MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, has been directed against an order passed by the High Court on 5-5-2000, whereby accepting the revision petition filed by respondent herein, it set aside the order passed by the trial Court dated 17-11-1999 and passed an interim stay order against the appellants.
2. The necessary facts, culminating into the present appeal, are that Retd, Sub: Muhammad Amir Khan, respondent herein, filed a suit for possession under section 9 of the Specific Relief Act in the Court of Additional Sub-Judge Rawalakot on 29-7-1999. Alongwith the suit an application for grant of ad interim relief was also moved. The learned trial Court issued the interim injunction prayed for subject to objections from the opposite side. On 28-9-1999, the appellants herein filed written statement and also filed. Objections for vacation of the interim injunction. The trial Court vide its order dated 12-10-1999, framed legal issues Nos.1 and 3 which were to the effect that as to whether the suit of plaintiff in the present form was maintainable and as to whether the dispute between the parties which relates to the measurement .Of land was within the exclusive competence of Revenue Department, .As such the Civil Court had no jurisdiction. The trial Court vide its order dated 17-11-1999, declined to give any finding on the legal issues without first recording the evidence of the parties, however, vacated the interim injunction granted in favour of respondent.
3. The respondent being aggrieved by the order of trial Court dated 17-11-1999, filed a revision petition before the High Court on 23-11-1999, which was accepted and the interim injunction was granted in terms that defendants (appellants herein) shall refrain from transferring the suit land to any other person through any mode recognized by law during the pendency of the suit. They shall also refrain from cutting trees etc. Or effecting any improvement in the suit land. It is the aforesaid order of the High Court dated 5-5-201)0, which is the subject of present appeal.
4. In support of appeal it was vehemently contended by Sardar Muhammad Sadiq Khan, the learned counsel for the appellants, that the High Court committed an error by setting aside the order of trial Court, whereby the stay order was vacated. The High Court in exercise of its revisional jurisdiction set aside the order of trial Court and issued an ad interim injunction prayed for. The learned counsel contended that against the order of vacation of stay order by the trial Court an appeal was competent before the District Judge but the respondent instead of filing the appeal approached the High Court for its interference in exercise of its revisional jurisdiction. The High Court was, therefore, not competent to vacate the order of trial Court in exercise of its revisional jurisdiction. The learned counsel while elaborating his point of view submitted that the order of vacation of stay order passed under Order XXXIX, Rules 1 to 4, C.P.C. Is appealable under Order XLIII of the Code. Thus, the High Court committed an illegality by entertaining tile revision petition and passing the impugned order. The order of the learned trial Court, according to the learned counsel for the appellants, suffered from no illegality or infirmity requiring interference by the High Court in exercise of its revisional Jurisdiction. The learned counsel in support of his contentions relied upon an unreported case of this Court title Idara Madrasa Tahlimul Qur'an v. Azad Government and others (Civil Appeal No. 36 of 1995 decided on 13-11-1995) wherein. It was held as follows:-- "We have heard the arguments and gone through the record. It may be stated at the very outset that under section 115 of C P.C. The revision petition to the High Court is competent only where no appeal lies. In the instant case it is agreed at Bar and had even observed by the High Court that appeal in the instant case were competent before the District Judge. A reference may be made to a case reported as Municipal Committee Bahwalpur v. Sh. Aziz Elahi ((PLD 1970 SC 506), wherein it has been held that revision petition to the High Court would be incompetent if an appeal is provided either to the District Judge or to the High Court."
Thus, it was observed that the proper course for the High Court was to dismiss the revision petition as being incompetent instead of deciding the revision petition on merits and holding that the order of Sub-Judge did not suffer from any legal infirmity.
'---------.The words 'no appeal lies thereto' are not confined to first appeal but include a second appeal as well. The revisional jurisdiction of the High Court under section 115, C.P.C. Is limited to those cases only where under the Code of Civil Procedure appeal either in the first instance or eventually would lie to the High Court and if no appeal has been filed before a District Judge in such a case, the High Court would be incompetent to exercise its jurisdiction under that section, either on an application or suo Motu. "
5. On the strength of the above-referred authorities the learned counsel for the appellants contended that as in the instance case against the order of vacation of stay order passed by the trial Court an appeal was competent before the District Judge, therefore, the High Court was not vested with any power to pass the impugned order by exercising its revisional jurisdiction.
6. On the other hand by controverting the arguments raised by the learned counsel for the appellants Sardar Rafique Mahmood Khan, the learned counsel for respondent, submitted that the order of trial Court as well as that of the High Court suffered from no illegality or infirmity and as such did not warrant interference by this Court. The learned counsel contended that even if the High Court had not exercised its jurisdiction under section 115 of the Code of Civil Procedure, it was competent to exercise its powers under section 35 of the Azad Kashmir Courts and Laws Code Act, 1949 which empowers the High Court to exercise the similar powers. The learned counsel further contended that even under section 46 of the AJ&K Interim Constitution Act, 1974 the High Court is vested with the powers of superintendence and control over the Courts subordinate to it and the powers of revision are available to the High Court under the aforesaid section of the Constitution.
7. Sardar Muhammad Sadiq Khan, the learned counsel for the appellants, in rebuttal contended that the powers available to the High Court under section 35 of the Azad Kashmir Courts and Laws Code Act, 1949 have been deleted vide the Azad Kashmir Courts and Laws Code (Amendment) Act, 1992, dated 29th August, 1992, and after coming into being of this amendment the High Court can no more exercise its powers of control and superintendence tinder section 35 of the Azad Kashmir Courts and Laws Code Act, 1949.
8. After hearing the learned counsel for the parties and perusing the relevant record, it may be stated that section 115 of the Code of Civil Procedure is coached in a following way:--- "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)-------------------------------------------------------------
(b) -------------------------------------------------------------
(c) -------------------------------------------------------------
(d) -------------------------------------------------------------
9. We are of the considered view that despite the fact that in the instant case the appeal was competent before the District Judge, the High Court was not deprived of exercising its revisional jurisdiction under section 46 of the AJ&K Interim Constitution Act, 1974, which reads as follows:-- "High Court to superintend and control all Courts subordinate to it etc. -(1) The High Court shall superintendent and control all other Courts that are subordinate to it.
(2) xxxx xxxx xxxx . Xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"
(3) xxxx xxxx xxxx . Xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"
(4) xxxx xxxx xxxx . Xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"
This Constitutional provision gives wide powers to the High Court to exercise the power of superintendence and control over all the Courts subordinate to it whether appeal lies to it or not.
We are very clear in our mind that the aforesaid provision contained in the Constitution given wide powers to High Court to pass appropriate orders in suitable cases. It has also been brought to our notice that section 35 of the Azad Kashmir Courts and Laws Code Act. 1949 has been repealed vide the Azad Kashmir Courts and Laws Code (Amendment) Act, 1992, dated 29th August, 1992, therefore, there remains no power of superintendence and control to be exercised by the High Court over the Courts subordinate to it. Despite the deletion of powers under section 35 of the Azad Kashmir Courts and Laws Code Act, 1949 the High Court cannot be refused to exercise its powers which are vested to it e under section 46 of the AJ&K Interim Constitution Act, 1974, which is the supreme law of the land.
10. So far as the merits of the case are concerned, the learned counsel for the appellant could not point out any defect or illegality in the impugned order passed by the High Court. The High Court has simply ordered that respondents (appellant herein) shall refrain from transferring the suit land by any recognized mode of law. Similarly it was ordered that they shall also refrain from cutting trees of effecting any improvements in the land in despite during the pendency of the suit. By granting this stay order the High Court committed no illegality in view of the circumstances of the case.
11. For the aforesiad reasons, finding no force in this appeal, the same stands dismissed with no order as to costs.