable order,
9. We have given our earnest consideration to the argument advanced at the bar. There is no doubt that the jurisdiction of civil Court is not barred despite specific ouster by statutory provision if the case is brought within the ambit of absence of jurisdiction; lack of jurisdiction; a flagrant disregard A to statutory provisions ; or,it is shown that the authority or the tribunal passing the order was actuated by mala fides. However, in the instant case, the main ground on whidh the order of the appellate authority is assailed is that the orders passed by Provincial Transport Authority were not appealable. This objection was also raised by the plaintiffs-respondents in the writ petition entitled Abdul Latif and others v. Financial Commissioner (Writ Petition No, 9 of 1973), and the learned Judges after peru-
(1) PLD 1969 Kar. 349 (2) PLD 1970 Azad J& K 44
(3) PLD 1964 SC 120 (4) PIrD1965SC671
(5) PLD 1965 SC:69,8 ing the relevant provisions of law opined that there was much force in the argument advanced by the learned counsel for the respondents, i,.e. Taj Muhammad and others that the order was appealable to the appellate authority. It is not possible at this stage to give any final verdict with regard to the fact as to whether the orders passed by the Provincial Transport Authority were appealable or not because that would amount to deciding the suit. However, taking into consideration the relevant provision of law and observations made by the Division Bench while disposing of the writ ,petition, it cannot be said that, prima facie, the order of the Appellate Authority was without jurisdiction because the order challenged before the said authority was not an appealable order, especially so when the objection was not raised before. The said Authority. It may be observed here that if on the averments made in the plaint, a civil Court is held competent to take cognizance of the matter, it does not imply, that a temporary injunction should be issued in all cases ; whether a temporary injunction should be issued or hot, th6 Court has to take into consideration the guiding principles, namely, (i) a prima facie case, (ii) balance of convenience and (iii) the irreparable loss which is likely to cause to the party seeking the temporary injunction.
We have considered the arguments advanced at the bar in light of the aforesaid principles -and we are of the view that the learned Single Judge in the High Court has failed to appreciate the fact that the High Court while exercising revisional juris-1 diction should not enter up to the investigation of questions of fact for , justifying the interference with the discretionary orders of subordinate'
Courts. At this stage, it is not possible to say as to whether in fact the, Company was bifurcated in two groups, as alleged by the plaintiffs, and whether such bifurcation was legal in view of the relevant provisions of law on the subject. It is also not possible to give any verdict at this stage as to whether the plaintiffs are the lawful share-holders. They had yet to establish these facts in the trial Court by evidence. However; prima facie, in view-;of the observations made in the order of the appellate authority to the effect that plaintiffs-respondents illegally obtained the permits of their vehicles with the connivance of a Clerk of Provincial Transport Authority, and the other circumstances, it cannot be said that plaintiffs had a good case for issuance of a temporary injunction.
' In the light of what has been stated above we accept the appeals,. Set aside the order of the learned Single Judge in the High Court and restore the order passed by the District Judge. In view of circumstances of the case, we make no order as to costs.