' This revision has been fled by the Municipal Committee, Bannu, defendants/petitioners which calls in question the legality/validity of decree recorded on 17-11-1997 by the Additional District Judge, Bannu, vide which he had affirmed the judgment/decree granted by the Senior Civil Judge, Bannu on 28-11.1996 in favour of the plaintiffs/respondents, with no order as to costs.
2. Stated briefly, the facts of the case in hand are that the respondents/plaintiffs i,e,, Malik Muhammad Iqbal s/o Late Malik Damsaz Khan and others had filed a suit for declaration and, in the alternative, for mandatory/permanent injunction against the petitioner/defendants in the Court of Senior Civil Judge, Bannu. The suit was contested by the petitioner/defendants who filed their written statements, in the trial Court, wherein quite a few legal as well as factual objections were raised. The pleadings of the parties were reduced to the following issues:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is mala fide?
(3) Whether the plaintiffs have got no right of easement over the road in question which is owned by M.C. Bannu?
(4) Whether this Court lacks jurisdiction to entertain the present suit?
(5) Whether raising/metalling of road in question has created a threat to the adjacent property owned by the plaintiffs?
(6) Whether the plaintiffs are entitled to the decree for declaration as prayed for?
(7) Whether the plaintiffs are entitled to decree for permanent and mandatory injunction as prayed for in Part "B" of their amended plaint?
(8) Relief.
3. After recording the respondent/plaintiffs' evidence, the petitioner/M.C. Was called upon to produce evidence in its defence. The petitioners, however, declined to produce any evidence.
Accordingly the statement of its counsel was recorded by the trial Court which is reproduced as under:- "Statement of Amanullah Khan Kalakhel, Advocate counsel for the defendants on oath:-- ' The M.C. Officials have already been examined as P.Ws. And the record of the M.C. Has already produced by them. It would be repetition to produce the same record again in defence and as such I do not feel to produce the M.C. Official again. I close my evidence and the case may be decided on the evidence recorded."
4. After hearing the learned counsel for the parties and going through the record of the case the suit was decreed in favour of the respondents/plaintiffs by the Senior Civil Judge by its judgment/decree recorded on 28-11-1996.
5. Aggrieved by the said judgment/order the M.C./petitioner filed an appeal aginst the same in the Court of District Judge, Bannu which was entrusted to Additional District Judge, Bannu who by his order dated 7-11-1997 dismissed the same. Hence this revision petition by the M.C./petitioner.
6. Mr. Amanullah Khan Kalakhel, Advocate, learned counsel for the petitioner (M.C.) present and heard at length. I have also gone through the material, available on the record carefully.
7. It has escaped the notice of the learned counsel for the petitioner that section 115, C.P.C. Applies only to cases involving illegal assumption or no exercise/irregular exercise of jurisdiction by the lower Courts. The provisions of section 115 cannot be invoked against conclusions of law/facts which do not affect the jurisdiction of the lower Courts, no matter, however, erroneous or wrong, the decisions might be, either on a question of fact or law, unless the decision involves a matter of jurisdiction. Needless to mention that if a Court has jurisdiction, then in that case, it has jurisdiction to decide one way or the other, and erroneous conclusion of law/facts can only be corrected in appeal but a revision will not be competent on such a ground. In other words the High Court may interfere where Subordinate Court has---
(a) exercised jurisdiction not vested in it, or
(b) failed to exercise s jurisdiction vested in it, or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity.
8. Where the above conditions are not satisfied the High Court would not interfere in its revisional jurisdiction. The learned counsel for the petitioner has miserably failed to convince me that the lower Courts had no jurisdiction to decide the case/appeal or that their decisions are against some mandatory provisions of law and, thus, a nullity and resultantly liable to be set aside. In my considered opinion the perusal of the record would lead prudent men to the irresistible conclusions that both the impugned judgments do not suffer from any jurisdictional defect/error. The same cannot be, therefore, interfered with by this Court in its revisional jurisdiction.
9. Unfortunately, the petitioner/M.C.'s learned counsel has also failed to show/point out that the judgments of the lower Courts are the outcome/result of either misreading or non-reading of evidence or that the same are otherwise arbitrary or perverse.
10. Besides, the jurisdiction vested in the High Court under section 115, C.P.C. Is discretionary in nature and, therefore, the High Court will not interfere under this section to correct every irregularity in the exercise of its jurisdiction exceptwhere grave injustice/hardship would result on account of its non-interference. The learned counsel for the petitioner failed miserably to convince me as to what type of grave injustice has been caused or what type of hardship would be faced by the petitioner/M.C. If the revisional jurisdiction is not exercised.
11. The contention of the learned counsel for the petitioner/M.C. That the lower Courts have not decided Issues Nos.1, 3, 5, 6 and 7 in favour of the respondents legally/properly has not impressed me at all. It has been admitted/established in the evidence that the respondents/plaintiffs are the owners of the building located on the side of the road situated in Kabari Bazar, Bannu. It also stands proved from the record that the surface of the said road has since been raised from the level of the floor of the building, owned by the respondents. The raising of the surface of the road has not only obstructed the entrance/exit and the discharge of water of the building but has also caused substantial damage to the entire building. This factual position has also been controverted by the local Commissioner. Additionally, the petitioner/M.C. Has not taken the trouble of producing any evidence, regarding this fact, in support of its contention/case.
12. The objection that the Local Commissioner Mr. Noor Muhammad Khan, XEN, C & W Department (Roads), Bannu has not mentioned the height of the road in his report after the spot inspection and the fact that he had failed to mention about the same, in his statement recorded in Court, is of no significance for the simple reason that it cannot be raised now at the revisional stage. The fact remains that the said Noor Muhammad Khan (XEN) was deputed to inspect the spot and submit his report. He acted accordingly and furnished the requisite report. The same has not been controverted by the petitioner/defendant at all. The learned counsel for the petitioner, on the other hand, failed to produce any evidence in his defence and instead relied, solely, on the evidence of the P.Ws. i,e,, official witnesses produced by the petitioner.
13. In view of what has been stated above, I am of the view that the concurrent findings of fact, recorded by the lower forums, are based on proper appreciation/evaluation of the evidence produced before the Court by the respondents/plaintiffs. The Courts below have given valid reasons for its conclusion and the same are not open to any exception.
14. For the foregoing reasons this revision petition, having no substance, is dismissed in limine.
Revision .