P L D 1950 Baghdad﷓ul﷓Jadid 30 (PLP)

Muhammad Afzal Bajwa or Petitioners. ORDER‑

One Khuda Bakhsh, a resident of Bahawalpur sold a house situated in Mohalla Darkhanan, inside the Bikaneri Gate, Bahawalpur for Ids. 1,400 by a registered sale deed, dated 16th of September 1946, in favour of Muhammad Iqbal and Muhammad Ameen, minor sons of Muhammad Bakhsh. Allah Wasaya brought a suit for pre‑emption on 2nd of October, 1946 on the ground of contiguity and easement. The vendee besides the other pleas raised in his written statement also pleaded that there did not exist a right of pre‑emption in Mohalla Darkhanan, since the time of the commencement of the Punjab Pre‑emption Act (I of‑1913). The trial Court without examining the parties, before the issues, framed certain issues, one of which, i.e, No. 3 is to the effect, whether there exists the right of pre‑emption in Mohalla Darkhanan. The burden was placed on the plaintiff: To the frame of this issue an objection was taken by the defendants vendees and they requested the Court to frame a correct issue, bearing in mind the provisions of section 7 of the Punjab Pre emption Act, i. e., Act I of 1913. This application was rejected by the present Subordinate Judge, Mohd Abdul. Ghafoor by his order dated 3rd April 1948. This order is now the subject‑matter of revision before this Court. In order to dispose of this petition it is to be considered, whether an incorrect issue framed by Court comes within the definition of a "case decided" under section 115 of the Civil Procedure Code. The Allahabad High Court has consistently ruled that it does not. The same view was adopted by the Lahore High Court till the year 1924. See 1943 All. 564, 63 I C 15, and 5 Lah.

288. On the other hand it has been held by the Calcutta, Madras, Patna and Rangoon High Court that the word "case" is wide enough to include an interlocutory order, that the words "record of any case" include so much of the proceedings in any case as relate to an interlocutory order, and the High Court, therefore, has the power to interfere in revision with orders passed at any stage of a suit, though there may be another remedy‑open to the injured party, i. e., by making the order a ground of appeal from the final decree under section 105 subject, however, to this limitation that !the High Court will not interfere unless its non‑interference might lead to failure of justice or irreparable injury. Following this principle the High Court of Calcutta, in one case set aside an order of the Subordinate Court framing additional issues which were unneces sary for the disposal of the suit, when it appeared that the trial of those issues would entail an expenditure wholly out of pro‑portion to the matter in dispute and cause irreparable injury to the plaintiff. See 53 Cal. 767, 98 I C

615. The High Court of Lahore, too, later on changed its view in a Full Bench ruling, 1943 Lah. 65, and overruled. 5 Lah. 288.The principal judgment of the Full Bench was written by Mr. justice Bhide, and it was field therein that the word 'case' in section 115 does not always mean any state of facts juridically considered.' This meaning is wide enough to include a 'decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a "case decided" within the meanings of section 115, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result fir such gross injustice and Irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary juris diction of the High Court at that stage. Surveying the case law, on the point before me, and the form of the, issue and the allocation of the burden proposed by the trial judge. I am of opinion that as the issue framed by the trial Court is definitely inconsistent. to the provisions of section 7 of the Punjab Pre‑emption Act, and it is likely to cause irreparable injury to the petitioner, consequently the order under revision shall be treated by nee as `'case decided" and thus warranting interference therein. I would therefore accept the petition for revision and alter issue No. 3 framed by the Court of first instance arid put it in the, following two parts :‑ (a) Does Mohalla Darkhanan inside the Bikaneri ‑ Gate, Bahawalpur come within the definition of a subdivision as con templated by section 7 of the Punjab, Pre‑emption Act, burden of proof on vendees. (b) If so, was the custom of pre‑emption to existence in that Mohalla at the time of the ‑commencement of this Act. On plaintiff. No order as to costs is passed. Before Closing this judgment I would take the opportunity of expressing my dissatisfaction with the proceedings ,in this case It is the paramount duty of every judge in the original Court to proceed‑with the examination of the parties as soon as they appear before ‑him and put in their written pleadings. The failure to perform his imperative duty by the presiding' officer, often results in, considerable mischief, which becomes not only the source of trouble to the litigant public, but also to the presiding officer himself: It is the examination of the parties alone which leads the Court to understand the case properly and to frame correct issues. Some of the issues framed in the case clearly end to the conclusion that the Court failed to grasp correctly the dispute between the parties and thus to frame correct issues. I should also note here, that this petty case is lingering on in that Court for a very long time 16. should be expedited and concluded without any undue delay. The file shall go back to the Court of first instance to proceed in accordance with the decision and observations, of this Court. The parties shall appear before the Court on 19th of July 1948. A.H Revision allowed