P L D 1978 Quetta 107 (PLP)

The words "case decided" as used in this section would mean finally setting at rest any litigated point which may either form main controversy between the parties or an important ancillary point directly and substantially connected therewith. As such, this phrase would embrace ail such pronouncements which tend to decide either the whole controversy or any material point which has direct and important bearing upon the main controversy which is not capable of final or efficacious adjudication without the decision of such ancillary point. Orders passed in routine such as orders of adjournment of the case etc. which do not tend to have any bearing on the main dispute between the parties do not, however, fall within the ambit of this expression. For instance the decisions which may be covered by the term "case decided" may include decisions on the point of res judicata, joinder, non joinder and misjoinder of parties or permission or refusal to one in forma pauperis, amendment of pleadings and decision on applications to lead additional evidence. It is now to be seen whether both the decisions, that is, for or against would constitute a "case decided" or this expression would be confirmed only to be decisions disallowing a request in this regard. I may first quote an instance where an objection to the maintainability of the suit on the principle of res judicata is raised. In such a case if the Court decided that an earlier decision did not operate as res judicata it would not constitute a "case decided" within the meaning of section 115 of the Code as it would still be open for the party raising objection to agitate it before the appellate Court and the appellate Court in such circumstances would be able to conveniently decide whether the decision on such point was right or wrong and would proceed to pronounce the judgment accordingly but conversely if the question is decided in affirmative such decision would be a "case decided" and amenable to revisional jurisdiction of this Court because such an order would amount to a final verdict in the case. A still better example can be that of the amendment of pleading and impleading of parties. In a request in this behalf is refused and a party is disallowed to be impleaded in a suit as a necessary party or an amendment of the pleadings is refused it would constitute a "case decided" as in such a case no relief would be available against the party desired to be impleaded or that part of the case would not be before the Court which was intended to be brought before it by means of amendment, unless at the stage of appeal the case is remanded for this purpose which would naturally entail unnecessary delay. Law would certainly not favour the prolongation of the proceeding unreasonable and would give a verdict for the decision of such points before the final judgment is passed in the case which course shall be less time consuming. It is therefore that decision disallowing requests in cases enumerated above and other such cases would constitute a "case decided". Keeping the reverse side of the picture in mind it can be said that if in a case a party is wrongly allowed to be impleaded as a necessary party or amendment of the pleadings is wrongly allowed, the appellate Court can conveniently exclude from consideration the effects of such permissions and proceed to pronounce judgment without considering it. It is thus evident that a refusal to allow an application on such point as res judicata, amendment of pleadings, impleading of parties or refusal of application for premises to sue in forma pauperis and leading of additional evidence and in other suchlike instances would constitute a "case decided" being final verdicts on that aspect of the case and shall fall within the scope of section 115 of the Code whereas an order allowing such request would not be amenable to revisional jurisdiction. Mr. Muhammad Moquim Ansari, placed reliance on Srinagar- Rawalpindi Transport Co. v. Muhammad Azeem Khan and others (PLD 1965AzadJ&K 46). The following observation in the case is most relevant; "No revision lies against an interim order admitting certain documents in evidence even if it be held that such admission was improper and illegal. The reason is that the appellate Court, if it be of the view that such documents should not have been admitted, can safely ignore such documents and proceed to decide the appeal on the rest of the evidence, but different considerations may prevail in a case where documents have been illegally kept out of evidence. 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. 1n order to avoid unnecessary delay the High Court may interfere in such a case." Mr. Hanafi on the other hand referred to S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149), which is a Full Bench judgment and forms a landmark in the long line of decisions on this point. The conclusion arrived at in this case by the learned Judges may be reproduced below for reference :

"The position with reference to section 115 may thus be summarised in the following propositions :

(i) The High Court may, in respect of any state of facts judicially consi dered, on which a Court subordinate to High Court has given a deci sion, make such order as it thinks fit, if in the opinion of the High Court such Court is giving the decision- (a)

has exercised or assumed a jurisdiction not vested in it by law, or (b)

........................................................................................... has failed to exercise or declined to assume a jurisdiction vested in it by law, or (c)

. while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or (d)

while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that that step was taken. (ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal." From the above dictum it is clear to us that only in such cases as have been enumerated above a revision would be competent that errors, if any, may be corrected but such revision would lie only in cases in which no appeal can be filed. Here it can be argued that why such cases in which revision can lie should not cover both the categories of orders, that is, orders refusing as well as allowing things permissible under law. To such a querry it can be replied that the cases refusing permission to bring about improvement in any case by way of amendment etc. can also be ordinarily amenable to appellate jurisdiction but that would entail remand of the case and thus cause unnecessary delay in the disposal of the main case that is why this category of orders is not covered by such orders which are to be left to be decided at the stage of final hearing of the case. Such cases would therefore be called "case decided" and would be amenable to revisional jurisdiction of this Court. The question raised by Mr. Hanafi that if such were the intentions of the law-givers why was it not mentioned in the statute itself in so many words. My reply would be that such is not the duty cast on the Legislature and statute law is also not to be burdened with the details of what is expedient and why and what is inexpedient and for what reason. It rests upon the interpreters to so construe the law that it may be most convenient to the parties and promote the ends of justice. Coming to the case-law the next case cited by Mr. Hanafi was Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (P L D 1973 S C 307). In this case an application for amendment of the plaint and for impleading new defendants was dismissed by the trial Court but was allowed by this Court. The decision to refuse to allow amendment and impleading of party was held to ' be a decision amounting to a "case decided" and amenable to revisional jurisdiction of this Court. This case is also not of much help to Mr. Hanafi, on the other hand it lends support to Mr. Moquim's contention as in this case also a refusal to allow amendment of pleadings etc. was held to have constituted a "case decided" whereas in the instant case the position is just the contrary because her additional evidence has been allowed, which permission, in my humble view, does not amount to a "case decided". Mr. Hanafi lastly placed before me the case of Bahadur Shah and 2 others v. Sharaf and 9 others (P L D 1973 Lab. 513), in which Mr. Aftab Hussain, J., discussed a long line of decided cases on the point and upon consideration of the word "case decided" occurring in section 115 of the Code held that a question whether it was decided in favour of an applicant or against him would constitutes "case decided", because in both the cases a controversy, is set at rest by such decision. However, I regret my inability to agree with this view for the reasons hereinbefore discussed. At the same time I deem it necessary , to reproduce the following paragraph from his judgment so that both the interpretations of this highly disputed question of law may remain readily within sight; "I am in perfect agreement with this proposition that in the context of the present question, in absence, there is no distinction between a case where application of amendment is allowed and a case where it is not so allowed. As held earlier, in both cases, a controversy is resolved by a decision by judicial approach." In his judgment he has discussed ample case-law from Indian jurisdiction and a mention of some of such cases would not be without advantage. In Kishan Lal Babu Lal v. Chandra (A I R 1933 All. 374), it was held that as a refusal to amend the plaint debars the plaintiff from proving a part of his claim, therefore the decision of the Court constitutes a "case decided".' In Rurmal Ram Nath v. Kapil Man Misir and others (A I R 1935 All. 353), the same view was taken and it was held that refusal of amendment amounts to a "case" and was capable invoking revisional jurisdiction of this Court. Similarly in Sumatra Devi v. Hajari Lal and another (A I R 1930 All. 758), it was held that the expression "case decided" was a more comprehensive expression and whereas all cases would not be suits but all suits would at least be cases. In this case it was further held that whether a person was entitled to sue to forma pauperis was a question anterior to the commencement of the suit and not a question arising out of suit and therefore it constituted a "case" capable of being agitated in revision. . In Mst. Suraj Pali v. Ariya Pretinidhi Sabha (A I R 11936 All. 686), it was held that no revi sion lies from an order refusing to allow amendment of the pleadings but case where the amendment comes under some other order of the Court i.e. the addi tion or substitution of parties or the striking off of a pleading may amount to a "case decided" but an order passed purely under Order VI, rule 17 of the Code does not fall within the scope of the said term. From the above cases it is apparent that the most favoured view has been that the term "case decided" should cover decisions of such points which tend to finally decide a question arising in a case directly and substantially, effecting final judgment in the case, but again if such decision is capable of correction in appeal the remedy by way of revision would not be available. I am in full agreement with this view. Before I proceed further I may observe that probably the attention of the learned Judge deciding Bahadur Shah's case was not invited to this aspect of the question that the intention of the Legislature was to curtail the time spent in litigation as far as possible therefore if a question could safely be decided once and for all in appeal against the final order it was not allowed to be agitated through a revision. Here I may add with reference to the provisions of appeal provided by the Code that scope of correction of irregularities com mitted by a subordinate Court is provided both in revision as well in appeal. Why this duality. All what can be argued in this connection is that if the Legislature desired that limited question of consideration of main law points should be the scope of appeal to this Court while all decisions of interim nature covering disposal of ancillary points cropping up in a proceeding from time to time should be settled in revisional jurisdiction of this Court then the 8 word "irregularity" would not have been used while describing the scope of appellate jurisdiction. It is in all probability so because the Legislature intended that all minor irregularities which do not constitute a "case decided" should be corrected by this Court while hearing the appeal whereas those which constitute a "case decided" and are not capable of correction at the appellate stage without causing unnecessary delay in the disposal of the main case and are important in nature as against routine orders and tend to assume some sort of finality when decided disentitling a party from doing something which it considers necessary for" judicious dispute , of the case shall constitute a "case decided" and would be amenable to challenge by way of revision. In the instant case the additional evidence has been allowed and this order can be challenged by the petitioner in appeal, if filed, and if it was considered by the appellate Court that the permission was wrongly given to lead additional evidence such evidence can be excluded from consideration and the Court can proceed to pronounce judgment on the basis of remaining material on record.

4. Since I am of the view that the revision is not competent in the instant case I need not dilate upon the points which have been raised in the revision as it would be for the Appellate Court to decide them, if an appeal is filed in the case. For the foregoing reasons I find no substance in this revision which is hereby dismissed. However, in .the circumstances of the case there shall be no order as to costs. S. Q. Petition dismissed.