AGHA RAFIQ AHMAD KHAN, J.- This Constitution petition is directed against the order of the 111 Additional District Judge, Karachi South, in exercise of Civil Reversional Jurisdiction, allowing petition of the respondent Muhammad Arif Qureshi and directing remand of the case under order 39, Rules 2(j)(5) read with section 151, CPC, for disposal of merits, after recording evidence of both the parties.
2. The facts in brief are that respondent Mahammad Arif Qureshi had constructed a bungalow in Bath Island Karachi on Plot No.70-A Gulshan-e-Faisal Society. The construction on the main bungalow was according to the approved plan but the respondent constructed the Servants Quarter over his underground Tank, .Covering the 10 feet open space which had to be left according to the Construction Rules. The roof of the Servants Quarters abutted on the compound wall of the adjacent plot, the building which was in occupation of the Consulate General of France.
The Consulate objected to this unauthorised construction, due to security reasons and filed a suit against the respondent in the Court of the Civil Judge for demolition of the structure. The Civil Judge passed an interim order for maintenance of "Status Quo". The Consulate therefore approached the Karachi Building Control Authority of the K.D.A direct, objecting to this encroachment against their compound wall. Respondent Mr. Qureshi had also submitted his completion plans of the bungalow to the same authority showing the extra construction of the Servant Quarters. The Building Authority withheld passing of the completion plan of the respondent, because of the objection of the Consulate and served the respondent with a notice dated 4.6.1987 to remove the Servants Quarter from the compulsory open space. As. This was a 24 hours notice with threat of demolition, received by the respondent on 5.6.1987, he drafted a reply to the notice and took it to the Karachi Building Office at Civic Center on 6.6.1987 at 8.30. a.m. The case of the respondent was that the completion plan with room added had already been passed by the Building Authority and stolen by the same authority from the drawer of the writing table in his new bungalow. The respondent was informed that this unauthorised Quarter would be demolished that very morning. The respondent who had already expected this reply had in his possession, the papers of the plaint against Building Authority for impleading dominion of his house and he drove straight from the Civic Center to the City Courts, and filed the plaint before the 8th Senior Civil Judge Karachi South on the same day and he also obtained an interim status quo order against the Authority. With the copy of this order in his possession he drove at top speed to his bungalow, and showed this order to the staff of the Authority, who had already jumped over the compound wall and started demolishing the roof. It is the case of the respondent that they stopped the work for a moment and rang up their boss presumably Mr. Z.A. Nizami who gave the orders to go ahead.
They re-started the demolition with fresh vigour. The respondent on 11.6.1987 filed an application for disobedience of the injunction order under Order 39, Rules 2(3)(5) read with Section 151, CPC, for taking action against the petitioners for deliberate disobedience of status quo order passed by the court. With this application the respondent filed his own affidavit in, support, and cited his witnesses Akber Waheed, Muhammad Ali, Umer Din, Shakil and others alleging that they were present at the site, when he requested the K.D.A. Magistrate and other officials to stop the unlawful demolition in contravention of the status quo order.
3. The Court issued notice to the contemnors on 11.6.1987 and fixed the case on 18.7.1987. Meanwhile Mr. M.A. Nizami of the Authority filed his counter affidavit that the Status Quo in question was received in the office only on 9.6.1987, and by that time the unauthorised construction had already been demolished. To this the respondent filed his rejoinder and on 26.10.1987. He filed an application with affidavit that cross-examination of Mr. Z.A.Nizami had become very essential in order to bring the correct. Facts on record for determination of the matter in controversy.
The learned Senior Civil Judge however found-that the Status Quo order had been served upon the Contemnors on 9.6.1987 while the Advocate for the plaintiff/respondent had not produced the copy of the Status Quo obtained from the Court on 6.4.1987 which he says he got served upon the defendants/contemnors on the very date. The order further reads:- "1 am of the humble opinion that the defendants/contemnors have not violated order of this Court and the plaintiff has failed to make out a prima facie case against the alleged contemnors regarding any penalty or fine, therefore, no charge of whatsoever nature viz contempt/disobedience of the Status Quo order has been made out by the plaintiff. I therefore, dismiss this application under order 39, Rule 2(3)(5) read with Section 151, CPC of the plaintiff'
4. Against this order the respondent presented the Revision petition before the High Court but the High Court returned the Memo, of Revision application for being presented to the District Court that had parallel jurisdiction in case of revision. The revision was accordingly heard by the Ill-Additional District Judge, Karachi. The learned Additional District Judge observed that the petitioner, in proceedings before the Senior Civil Judge, should have been given opportunity to prove the allegation that he had served the Status Quo order on the contemnors. The learned Civil Judge should have given a finding based on evidence by allowing the parties to lead evidence before deciding the matter. The finding of the Lower Court was based on the probabilities and doubts regarding the version of the plaintiff/respondent. The learned District Judge therefore refrained from giving any finding on facts but allowed the revision application by setting aside the order of dismissal of the civil Judge and remanding the case to the Civil Court for providing opportunity to both the parties to . Produce evidence.
5. Against this order of the III Additional District Judge directing a retrial of the issues of law and fact, the Building Authority have filed the Constitution Petition, taking the plea that against the dismissal order the revision application under section 115, of the CPC was not maintainable.
6. Section 115, CPC empowers the High Court or the District Court exercising the same powers to revise the order of the subordinate Court in three cases only:-
(a) Exercise of jurisdiction not vested in the subordinate Court;
(b) Failure to exercise jurisdiction so vested in the sub-ordinate Court, or,
(c) To have acted in the exercise of its jurisdiction illegally, or with material irregularity.
The question would arise under what clause, the present order of dismissal would fall.
7. Clause 1(c) of S. 115, allows exercise of Reversional powers in case the lower Court has acted 'with material irregularity'. The. Conclusion arrived at without any evidence in support thereof, on the basis of probabilities and conjectures would suffer from material irregularity. Such finding can be revised under Clause (c) of S. 115, CPC. In the present case the Senior Civil Judge appears to have considered the plaintiffs story to be a fairly take and has not considered it necessary to record evidence little knowing that truth is sometimes stranger than fiction. Such a decision is therefore open to revision.
8. In the case of S. Zafar Ahmad v. Abdul Khaliq, reported in PLD 1964 (w.p), Karachi 149, it was held by such eminent Judges as Manzoor Qadir, C.J. Muhammad Yaqoob Ali, J. Ortcheson, Inamullah, Waheeduddin Ahmad. Qadeeruddin Ahmad and Muhammad Dawood Khan, JJ. That it is Court's duty to adopt an interpretation of Section 115, C.P.C, which consistently is most beneficial, that the Court can interfere in revision if the sub-ordinate Court has taken a procedural step which is contrary to a mandatory provision of law or has omitted to take procedural step which is required by a mandatory provision of law to be taken, or while exercising its jurisdiction has taken procedural step which in contrary to a directory provision of the law. Or to a general principle of law.
9. In another case of Arif Yazadani and others v. Sheikh Abdus Salam and others, reported in PLD 1957 (W.P) Lahore 983. It was observed that an error in the mode prescribed for the exercise of jurisdiction will be governed by clause (C) of section 115, C.P.C. That where the lower Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity holding a fact as proved in absence of evidence or giving finding in total disregard of evidence on record Court acts illegally with material irregularity and the High Court will therefore, interfere in Revision. It was further observed.
"A Judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof; it is the duty of the Court to consider the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case. If there is not evidence in support of the truth of a particular fact, a Court cannot. Hold it is to be proved. And if there is legal evidence on the record, a Court cannot in giving its decision just ignore it. In case Court ignores the evidence or gives a finding when there is no evidence on record, it errs in law in the mode prescribed for the exercise of jurisdiction and facts illegally and with material irregularity, and such a case is covered by sub-section (C) of S.115 of the Code of Civil Procedure. A Court will be acting irregularly and with material regularity if coming to conclusion a Court imports its own knowledge or shuts its eyes to the legal evidence on the record.
A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well recognised judicial principles. If a Court acts arbitrarily or capriciously in determining a matter in utter disregard of the legal evidence on the record or goes out of its way to decide appoint without any legal evidence in support of it, then it acts in the exercise of its jurisdiction illegally and with material irregularity and a finding arrived at in such circumstances is open to revision by the High Court under Section 115, of the Code of Civil Procedure."
10. It has also been held in the case of Muhammad Ameen v. The State, reported in PLD 1985 Lahore
440. That in case an accused decides to show cause in a case of contempt and does not tender the apology then Court is to hold such inquiry and take such evidence as it deems necessary or as produced by the accused in his own defence and after hearing the accused and such other person as it deems fit shall give a decision in the case. Thus if the apology is not tendered the Court is required to take evidence and decide the matter on the basis of that evidence and not on mere conjectures.
11. We may also observe that the 'factual' controversy as in the present case cannot be resolved in a Constitution Petition. We have only to see it the Reversional Court has exercised jurisdiction in accordance with law and that its order of remand of the case and recording of evidence for both the parties, is not illegal, perverse or does not otherwise suffer from any errors of procedure. We cannot find any error or defect in exercise of jurisdiction by the learned Additional District Judge who has been reasonable and fair and has not expressed his own opinion regarding the facts, which are to be decided by the Senior Civil Judge, Karachi, alone, on evidence.
12. For the aforesaid reasons we find no merit in this Constitution Petition and dismiss the same, leaving the parties to bear their own costs.