2012 C L C 254
[Baluchistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD MUSSA and 3 others ----Petitioners
Versus
HAMID A LI----Respondent
Civil Revision No.146 of 2009, decided on 2nd December, 2011.
(a) Civil Procedure Code (V of 1908) --
----S. 115---Revision ---Term "case decided " ---Scope ---Power of revision is conferred
upon High Court and the same is required to be exercised within the ambit of section 115,
C.P.C. ---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction
in "any case which has been decided" ---Terms suit, judgment, order or decree have not
been used in section 115, C.P.C., rath er the term "case" has been used, thus the meaning
cannot be restricted only to a final decision of a case ---Term "case decided" is to be seen
in broader concept and it can be extended to the orders made, while proceedings with the
case by Trial Court, whi ch only determined a part of the case and such determination had
an effect on the rights of parties, while proceeding to ultimate decision of the case ---
Interlocutory order, which deals with a substantial question in controversy between
parties and affect their right comes within the ambit of `case decided' ---Powers conferred
under section 115 C.P.C. cannot be restricted only to the extent of final decision of the
case, rather it includes interlocutory orders also against which no appeal is provided.
Messrs National Security Insurance Company Limited v. Messrs Hoechst Pakistan
Limited 1992 SCMR 718 and Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board
1998 SCMR 1798 rel.
(b) Civil Procedure Code (V of 1908) ---
----0. XIII, Rr.1 & 2 & S.115 ---Specific Relief Act (I of 1877), Ss -42 & 54 ---Suit for
declaration and injunction ---Documentary evidence, production of ---Delay in seeking
permission ---Defendants resisted he suit on the plea of being owners in possession of suit
property ---Defendants claimed that half portion . of the property was already in their
ownership, while remaining half portion was gifted to them by the owner ---Defendants
filed application under O.XIII, Rr.1 and 2 C.P.C. to produce will/gift deed executed by
the donor in favour of def endants, which application was dismissed by Trial Court ---
Validity ---Mandatory for the parties to file all documents relied upon at the first date of
hearing of the suit and in case of failure they were restrained from producing the same at
later stage ---Exception to such rule was provided under O.XIII, R.2, C.P.C. whereby
discretion lay with the court to allow production of a document, subject to the condition
that a good cause was shown to the satisfaction of the court for non production of the
document a t required stage ---If at the time of filing of written statement, defendants were
not in custody of the document but they were surely in knowledge of it, there was no
explanation that what restrained them from obtaining copy of the same from concerned
office during all those years ---Defendants failed to show any reasonable cause to allow
them for production of a document, which surely was in their possession and shown to be
filed along with written statement ---Jurisdiction vested in court, under section 115 , C.P.C.
was limited to the extent provided therein and the party aggrieved had to make out a case
within the provided ambit to get an order by High Court under section 115, C.P.C. -
Defendants did not establish any illegality or material irregularity commit ted by the court
below, while exercising its discretion under 0.XIII, Rr. 1 and 2, C.P.C. ---High Court
declined to interfere in the order, as Trial Court had properly assessed the application and
recorded findings, which did not suffer from any illegality or irregularity ---Revision was
dismissed in circumstances.
Muhammad Afzal v. Khushal PLD 2004 Azad (J&K) 43; Muhammad Hanif v. Mst.
Parsan Bibi 1996 MLD 1158; Mian Muhammad Luqman v. Farida Khanam 1994 SCMR
991; Haji Baz Muhammad v. Mst Humera alias Shi reen Taj PLD 2003 Quetta 128;
Nawabzada Malik Habibullah Khan v. The Paki Cement Industries Limited 1969 SCMR
965 and Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964 ref.
(c) Civil Procedure Code (V of 1908) --
----S. 115 & 0.XIII, Rr.l & 2 -Non-product ion of document in time ---Revision ---Scope.
Muhammad Afzal v. Khushal PLD 2004 Azad (J&K) 43; Muhammad Hanif v. Mst.
Parsan Bibi 1996 MLD 1158; Mian Muhammad Luqman v. Farida Khanam 1994 SCMR
991; Haji Baz Muhammad v. Mst Humera alias Shireen Taj PLD 20 03 Quetta 128;
Nawabzada Malik Habibullah Khan v. The Paki Cement Industries Limited 1969 SCMR
965 and Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964 ref.
Mian Badar -a-Munir for Petitioner. Adnan Basharat for Respondents.
Date of hearing: 29th Novemb er, 2011.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners feeling aggrieved of the order
dated 24th March, 2009, whereby the application filed by the petitioners under provisions
of Order XIII, Rules 1 and 2 Civil Procedure Code (C.P.C.) was reje cted, preferred
instant petition with the prayer that order be set aside, and they be allowed to produce the
documents. It is their contention that the documents which are required to be produced
are essential documents, which were missing, but fortunately discovered during course of
evidence, whereupon the petitioners approached the court for producing the same, but the
trial court without any reason dismissed the application. It is contended that due to the
order irreparable loss has caused to the petitio ners, and they cannot be deprived of their
legal right in such a manner.
2. Learned counsel for the parties were heard, and record was perused. It was the
contention of the learned counsel for the petitioners that Deeds of Will executed by Mst.
Marriam, and Mst Kalsoom were required to be produced before the court to establish the
stance taken by the petitioners in their written statement. It is further his contention that
the petitioners are in possession of property in question since 1970 in their own r ights,
and to establish their title the production of mentioned document is necessary from which
they cannot be deprived. The learned counsel relied on:
Muhammad Afzal v. Khushal PLD 2004 Azad (J&K) page 43
Muhammad Hanif v. Mst. Parsan Bibi MLD 1996 ( Lahore) 1158
3. In reply it was the contention of the learned counsel for the respondent that the suit was
filed in 2005, and instant application was moved in year 2009, after lapse of nearly four
years, and that too without any reason. He further raised objection on maintainability of
the revision petition, while relied on:
Mian Muhammad Luqman v. Farida Khanam 1994 SCMR 991,
Haji Baz Muhammad v. Mst Humera alias Shireen Taj -PLD 2003 Quetta -128,
Nawabzada Malik Habibullah Khan v. The Paki Cement In dustries Limited
1969 SCMR 965
Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964
4. As far as objection pertaining to non -maintainability of revision petition is concerned,
the learned counsel for the respondent relied on several judgments of the apex C ourt, as
quoted hereinabove, whereby the orders of rejection of applications filed under provisions
of Order XIII, R,ules 1 and 2, C.P.C. were allowed or disallowed, were challenged in
revisional jurisdiction of this Court, whereby it was held that this re jection does not
amount to a case decided, therefore, a revision does not lie against such order, and this
view as concurred by the honourable Supreme Court and leave to appeal was refused. But
this view later on changed, therefore, the maintainability of a revision petition is to be
seen, and thereafter, a view is to be formulated. Section 115, C.P.C. confers power of
revision to this court, which is required to be exercised within the ambit of the section.
The language used in the section empowered a cour t to exercise jurisdiction in "any case
which has been decided". The terms suit judgment, order or decree are not used in the
Section, rather the term "case" has been used, thus the meaning cannot be restricted only
to a final decision of a case. Therefore , the term "Case decided" is to be seen in broader
concept. It can extend to the orders made, while proceeding with the case by the trial
court, which only determined a part of the case, and this determination has an effect on
the rights of the parties, wh ile proceeding to ultimate decision of the case. In view of the
same an interlocutory order, which deals with a substantial question in controversy
between the parties, and affect their right will come within the ambit of case decided.
Therefore, the power s conferred under this section cannot be restricted only to the extent
of final decision of the case, rather it include interlocutory .orders also against which no
appeal is provided. This seems to be the meaning behind the term case decided. This view
get support from the judgment made by the honourable Supreme Court in case tilted as
"Messrs National Security Insurance Company Limited v. Messrs Hoechst Pakistan
Limited, reported in 1992 SCMR, page -718, wherein their lordship held: --
"The expression "case decided" does not necessarily mean the decision of the entire suit. It
may relate to a decision of an interlocutory matter requiring a judicial mind. The old view
that an interlocutory matter did not fall within the expression "case decided" was abandone d
by the High Court in Bibi Gur Devi's case (AIR 1943 Lah.65), "
The same view is taken by honourable Supreme Court while deciding case titled as "Haji
Sakhi Dost Jan v. Pakistan Narcotics Control Board, reported in 1998 SCMR 1798: ---
"14. It is well -settled that the term, ''case decided" can be construed as a decision given in
respect of any state of facts after judicially considering the same, which need not
necessarily dispose of the whole matter in a cause pending before a Court subordinate to the
High Court. Reference may be made to Unzar Dad Khan v. Tila Muhammad Khan (PLD
1970 SC 288), wherein this Court approved the statement of law in Bibi Gurdevi v.
Muhammad Bakhsh (AIR \ 1943 Loh. (65), wherein the word "case" was explained as
follows:
I am i nclined to think that the true test for deciding whether a particular interlocutory order
should or should not be looked upon as a 'case' for the purpose of section 115, C.P. C., is to
be deduced not from the meaning of the word 'case', but from the proper scope and limits of
the revisional jurisdiction conferred upon the High Court by that section. From the
standpoint of language, pure and simple, there seems to be no good reason why one branch
of a suit should be held to be a 'case' but not another and th e word may include any
interlocutory order. This does not, of course, mean that purely formal orders such as those
relating to an adjournment or the summoning of a witness, etc. could be looked upon as
'cases'. But when a decision relates to some matter in controversy affecting the rights of the
parties, I do not see why it should not be looked upon as a 'case'. This wide interpretation of
the word 'case' is not, I think likely to lead to inconvenience in practice as the field of
interlocutory orders subjec t to revision will be extremely narrow in view of the express and
implied conditions necessary for the exercise of the revisional jurisdiction. Theoretically
the extraordinary jurisdiction is unlimited, but in practice it is held to be subject to
important and well -recognized limits. "
Keeping in view the decisions made by the honourable Supreme Court, the legal aspect is
clear, therefore, instant revision petition is very much maintainable. The objection is
over-ruled.
5. The brief facts of the case ar e that a suit was filed by one Ghuiam Ali against the
petitioners claiming him to be the recorded owner of property bearing Khasra
No.479/480, Khewat No.283, Khatooni No.404, Mohal Ivlouza Ward No.44, Tappa
Urban Tehsil and District Quetta, measuring 2929 square feet, whereupon a house was
constructed by the , predecessor -in-interest of the respondent bearing Municipal No.7 -
45/4, situated at, Haji Nasir Ali Street, Mohallah Syed Abad, Alamdar Road, Quetta. He
claimed declaration to the extent of his exclusiv e ownership of property in question, and
also claimed possession of the same, with perpetual injunction against the
defendants/present petitioners. The suit was contested by the petitioners on factual as well
as on legal grounds. In their written statement the petitioners claimed themselves to be the
lawful 'owners with possession of property in question. According to them half portion of
the property is owned by the petitioner No.1, while half was owned by Mst. Kalsoom,
who later on gifted the same to peti tioner No.4 Mst. Fatima, being her daughter. They
strongly denied any right of Ghulam Ali in the property in question. During course said
Ghulam Ali died, and his legal heirs were brought on record. The present respondent is
son of said Ghulam Ali. It is f urther apparent that during pendency of the case the
petitioners filed an application under the provisions of Order XIII Rules 1 and 2, C.P.C.
with request that they may be allowed to produce the WILLS executed by Mst. Kalsoom
and Mst. Marriam. It was thei r contention that they have relied on the documents in their
written statement, but inadvertently the documents were not placed on record. This
application was strongly contested by the respondent/plaintiff. The trial court through
order dated 24th March, 2009 disallowed the relief. Feeling aggrieved of the order instant
petition has been filed.
6. Order XIII, Rule 1, C.P.C. provid@s procedure for production of documentary
evidence before the court during course of trial, which reads as under: -
"1. Docu mentary evidence to be produced at first hearing ---
(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the
documentary evidence of every description in their possession or power, on which they
intend to rely, and whic h has not already been filed in Court, and all documents which the
Court has ordered to be produced.
(2) The Court shall receive the documents so produced. Provided that they are accompanied
by an accurate list thereof prepared in such form as the High: Court directs
(3) On production of documents under this rule, the Court may call upon the parties to
admit or deny the documents produced in the Court and record their admission or, as the
case may be denial."
While Rule 2 of Order XIII, C.P.C. provide s the consequences of non -production of
documents,, which reads as under: ---
"2. Effect of non-production of documents. ---
No documentary evidence in the possession or power of any party which should have been
but has not been produced in accordance w ith the requirements of rule 1 shall be received
at any subsequent stage of the proceedings unless good cause is shown to the satisfaction
of the Court for the non production thereof; and the Court receiving any such evidence
shall record the reasons for s o doing."
Keeping in view both the provisions, it is mandatory on the parties to file all the
documents relied upon at first hearing of the suit. and in case of failure they are restrained
from producing the same at I later stage, but with an exception a s provided in Rule 2,
whereby a discretion lies with the court to allow production of a document, subject to the
condition that a good cause is shown to the satisfaction of the court for non -production of
the document at required stage.
In present case, though in the instant petition it has been asserted that these documents
were missing at the time of filing of the written statement,, but thereafter, discovered
from a box of Mst. Kalsoom. But no such reason is given in the application filed by the
petiti oners before the trial court, except showing non -filing of the documents as
inadvertently. No reasonable cause has been shown in the application. Furthermore, from
the contents of the written statement filed by the petitioners before the trial court it is
apparent that they are claiming their right on half' portion of property ,in question being
owned by Muhammad Musa/petitioner No.1, while the remaining half on the basis of a
gift made by Mst. Kalsoom in favour of petitioner No.4 Mst. Fatima, and according to
them the Gift Deed/WILL is a registered document. It is further apparent from the
contents of the written statement that there is no mention of execution of any WILL on
behalf of Mst. Marriam, rather it was specifically pleaded that "defendants are res iding in
house in question since long and Mst. Marriam along with plaintiff is trying to usurp the
property in question by playing fraud. In this respect they also filed baseless suit, lodged
F.I.Rs., and suit in hand." It is further apparent that the WILL executed by Mst. Kalsoom
in favour of petitioner No.4 is mentioned at serial No.4 of the documents filed with the
written' statement as per list, but it seems that at the time of filing of written statement
this document was never filed by the petitioners before the trial court. It is further to be
noted that the document is described as a registered one. If at the time of filing of the
written statement the petitioners were not in custody of the document, but they were
surely in knowledge of it as per the ir own contention, there is no explanation that what
restrained them from obtaining copy of it from the concerned office during all these
years. No reasonable cause has been shown by the petitioners to allow them for
production of a document, which.surely was in their possession, and shown to be filed
along with the written statement. Even otherwise, the jurisdiction vested in the court
under section 115, C.P.C. is limited to the extent provided therein, and the party
aggrieved has to make out a case within the provided ambit to get an order by this court
under the section. But in the present case the petitioners have not established any
illegality or material irregularity committed by the court below while exercising its
discretion under Order XIII, Rules 1 and 2, C.P.C. Therefore, in the circumstances, it is
not a fit case for making any interference in the impugned order.
8. The learned trial court has properly assessed the application, and recorded findings,
which does not suffer from any illegality or irregularity. There are no merits in the
petition, which is hereby dismissed with no orders as to costs.
M.H./160/Q Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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