P (PLP)

A I R 1943 Lah. 65 relied on. A I R 1936 All. 686 and A I R 1941 Oudh 87 referred to. Saleem, for Respondent. JUDGMENT.‑

In order to dispose of the present petitions for revision, it is desirable that a short statement of the pleadings of the parties be given. One Ilahi Bakhsh who owned land in two villages Mausa Patanmunara and Ali Akbar Sangi died leaving two sons, Dur Muhammad and Gut Muhammad Dur Muhammad died about or in the year 1918 leaving a daughter Mst. Fattal. Gut Muhammad died in 1932 leaving his son Muhammad Ramzan. Muhammad Ramzan at the time of his death left a minor widow named Murad Khatoon. After the death of Ilahi Bakhsh, his land was mutated in equal shares in the name of big two sons, Dur Muhammad and Gut Muhammad. After the death of Dur Muhammad the land of Mausa Patanmunara was mutated in the name of his brother Gut Muhammad according to the rule of custom governing the parties while iris daughter Mst. Fattai was ignored. The land in Ali Akbar Sangi continued as before in the name of two brothers. In 1932, after the death of Gut Muhammad the land of the village Ali Akbar Sangi which stood in the name of Dur Muhammad was mutated in the name of Mst. Fattal, daughter of Dur Muhammad and Muhammad Ramzan, son of Gut Muhammad in equal shares. The land of Gut Muham mad was mutated entirely in the name of Muhammad Ramzan his son. After these mutations Muhammad Ramzan died. Mst. Murad Khatoon thereafter brought a suit for possession of the land in Mauza Ali Akbar Sangi which was in the name of Dur Muhammad and Gul Muhammad, alleging that she was the owner of and entitled to that land. Mst. Fattal was not an heir after Dur Muhammad. She also alleged that she was illegally disposed by Mst. Fattal. This suit was brought on 6th August 1940. Mst. Fattal brought a suit against Murad Khatoon on 29th June 1940 for a declaration that according to the custom governing the parties she was the owner of the property left by her father Dur Muhammad in both the villages. Both the suits were instituted in the Court of the District Judge, Rahimyar Khan. Suit of Mst. Murad Khatoon was dismissed, while the suit of Mst. Fattal wag decreed. Mst. Murad Khatoon appealed against both the decisions and she succeeded to get a decree to the extent of 112 share of the land comprised in the claim brought by her while she failed in the appeal which she had brought against the decree that was passed against her in the suit brought by Mst. Fattal. Against those decrees two constitutional appeals were pre ferred by ‑Mst. Murad Khatoon, while Mst. Fattal filed cross objections in the suit brought by Mst. Murad Khatoon against her. Both the suits were remanded by the High Court on a technical question of law, the decrees having been set aside and the Court of first instance was directed to give fresh decisions in the, light of the directions of the High Court in both the suits. After that two applications were made by Mst. Murad khatoon under Order 6, rule 17: Civil Procedure Code, one for the amendment of the plaint m her‑ own suit and the other for the amendment of her written statement in the suit brought by Mst. Fattal against her. Both the petitions were rejected. Those orders of rejection are .the subject‑matter of revision before this Court. A preliminary objection was taken by Mr. Saleem on behalf of the respondents that both the petitions were incompetent. Help was sought from 1936 All. 686 and 1941, Order

87. It is no doubt correct that the proposition laid down in both the rulings support the contention of the learned counsel. In 1936 All. 686. it was held by a Full Bench the principal judgment having been delivered by Sir Suleman C. J., that no revision lies from an order refusing to allow an amendment of the pleadings. Cases where the amendment comes under some order of the Court i.e., the addition or substitution of parties or the striking of a pleading may mount to a case decided, but an order passed purely under Order 6, rule 17 does not. Prac tically the same view was adopted in 1941 Oudh

87. Both the rulings came under consideration in a Full Bench ruling of the Lahore 'High Court A I R 1943 Lah. 65, the Bench having been constituted by seven judges. Bbi4e, J, in a lengthy judg ment considered all the pros and cons rulings of the subject and held that the word "case" in section 115 does not always mean the whole suit. It is of a very wide import and ‑means any state of fact juridical considered. This meaning is wide enough to include a decision on an any substantial question in controversy between the parties effecting their rig" is, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind 'as distinguished from purely formal and incidental order is a "case" decided within, the meaning of section 115, Civil Procedure Code, but it will tie open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such grave injustice or irreparable injury as can not be remedied otherwise than by the exercise of the extra ordinary jurisdiction of the High Court at that stage. It was also observed that a beneficial construction should be placed on the provision of a statute when this appears to be consonent with its object. Mr. Saleem's contention was that the decision against the petitioner could be challenged under section 105 of the Civil Procedure Code when an appeal against the final decree is preferred by the petitioner and that, as there is remedy open to the petitioner consequently section 115 of the Civil Proce dure Code cannot come into play for his help. ' This' argument was also advanced in the Lahore ruling quoted above and it was disposed of in the following. terms:‑ Even when an interlocutory order is liable to be ,challenged in an appeal from the final decision according to section 105; Civil Procedure Code, or by a separate suit, the remedy may be too remote or cumber some in the circumstances of a ‑particular case to be of any practical value and in such cases also irreparable loss and gross injustice may result at time, if the erroneous order Js not set right at once." When the matter was considered by Blaker, J. he disposed it off' in a very simple manner. I cannot do better than producing the observations bf that eminent judge even if I be guilty of prolixity in my judgment. The learned judge while coming on this point states: "My learned brother Bhide; in his judgment has fully set out the case law on the subject, but all that emerges from that exposition is that the most divergent views have been held not only by the various High Courts, but by various Benches of various High Courts inter se on this matter. The analysis of these authorities in my learned brother's judgment shows that very much the same lines of reasoning, i.e., convenience, scheme of the Code, intention of the Legislature, etc., have been employed from time to time to support entirely different conclusions. It seems to me that very little, if any, assistance is to be gathered from these authorities. The learned judge then proceeds to consider the language of section 115, Civil Procedure Code, which runs as follows:‑-"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. The principal word which has to interpreted is the word " case ". The meaning of the word has not been limited by any statutory definition and it seems to me, therefore, in the absence of such limitation any authoritatively accepted meaning of the word which is not repugnant to the subject and contex should be taken. In the absence of any statutory definition, the only, place where an authoritatively accepted meaning can be sought is in a standard dictionary. In the New Oxford English Dictionary which is recognized as a leading authority on the meaning of the words in the English language the word " case " has been generally defined under the sub‑head " law " as " the state of facts juridically considered ". The five sub‑definitions which follow need not be considered, as they are only particular examples of the application of the general definition. According to this definition, I take it that whenever there is before a Court a state of facts complete in itself which it has to consider with a view to deciding upon them juridically that is to say, by way of making a judicial pronouncement as to the legal rights of the parties with reference to that state of facts, there is a case before the Court. It follows that when the Court has considered that state of facts and has determined the legal rights of the parties in respect of them, it has decided a case." Now the application of the amendment of the pleadings introduce a state of facts complete in itself which has to be considered with a view to deciding upon them judically, and as such, the decision of the applications by Mst. Murad Khatoon will fall within the definition of a case decided. The conclusion therefore, would be that .any interlocutory order which has been passed on juridical consideration of a state of facts before the Court is the decision of the case within the meaning of section

115. I am therefore, of opinion that the present petitions for revision are' entertainable and their decision is subject to the provision of section 115 of the Civil Procedure Code. With these observations, I would overrule the preliminary objection of the learned counsel for the respondent. I pass no order as to costs. Petition shall be heard on merits. Present Mst. Fattal and Azizullah, Mukhtar of Mst. Murad Khatoon. K. M. A/A. H. Objection overruled