1989 PLP 1658 (SCMR)

SAAD SAOOD JAN, J.‑‑This is a petition for special leave to appeal from the order dated 23‑2‑1988 of the Lahore High Court, Rawalpindi Bench, where by the Constitutional Petition filed by the petitioner from the order of the Additional District Judge, Rawalpindi was dismissed.

2. The property in dispute is a house situate in Gawalmandi, Rawalpindi. It was owned by Mst. Bano Bibi, respondent No.

2. The petitioner is her grandson. On 13‑9‑1972 he filed a civil suit claiming that he was the owner of the house on the basis of a gift made by Mst. Bano in his favour. On 17‑7‑1973 Mst. Bano Bibi allegedly appeared in Court and confessed judgment; accordingly, a decree was passed in the petitioner's favour.

3. On 25‑1‑1986 Mst. Bano Bibi moved an application under section 12(2), Code of Civil Procedure before the Court alleging that she had neither appeared before any Court nor submitted any written statement and that the decree obtained by the petitioner was tainted with fraud. She denied that she had made any gift in favour of the petitioner and stated that even after the passing of the decree in favour of the petitioner she had herself rented out the house to a bank and that the petitioner was an attesting witness of the lease agreement.

4. The trial Court framed three issues. During the course of the trial Mst Bano Bibi wanted to produce a copy of the lease agreement allegedly executed a the time when she let out the house to‑the Bank. The trial Court found that the agreement did not bear stamp duty. Consequently, it impounded the document assessed the stamp duty and the penalty in the sum of Rs.18,040 and called upon Mst. Bano Bibi to deposit, the said amount before the document could be received into evidence.

5. Mst. Bano Bibi challenged the order of the trial Court in revision before the District Judge. By an order dated 17‑1‑1988, the learned Additional District Judge allowed the revision petition, set aside the order of the trial‑Court and gave direction that she should be allowed to lead her evidence to get the document exhibited.

6. The petitioner filed a writ petition in the High Court to call in question the legality of the order of the Additional District Judge. Relying upon a judgment of Rajasthan High Court reported as Kailash Narain and others v. Bhairoom Dutta (A I R 1983 Rajasthan 27), a learned Single Judge in the High Court dismissed the writ petition, holding that as the petitioner would have an opportunity of reagitating his objection in the appellate Court, it was not a fit case for interference with the order of the Additional District Judge in the Constitutional jurisdiction of the High Court. The petitioner seeks leave to appeal from the order of the High Court.

7. In support of this petition it is urged that once the document was allowed to be admitted in evidence it would not be open to the petitioner to agitate against its admissibility in any higher forum. In support of this contention reference has been made to a decision of the India Supreme Court reported as Javer Chand v. Pukhraj Surana (A I R 1961 S C 1955). On the basis of this judgment it is urged that the High Court was not right in holding that adequate remedy would be available to the petitioner before the appellate Court. In the circumstances, it should not have declined to interfere with the order of the learned Additional District Judge.

8. The contention raised on behalf of the petitioner requires examination. Leave to appeals is granted. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary. In the meanwhile proceedings before the trial Court are staved. M.A.K./G‑198/S Leave granted.