PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, OGHI vs MIR AFZAL

' Mir Afzal son of Shah Zaman, caste Awan, resident of Rashida-cumOghi, Tehsil and District Mansehra respondent/plaintiff has instituted the present suit for declaration and permanent injunction, in the Court of Senior Civil Judge, Mansehra, on 30-9-1990 against Secretary, Education N.-W.F.P., Peshawar (defendant No, 1/respondent No, 2), Divisional Director of Education, Hazara (defendant No, 2/respondent No, 3) and the Principal Government Higher Secondary School, Oghi (defendant No,3/petitioner).

2. Respondent No, 2 (defendant No, 1) and respondent No, 3 (defendant No, 2) failed to appear in the Court of Senior Civil Judge on the next date fixed for hearing i,e,, 4-12-1990 and were proceeded against ex parte. Since defendant No, 3/petitioner was not served, therefore, fresh notices were issued in his name. Defendant No, 3/petitioner contested the suit and filed written statement on 13- 6-1991. The pleadings of the parties were thus reduced to as many as 7 issues which are to the following effect:

(1) Whether the plaintiff has got a cause of action?

(2) Whether the plaintiff is estopped by his own conduct to file the present suit?

(3) Whether the suit in hand does not fulfil the ingredients of section 42 of Specific Relief Act?

(4) Whether the suit in hand is barred under section 56 of Specific Relief Act?

(5) Whether this Court has got jurisdiction to entertain the present suit?

(6) Whether the plaintiff is entitled to the grant of declaration and permanent injunction as prayed for?

(7) Relief.

3. The case was then adjourned for filing the list of witnesses. When the needful was done, the case was adjourned for recording the plaintiff's evidence and statements of three P.Ws., Muhammad Riaz, Junior Clerk Government High School, Oghi (P.W. 1), Irshad Hussain Ex-Senior Clerk, Government High School, Oghi (P.W. 2) and Muhammad Ashraf, Workshop Instructor Government High School, Oghi (P.W. 3) were recorded. The case was adjourned for recording the remaining evidence of the plaintiff/respondent No, 1.. The case kept on adjourning, for the recording of the plaintiff/respondent No, 1 evidence, for one reason or the other.

4. It was on 21-10-1992 that defendant No, 3 (petitioner) submitted an application before the learned Senior Civil Judge wherein he prayed that the plaint be rejected under Order VII, Rule 11, C.P.C. On the grounds that the plaint did not disclose any cause of action, that the plaintiff could not institute the present suit under section 42 of the Specific Relief Act and that the Civil Court had no jurisdiction to entertain, the present suit which involves service matter.

5. The said application was contested by plaintiff (respondent No, 1) and after hearing the learned counsel for the parties the Senior Civil Judge, Mansehra, vide his order dated 3-1-1993, finding the application of defendant No, 3 (petitioner) without any merit, rejected the same. Consequently this petition has been filed by petitioner (defendant No, 3) under section 115, C.P.C. For the redress of his grievance wherein he has prayed that the order of the learned Senior Civil Judge be set aside, being Illegal and without jurisdiction, and that the plaint of respondent No, 1 (plaintiff) be rejected under Order VII, Rule 11, C.P.C.

6. I have heard Mr. Ghulam Younas, Advocate learned counsel for the petitioner (defendant No, 3) and Mr. Mushtaq Ali Tahirkheli, Advocate for respondent No, 1 (plaintiff) and have also gone through the record of the case carefully.

7. It may be stated at the very outset that section 115, C.P.C. Does not A confer any substantive right to the petitioner because a "revision" is a matter between the higher and the subordinate Court and the right to move a petition in this respect is merely a privilege. The provisions of section 115, C.P.C. Are in two parts. The first part lays down the conditions under which the revisional Court may interfere and the second part specifies the types of orders that are susceptible to revision.

Accordingly the revisional Court can interfere in revision only if the following conditions are fulfilled:--

(a) Where a case has been decided;

(b) the decision has been given by a Court which is subordinate to the A High Court; and

(c) no appeal lies to the High Court from such a decision.

7. Where the conditions, mentioned above, are fulfilled, the High Court may interfere if the subordinate Court has--

(i) exercised a jurisdiction not vested in it or;

(ii) failed to exercise jurisdiction vested in it or;

(iii) acted in the exercise of its jurisdiction illegally or with material irregularity.

8. Seen in this context it may be stated that the learned lower Court had the jurisdiction to reject the application filed by the petitioner (defendant No,3) and, therefore, it has committed no illegality or material irregularity. The learned lower Court was vested with such jurisdiction and has exercised the same by rejecting the application vide its order dated 3-1-1993 against which the present revision petition has been filed. The learned counsel has not been able to convince me as to what was wrong with the order passed by the learned Civil Judge.

9. On the other hand, a perusal of the pleadings of the parties would show that almost all the objections raised by the petitioner (defendant No, 3) in his application, vide which he wanted the lower Court to reject the plaintiff has already been recorded and it would be appropriate if plaint, have been duly reduced into various issues. Partial evidence of the case is decided on merits after recording the evidence of both the parties.

10. This revision petition is without merit and is accordingly rejected. The parties are directed to appear before the learned Senior Civil Judge, Mansehra on 22-11-1994 for further proceedings. The record of the case be sent back to the learned Senior Civil Judge immediately.