TAJ MUHAMMAD vs Mst. ZAITOONEY and another

ORDER

' The petitioner instituted the present suit against the respondents (No,58/1 of 1993) in the Court of Senior Civil Judge (Pir Bakhsh Shah) Mansehra on 7-2-1993, for the recovery of Rs,25,000. The learned Senior Civil Judge by his order dated 15-1-1994 rejected the plaint under Order VII, Rule 11(d), C.P.C. Holding that the petitioner could not bring a fresh suit under Order 2, Rule 2, C.P.C. As his earlier suit (No,260/1) instituted on 2-10-1991) in respect of the same cause of action stood decided on 20-10-1992.

2. The said order of the learned Senior Civil Judge was challenged by the petitioner who filed an appeal before the Additional District Judge, Mansehra. The Additional District Judge (Mr. Shahid Naseem Khan), dismissed the appeal on 10-7-1994 with costs and upheld the findings of the learned lower Court. Hence this revision petition.

3. Mr. Sajjad Ahmad Ramz, Advocate, learned counsel for the petitioner, submitted at the bar that the nature of the present suit was quite different from the suit which was instituted by the petitioner against the respondents earlier and, therefore, the Trial Court had wrongly rejected the plaint and has thus committed material irregularity and has also acted illegally. He contended that the lower Appellate Court has also committed an error by not accepting the appeal filed by the petitioner.

He, therefore, prayed that the judgments of both the lower Courts be set aside.

4. It has probably escaped the notice of the learned counsel for the petitioner that section 115, C.P.C.

Applies only to cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction. The provision of section 115 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 decisions might be, either on a question of fact or law, unless the decision involves a matter of jurisdiction. Needless to mention that if a Court has jurisdiction, then in that case, it has jurisdiction to decide one way or the other, and erroneous conclusion of law or fact can only be corrected in appeal but a revision will not be competent on such a ground. In other words the High Court may interfere where subordinate Court has-- (1)) exercised jurisdiction not vested in it, or

(2) failed to exercise a jurisdiction vested in it, or

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

5. Where the above conditions are not satisfied, the High Court would not interfere in its revisional jurisdiction. Section 115(1)(c), C.P.C. Is only applicable to the erroneous exercise of jurisdiction and not to erroneous decision. If a Court has jurisdiction to decide, it can decide one way or the other.

The learned counsel for the petitioner has failed to show that the lower Appellate Court had no jurisdiction to decide the appeal or that his decision is against some mandatory provision of law and thus a nullity and accordingly liable to be set aside.

6. Besides, the jurisdiction vested in the High Court under section 115, C.P.C. Is discretionary in nature and, therefore, the High Court will not interfere under section 115, C.P.C. To correct every irregularity in the exercise of jurisdiction except where grave injustice or hardship would result on account of its non-interference. The learned counsel for the petitioner has not been able to convince me as to what type of grave injustice has been caused or what type of hardship would be faced by the petitioner if the revisional jurisdiction is not exercised.

7. On the other hand the conduct of the petitioner surely disentitle him to invoke the discretionary revisional jurisdiction of this Court because, in the first instance, he filed Civil Suit (No,260/1 on 2-10- 1991) for specific performance of contract against respondent No,1 and others wherein he had prayed that respondent No,2 (father of respondent No,1) be directed to get respondent No,1 married to him. Petitioner's suit, in question, was dismissed by Civil Judge (II), Mansehra by his order dated 22-10-1992. Again the petitioner filed a suit for the recovery of Rs,25,000 against respondent No,1 (Mst. Zaitooney), who is working as a Lady Teacher in a girls school, and her father, respondent No,2. The suit was again contested by both of them and all the allegations, contained in the plaint, were denied on legal as well as factual sides. The respondents, in addition, filed an application before the learned Trial Court on 19-5-1993 wherein they prayed for the rejection of the plaint under the provisions of Order 2, rule 2 read with Order 7, Rule 11, C.P.C. This application was contested by the petitioner. The Trial Court, after going through the record of the case, vide its order dated 15-1- 1994 held that the provisions of Order 2, Rule 2, C.P.C. Would apply in the circumstances and as such rejected the plaint under Order 7, Rule 11(d), C.P.C. Against the said order, the appeal, filed by the petitioner, was also dismissed by the learned Additional District Judged his order dated 10-7- 1994.

8. No reason exists and none indeed has been made out as to why this Court should interfere, in its revisional jurisdiction, with the findings of the learned Courts below who have not acted illegally or with material irregularity in the exercise of the jurisdiction vested in them. This revision petition does not merit consideration and is dismissed in limine.