P L D 1983 Lahore 365 (PLP)

This constitution petition is directed against the judgment dated 9th of August, 1982, of the learned Additional District Judge, Gujrat, whereby order dated 17-3-1982 of the learned trial Court allowing the petitioner to produce additional evidence, was set aside.

2. The facts, relevant for appreciating the submissions of the parties, are that on 7-7-1979 Mst. Fazal Begum, petitioner, filed a suit for possession through pre-emption against Bahadur Khan respondent and the plaint filed accompanied the usual list provided by Order VII, rule 11, C. P. C. The issues were framed in the suit on 8-1-1980 and another list under Order XIII, rule 1, C. P. C. was filed the same day. This list for the first time included the documents which are subject-matter of the present controversy. as the petitioner without producing them closed affirmative evidence on 17-6-1980 and then concluded her evidence in rebuttal also on 23-1-1982. Thereafter, the case was being fixed for arguments, when on 8-2-1982 the petitioner made an application for permission to produce in evidence a copy of mutation of inheritance No. 1140 dated 25-3-1970 and copy of Fard Badar No- 41 dated 14-8-1979, on the ground that the same could not be produced earlier through inadvertence though they were already part of the record. This application was allowed by the learned trial Court vide order dated 17-3-1982 observing that the documents to be produced were certified copies of the public record and, as such, there was no question of .their being forged and that the respondent shall have a right to produce evidence in rebuttal. The respondent being dissatisfied preferred a revision petition against the order permitting the petitioner to produce documents in question.. The learned Additional District Judge was of the view that the question which he was called upon to determine was "whether the alleged inadvertence occurred to the petitioner-plaintiff on those days or not". The answer to be returned, according to him, was in the negative as the inadvertence, if ever occurred, must have occurred to the counsel for the petitioner and not to the petitioner herself and that the counsel had not put in any affidavit in this behalf, therefore, the reason for non-production of the documents earlier had not been proved. The learned Additional District Judge dealing with matter in the aforesaid manner, came to the conclusion that there was no good reason for not producing the documents earlier in the case and, so, the permission to produce the same subsequently could not be granted under law.

3. Learned counsel in support of this constitution petition has argued that the learned Additional District Judge has illegally s.-t aside the order passed by the learned trial Court, allowing the production of additional evidence and that such interference in exercise of revisional jurisdiction was totally uncalled for. Learned counsel for the respondent has in reply argued that constitutional jurisdiction cannot be invoked for seeking interference in orders/judgments passed by courts of competent jurisdiction. Reliance was placed in this behalf on Abdur Rehman Bajwa v. Sultan and 9 others (P L D 1981 S C 522). According to him, even otherwise, the order of refusal or, permission to produce additional evidence is not amenable to scrutiny in exercise of constitutional jurisdiction. In this respect, reliance is placed on Shakir Alc Khan and others v. Tauheed Ahmad Khan etc. (1981 S C M R 149) and Rahim Bakhsh v. Hajj Gehna and District Judge, Rahimyar Khan (PLD1982BJ 5). In Abdur Rehman Bajwa's case learned Judges of the Supreme Court observed that the question of jurisdiction of the High Courts under Article 199 has come under consideration in a number of cases before that Court and it has been repeatedly held that if a court or tribunal set up under the ordinary law has the jurisdiction to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect or is not, at which the High Court would have arrived, does not render the decision without jurisdiction. It was further observed that all that the High Court can do while interfering in such matters is to see whether the tribunal or the Court in question has acted without jurisdiction or acted in violation of the relevant statute or the law as laid down by the snherior Courts. The aforesaid view was also reiterated in Muhammad Sharif and another v. Muhammad Afzal Sohail etc. (P L D 1981 S C 246). The above is the law declared by the Supreme Court and, therefore, interference in exercise of constitutional jurisdiction is warranted t only when a case of jurisdictional error is made out. Thus, the question which needs determination in this case is whether the learned Additional District Judge exercised revisional powers illegally or in violation of the principles laid down by the superior Courts regulating the exercise of revisional jurisdiction.

4. Before examining this question, it is appropriate to notice the other precedent relied upon by the learned counsel for the appellants. In Shakir Ali Khan's case a copy of the plan filed alongwith the plaint was not proved at the time when other evidence was adduced and permission was sought to prove the plan at the stage of final arguments. The permission to adduce this plan was refused on the ground that meanwhile another plan had already been exhibited. This order was challenged before the District Judge in revision but the same was dismissed and a constitution petition thereafter filed also remained unsuccessful. The matter was then taken to Supreme Court and learned Judges while dismissing the petition for special leave to appeal, observed that Order XVIII (2), C. P. C. . gives authority to the Court to grant permission for production of additional evidence and that it is clear, from the rule itself, that the production of such evidence is not a matter of right and is dependant on the discretion of the Court and that the discretion was only exercised b5, the learned Civil Judge and the correctness of it was tested by filing a revision petition before the District Judge. It was also observed that since it was not a case of lack of 1 awful authority, the writ petition was not maintainable before the High Court. It may be noted that in this case it was held that the production of such evidence is not a matter of right but is dependant upon discretion of the civil Court and this discretion having been exercised duly, interference was not called for. In the other case of Rahim Bakhsh, an application for production of copies of pedigree tables was filed at the stage when the suit was fixed for evidence of the respondent. The trial Court dismissed this application holding that the documents in question were neither relied upon nor produced at the proper time nor good cause shown for non-production thereof. This order was, however, set aside by an Additional District Judge in revision and production of the documents was allowed. This order was challenged by filing a writ petition on the ground that the order of the learned Civil Judge was not revisable under section 11.5, C. P. C. as it was not a "case decided" and, as such, jurisdiction was wrongly assumed. The learned Judge dismissed the constitution petition observing that he was not inclined to exercise discretionary constitutional jurisdiction for interference in the impugned order whereby the documents were allowed to be produced. The invocation of constitutional jurisdiction is not available for interfering with the order of Courts simply on procedural matter or on plane of propriety and- that even otherwise the copies of the documents required to be brought on the record were public documents, authenticity of which could be challenged by producing evidence in rebuttal as rightly observed by the learned Additional District Judge. It will be seen that in this precedent the order allowing production of documents was not interfered with. 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. Abullah etc. (PLD1952BJ1) that the revisional courts may interfere. On the contrary, an order permitting the admission of documents which were not included in the list of reliance or not filed in 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. It was so held in Habibullah Khan v. Pakistan Cement Industries. Ltd. (1968SCMR864) and Habibullah Khan v. Pakistan Cement Industries Ltd. (1969 S C M R 965).

5. Now reverting to the case in hand, it may be noted that the facts which are not disputed (i) that the documents sought to be produced are public documents, (ii) that these documents were brought on the record alongwith the list under Order XIII, rule 1, C. P. C. on the date the issues were framed and (iii) that the permission to, produce the same was granted allowing the respondent to produce evidence in rebuttal, if any. The legal position which is not disputed is that the matter of grant or refusal o permission to adduce additional evidence lies purely within the discretionary domain of the trial Court. The discretion was exercised by the trial Court observing that the documents sought to be produced were public documents so there was no question of these being forged documents, but the learned Additional District Judge ordered their exclusion on the ground that failure to exhibit the same on record appears to be due to inadvertence of the counsel and that the counsel had not filed an affidavit in support of the plea of inadvertence. This too technical a view taken by the learned Additional District Judge could hardly form a basis for interference in the discretion exercised by the trial Court. In fact, the order did not amount to a "case decided" within the purview of section 115, C. P. C and the revisional jurisdiction was not at all attracted. The revisional jurisdiction was conferred on the District Courts by adding subsection (2) to section 115, C. P. C. by Law Reforms Ordinance; 1972. The District Courts while exercising the power conferred by subsection (1) of section 115, C. P. C. must keep in mind the limit and the scope of the jurisdiction they are called upon to exercise. 1 The principles laid down by the superior Courts pertaining to the exercise of revisional jurisdiction must be followed strictly, as otherwise, the unjudicious exercise of power is likely to result in suppressing instead of advancing the interest of justice. The Courts while exercising revisional jurisdiction, .especially, in respect of interlocutory matters or matters which can be agitated at time of appeal against the final judgment, should. act with due care and caution so that the interest of justice may not suffer and so that the propriety, regularity or legality of the same could be scrutinized in appeal,- a jurisdiction which is wider and exhaustive in content and scope than the revisional jurisdiction. Moreover, the fragmentary decisions at higher forums, when the main proceedings remain pending at lower forums, tend to delay administration of justice. Even where corrective jurisdiction exists at interlocutory stage, it is advisable that unless the whole gamut of dispute can be disposed of, interlocutory orders and intermediary proceedings should not be interfered with unless it becomes absolutely unavoidable See, Bushra Parveen v. Abdul Jabbar 1979 C L C

688. Again, the special and extraordinary it powers under section 115, C. P. C. are not to be exercised generally in favour) of interference where the applicant has another remedy open to him which he has not pursued. (See Municipal Committee v. Sh. Aziz Elahi (P L D 1970 S C 506).

6. The revisional jurisdiction in cases where the order amounts to "case decided" may be exercised only, where the applicant has been able t show any jurisdictional defect in the exercise of jurisdiction. In the case o Muhammad Husain Munir v. Sikandar (P L D 1974 S C 139) after taking notice of the Privy Council decision in Amir Husain Khan v. Shev Bakhsh Singh (11 I A 237), it was observed that "it is well-settled that where a court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law". See also P L D 1972 S C 69, where it was observed that before the High Court could interfere under this latter section (section 115, C. P. C.) it had to be satisfied that the court below had acted illegally or with material irregularity in the exercise of its jurisdiction or exercised jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested. Thus, interference is not to be made where another view on facts or on law can possibly be taken as no jurisdiction exists for substituting one's view as against the view taken acting reasonably and fairly by the court of competent jurisdiction. This brings me to the cases the discretionary orders are assailed in revision. In such cases, the principal laid down is that discretionary orders of subordinate courts cannot b interfered with unless those are found to be fanciful or arbitrary, as revisional power under section 115, C. P. C. is primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. (See P L D 1970 S C 139). It is also to be noted that in cases where substantial justice has been done, even if the impugned order suffers from some irregularity, the revisional Court should be loathe to interfere. The revisional powers, I therefore, should be exercised sparingly, with due care and caution for the' purpose of correcting jurisdictional errors.

7. The above-noted some of the important principles pertaining to the exercise of revisional jurisdiction have been restated by me as it was observed in some cases that due to unjudicious exercise of revisional jurisdiction, District Courts while exercising appellate powers felt handicapped in meeting out justice, in the presence of the orders passed in revision during the pendency of suits. The difference in the scope and nature of the appellate and revision jurisdiction is to be kept in view. It is, necessary that exercise of jurisdiction in revision be kept within permissible limits, as otherwise right of appeal and the power to do justice in appeal is likely to suffer. The exercise of revisional power, therefore, by the District Courts calls for greater caution, especially, in those cases where the appeal against the final judgment to be rendered is also to come before a District Court.

8. In the light of what has been discussed above, the exercise of revisional jurisdiction in the instant case cannot be considered to be lawful as revisional jurisdiction was not at all attracted because the order permitting production of evidence did not amount to a "case decided". Even otherwise, the interference in the revisional jurisdiction in this case was not conducive to the interests of justice. For all these reasons, the writ petition is accepted, the order dated 9-8-1982 passed by the learned Additional District Judge is declared to have been passed without lawful authority and the same is hereby quashed. However, there will be no order as to costs. M. Y. M. Petition allowed.