2012 Y L R 2670
[Balochistan]
Before Muhammad Noor Meskanzai, J
Haji GHULAM MUHAMMAD ---Petitioner
versus
Haji ANWAR JAN and 3 others ---Respondents
Civil Revision No.158 of 2012, decided on 2nd August, 2012.
(a) Civil Procedure Code (V of 1908) ---
----O.XVI, R.1 & S.115 ---Revision ---"Case decided" ---Application for summoning of
another witness named in l ist of witnesses instead of witness allowed to be produced in
evidence by High Court in appeal ---Applicant's plea was that witness allowed by High Court
was absconder in a criminal case, thus, his attendance could not be procured ---Dismissal of
such applic ation by Trial Court ---Validity ---Order allowing or declining to admit evidence
either oral or documentary would not fall within purview of "case decided" ---High Court
dismissed revision petition for being not maintainable in circumstances.
Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries Ltd. 1969 SCMR
965 and Haji Baz Muammad and another v. Mst. Humera alias Shireen Taj and 3 others PLD
2003 Quetta 128 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.VII, Rr.9(1), 14 & O.XIII, Rr. 1, 2 & S.115 ---Revision ---"Case decided" ---Application
for production of documents as additional evidence ---Dismissal of such application by Trial
Court ---Validity ---Plaintiff had either referred to such documents in plaint nor annexed
thereto nor relied upon ---Plaintiff had violated provisions of O.VII, R.14 and O.XIII, R.1,
C.P.C. ---Order allowing or declining to admit evidence either oral or documentary would not
be a "case decided" within purview of S.115, C.P.C. ---High Court dismissed revision
petiti on for being not maintainable, in circumstances.
Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries Ltd. 1969 SCMR
965 and Haji Baz Muammad and another v. Mst. Humera alias Shireen Taj and 3 others
PLD 2003 Quetta 128 rel.
Muhamm ad Akbar Sani for Petitioner.
Shahid Khalil -ur-Rehman for Respondents.
Date of hearing: 27th July, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Petitioner has called in question the legality
and propriety of the order dated 17th May, 2012 passe d by learned Majlis -e-Shoora, Loralai
whereby the application filed by the petitioner seeking for permission to examine another
witness instead of Nazar Muhammad and production of certain documents was dismissed.
2. The learned counsel for petitioner sub mitted that the appellant was allowed to produce
witness namely Nazar Muhammad by this Court vide order dated 13th March, 2012. The said
Nazar Muhammad was booked in a murder case pursuant to F.I.R. bearing No. 5 of 2011
dated 15th July, 2011. On account o f the criminal proceedings Nazar Muhammad is
absconder and, as such, the petitioner despite his level best effort is not able to procure the
attendance of said witness. Petitioner sought permission to produce some documents and
another witness whose name h as already been mentioned in the list of witnesses, filed by the
petitioner along with the suit. Besides, also requested for production. The learned Majlis -e-
Shoora rejected the application on the ground that since the High Court allowed the petitioner
to examine Nazar Muhammad but the petitioner has failed to procure the attendance of Nazar
Muhammad and thus, his application was rejected. Learned Counsel submitted that petitioner
is entitled to produce his witness, therefore, he may be permitted to produc e the witness who
has already been nominated in the list of witnesses. Besides, he may be allowed to produce
document mentioned in the said application.
Learned counsel for respondent vehemently opposed the request and submitted that
since petitione r was allowed by this Court to produce Nazar Muhammad but petitioner
failed to produce Nazar Muhammad despite various opportunities and, thus, he is not entitled
to produce any such person, nor legally the documents can be allowed to be produced.
3. Heard the learned counsel for parties. Prior to embarking upon the merits of the case
the prime point that requires consideration is the maintainability of petition. Admittedly the
petitioner has applied for additional evidence on the ground that pet itioner was allowed by
this Court while disposing of Civil Appeal No. 27 of 2010 to produce one Nazar Muhammad.
Now on account of non -availability of Nazar Muhammad, he may be allowed to produce
another witness namely Agha Muhammad son of Abdul Malik, who has already been
mentioned in the list filed along with the plaint. I have considered the contentions put forth
by the parties' learned counsel and gone through the record. It appears that this Court vide
order dated 13th March, 2012 allowed petitioner to produce Nazar Muhammad as his
witness. For ready reference operative portion of the judgment passed by this Court is
reproduced herein below: --
"The case is remanded to the court of learned Majlis -e-Shoora Loralai with directions
to provide fair opportun ity to the petitioner/ plaintiff to produce witness Nazar
Muhammad subject to payment of cost of Rs.1000. The respondents/ defendants be
also provided an opportunity to record the statement of their attorney in rebuttal, if
opted. After the above exercise the learned trial Judge is directed to decide the case
afresh strictly in accordance with law and give findings on each issue on the basis of
oral as well as documentary evidence without being influenced from earlier judgment
and decree dated 29 -4-2010."
4. The application for additional evidence was declined by the trial Court. Legally
speaking an order whereby an evidence either documentary or ocular is admitted or declined
to admit is not a "case decided" within the meaning of section 115 C.P.C. and t he order
impugned passed by trial Court is one which falls within the definition of such orders.
Through the petitioner seeks to produce a witness as substitute to the witness permitted to be
produced by this Court but on account of the fact that the orde r does not fall within the
purview of "case decided", the petition does not seem to be maintainable. Similarly certain
documents referred to hereinabove were sought to be produced before the trial Court.
Admittedly, the documents so referred neither have been referred to in the plaint nor have
been relied upon and annexed with the plaint, as such; the requirement of the law that the
documents so relied upon are to be listed and to be produced along with plaint on first date of
hearing has absolutely been v iolated. Secondly, the impugned order does not fall within the
definition of "case decided", therefore, is not revisable. By holding the view I am fortified by
the judgments titled as Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries
Limited r eported in 1969 SCMR page 965. Relevant observation therefrom is reproduced
herein below: --
"An order admitting or declining to admit evidence oral or documentary does not
amount to a "case decided" within the purview of section 115, C.P.C. the High Cour t
could not, therefore, interfere with the order of the trial Court in exercise of its
revisional jurisdiction".
Similar view was taken in the judgment titled as Haji Baz Muhammad and another v.
Mst. Humera alias Shireen Taj and 3 others reported in PLD 2003 Quetta 128. Relevant
observations therefrom are reproduced herein below: --
"Coming to the next contention of Mr. Adnan Basharat, learned counsel .for the
respondents that it is not a case decided. It was agreed that allowing or rejecting an
applica tion for oral or documentaty evidence does not fall within the definition of a
case decided. The contention of learned counsel has substance that while rejecting the
application under Order XIII, Rule 1, C.P.C. does not lie within the definition of a
case decided."
In the light of above discussion and at the strength of the judgments referred to herein
above, the petition being not maintainable is dismissed with no order as to costs.
SAK/84/Q Petition 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,
let us know.