JUDGMENT DR. MUNIR AHMAD MUGHAL, J. - The petitioner seeks setting aside of the impugned order dated 4.8.1998 passed by the learned Appellate Court whereby the learned Additional District Judge, Faisalabad acting as Duty Judge ordered the registration of the appeal, pertaining to the Court of Mr. Nazir Ahmad Tahir, learned Additional District Judge, Faisalabad who was on summer vacation, ordered the registration of the appeal and recorded the contention of the learned counsel for the appellant that the learned trial Court erroneously proceeded to accept the application of respondent No.3 and proceeded to set aside the confirmed bid in favour of the appellant and also recorded that the learned counsel tor the respondents had also put in his appearance and ordered that record of the learned trial Court be requisitioned for 7.8.1998 and meanwhile the operation of the impugned order shall remain suspended.
2. The facts as stated in the revision petition are that on 11.7.1998 the respondent Municipal Corporation gave an advertisement in Daily newspaper Khabrain' for leasing out contract for collection of tax on transfer of immovable properties situated within the territorial jurisdiction of respondent No. 1 and the date for auction was fixed as 28.7.1998 and that the petitioner being professional contractor and desirous for getting the advertised lease when on 24.7.1998 went in the office of respondent Corporation for submitting required documents for participating in the open auction, the respondent officials refused to receive the said document apprising that the said lease had already been granted to the respondent No. 1 by Corporation and the grant of lease on 18.7.1998 purporting through negotiation before the auction date announced by Corporation was fictitious, mala i.e and on account of monetary gain in collusion with respondent No. 1 and in adverse interest to the public exchequer and the petitioner was also deprived of his right to participate in open auction and that the petitioner brought a suit tor declaration in the Civil Court at Faisalabad against the respondent Corporation to the effect that the grant of lease to respondent on 18.7.98 instead of 28.7.1998 was secret and collusive with respondent No. 1 and was also illegal and unlawful and void and also sought its cancellation with the direction to the respondent No. 5 to lease out the contract through fresh open auction and that the respondents No.2 and 3 contested the suit by filing written statement alleging therein that the date for open auction viz. 28.7.1998 was altered to 17.7.1998 through newspaper ' Din' although the clipping of newspaper ' Din' was not produced on the record to prove their stand of change of date and there was justification for giving correction for date of auction in different newspapers and this act of Municipal Corporation shows that the lease was granted illegally with their consent based on mala i.e consideration and that the learned Civil Judge after having provided ample opportunity to the parties and taking into consideration the evidence available on the record on 31.7.1998 passed an order on the application directing the respondent No. 1 for conducting fresh auction for leasing out contract for collection of tax within one month as interim mandatory injunction and to save public exchequer which was put to risk because of collusion between Municipal Corporation and respondent No. 1 and that the order of the learned trial Court was assailed by respondent No. 1 before learned District Judge, Faisalabad and the respondent No. 1 was not a party before the Civil Court and as such he tiled an appeal un-authorised and that too was filed without complying the mandatory provisions of law contained in Order 43 Rule 3, CPC and that on 4.8.1998 the learned Additional District Judge illegally and unlawfully instead of dismissing the appeal of the respondent No. 1 for not complying with mandatory provisions of Order 43 Rule 3, CPC suspended operation of lawful decision of trial Court dated 31.7.1998.
3. The petition was admitted to regular hearing with notice to the respondents and meanwhile the operation of the impugned order dated 4.8.1998 was suspended. The respondent No. 1 appeared and filed a Civil Miscellaneous application alleging that certain facts have been concealed by the petitioner and the real facts were that on 25.4.1998 respondent Municipal Corporation, Faisalabad gave an advertisement in Daily 'Din' for grant of contract for collection of i.e for transfer of immovable property. No body turned up on 12.5.1998 when the same contract was again advertised in Daily 'Nawa-i-Waqf, Lahore on 20.5.1998 but no body turned up for participation in the auction. Another advertisement appeared on 5.6.1998 in Daily ' Nawa-i-Waqt' but only one bid for Rs.5,15,00,000/- was received from M/s. Sabina Pak Limited through Mr. Arshad Javed, Advocate. As in the preceding year auction was finalized for Rs.6,10,00,000/- it was ordered to be re-auctioned before 30.6.1998 and another advertisement appeared in Daily 'Asaas' dated 19.6.1998 for 26.6.1998 when it was finally ended in favour of Malik Enterprises for Rs.5,75,00,000/- but it was rejected by the auction sub-committee and again it was ordered to be auctioned for 18.7.1998 and an advertisement appeared on 11.7.1998 in Daily 'Din', Lahore in which it was ordered that the auction would take place on 28.7.1998 since this was mistake of date, a corrigendum was issued on 17.7.1998 that the same should be read as 18.7.1998. 0n 18.7.1998 the respondent No. 1/applicant was highest bidder tor that day and the matter was concluded between them after the issuance of letter to nim. Meanwhile, on 28.7.1998 revision petitioner Abdul Rashid tiled a civil suit in the Court of learned Senior Civil Judge, Faisalabad against the Municipal Corporation and Taxation Officer alleging that the auction was to be conducted on 28.7.1998 without mentioning the issuance of corrigendum which was published in Daily 'Din' that the same was to be conducted on 18.7.1998.
The revision petitioner also did not implead the applicant/respondent No. 1 as a party in the said suit. On 31.7.1998 the learned Civil Judge, Faisalabad by an interim order ordered that the defendants Municipal Corporation and Taxation Officer would re-auction the contract and fixed the case tor framing the issues for 12.9.1998. The applicant/respondent No. 1 assailed the order dated 31.7.198 by preferring an appeal before the learned Additional District Judge,, on duty, who vide his order dated 4.8.1998 requisitioned the record of the learned trial Court for 7.8.1998 and meanwhile suspended the operation of the impugned order dated 31.7.1998 against which the present revision petition has been made by the revision petitioner.
4. Arguments of learned counsel for both the parties have been heard.
5. The learned counsel for respondent No. 1 has taken the objection that a revision petition is not competent against an order which was of the nature of temporary injunction. The law of revision is contained in Section 115, C.P.C, which reads as under:- "115. Revision. - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
Provided that, where a person makes an application under (his sub-section, he shall in support of such application, furnish copies of the pleadings, documents and order of the Subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the Subordinate Court.
Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.
(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof, does not exceed the limits of the appellate jurisdiction of the District Court:
(3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court."
6. This Court in the case of Feroze Din versus Abdul Hameed and others (PLD 1969 Lahore 89) observed as under:- " Apart from the factual aspect of the case, the real question that falls for determination in these cases is: whether in the circumstances of the case it would be proper to revise the impugned orders which were entirely within the discretion of the Additional District Judge in the exercise of his appellate jurisdiction? It is not disputed that the question whether or not to grant interim relief to plaintiff under Order XXXIX, rules 1 and 2, C.P.C, was entirely discretionary with the trial Court which it exercised subject to the jurisdiction of the Appellate Court. It may be true, that the trial Judge had also given some sound reasons in support of his ing interlocutory injunction particularly his observation regarding multiplicity of legal proceedings between the parties in the event of the success of the petitioner's suit, if the land in dispute is alienated by the respondents in the meantime. But those reasons in the opinion of the learned Additional District Judge did not out way the likely inconvenience to the respondents caused by the prohibitory order. The question whether in the circumstances of a case interlocutory injunction should have or should not have issued. Is subject to certain conditions being satisfied, mainly a question of individual judgment and approach. The mere facts that in the instant case, the discretion has not been properly or even wrongly exercised by the lower Appellate Court, will not lay a foundation for interference by the High Court in its revisional jurisdiction. And the highest the order is erroneous. It is well- settled that where a Court has jurisdiction to determine a question and it determines that question, it cannot be said that it had acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law. The Privy Council decision in Amir Hassan Khan v.
Shev Bakhsh Sin^h is leading case on the subject. The same view was reiterated in Bal Krishna v.
Wa so Dewa. The question relating to the pre-requisite for the exercise of revisional jurisdiction by the High Court was recently considered by a Full Bench of seven Judges of this Court in Zufar Ahmad v. Abdu! Khatiq. It was ruled in that case that Section 115. C.P.C, does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be correct view of the merits of a case......... For a view which appears to be erroneous. Section 115 is not concerned with these matters. It is on the contrary concerned with the exercise of jurisdiction....... '' On this question the learned Chief Justice who wrote the leading judgment summed up his conclusion, relevant to these two cases, as follows:- "It seems appropriate to take this opportunity to state clearly a few guiding rules of practice which are liable to be overlooked when dealing with particular cases:-
(a) .......................................... (b) Since the power conferred by Section 115, Civil Procedure Code, is meant for correcting errors made by Subordinate Courts in relation to the existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the Subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a Subordinate Court."
I feel bound by the above dictum of their Lordships."
7. In the case of Muhammad Swaleh and another versus Messrs United Grain & Fodder Agencies (PLD 1964 Supreme Court 97) their Lordships of the Hon'ble Supreme Court of Pakistan with reference to the provisions of Section 115, C.P.C, observed as under:- "The difference between a total lack of jurisdiction and an irregularity is some times one of degree and is a matter of difficulty. A reference to the provisions of Section 115 of the Civil Procedure Code would show that every irregularity or even illegality in the exercise of jurisdiction cannot render the order void and without jurisdiction. The contents of Section 115, C.P.C, are well-known but it would be convenient to reproduce them here:- "115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-
(a) to have exercised 'a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
An order can under this Section he attacked on three grounds and it is the assumption of third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice and would render the proceedings coram non judice."
7. In the present case the order passed by the learned Additional District Judge does not come within the four corners of the words "Any case which has been decided", as such, the revision petition is incompetent and the same is dismissed on this ground alone. Consequently, C.M. No. 2/98 filed by respondent No. 1/applicant is allowed and the order passed by this Court on 7.8.1998 is recalled and the revision petition is held as incompetent.
8. At this stage learned counsel for the revision petitioner has requested that a direction be issued to the learned Additional District Judge to decide the appeal within seven days of the receipt of this order. The other side has got no objection. As such, the learned Additional District Judge, Faisalabad is directed to decide the appeal within seven days of the receipt of this order.
9. Copy Dasti on payment of usual charges.