P L D 2015 Balochistan 47
Before Syeda Tahira Safdar, J
MUHAMMAD AYUB and others ---Petitioners
versus
BIBI GULL and others ---Respondents
Civil Revision No.433 of 2013, decided on 21st October, 2014.
(a) Civil Procedure Code (V of 1908) ---
----O. XIII, Rr. 1 & 2, O. XII, Rr. 1 & 2 & O. XVIII, R. 3 ---Specific Relief Act (I of 1877), S.
42---Suit for declaration ---Document, production of ---Good cause ---Scope ---Plaintiffs after
production of evidence filed an application for production of docum ents which was refused by
the Trial Court ---Validity ---Court had discretion to receive document in evidence if a good cause
for non -production of such document was shown ---Provisions of Order XIII, Rules 1 and 2,
C.P.C. were mandatory in nature ---No detail of document had been submitted to be produced in
the court ---Said document intended to be produced was in the knowledge of plaintiffs and if
same was not in their possession then copy of the said document might be obtained when
plaintiffs were in the proc ess of producing their evidence but it was not done so ---Even none of
the documents was confronted to the attorney of defendants when he was in the witness box ---
Plaintiffs had already produced their evidence and at the time of closing of their side there was
no request to reserve their right of rebuttal ---Plaintiffs appeared with the request when evidence
of the parties had already been completed ---Copy of judgments could be referred and placed
before the Trial Court at the final hearing of the matter and said court might take judicial notice
of the same ---Contradiction if any arising there from could be pointed out at the relevant time to
enable the Trial Court to dilate upon the same while recording its final decision ---Right to give
notice for admission of document or calling for the evidence in rebuttal was always available to a
party to the suit with a discretion for its exercise within the given bounds ---Revision was
dismissed in circumstances.
(b) Civil Procedure Code (V of 1908) ---
----O. XVI, R . 1, O. XII, Rr. 1 & 2 & O. XVIII, R. 3 ---Specific Relief Act (I of 1877), S. 42 ---
Suit for declaration ---Witness, production of ---Good cause ---Scope ---Plaintiffs after production
of evidence filed an application for production of witness which was refused by the Trial Court --
-Validity ---Court had discretion to call such witness whose name was not mentioned in the list of
witnesses after showing good cause ---Provisions of Order XVI, Rule 1,C.P.C. were mandatory in
nature ---No detail of witness had been subm itted by plaintiffs to be produced in the court ---
Plaintiffs had already produced their evidence and at the time of closing of their side there was
no request to reserve their right of rebuttal ---Plaintiffs appeared with the request when evidence
of the pa rties had already been completed ---Copy of judgments could be referred and placed
before the Trial Court at the final hearing of the matter and said court might take judicial notice
of the same ---Contradiction if any arising therefrom could be pointed out at the relevant time to
enable the Trial Court to dilate upon the same while recording its final decision ---Right to give
notice for admission of document or calling for the evidence in rebuttal was always available to a
party to the suit with a discretion for its exercise within the given bounds ---Revision was
dismissed in circumstances.
(c) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---High Court had power to correct the
errors committed by the court s below while exercising its revisional jurisdiction.
(d) Civil Procedure Code (V of 1908) ---
----S. 115 ---"Case decided" ---Meaning ---Term "case decided" could be construed as a decision
given with regard to any state of facts after judicially considering the same which need not
necessarily dispose of the whole matter.
Haji Sakhi Dost Jan v. Pa kistan narcotics Control Board 1998 SCMR 1978 rel.
(e) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revision ---Scope ---Interim order ---Ambit of revision would extend to the interim
order made during the course of trial subject to the fact that such an order had decided a material
aspect of the case and had an effect on its final decision.
Inamullah Kakar for Petitioners.
Baz Muhgammad Kakar and Farooq Sarwar, Asstt. A.G. for Respondents Nos. 22 to 23.
Date of hearing: 10th October, 2014.
JUDGMENT
MRS. JUSTICE SYEDA TAHIRA SAFDAR, J. ---The petitioners, 21 in numbers,
questioned order dated 28th September 2013 of Senior Civil Judge -II, Quetta, whereby the
applications, four in numbers, were decided, and the reliefs claimed in the two wer e allowed and
the remaining two were refused. The petitioners, plaintiffs in the suit, were before the trial court
to get them declared owners to the extent of their shares of the property, subject matter of the
suit, jointly purchased by their (parties) p redecessors namely Muhammad Hanif and Muhammad
Amin. In addition cancellation of the mutation entries, possession of their respective shares in the
property and also in its income were claimed. Defendants Nos. 1 to 8 (respondents Nos. 1 to 8)
in reply clai med themselves to be the sole owners of the suit property. The issues arising out of
the pleadings of the parties were framed on 19th September 2003, and the parties produced their
respective evidence. Meanwhile, the plaintiffs (petitioners) filed applicat ions, four in numbers,
with distinct prayers, but decided with a joint order dated 28th November 2013, impugned before
this Court.
2. The trial court allowed the applications filed under Order XIV, Rule 5, Civil Procedure
Code (C.P.C.) for correction of issue No.2, and under section 151, C.P.C. for correction of the
number of the exhibit Exh.P/11 in the terms as prayed. As far the reliefs in the application filed
under Order XIII, Rule 2 read with Order XVI, Rule 1(2), C.P.C. to place certain documents on
the record, and to call the persons relevant to establish the documents, and in the application filed
under Order VI, Rule 7, C.P.C. to discard the cross -examination on the part of defendants Nos. 9
to 21 on the statement of the defendant's witness No.1 ( DW-1) were refused for the reasons: --
"As far as applications under Order 19, Rule (2) Order 7 read with section 151, C.P.C. is
concerned, the both applications have been moved at belated stage beyond any good cause or
.special cause for the satisfactio n of this court. Prosecution has been given full and complete
opportunity of recording ten 10 P.Ws. Applications latter rejected due to non inspiring one.
Applications be complied with the case file.
3. The refusal of the reliefs resulted in filing of th e instant petition. Learned counsel for the
petitioners repeated the stance taken in the revision petition, with an addition that the order was
without any reason. In reply the learned counsel for the respondents Nos. 1 to 21 only stated that
there was no deviation from the pleadings, and the relief was out side the scope of Order VI,
Rule 7, C.P.C. Further, the extract from the revenue record i.e. Jamabandi ( ), for production of
which the application was moved, had already been produced and made part of t he evidence as
an exhibit. Learned Additional Advocate General, though in attendance, but with no
submissions. In reply the learned counsel for the petitioners was of the view that the relief was
only to the extent to allow them to produce additional evide nce in order to establish a clear title
in their favour.
4. The order sheet maintained for 2nd December, 2013 spelt that a pre -admission notice was
issued to the respondents, subject to maintainability of the instant revision petition filed under
Section 115, C.P.C. against an interim order.
5. The counsel for the parties argued their case on merit, and failed to address the point. The
learned counsel for the petitioners only stated that revision petition lies against an interim order,
without reference to any law. Section 115 C.P.C. reads as under: --
"Section 115, C.P.C. Revision. --(1) The High Court may call for the record of any case
which has been decided by any Court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that, where a person makes an application under this sub -section, he shall, in
support of such application, furnish copies of the pleadings, documents, and order of the
subordi nate Court and the High Court shall, except for reasons to be recorded, dispose of such
application without calling for the record of the subordinate Court.
Provided further that such application shall be made within ninety days of the decision of
the s ubordinate Court which shall provide a copy of such decision within three days thereof and
the High Court shall dispose of such application within six months.
(2) The District Court may exercise the powers conferred on the High Court by subsection
(1) in respect of any case decided by a Court subordinate to such District Court in which no
appeal lies and the amount or value of the subject -matter whereof does not exceed the limits of
the appellate jurisdiction of the District Court.
(3) If any applicatio n under subsection (1) in respect of a case, within the competence of the
District Court has been made either to the High Court or the District Court, no further such
application shall be made to either of them.
(4) No proceedings in revision shall be en tertained by the High Court against an order made
under subsection (2) by the District Court."
6. The powers available in the Section are wide enough to empower this Court to correct the
errors committed by a court subordinate to High Court or District C ourt pertaining to exercise of
jurisdiction within the ambit of clause (a), (b) & (c) of subsection (1) of section 115, C.P.C. The
first part of the Section enumerates the conditions under which the High Court or a District Court
can interfere in the decis ion of a court subordinate to it subject to no appeal lies against the order.
While the second part contained the defects presence whereof empowered this Court or a District
Court to interfere in an order, under consideration, in exercise of its revisional jurisdiction. In the
case in hand an interlocutory order had been questioned, therefore, the moot question would be
the availability of the power to interfere in an interlocutory order in exercise of revisional
jurisdiction. Section 104, C.P.C. and Order XLIII, Rule 1, C.P.C. described and enumerates the
orders against which an appeal shall lie, thereby make a distinction between the appeal -able and
non appeal -able orders. A comparative study of the referred provisions and the provisions
whereby the relief s were claimed reveals non inclusion of the latter in the referred provisions,
thereby turned the impugned order non appeal -able in nature. Consequent thereto he settled
principle that where no appeal lies a revision lies would have its course. In addition the terms
order, judgment or decree are not used in section 115, C.P.C., rather it spelt "any case which has
been decided." The term case decided no where defined in the Code (Civil Procedure Code). To
assume jurisdiction under section 115, C.P.C. with re ference to the case in hand the phrase case
decided is of much importance and also the determinative factor of maintainability of the instant
petition. The view taken by the Honorable Supreme Court in case tilted as Haji Sakhi Dost Jan v.
Pakistan Narcotic s Control Board reported in 1998 SCMR 1978, while dealing with the same
question, would be of much help to decide the issue. It was held: --
"14. It is well -settled that the term, "case decided" can be construed as a decision given in
respect of any stat e 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 Umar Dad Khan v. Tila Muhammad Khan (PLD 1970 SC 288),
wherei n this Court approved the statement of law in Bibi Gurdevi v. Muhammad Bakhsh (AIRI
1943 Lah. (65), wherein the word "case" was explained as follows: --
"I am inclined 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 p roper 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 a nd the 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 he looked upon as 'cases'. But when a decision relates to
some matt er in controversy affecting the rights of the parties, 1 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 s ubject to revision will he extremely
narrow in view of the express and implied conditions necessary for the exercise of the revision
jurisdiction. Theoretically the extraordinary jurisdiction is unlimited, but in practice it is held to
be subject to import ant and well -recognized limits. "
7. In view thereof the ambit of the revision extends to the interim orders made during the
course of trial, subject to the fact that such an order decide a material aspect of the case, and have
an effect on its final dec ision. The orders impugned before this court though interlocutory in
nature, but it deals with a question substantial in nature and have an effect on the rights of the
parties, otherwise matter in issue in the suit. In presence thereof covered by the term "case
decided" and brought the case in hand within the ambit of section 115, C.P.C., for exercise of the
power available therein.
8. On determination of maintainability of the instant petition, a decision on merit is to be
given as the counsel for the pa rties have already argued their case on merit. The prayer, in the
application filed under Order VI, Rule 7, C.P.C. to the effect that the cross -examination by
defendants Nos. 1 to 21 on the statement of DW -1 be discarded, was rightly refused by the trial
court. Firstly, because the referred Rule was not relevant, as it spelt about the pleadings and not
about the evidence. Further, if there was any departure from the pleadings, Rule 7 of Order VI
would come into action, the relevant one. In addition the grie vance was about the evidence,
therefore, the benefit arising from the referred Rule would not be available in the circumstances.
Besides that the petitioners (plaintiffs) have every right to point out any such contradiction or
deviation from the pleadings at the time of final hearing of the matter for the due consideration
of the trial court.
9. As far the application under Order XIII, Rule 2 read with Order XVI, Rule 1(2), C.P.C.,
filed for the purpose of placement of certain documents on the record and calling for the relevant
witnesses, is concerned it needs consideration. Rule 2 of Order XIII, C.P.C. not only described
the effect of non -production of documents at the required stage, but also placed a bar on belated
filing of the documents. There is an exception to this mandatory provision, and a discretion lies
with the court to receive documents in the evidence if a good cause for non -production of the
document as required by Rule 1 of the Order is shown, but this exercise of the discretion must be
with the reasons recorded in writing. Order XVI, Rule 1(2), C.P.C. is also with a bar to produce
witness other then those whose names contained in the list, required to be filed under Rule 1 of
Order XVI, C.P.C. It is also with an exception that if a good cau se is shown for omission of the
said witness from the list, the court may call such witness on recording of the reasons for doing
so. Both the provisions are mandatory, but with a discretion which is to be exercised within the
limits provided in the Rules.
10. In the case in hand the petitioners (plaintiffs) on basis of the submissions made during the
course of cross -examination whereby there were certain deviations from the plea taken in the
written statement by the defendants , intend to produce several witnesses with some record. The
application failed to contain the necessary details of the persons, and the documents intended to
be produced. Secondly the documents which they intend to produce were in their knowledge, and
if not in possession, they migh t have obtained the copies when they were in the process of
producing their evidence, but it was not done. Even when the attorney for the defendants was in
the witness box, none of the referred documents were confronted to him, the stage relevant and
prope r for the purpose. Though additional evidence can be allowed in exercise of the powers
available under Order XVI, Rule 1(2), C.P.C., but the plaintiffs (petitioners) have already
produced their evidence, and at the time of close of their side, there was no request to reserve
their right of rebuttal as available under Order XVIII, Rule 1(3), C.P.C. The petitioners
(plaintiffs) appeared with the request when the evidence of the parties were already completed.
In view thereof the right to produce additional ev idence is not available to them at this stage.
11. Apart from what has been discussed in the preceding paras it is observed that the
judgment dated 11th September, 2002 of Senior Civil Judge Quetta and the remaining judgments
dated 13th July 1995 and 22n d November, 2004 could be referred and their certified copies could
be placed before the trial court at the final hearing of the matter, and the trial court may take
judicial notice of the same. The contradictions, if any, arising therefrom could be pointe d out at
the relevant time to enable the trial court to dilate upon the same while recording its final
decision. Furthermore, the right to give notice for admission of the documents under Order XII,
Rule 2, C.P.C. or calling for the evidence in rebuttal un der Order XVIII, Rule 3, C.P.C. always
available to a party to the suit, with a discretion for its exercise within the given bounds.
12. The trial court though not recorded detailed reasons, but fortunately arrived to a correct
decision, thus needs no in terference by this Court. The petition is dismissed for want of merit
with no orders as to costs.
AG/77/Bal Revision dismisseThis 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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