2012 PLP 2670 (YLR)

MUHAMMAD NOOR MESKANZAI, J.

Petitioner has called in question the legality and propriety of the order dated 17th May, 2012 passed 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 submitted 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 of 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 has 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 produce 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 petitioner 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 petitioner 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 opportunity 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 the 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 order 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 violated. 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 reported 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 Court 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 application 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.