1980 PLP 1588 (CLC)

2. The facts giving rise to the civil revision and two others, referred to just above are that the respondent Ghulam Hassan Shah and 14 others filed a suit against the petitioners, Muhammad Shah and two others. The suit was dismissed and therefore, the respondents preferred an appeal td the District Judge, Sargodha. They also made au applica tion under Order XLI, rule 27 of the Code of Civil Procedure, to the learned District Judge for permission to produce additional evidence. Their request was acceded to by the learned District Judge and he directed the Senior Civil Judge, Sargodha, to record the additional evidence and remitted the case to him for the purpose. The learned Senior Civil Judge had fixed the case for 6th May, 1979, when by means of an administrative order the learned Additional District Judge transferred the case from his Court to that of Mr. Khalid Akhtar, Civil Judge, Sargodha. On this, the respondents made an application to the learned District Judge on 6th May, 1979 for re-transfer of the case to the Court of Senior Civil Judge. Their prayer was granted by the learned District Judge and on the same day, without notice to the petitioners he trans ferred the case back to the learned Senior Civil Judge.

3. The order, dated the 6th May, 1979, relating to the re-transfer of the case to the learned Senior Civil Judge, was challenged by the petitioners by means of Civill Revision No. 585/1979. When that Civil Revision came up before my Lord Mr. Justice M. A. Zullah (now a Judge of the Supreme Court), learned counsel for the petitioners informed his Lord ship' that the petitioners had no grievance against the learned Senior Civil Judge. According to the learned counsel for the petitioners, the civil revision had been made for the correction of a legal mistake, namely, the re-transfer of the case to the learned Senior Civil Judge without notice to the petitioners. Their learned counsel also explained that the peti tioners were not interested in delaying the proceedings. He, therefore, suggested that the mistake could be corrected if it was pointed out to the learned District Judge that the notice to the learned counsel for the other parties be given for a short date, says one day, and the proceedings be corrected., Can this, his Lordship made the following order :- In so far as the technical omission is concerned; the learned counsel seems to be correct that if the learned District Judge has passed an order of re-transfer under section 24 (1) (b) (iii) on the application of one of the parties, it would be irregular without notice to the other parties. The mistake, it appears, is innocent and is covered by the principle underlying section 153 C. P. C. which provides that the Court may at any time amend any defect an error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the, real question or issue raised by or depending on such proceeding. Be that as it may, the suggestion made by the learned counsel seems reasonable. The learned District Judge may, if so advised, even now issue notice to the learned counsel for the other parties, (as suggested by the learned counsel appearing in this revision and if the said learned counsel does. not accept notice, to issue notice to the parties. Learned counsel states that there is no apprehension in this case that the said learned counsel would not accept notice. With these observations, this revision petition is disposed of." On the receipt of the above order' of this Court, the learned District Judge secured the attendance of the parties' counsel on 31st May, 1970 and corrected his order as directed by this Court. Before his so doing, it yeas contended by the learned counsel for the petitioners that the order relating to the re-transfer of the case to the learned Senior Civil Judge would become effective from the above date, namely, 31st May, 1979 and not from the 6th May, 1979 when it was originally made. This plea was repelled by the learned District Judge with the following observations :- "This correction will date back to the order originally passed and, therefore', the transfer of the case as made on 6th May, 1979 will be quite valid with effect from that very date."

5. As the petitioners were not satisfied with the above order of the learned District Judge, they have filed Civil Revision No. 763/1979.

6. While assailing the aforesaid order of the learned District Judge, it was urged by the learned counsel for the petitioners that since the original order relating to the re-transfer of the case to the learned Senior Civil Judge was against the provisions of section 24 of the Code of Civil Procedure inasmuch it was passed without notice to the petitioners. and the said order had also been set aside by this Court in Civil Revision No. 585/1979. the order of the re-transfer of the case would operate with effect from 31st May, 1979. when it was passed in the presence of the parties' counsel, arid not from 6th May, 1979 when the order was originally made. He also maintained that between the said two dates the learned Senior Civil Judge had recorded the evidence of the respondents and since he had no jurisdiction to do so in the absence of a valid order regarding the re transfer of the case to him, the learned Senior Civil Judge should again record the respondents' evidence after the case has been duly re-transferred to him in consequence of the order of the learned District Judge passed on 31st May, 1979.

7. I am unable to agree with the learned counsel for the petitioners. A perusal of the order of this Court in Civil Revision No. 585/79 would clearly demonstrate that the order made by the learned District Judge on 6th May, 1979 was not set aside nor the petition was accepted. The petition was disposed of in the absence of the opposite party and the learned counsel for the petitioners has not been able to cite any authority for the proposition that the petition could be accepted, on merits, without notice to the opposite side. In the order made on the A above petition, it was not stated that the order of the learned District Judge suffered from any illegality or material irregularity. It was only a technical error which was noted and he was asked to remove the same under section 153 of the Code of Civil Procedure. Thus, neither his order of 6th May, 1979 was set aside nor he was asked to make it afresh. He was simply directed to remove a technical error which he did. Thus, his order of 6rh May, 1979, continued to hold the field right from the date when it was originally passed technical lacunae by him on 31st May, of this Court, did not amount to the in substitution of the original order. In this view of the was perfectly justified in holding that his order would take 6th May, 1979, when originally made, when the aforesaid error was corrected the present petition (C< R. 763/1979) is, therefore, unexceptionable.

8. Now, I take up Civil Revision No.764/1979. It is directed against an order. dated the 13th May, 1979, made by the learned Senior Civil Judge whereby he declined to send a register of the Municipal Committee, Shahpur, to the Forensic Science Laboratory; Lahore, for determining the age of certain entries trade therein. The petitioners had made a request to the learned Senior Civil Judge in this behalf which was not acceded to by him. Their plea was that some interpolations had been made in the aforesaid entries and, therefore, it was necessary to have them examined at the said Laboratory. While rejecting their request, the learned Senior Civil Judge observed : I have perused the original register which has been sealed and retained in the custody of the court and hold the opinion that the entry in dispute does not appear to the court to have been interpolated as alleged by the petitioners. , Moreover, the impugned entry is not the last entry of 1941 and does not disturb the serial number of the register. The application seems to have been given only to delay a case as the learned District judge, has fixed 31st May, 1979 as the dead line to record additional evidence and return the file to him for the disposal of appeal which is still pending.

9. There appears to be nothing wrong with the reasoning of the learned Senior Civil Judge. In any case, the appeal is yet to be decided by the learned District Judge himself and if the petitioners can convince the learned District Judge that the learned Senior Civil Judge was not right in saying that there was no interpolations in the relevant entries as alleged by the petitioners, the learned District Judge will be able to re-consider their request for sending the aforesaid entries to the Forensic Science Laboratory. In view of what has been placed before me. I am unable to agree that the order of the learned District Judge suffers from any illegality or material irregularity and, therefore, I am not inclined to interfere.

10. This brings me to Civil Revision No. 765/1979 which has been filed by the petitioners to call in question an order, dated the 13th June, 1979, whereby the learned Senior Civil Judge is said to have closed the evidence of the petitioners. Learned counsel has not been able to apprise me of the reasons, if any, given by the learned counsel for closing the evidence of the petitioners. Neither a certified nor an uncertified copy of the said order has been placed on record. Learned counsel for the G petitioners says that the petitioners had applied for copy of the order but the same had not been supplied to them. The precise date on which they asked for the copy has not been indicated. No explanation has been given for pot filing an uncertified copy of the said order, If the petitioners had not been provided with a certified copy of the order they could have by inspecting in file prepared an uncertified copy therefore and file the same with the petition. In view of all this I am of the view that the petitioner have not made out a case for admission of the petition or the grant of stay for therein. They can take exception to the order under revision while arguing the appeal before the learned District Judge. I am therefore not inclined to entertain this civil revision.

12. The upshot of the foregoing discussions is that there is no merit In the three civil revision discussed above. They are therefore dismissed in limine. M.Y.M Appeal dismissed.