1980 PLP 2005 (CLC)

The facts giving rise to this revision are that the petitioners, Ghulam Rasool and another, preferred an appeal before Sh. Lutfur Rehman, Addi tional District Judge, Sialkot, against the judgment and decree, dated the 11th December, 1975, passed against them in a pre-emption suit brought by the respondents, Inayat Ali and others. The appeal was filed on 10th January, 1976 but it was returned try the learned Additional District Judge on 29th October, 1977 for the reason that it exceeded the pecuniary limits of his ,jurisdiction. The petitioners, therefore, filed their appeal before this Court.

2. With a view to seeking condonation of delay in the presentation of the appeal in this Court, the petitioners made an application to the learned Additional District Judge for return of certified copses of the judgment and decree of the trial Court which they had filed with their memorandum of appeal in his Court. Their application was, hums-ever. dismissed ht, the learned Additional District Judge with the observation that the aforesaid copies were the certified copies which could be obtained by them from the copying agency at any time. In other words, he declined to return the copies in question. Peeling aggrieved by the order of the learned Addi tional District Judge on their aforesaid application, the petitioners have come up in revision to this Court.

3. Learned counsel for the respondents raised a preliminary objection to the revision petition in hand. He contended that the impugned order was not a "case decided" within the meaning of section 115 of the Code of Civil Procedure arid, therefore, the revision petition was not competent. He placed reliance on Girijananda Kali Mitra v. The Emperor (26 C W N 660) to support his plea.

4. In case cited by the learned counsel for the respondents, after the disposal of two rent suits in the Court of a Munsif, the petitioner, it was alleged, filed two petitions before the clerk in charge of rent suits in the Munsif's Court asking for the return of the documents filed by one Bhiku Gazi whose interest had since been acquired by the petitioner in the said rent suits. These petitions purported to bear the signature of the pleader of Bhiku Gazi who acted for him in the said rent suits, but it was alleged that this signature was forged. The Munsif after holding a preliminary inquiry made an order under section 476 of the Code of Criminal Procedure directing the prosecution of the petitioner for offence under sections 463 and 471 of the Indian Penal Code. It was held that the petitions in ques tion were not filed in the course of a judicial proceedings and the Munsif had no jurisdiction to make the order.

5. It will, therefore, be observed that the case of Girijananda kali Mitra involved interpretation of section 476 of the Code of Criminal Pro cedure and not section 115 of the Code of Civil Procedure. Consequently, the case of Girijananda Kali Mitra is of no help to the learned counsel for the respondents.

6. Frankly speaking, on the point raised before me no direct autho rity was cited by the learned counsel for the parties. I have, however, been able to lay hands on the following comments un section 115 of the Code of Civil Procedure by Chitley :-- "proceedings before a suit is commenced, or after a suit has ended and proceedings for which the Legislature has provided an independent remedy or a different procedure, are not interlocutory proceedings and will, therefore, be open to interference in revision." The application of the petitioners on which the impugned order was passed was also a proceeding following the conclusion of the appeal before the learned Additional District Judge and, therefore, according to the learned author, the order passed thereon can be assailed by means of a revision petition.

7. The view expressed above is supported by Msf. Deba v. Secretary of State (A I R 1935 All.455) in which, after the disposal of a suit, an application was made to the trial Court for the refund of the Court fee paid in the suit. That application was not decided by the trial Court for the reason that it had no power to do so. The order of the lower Court in this behalf was chal lenged in the High Court by means of a revision and it was held by that High Court that the revision lay. Relevant observations made in that case read thus :- "I consider that the case is governed by S. 12 (2), Court Fees Act, as the learned Government advocate contends. That section pres cribes that every question of this nature in regard to a plaint shall be decided by the Court in which such plaint was filed. 1t does not lay down that the decision must be made only when the suit is pending. I consider that under the circumstances of this case, the application of the plaintiff should have been treated as an applica tion under Order XLYI1, rule 1, for review of his order by the Sub ordinate .fudge, the new and important matter discovered being that this Court had held that the decree was a declaratory decree. Under these circumstances the lower Court has failed to exercise a jurisdic tion which the lower Court possessed. and, therefore, a revision lies to this Court. It was contended by the learned Government Advo cate that under A I R 1934 All. 620 (1), a decision on a question of Court-fee was not `'a case decided". That ruling dealt with a deci sion while the suit was pending, but in the present case the decision is -a case decided" because the original suit has long ago terminated, and there is now no suit pending."

8. There is another case in which an order passed before the com mencement of a suit. was held to be open to interference in revision. It is Ramzan Ali v. Mst. Batul Bibi and others (A I R 1948 All. 244). In that case an application was made for permission to file a suit in forma pauperis. The order made on "he application was challenged by the opposite party by filing a revision petition and it was ruled that the revision was competent.

9. The general guidelines to be observed while examining the question whether an order amounts to a "case decided" are spelt out in Messrs Gupta & Co. v. Messrs Kirpa Rain Brothers (A I R 1934 All. 620) in the following words :- "The word "case" is not an exact equivalent of the word "suit". It is something wider. At the same time, it does not include every order that is passed by a Court during the trial of a suit or proceed ing pending before it. It cannot be a case unless it is a proceeding which can be regarded as something separate and in a sense indepen dent from the suit under hearing, and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself. Where the case is a proceed ing which can be considered separate and distinct and is finally disposed of by an order which terminates ii, it may well be considered to be a case decided although the Suit has not in one sense been completely disposed of."

10. In the instant case, the application made by the petitioners to the learned Additional District Judge was also a separate and distinct proceeding which was finally disposed of by the impugned order. That order has affected the rights of the petitioners inasmuch as by deciding the application against them the learned Additional District Judge precluded them from making use elf the copies in question for seeking condonation of delay in filing their appeal before this Court. No remedy other than that of a revision is available to the petitioners against the order assailed herein. Had the order under revision been an interlocutory order made during the course of .ray pending proceedings, it would have been possible for the petitioners to challenge it on the conclusion of those proceedings while assailing the final order passed therein trot as the impugned order is not an interlocutory order, no remedy against it will become available to the petitioner in future also. I am, therefore, of the considered view that the order under revision is a "case decided" within the meanings of section 115 of the Code of Civil procedure. 11 As for the merits of this revision petition, learned counsel for the petitioners urged that the petitioners directly needed the copies in question with a view to seeking condonation of delay in riling appeal before this Court. With the help of these copies, they want to show that they had, in good faith, been pursuing a remedy, against the judgment and decree of the trial court, before another forum, namely, the Court of the learned Additional District Judge, and, therefore, in view of the provisions of section 14 of the Limitation Act, 1908, the period spent in the said Court would be excluded while computing the period of limitation. Learned counsel far the petitioners relied on Maharashtraya Jnan Kosh Mandal ,Ltd. v. Bijjulal (A I R 1923 Nag. 182) to maintain that since the copies in question were required by the petitioners for being filed in this Court the learned Additional District judge was not justified. in refusing to return the same to the petitioners. In the case Maharashtraya Jnan Kosh Mandal Ltd the trial Court had, while returning his plaint to the plaintiff, did not return the Vakalatnama of his counsel.

12. As indicated above, the only reason given by the learned Addi tional District Judge for not returning the copies in question was that the petitioners could get such copies from the copying agency. It is true the they could get a fresh set of the copies but the object sought to be achieved by the petitioners by getting back the Copies, from the Court of the learned Additional District Judge cannot he served by obtaining another set of copies from the copying agency. The copies filed before the learned Additional District Judge bear the dates. on which the petitioners had applied for those copies and the dates when they were actually delivered to them. if they make fresh applications for getting the copies, the dates of making such applications and the dates on which the copies will be supplied would be different from those appearing on the copies in question. Consequently. the fresh copies would be of no help to the petitioner so far as the question of limitation qua the appeal filed in this court is concerned. It was therefore not without reason that the petitioners were insisting for return of the copies filed with the learned Additional District Judge. No law or other authority was cited by the learned counsel for. the respondents supporting the impugned order of the learned Additional District Judge. I am, therefore., of the view that the learned Additional District Judge committed a material irregularity in refusing to return the copies in question.

12. In this view of the matter, I accept the petition, set aside the order under revision and direct that the copies in question shall be given back to the petitioners after they have been replaced by the petitioners in such manner as the learned Additional District Judge may determine.

14. There shall be no order as to costs. M. Y. M. Petition accepted.