1992 PLP 1368 (MLD)

This Constitutional petition is directed against the revisional order, dated 26‑2‑1991 passed by District Judge, Kasur, whereby he has allowed the revision petition preferred by the respondent and directed the trial Court to admit in evidence a document sought to be proved by the respondent, with a right of rebuttal to the present petitioners.

2. Facts necessary for the disposal of this petition, briefly stated, are that the suit filed by the present petitioners for declaration with consequential relief of permanent injunction was decreed ex parte. Ch. Hakam Ali respondent herein brought an application under section 12(2), C.P.C. for setting aside the ex parte decree on the allegation that it was procured through fraud. At the trial, the respondent sought to prove a document which he described as a receipt. Petitioners objected to its production on the ground that it was a sale agreement which the respondent could not be permitted to produce as in his application under section 12(2), C.P.C. he had relied upon an oral agreement. Learned trial Judge on examining the document observed that it appeared to be an agreement to sell. He, therefore, upheld the objection raised by the petitioners with further observation that the document in question was not even relied upon by the respondent. Learned trial Court, therefore, by its order, dated 13‑7‑1985 declined to admit in evidence the document in question.

3. Respondent preferred a revision petition before the District Judge who vide his order, dated 26‑2‑1991, accepted the same holding, inter alia, that the document in question had been placed on record under the signatures of the Court before the framing of the issues and thus before the commencement of the hearing of the case and as such the trial Court illegally refused to admit the document in evidence. As regards the authenticity of the document, learned District Judge observed that the genuineness and relevancy of the document in question was still to be decided by the trial Court.

4. I have heard the learned counsel for the petitioners., His main contention is that the order of the trial Court declining to admit the document in evidence was not a `case decided' within the meaning of section 115, C.P.C. and, therefore, it was not open to revision. That being so, the learned District Judge acted without lawful authority in setting aside the order of the trial Court in revisional jurisdiction not available to him. In support of his contention, learned counsel has placed reliance on (i) Habib Ullah Khan v. Pak Cement Industries Ltd. 19139 SCMR 965 and (ii) Mst. Fazal Begum v. Bahadur 1" Khan and another PLD 1983 Lah. 3055. In the first mentioned case., it' was no doubt observed by the Supreme Court that "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." but it pray be stated with respect that the order which formed the subject‑matter of controversy in the precedent case had admitted the document in evidence whereas in the instant case, the revision was directed against the order shutting out of evidence tire document sought to be produced. Moreover, the observation relied upon by the petitioner was made by the Supreme Court while dismissing the petition for special leave to appeal. The aforenoted observation, therefore, does not advance the case of the petitioners. Reference may usefully be made to a later view of the Supreme Court expressed in, the case of Rehman Dad and another v. Major Raja Sajawal Khan etc 1976 SCMR 350 where tire view taken by the High Court that the order disallowing a party to produce evidence amounted to a `case decided' and could well be assailed in revision was upheld by the Supreme Court with the observation "Ac for the non‑maintainability of the Revision Application the view taken by the learned Single Judge is also not open to any legitimate exception". The second case cited by the learned counsel for the petitioner, too, is of no help to him because in that case also, the order of the trial Court challenged in revisional jurisdiction had allowed the documents to be produced in evidence and it was in that context that it was held that "an order permitting the admission of documents which was not included in the list of reliance or not filed before the framing of issues, does not amount to a "case decided" within the purview of section 115, C.P.C. and is thus not revisable". However, with regard to an order refusing to admit the evidence, it was very pertinently added in that very case. 'The interference in revisional jurisdiction with an order shutting out evidence may be possible as different considerations may prevail in a case where documents have been kept out of evidence illegally. In such a case, the record would not be complete and the case may have to be remanded in appeal for taking fresh evidence on documents that have been improperly rejected and not allowed to be proved. In such a situation, in order to avoid unnecessary delay and expense, it was held in Abdul Aziz v. Abdullah etc. (1) that the revisional Courts may interfere". Reference may also appropriately be made to the case reported as Rahim Bakhsh v. Haji Gehna and another PLD 1982 Baghdad‑ul‑Jadeed

5. In this case, the trial Judge dismissed an application for production of copies of predigree‑tables moved at the stage of evidence, on the ground that tire documents in question were neither relied upon nor produced at the proper time, nor good cause shown for non‑production thereof. Matter was taken ire revision before the Additional District Judge who setting aside the order of the trial Court allowed the production of the documents. Revisional order of the learned Additional District Judge was then challenged in a Constitutional petition and the point taken therein like the one pressed in the present petition was that the order of the Civil Judge was not open to revision under section 115, C.P.C. as it was not a `case decided' within the meaning of that provision and the Additional District Judge, therefore, wrongly assumed the jurisdiction. The learned Judge after elaborate examination of the case‑law on the subject and particularly relying upon the following observations of the Supreme Court in the case of `Bashir Ahmad v. Qaiser Ali' PLD 1973 SC 705:‑‑ " .There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase "case decided" but it seems to us that the view, taken by majority of the Full Bench of 7ludges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq states the position correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court ", held that as the Civil Judge had applied his mind and juridically decided that the respondents were not entitled to bring on the record copies of pedigree‑tables, it was `case decided' within the scope of the revisional jurisdiction, and, therefore, the Additional District Judge had the jurisdiction to entertain the revision petition.

5. Viewed in the light of the aforenoted enunciation of the‑legal position, the order of the trial Court declining to admit the document in evidence, passed as it was‑after duly considering the objection raised by the petitioners to the production of the document, quite clearly amounted to a `case decided' and was, therefore, amenable to correction in revisional jurisdiction under section 115, C.P.C. That being so, the learned District Judge had the jurisdiction to entertain and decide the revision petition. Even on merits, the impugned order of the District Judge has not been shown to suffer from any legal infirmity or jurisdictional error. The learned District Judge, as noted hereinabove, has not accepted the reasoning of the trial Court that the document sought to be produced in evidence was not relied upon by the respondent. It has instead been found by the District Judge that the document though initially not annexed with the plaint was subsequently placed on record by the respondent before the framing of the issues "under the signatures of the Court then without contest from the opposite side, so raising a presumption that the document was placed on record with the permission of the Court and consent of the opposite side ..". This finding has not been questioned by the learned counsel for the petitioners. No legitimate exception can, therefore, be taken to the order of the learned District Judge permitting the document to be admitted in evidence moreso when the right of rebuttal has been given to the petitioners and the question of authenticity/genuineness of the document and its relevancy has been left open for the trial Court to decide in due course.

6. In the aforesaid view of the matter, the impugned order of the District Judge does not call for any interference in Constitutional jurisdiction of this Court. Needless to observe that the Constitutional jurisdiction of this court can be invoked/exercised only in those cases where the subordinate Court or the Tribunal has acted without jurisdiction or in violation of the relevant statute or the law as laid down by the superior Courts. The impugned order does not appear to suffer from any of these infirmities.

7. Upshot of the above discussion is that the impugned order of the learned District Judge does not merit interference in Constitutional jurisdiction of this Court. This writ petition is accordingly dismissed in limine. AA./B‑11/L Petition dismissed.