Homi Jamshed Kaikobad brought a civil suit (Civil Suit No. 115/A of 1998) on the 26th of October, 1998, in the Civil Court at Murree, for a declaration that the Municipal Committee of Murree having failed to comply with the provisions of section 77(4) of the Local Government Ordinance of 1979, to the effect that after expiry of statutory period of sixty days from the date of submission of a site plan, if no approval or disapproval of the proposed plan is communicated, the proposed plan is deemed to have been approved and further that in view of the consent order passed by the Rawalpindi Bench of the Lahore High Court in Constitutional petition bearing Writ Petition No. 165 of 1993 entitled Homi Jamshed Kaikobad v. Province of Punjab, through Secretary Local Government, Punjab and 3 others, decided on the 16th of February, 1994 directing that "In view of the above statements made by the learned counsel for the parties, this writ petition is decided/disposed of in terms that the respondent shall decide the application for grant of sanction of the construction plan submitted by the petitioner within a period of two months w.e.f. Today and shall refrain from demolishing the construction already raised by the petitioner at site, who shall not raise further construction during the interregnum". Thus, plaintiff Homi Jamshed Kaikobad sought a declaration that he had a right to construct his building in accordance with the plans submitted by him first of all in 1987, then again in 1992 and finally in 1994, which plans be deemed to have been sanctioned by the respondent Municipal Committee of Murree and also prayed for the consequential relief that the respondent Municipal Committee be restrained from interfering in the construction or demolishing the construction so far raised or to be raised over his plot of land situated at M.A.
Jinnah Road, Murree, between Habib Bank Ltd, Murree- Branch, Murree and Kaikobad Mansion, M.A.
Jinnah Road, Murree.
2. The suit of Homi Jamshed Kaikobad was decreed on the 27th of September,- 1999 by the learned Civil Judge, 1st Class, Murree, after recording the evidence of the parties.
3. Eight issues were struck by the learned trial Court, the main issues being whether the defendant Committee had failed to comply with the provisions of section 77(4)" of the Punjab Local Government Ordinance of 8 1979 and secondly whether the plaintiff was entitled to raise construction in accordance with the proposed site plans submitted by him.
4. .The learned Civil Judge of Murree appraised the entire oral and documentary evidence adduced by the parties and also noted the order of the Rawalpindi Bench of the Lahore High Court, dated the 16th of February, 1994. Both the basic issues were decided in favour of the plaintiff and his suit decreed by declaration that he had the right to raise a construction over his plot according to the plans submitted by him on the 6th of June, 1994 after leaving-six feet wide bed of flowers from the edge of M.A. Jinnah Road and restraining the defendant Committee from interfering with or demolishing the construction of the plaintiff.
5. The petitioner Municipal Committee appealed by way of Appeal No.33 of 1999 before the Additional District Judge of Rawalpindi, Camp at Murree.
6. The learned Appellate Court re-assessed the entire oral and documentary evidence, the Notification of the Municipal Committee and the bye-laws and dismissed the appeal vide judgment, dated the 28th of February, 2000.
The learned Appellate Court was also pleased to hold that "In view of the above direction of the Honourable High Court, the defendant was required to pass the order on the application of the plaintiff for the sanction of site plan submitted in the year 1992, till 1-6-4-1994. No order whatsoever was passed by the defendant during this period. And in this way, it would be presumed that the site plan submitted by the plaintiff in the year 1992 stood accepted on 17-4-1994". It was also noticed that the third site plan submitted by the plaintiff on the 6th of June, 1994 and received by the Municipal Committee on the same date also stood sanctioned because no order was passed by the Municipal Committee.
7. The Municipal Committee of Murree then brought a petition under section 115 of the Code of Civil Procedure of 1908 by way of Civil Revision No.359-D of 2000 praying inter alia that "The judgments/decrees of both the Courts below be set aside and the plaintiff/respondent's suit be dismissed with cost hrought.--- Civil Revision No.359-D of 2000 was admitted to regular hearing by a learned Single Judge of this Court on the 31st of July, 2000.And it was also ordered that "operation of both the impugned orders are suspended. Let status quo be maintained".
8. The plaintiff Homi Jamshed Kaikobad sought Special Leave to Appeal in the Supreme Court of Pakistan by way of Civil Petition No.1452 of 2000.
Leave was granted and the petition was converted into an appeal and it was ordered on the 17th of October, 2000 that "The only grievance is that the order of the status quo was passed against the petitioner without notice to him. This being ad interim order in nature, is assailed though this petition seeking leave to appeal. In Court both the parties agree that they will be satisfied if the case is remanded to the High Court to resolve the controversy. We direct the parties to appear before the High Court on 24-10-2000 on which date the case shall be decided.
9. Learned counsel for the petitioner has not challenged the judgments/decrees of the learned trial Court or the Appellate Court on jurisdictional aspect but instead has taken me through entire evidence, both oral as well as documentary and prayed that on the basis of that and that alone "revision petition may graciously be accepted, judgments/decrees of both the Courts below be set aside and the plaintiff/respondent's suit he dismissed with costs throughout". The learned counsel for the petitioner has referred to the evidence of Yazdiar H. Kaikobad P.W.1 and specifically referred to that portion in his examination-in-chief, where he states that:---"No congestion has taken place at the site on account of my construction".
How does this advance the case of the petitioner, learned counsel has failed to explain.
10. Learned counsel, has then referred to Exh.P.9 and Exh.P.10.
Exh.P.9 is a letter addressed to Mr. Yazdiar H.Kaikobad by the Sub-Divisional Officer, Highway Sub- Division No. 1, Murree, dated the 20th of October, 1996 which concludes by saying that "keeping in view the above observations your proposed building plan is in accordance with the bye-laws of the M.C., Murree". Exh.P.9 is followed by Exh.P.10 which is another letter addressed to Mr. Yazdiar H.Kaikobad by the Assistant Municipal Engineer, Municipal Committee, Murree, which concludes by saying that "In my opinion the site plan covers the Bye-laws of the Municipal Committee, Murree.
Therefore, there is no any technical hitch or, hindrance seems to be found in the proposed site plan annexed with the letter mentioned above".
Learned counsel for the petitioner chooses to describe both these letters as "illegal" and conveniently forgets that both these letters are by functionaries of Highway Department of Murree and Municipal Committee of Murree and actually support the case of the plaintiff.
11. Learned counsel for the respondent submits that a petition under section 115 of the Code of Civil Procedure is competent only if there has been an excess or an error of jurisdiction i.e. When the trial Court or the Appellate Court exercises jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or in excess of jurisdiction illegally or with material irregularity.
12. Learned counsel for the petitioner has relied upon the following cases:-- (i).Sar Anjam v. Abdul Raziq 1999 SCM R 2167, (ii) Abdul Rehman Wahla v. Dr. Sher Dil Batra PLD 1986 SC 234, (iii) Haji Muhammad Zaman v. Zafar A.I Khan and others PLD 1986 SC 88,
(iv) Gulzar Khan v. Mst. Razia Begum and 2 others 1982 SCM R 843, (v) Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and (vi) Administrator, City of Lahore v.
Abdul Majeed AIR (32) 1945 Lah. 81 (Full Bench).
13. The ratio decidendi in all these cases is unanimously to the effect that section 115 of the Code of Civil Procedure is intended primarily to correct errors of jurisdiction and erroneous decisions on fact are not revisable unless the decision is based upon no evidence at all or inadmissible evidence and re-examination of evidence in revisional jurisdiction regarding conclusions drawn by Courts below on question of fact would actually amount to overstepping the limits of revisional jurisdiction.
PLD 1986 SC 234 it was held that there was no justification for interference with findings of fact which neither suffered from any illegality nor any material irregularity and further that the mere fact that the High Court differed with regard to the appreciation of evidence would not justify interference in its revisional jurisdiction.
1982 SCMR 843 it was held that concurrent findings on questions of fact could not be interfered with by the High Court in revisional jurisdiction unless an error of jurisdiction was found.
PLD 1970 SC 139 it was held that the revisional powers under section 115 of the Code of Civil Procedure are primarily intended for correction of errors made by Courts in exercise of their jurisdiction.
14. Thus, it is absolutely settled law that interference by way of revision under section 115 of the Code of Civil Procedure is neither permitted nor warranted when there is neither an infirmity nor any material irregularity in the judgment of the Courts subordinate to the High Court. It is also settled that re-appraisal of evidence is not to be undertaken in revisional jurisdiction particularly when there is a concurrent finding of facts.
15. In this case, the approval of the plan submitted by Homi Jamshed Kaikobad had attained finality in view of the consent order passed by this Court on the 16th of February, 1994 in Writ Petition No. 165 of 1993 by directing that "learned Assistant Advocate-General who has appeared on behalf of the respondents under instructions from them states that the respondents have no objection to the disposal of the, writ petition in terms of the statement made by the learned counsel for the petitioner and undertakes to decide the application within a period of two months w.e.f. Today and shall not demolish the construction already raised by him."
16. Admittedly, the petitioner Municipal Committee, Murree, neither opted to reject the plan within a period of 60 days nor chose to challenge the order of this Court.
Thus, for all practical purposes, the approval of the plan submitted by the respondent attained recognition and finality and the matter became a past and closed transaction by the conscious silence of the petitioner Committee.
17. Even otherwise, the petitioner's own Engineer gave a clearance to the proposed plans submitted by the respondent-plaintiff as is evident from Exh.P.9 which is certificate of the Sub-Divisional Officer of the Highway Sub-Division No.1 of Murree and Exh.P.10 which is certificate of the Assistant Municipal Engineer of the Municipal Committee of Murree.
18. According to its own Notification, dated the 24th of February, 1992 relied upon by the petitioner- Committee, in the matter of building restrictions and use of land, the Municipal Engineer of the Municipal Committee is required to certify that the plan does not violate the bye-laws which having been done, it does not now lie in the mouth of the petitioner to raise objections regarding expert opinion of its own functionaries and in this context the petitioner's own witness Javed Akhtar, Sub-Engineer, Municipal Committee, Murree, appeared as D.W.1 and admitted that fresh constructions have been and are being made on the Mall Road of Murree.
18-A. Before concluding this judgment, I would like to observe that learned counsel for Homi Jamshed Kaikobad respondent/plaintiff laid great stress upon the fact that the plaintiff respondent was a member of the minority community and it was on this account that he was being given step---motherly treatment by the respondent-Committee which was not only in clear violation of the policy speech made by the Quaid-i-Azam but also against. Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. .
However, since I have decided to dismiss the revision petition brought by the respondent- Committee and uphold the judgment of the trial Court; whereby the suit brought by the plaintiff- respondent was decreed, I feel that I have been relieved from the painful duty of giving a positive finding regarding discrimination on the basis of religion.
19. Keeping in view, all the facts and circumstances of this case, the entire evidence both oral and documentary and the settled legal position, I find that no case has been made out to warrant interference by this Court in its revisional jurisdiction.
This revision petition being without any merit is, therefore, dismissed.