Before Zia Mehmood Muza, J (PLP)

Facts necessary for the disposal of this Constitutional petition, briefly stated, are that the petitioner, a defendant in a pending suit, filed an application under Order XVI, rule 1(2) read with section 151 of the Code of Civil Procedure before the trial Court praying that two mortgage deeds executed by Taj Din in his favour (execution whereof was admitted by the plaintiffs) and a sale-deed dated 6-2-1976 which, too, was allegedly executed by Taj Din, but execution whereof was denied by the plaintiffs "be sent to Forensic Laboratory, Lahore, for comparison of thumb-impressions, for their examination and report" and also for summoning the concerned Expert from the Finger Print Bureau for evidence. The application was resisted by the plaintiffs and was finally dismissed by the learned trial Judge vide order dated 23-2-1991. Petitioner challenged this order in a revision which was dismissed by the learned Additional District Judge on the short ground that it was not maintainable as the order allowing or declining to allow production of evidence did not amount to a 'case decided'. Order of the learned Additional District Judge 'dated 31-3-1992 has been brought under challenge in this Constitutional petition. 2. 1 have heard the learned counsel for the parties. Learned counsel for the petitioner relied upon Rahman Dad v. Sajawal Khan 1976 SCMR. 350 to contend that when a Court finally decides a question as to whether a party is entitled to produce evidence, it amounts to a 'case decide and a revision petition against such an order is competent. It was submitted by the learned counsel that the petitioner's application for procuring a report with respect to the execution of the documents relied upon by him and for producing the Handwriting Expert to prove the report having been finally dismissed by the trial Court, such dismissal amounted to a 'case decided' within the purview of section 115 of the Code of Civil Procedure, which could well be challenged in revision as held by the Supreme Court in the judgment afore-referred.

3. Learned counsel for the respondents, on the other hand, relying upon War lqbal v. Bashir Ahmad Khan PLD 1987 Lahore 650 sought to contend that an order refusing to allow the production of additional evidence was not a 'case decided' within the meaning of section 115, C.P.C. and, therefore, no revision lay against such an order. The case cited by the learned counsel for the respondents as will be shown presently is not of much help to him. In the precedent case, the revision petition which was directed against the order of the trial Court rejecting the application of the plaintiffs/petitioners therein to produce a cassette in evidence was dismissed mainly on the ground that the request of the petitioners to produce that very cassette had been disallowed by the trial Court at an earlier stage of the litigation against which they filed a revision petition which, too, was dismissed by the High Court and their petition for leave to appeal was also dismissed by the Supreme Court. It was, therefore, held in the precedent case "what has been refused by the highest Court cannot be permitted. It can have the effect of rendering the order of the highest Court ineffective. This, of course, is not permissible". Having come to this conclusion on the peculiar facts of that case, the learned Judge also proceeded to accept the contention raised on behalf of, the respondents as to the in-competency of the revision petition against the order refusing to admit additional evidence which contention was based on the following observations of the Supreme Court made in the case of Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 SCMR 965:-- "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."

4. It may pertinently be pointed out with respect that in the case of Habibullah, the order of the trial Court which was unsuccessfully assailed before the High Court in revision under Section 115, C.P.C. and the leave to appeal was also refused by the Supreme Court was one of permitting certain documents to be placed on the record and not declining to admit them in evidence. In the circumstances, reliance by the respondents in the precedent case on the afore-referred observations of the Supreme Court was not quite apt. In fact, the Supreme Court itself observed in its order passed in the review petition in that very case that the petition for leave to appeal was dismissed "on that view that the order permitting the respondents to place on record certain documents did not constitute a 'case decided' within section 115, C.P.C. to warrant interference by the High Court". Refer Nawabzada Malik Habibullah v. The Pak. Cement Industries Limited and others 1968 SCMR

864. It appears that this later view of the Supreme Court was not brought to the notice of the learned Judge who decided the case of Zafar lqbal. Be that as it may, the controversy as to the meaning of the phrase 'case decided' has since long been set at rest and the view taken by the majority of the Full Bench of seven Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq PLD 1964 Karachi 149 has been accepted as correct, namely, that section 115, C.P.C. 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 even though such decision does not dispose of the whole matter or suit pending before the subordinate Court. Refer Bashir Ahmad v. Qaisar Ali PLD 1973 SC

507. Applying the aforesaid test, it would appear that the order of the trial Court rejecting the application of the defendant/petitioner for sending the documents mentioned therein to Forensic Laboratory for comparison of thumb-impression thereon and for summoning the concerned Expert from the Finger Print Bureau for evidence amounted to a 'case decided' whith in the meaning of section 115, C.P.C. and' was, therefore, amenable to correction in the exercise of the revisional jurisdiction if it otherwise fell within the ambit of any of the clauses of, section 115, C.P.C. This view also finds support from the afore-referred case of Rehman Dad wherein the High Court repelling the objection that the order assailed before it in revision did not amount to a 'case decided' held that since the impugned order of the trial Court had finally decided the question as to whether a party was entitled to produce evidence, it did amount to a 'case decided' and this view was upheld by the Supreme Court observing that it was not open to any legitimate exception. In the aforesaid view of the matter, I hold that the revision petition filed by the defendant/petitioner against the rejection of his application was competent. The impugned order of the learned Additional District Judge holding to the contrary is accordingly declared to be without lawful authority B and of no legal effect with the result that the petitioner's revision petition shall be deemed to be pending before the learned Additional District Judge who shall decide the same on merits and in accordance with law. Writ petition is allowed in these terms with no order as to costs. AA./F-98/L PETITION ACCEPTED