1990 PLP 1877 (CLC)

Abdul Ghani Shaikh for Petitioner. Abdul Fattah Malik for Respondents Nos.l to

3. Nemo for Respondents Nos.4 to

8. Date of hearing: 3rd April, 1990. The facts giving rise to the present civil revision are that the present respondents had filed the suit being Suit No.9/1979 in the Court of Civil Judge, Rohri for declaration, cancellation of registered document and permanent injunction against the present petitioner alleging therein that 50 paisa share in the survey number in suit was initially owned by one Boolo who had expired some 100 years back and his said share ultimately devolved on the plaintiffs in the suit being his heirs. It is further alleged that in the month of November, 1978 the present petitioner claimed to have purchased the suit land from the said Boolo in the year 1963 although said Boolo as stated above had expired about 100 years ago and, therefore, the plaintiffs had filed the said suit. The trial Court framed 8 issues in the suit. Both the parties led evidence and the suit was ultimately decreed by the trial Court on 30‑6‑1980 to the extent that the registered sale‑deed in favour of the present petitioner and subsequent entries in the Revenue Record were ordered to be cancelled as it was held that the same having been obtained through fraud and forgery were unlawful, inoperative and of no legal consequence and not binding on the plaintiffs while the relief of injunction was declined. The present petitioner being aggrieved from the said judgment of the Civil Judge submitted an appeal before the District Court Sukkur being Civil Appeal No.80/80 which was heard and dismissed by the learned First Additional District Judge, Sukkur. It is against these concurrent findings that the present revision application has been filed. I have heard Mr: Abdul Ghani Shaikh, the learned counsel for the applicant and Mr. Abdul Fattah Malik appearing for the respondents Nos.l to

3. None is present for,respondents 4 to 8 who were also the plaintiffs in the Civil Court. At the very outset Mr. Abdul Ghani Shaikh the learned counsel for the applicant has pointed out that the issues were framed by the trial Court on 15‑11 1979 and thereafter the plaintiffs had submitted a list of witnesses which included the name of one Muhammad Saleh son of Muhammad Hashim who is said to be attesting witness of the alleged sale‑deed executed in favour of the present applicant who was defendant in the suit. It is pointed out by the learned counsel that this witness of the plaintiffs had fallen ill and was confined to bed and could not appear in the Court as he could not climb the hill on which the Court of Civil Judge, Rohri is situate and, therefore, the present applicant in June, 1980 moved an application under section 151 C.P.C. with the prayer that he maybe allowed to examine the other attesting witness, namely, Kadir Bux in place of witness Muhammad Saleh for the reason shown above. A copy of medical certificate was also attached with the application. This application was rejected by the learned Civil Judge vide orders passed on the reverse of the application on 26‑6‑1980 simply on the ground that the application under section 151 C.P.C. could not be maintainable as other specific provision is available in the Civil Procedure Code. The learned counsel for the applicant has then pointed out that in the very suit and after framing of the issues and before any evidence was recorded he had moved an application under Order 13 rule 2 C.P.C. on 6‑4‑1980 with the prayer that certified copy of lease deed executed by Hadi. Bux son of Boolo alongwith other co‑sharers be allowed to be brought on record but this application was also rejected by the learned Civil Judge on the ground that the lease deed did not pertain to the land in dispute. From this the learned counsel for the applicant had submitted that he has been deprived of the opportunity to prove the issues in the suit and that these abovesaid two orders passed by the learned Civil Judge suffer from material irregularity and illegality. Mr. Abdul Fattah Malik, the learned counsel for respondents 1 to 3 has supported the above‑said two orders. He has submitted that in the case of first order if the defendant desired to examine the witness he should have moved a proper application under the provisions of Order 16 rule, C.P.C. and Section 151, C.P.C. in such case will not be applicable. He has further submitted that because the name of the witness was not included in the list of witnesses submitted earlier the defendant was debarred from examining the said witness. With regard to the second order Mr. Abdul Fattah Malik, the learned counsel for respondents 1 to 3 has submitted that the said document did not pertain to the land involved in the suit and therefore, was irrelevant which was rightly declined. He has further submitted that in case the present applicant was aggrieved from the said orders he could have challenged the same through a revision application at that time and not having done so the same point cannot now be agitated. I have considered the submissions of the learned counsel. It is not denied that before any evidence was brought on record when the defendant had moved the said two applications, no prejudice was likely to be caused to the other side if the same were allowed at that stage. It may also be observed that with regard to summoning the other attesting witness of the impugned sale‑deed, the reasons advanced by the defendant were quite cogent. Civil Court, Rohri is situate on a hill top and the first witness cited by the defendants having fallen ill, which fact was supported by the certificate, could not have climbed the hill and, therefore, he should have been allowed the opportunity to examine the second attesting witness of the said document. The law favours adjudication on merits and a party cannot be shut out from examining the witnesses unless there are mala fides alleged and proved. With regard to the second submission of the learned counsel for the applicant that he had sought to bring a registered document on record which was declined by the Civil Judge, I am of the view that even this order is not a proper order. It appears that the said document was sought to be produced on record to prove the fact with regard to time of death of Boolo and therein forgery committed by the plaintiffs and to rebut allegations of plaintiffs with regard to forgery., Reliance may be placed on the case of Allahditta v. Sadar Din (P L D 1.961. (W.P.) Lahore 643) wherein certified copies of registered mortage and sale deeds were allowed to be tendered after the conclusion of the arguments in the civil suit under the provisions of Order 13, Rule 2, C.P.C. With regard to the last submission of the learned counsel for respondents Nos.1 to 3 that since said orders were not challenged by the present applicant at the relevant time, he cannot now agitate the same, it may be observed that the said orders did not fall within the words "case decided" as provided in section 115, C.P.C. and no revision application could have been maintainable against the said orders. The interocultory or miscellaneous orders passed during the proceedings of a suit could also be agitated in an appeal/revision application filed challenging the final judgment. Reliance can be placed on the case of Nawabzada Malik Habibullah Khan v. Pak. Cement Industries Ltd and others (1969 S C M R 965) wherein it has been held by their Lordships: "An order admitting or declining to admit evidenceoral 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. A fortiori no appeal from the order of the High Court would lie to this Court. The petition is dismissed:" For the above reasons I am inclined to set aside the abovesaid orders passed by the Civil Judge on 26‑6‑1980 and 21‑4‑1980 and allow both the applications of the present applicant moved under Order 13 Rule 2, C.P.C. and section 151, C.P.C. As a result of this order I set aside the judgments and decrees passed by the two courts below and remand the suit to the Court of Civil Judge, Rohri to proceed in accordance with law. Since the matter pertains to the year 1979 the Civil Judge, Rohri is directed to proceed with the case expeditiously. AA./A‑893/K Case remanded.