1. ' This revision application has been filed for the deletion of the observations made by the learned Vth Additional District Judge, Karachi (East) in his order dated 31-5-1989 while dismissing the Revision Application No, 26 of 1989 filed by the respondents and that made by the same Court while dismissing the Review Application filed under Order XLVII, Rule 1, C.P.C. By the applicants for the review of the above order dated 31-5-1989 .
2. ' The brief facts of the case appear to be that respondent No, 1 who are the owners of the building known as `Mateen Centre' constructed on Plot No, 158/0/2 P.E.C.H. Society, Karachi, filed a Suit No, 1078/85 (New Suit No, 576/85) against respondents Nos. 2 and 3, inter alia, seeking to permanently restrain them from demolishing the alleged unauthorised construction raised by the respondent No, 1 on the aforesaid plot which suit is pending in the Court of VI Senior Civil Judge, Karachi (East).
3. In that suit on an application under Order XXXIX, Rules 1 and 2, C.P.C. The learned Court directed the parties to maintain status quo. Later, it appears that the present applicants who claim to be purchasers were on their request joined as defendants Nos. 3 to 8 in the said suit. On 17-3-1988 the applicants filed in the suit an application under Order XXXIX, C.P.C. Read with section 3 of the Contempt of Courts Act alleging therein that in violation of the status quo order of the Court the respondent No,1 had raised further construction on the premises. On this application an order for inspection of the premises was passed by the learned Civil Judge and in the first instance he directed the Nazir of the Court to carry out the inspection but later Mr. Khalid Athar, Advocate, was appointed by the consent of the parties to undertake the proposed inspection.
4. ' It is alleged that when after due notice to the parties the Commissioner alongwith the applicants'
5. Advocate visited the site for inspection the representative of the respondent No,1 refused to allow the Commissioner to carry out the inspection and tried to create law and order situation whereupon the Commissioner his said to have filed two reports in the trial Court. It may be mentioned that in the meanwhile and before 162-1989 certain unfortunate developments seem to have taken place and it is alleged that by misrepresentation order for withdrawal of the suit was obtained on 15-2-1989, however, that order was later recalled on 25-2-1989 and the suit was restored.
6. ' Ultimately the learned trial Court by order dated 2-5-1989, inter alia, directed that :-- "Mr. Khalid Athar, Advocate is directed to complete his work of inspection. In view of above situation I direct S.H.O. Of concerned P.S. Where property in suit is situated to give necessary police aid to learned Commissioner to avoid any breach of peace. Intimate learned Commissioner accordingly.
7. He may inspect site after due notices to parties and report compliance by next date."
8. ' The above order of the Trial Court was challenged by the respondent No,1 in Civil Revision No, 26 of 1989 filed before the District Judge, Karachi (East) which was transferred to and heard by the Vth Additional District Judge, Karachi (East) and dismissed by its order dated 31-5-1989. In the dismissal order the learned Additional District Judge observed:- "In this regard it will suffice to observe that the learned trial Court had granted police aid to the Commissioner due to the objectionable conduct on the part of the men of the petitioners. However, if the petitioners undertake to allow the Commissioner to freely inspect the site, it shall be open to the trial Court to consider the request of the petitioners for conducting site inspection by the Commissioner without police aid. With these observations this revision petition being without any merit, is dismissed with no order as to costs."
9. ' Feeling aggrieved by the above observation of the learned Additional District Judge the applicant sought review of the order by an application under Order XLVII. However, this application was dismissed in limine on 22-7-1989.
10. Mr. Nizam Ahmed, the learned counsel for the applicants submitted that the learned Additional District Judge having found the revision as without merit acted illegally in making the observation quoted above for that in effect this amounted to allowing the revision and directing the trial Court to act in a particular manner. In the circumstances, the learned counsel contended, the applicants rightly filed application under Order XLVII, C.P.C. Before the Additional District Judge for the review of his earlier order with a view to delete the above observation from the order and bring it in conformity with his finding that the revision had no merit. By dismissing the application for review the learned Court acted illegally and with material irregularity.
11. ' Mr. M.G. Dastgir the learned counsel for the respondents at the outset stated that the present revision was not competent and was barred by subsection (4) of section 115 of the Civil Procedure Code which provides:-- "(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."
12. It was contended that second revision to the High Court being incompetent under the above- referred provision of subsection (4), such revision would equally be incompetent against an order passed by the Additional District Judge on an application under Order XLVII for the review of order passed in a revision under subsection (2) of section 115, C.P.C. As the latter would be an order in revisional jurisdiction of that Court. Reliance was placed on the case of Muhammad Rafique v. Mst.
13. Rashida Begum (1979 CLC 823) it was observed in that case in para. 8 of the report that:-- "8. It is, therefore, clear that while exercising the ancillary jurisdiction under Order XLVII, rule 1, read with section 115, C.P.C. The learned Additional District Judge was still exercising the revisional jurisdiction. By the order which was reviewed he had allowed the revision petition but by the order in review he had dismissed the same. In this view of the matter, the finality given by section 115 to his orders remains intact nor the High Court, whose jurisdiction in a case of which its cognizance has been taken under section 115 by the District Courts is ousted, can have any jurisdiction to interfere with or set aside an order, or to adjudicate upon the incorrectness of the order refusing to exercise revisional jurisdiction. The refusal to exercise revisional jurisdiction on the part of the learned Additional District Judge amounts to confirming the order of the trial Court in exercise of its revisional jurisdiction. The provisions of section 115, C.P.C. Conferring finality to the order of the District Court and excluding the jurisdiction of the High Court to sit in judgment over it thus override the provisions of Order XLIII, rule 1(w). If a different view is held, that would lead to the serious anomaly which has already been pointed out. It has always been the intention of the Legislature not to allow any interference against the revisional order of the High Court also. Thus there is a specific bar under clause 10 of the Letters Patent of the High Court against an appeal to the Bench of two Judges or more from an order of a Single Judge passed in exercise of revisional jurisdiction.
14. The same finality has been granted by section 115 to the revisional order of the District Court."
15. ' In reply the learned counsel for the applicant submitted that the restriction placed on the jurisdiction of the High Court under subsection (4) of section 115, C.P.C. Will apply only to such order of the District Court as disposes of the revision on merits. He stated that in the present case as the revision application of the respondent before the Additional District Court had been dismissed as being without merit, it cannot be considered an order as contemplated under subsection (2) and will therefore not attract the provisions of subsection (4). His further contention was that as the present revision seeks to challenge the order passed by the Additional District Court in the application for review filed by the applicant under Order XLVII, rule 1, C.P.C. It will in any case fall outside the ambit of the said subsection (4). I am, however, unable to agree to any of these contentions of the learned counsel. In so far as the first submission is concerned it is apparent from the impugned order of the learned Additional District Court that respondents' revision was dismissed on merits after taking into consideration the various aspects of the case. Besides, the distinction sought to be A drawn by the learned counsel between orders passed by the District Court in exercise of revisional jurisdiction is not spelt out from the wordings of the aforesaid subsection (4) which I have reproduced above. Had the intention been to cover under subsection
(4) only those orders of the District Court which were on merits or which allowed the revision it could have easily been provided so. As regards the second contention, suffice to say that application under Order XLVII, C.P.C. Having been made for the review of the order passed by the Additional District Court in exercise of revisional jurisdiction, the order on such application would too be in exercise of the revisional jurisdiction and covered by the provisions of subsection (4) of section 115. The point has been elaborately dealt with in the above-referred case of Muhammad Rafique with which I respectfully agree. Holding otherwise would be rendering the provision of subsection (4) ineffective for then, it will be easy to circumvent the same by first filing an application under Order XLVII, C.P.C. Before approaching the High Court.
16. ' It was next contended by the learned counsel that technicalities of procedural law need not be strictly adhered to as procedural laws are meant to so govern and regulate the proceedings that the purpose of fair, just and equitable decision of a dispute is achieved. For this proposition he placed reliance on the cases of Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), Mando etc. v. Muhammad Umar etc. (1982 CLC 284). With reference to the case of Manager, Jammu & Kashmir State Property in Pakistan, the learned counsel further submitted that as held by their Lordships of the Supreme Court, this Court had vast powers under revisional jurisdiction and in exercise of such powers was fully competent to set aside the impugned orders of the District Court. On the scope of High Court's revisional jurisdiction their Lordships have observed in the case as follows:-- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu and secondly, the Court, may make such order in the case as it thinks fit."
17. ' At another place of the same judgment their Lordships observed that: "The principle of equitable construction agreeable to justice and reason is too well-known to be elaborated, subject of course to the equally well-established principle that equitable justice and interpretation-should not induce judges to do violence to the language."
18. In the instant case the interpretation sought to be placed on sub-section (4) of section 115 of the C.P.C. By the applicants is not possible without doing violence to the plain language of subsection (4). The intention of the law maker C seems clear that where a revision has already been preferred before the District-Court and order thereon passed by that Court under subsection (2) of section 115 no further revision against such order shall be competent before the High Court. In the case of Hassan Din v. Abdus Salam (PLD 1991 SC 65) while examining whether Supreme Court's decision in Noor Muhammad v. Sarwar Khan and others (PLD 1985 SC 131) did not oust the jurisdiction of High Court to interfere in Constitutional jurisdiction with an order passed by the District Judge under subsection (2) of section 115, C.P.C. Their Lordships of the Supreme Court observed: "The Civil Judge after notice to the mortgagees who also happened to be the auction-purchasers, set aside the ex parte decree by order dated 2510-1990. Three Revision Petitions were filed against that decision setting aside the ex parte decree. One of the Revision Petitions (Civil Revision No, 24/CR of 1980) was filed by Hafiz Abdus Salam, etc. The subsequent vendees from the auction purchasers. They pleaded want of notice leading to the setting aside of the ex parte decree. The Additional District Judge did not at all refer to their grievance in the matter and rejected all the three Revision Petitions on 25-1-1982. As any further relief within the framework of section 115 of the Civil Procedure Code was barred a Constitutional petition was filed by these subsequent vendees of the property."
19. ' The observation of their Lordships in the last sentence of the passage reproduced above to the effect that "As any further relief within the framework of section 115 of the Civil Procedure Code was " is apparently with reference to subsection (4) of section 115, C.P.C. For such contention was raised before the Supreme Court as is clear from para. 4 of the judgment which reads as under:--- "Mr. Mansoor Ahmed, Advocate, the learned counsel for the appellant has contended that powers of the High Court and the District Judge while disposing of matters under section 115 of the Civil Procedure Code are identical. When by subsection (4) of section 115 of the Civil Procedure Code an order of the District Judge has been made immune from further proceedings before the High Court the express provisions of law cannot be indirectly avoided by invoking the constitutional jurisdiction."
20. At the fag-end of his reply to the respondent's arguments the learned counsel for applicants made a request for granting the present revision as a constitutional petition. This was opposed by the learned counsel for the respondent.
21. ' Considering the circumstances of the present case and the fact that the court-fee required to be paid for a constitutional petition has not been paid I am unable to accept this belated request on behalf of the applicants.
22. ' The upshot of the above discussion is that the revision application is dismissed as not maintainable. There will, however, be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.