' This revision petition challenges the validity of judgment dated 28-7-2000 announced by Additional District Judge/Izafi Zilla Qazi, Dir Bala, whereby appeal of the petitioners directed against judgment and decree dated 3-7-1998 passed by Civil Judge/Illaqa Qazi, Dir Bala, Camp Court Sheringal, having been found without substance, was dismissed with costs. -
2. The litigation between the parties started in the year 1991 when Gul Roz and Zamin plaintiffs- petitioners filed a suit against Sargand and his son Umar defendants-respondents for declaration- cum-permanent injunction to the effect that plaintiff-petitioners are owners of suit-land known as "Dab Abad" particulars thereof have been given in the plaint: that the defendant-respondents are in possession of i. On behalf of plaintiffs-petitioners and that defendants-respondents are not justified to deny ownership of plaintiffs-petitioners and assert their own.
3. It is alleged in the plaint that so me time prior to the institution of the suit, the plaintiffs left their original atbode due to rivalry in the village and at the, time of departure from the 'village handed over suit-land to defendants for cultivation and that when the plaintiffs returned back to the village, they requested the defendants to hand over possession of suit-land to them but they declined to do so which necessitated the filing of the suit.
4. The suit was originally filed in the Court of Extra-Assistant Commissioner, Sheringal but it was subsequently transferred to Civil Court in view of repeal of PAT'A Regulation. I may observe here that matter was referred to Jirga Members and Maulvi Fazlur Rehman for decision but it could bore no fruit.
5. The defendants appeared in Court, resisted the suit and claimed to have become owner of suit- land by virtue of judgment of Federal Land Commission, Islamabad dated 10-2-1974. Six issues were formulated for trial out of the pleadings of the parties.
6. The learned trial Judge upon consideration of the evidence adduced by the parties in support of their respectate contentions decided Issues Nos.3, 4 and 5 together and came to the conclusion that plaintiffs have not been able to establish the relationship of landlord and tenant and have failed to prove their claim in respect of suit-land. Issues Nos.1 and 2 were also found against the plaintiffs and resultantly, the- suit was dismissed vide judgment and decree dated 3-7-1998 which was maintained in appeal through judgment and decree, dated 28-7-2000, giving rise to instant revision petition.
7. Mr. Muhammad Ismail Khalil, Advocate for the petitioners contended, inter alia, that the judgments and decrees of the Courts below are the result of gross misreading and non-reading of evidence and misconstruction of law. He reiterated that sufficient material was available on the record in support of the petitioners' claim in respect of suit-land which has been ignored altogether without any justifiable reasons. The learned counsel also submitted that an application for amendment in plaint was made by the petitioners before the First Appellate Court but the same was rejected without any good reason which has resulted in manifest injustice: To supplement the pleas, arguments in writing were also submitted by learned counsel for the petitioner.
8. It needs no reiteration that if the conclusions of the Courts below are the result of misreading of evidence on the record it becomes the duty of the High Court/Revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C.
9. The claim of the petitioners is based on the assertion that they are owners of suit-land since time immemorial, that due to rivalry in the village they were obliged to shift their residence and at the time of departure they handed over suit-land to respondents for cultivation on payment of share of produce and that on return to the village when they demanded back the land in suit, the respondents declined to do so. There is nothing in evidence in support of the claim of the petitioners. The mere assertion of the petitioners that they are owners of suit-land without a positive attempt on their part to substantiate the same is of no consequence. The evidence produced by the petitioners falls short of the required standard and has rightly been discarded by the Courts below. Learned counsel for the petitioners has remained unable to show that this is a case of misreading or non-reading of evidence. The trial Court after due appraisal of the evidence on record, for cogent reasons decided all the issues and dismissed the suit. The First Appellate Court, after due consideration of the evidence brought before the trial Court and for the cogent reasons dismissed the appeal.
10. It may be observed here that to attract the provisions of either one of the clauses of subsection
(1) of section 115, C.P.C. The revision petitioner is legally obliged to make out a case for exercise of its jurisdiction by the High Court. His burden is to prove that either appellate forum was not possessed of the jurisdiction to decide the matter or that it has declined to exercise jurisdiction vested in it or that it has acted in the exercise of its jurisdiction illegally or with material irregularity. It is tritle law that in the absence of either one of the above three conditions forthcoming in a given case, the Revisional Forum, in this case, the High Court, can ill-afford to reverse the -findings of the - appellate forum. Section 115, C.P.C. Applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse; the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but, revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been committed. Muhammad Nasir Mahmood and others v. Mst. Rashida Bibi 2000 SCM R 1013 and Abdur Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCM R 346.
11. So far as the application regarding amendment is concerned it is settled law that no, amendment which would displace the plaintiffs' suit or would introduce a new and wholly inconsistent case can he allowed despite the fact that powers of the High Court to allow amendment at any stage are fairly wide. The amendment sought to be made in this case is likely to change the whole complexion of the suit and the Court below seems to have acted fairly to disallow the same.
12. An application has been filed before this Court for grant of permission to withdraw the suit with liberty to file fresh suit. The application has been opposed and rightly so. The expression "formal defect" occurring in rule 1(2)(a), Order XXIII of the Civil Procedure Code, 1908 has not been defined anywhere in the Code, but its plain meaning appears to be that the defect should be only in plaint or form of the suit. It appears to connote every kind of defect which does not affect the merits of the case. If the defect is a material and substantial defect and affects the merits of the case or goes to the root of the claim, it will not be a formal defect within the scope of clause (a), sub-rule (2), rule 1 of Order XXIII, Civil Procedure Code, 1908. Revision under section 115 (ibid) is competent against the order passed under Order XXIII, rule 1 of the Code. If an order allowing the withdrawal of a suit is based on grounds which are not contemplated under Order XXIII, rule 1 that would be an irregular exercise of jurisdiction vested in the Court. But if the ground was of a kind which was within the purview of Order XXIII, rule 1 of the Code, then whether in the circumstances it was sufficient or not the revisional Court will not go into the matter. The words "other sufficient grounds" used in rule 1(2)(b), Order XXIII of the Civil Procedure Code, 1908 mean grounds other than and different from "formal" defect and the matter is within the discretion of the Court. In order to induce the High Court to interfere in revision with matters mostly within the discretion of trial Court it is necessary that it should be perfectly satisfied that the order was not supported by any consideration of justice or by any provision of law. The pow4r given by the Code to the Courts to give permission to withdraw is to be governed by certain considerations and if it appears that those considerations were not present in a certain case, it must be held that the order was passed without jurisdiction in a restricted manner. In the instant case learned counsel for the petitioners has not been able to point out a formal defect warranting withdrawal of the suit with permission to bring fresh suit.
13. Concluding the arguments, learned counsel for the petitioner half-heartedly contended that issues formulated in this case do not reflect the pleadings of the parties which has prejudiced the petitioners' cause. The submission of the learned counsel is not tenable. No vital issue appears to have escaped notice of the trial Court. All the points on which the parties are at variance with each other have been reduced into issues framed for trial.
14. In the result and for the foregoing reasons, finding no substance in this revision petition I dismiss the same and allow the parties to bear their own costs.