' Respondent No,3 filed a pre-emption Suit against the petitioners during the course of proceedings whereof he moved an application to respondent No,1 (Civil Judge, Kabeerwala) for admitting in evidence two postal envelopes containing notices of Talb-e-Ishhad sent by him through registered post to the petitioners but were returned undelivered with the report 6f postman on 1-6-1992.
2. The said application was resisted by the petitioners and was dismissed on merits with costs by respondent No,1 on 17-4-1994.
3. Subsequently on 3-7-1994, respondent No,3, filed another application on the same subject- matter for seeking permission to produce secondary evidence regarding the said notice of Talb-e- Ishhad and the postal envelopes as according to him they were lost.
4. This application was opposed by the petitioners inter alia on the grounds that since application for admitting evidence in respect of the original notice and postal envelopes containing the same was dismissed earlier, permission could not be granted to prove the said documents through secondary evidence.
5. Without adverting to the said objection, respondent No,1, Civil Judge, Kabeerwala) vide order, dated 27-7-1994 allowed the said application and permitted respondent No,3, to produce photostat copy of notice of Talb-e-Ishhad by way of secondary evidence.
6. Revision petition against the said order filed by the petitioners was dismissed by Additional District Judge, Khanewal on 8-5-1995 on the ground that it was not competent as order admitting or declining to admit evidence, oral or documentary did not amount to a "case decided" within purview of section 115, C.P.C.
7. The petitioners have assailed both the aforesaid orders respectively passed by the learned Civil Judge and the learned Additional District Judge, on 27-7-1994 and 8-5-1995 in this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. Mr. Khizar Hayat Khan Punian, Advocate for the petitioners urged that---
(i) the learned lower Appellate Court (respondent No,2) erred in holding that order admitting or declining to admit evidence does not amount to a "case decided". Reliance was placed on the case of FerozeDin v. Muhammad Amin and 4 others" (PLD 1993 Lahore 774).
(ii) Permission to produce secondary evidence regarding documents could not have been legally granted when permission to produce the original documents was already refused.
9. The petition was opposed by Mirza Aziz Akbar Baig, Advocate appearing on behalf of respondent No,3. Arguments heard All the Annexures and documents appended With the writ petition have also been perused.
10. Civil Revision against order, dated 27-7-1994 was dismissed by respondent No,2 on the ground that order admitting or declining to admit evidence did not amount to a case decided. Learned counsel for the. Petitioners relying on PLD 1993 Lah. 774 had urged that order, dated 27-7-1994 passed by respondent No,1, admitting documents in evidence did amount to a "case decided".
11. A perusal of the precedent case reveals that it is in respect of a matter where the trial Court had declined to admit evidence and in revision against that order the lower Appellate Court had held that said order did not amount to a case decided, therefore, it was not revisable but in Constitutional jurisdiction the High. Court held that revision petition against the rejection of application was competent. In the present case trial Court had not declined to admit evidence. It is now well-settled that order refusing to admit document in evidence amounts to a case decided. I have not come across any case-law to the effect that order admitting evidence amounts to a case decided. First contention of the petitioners' counsel is, therefore, not acceptable.
12. Application of respondent No,3, for admitting in evidence, returned undelivered postal envelopes and notice of Talb-e-Ishhad contained therein, sent by respondent No,3, through registered post to the petitioners, was admittedly dismissed on merits by the Civil Judge (respondent No,3) on 17-4- 1994. Subsequent application of respondent No,3 moved on 3-7-1994 was admittedly on the same subject for seeking permission to produce secondary evidence regarding the aforesaid notice of Talb-e-Ishhad and the postal envelopes.
13. The petitioners had raised objection before respondent No,1, that application, for admitting in evidence original notice of Talb-e-Ishhad and the postal envelopes was dismissed, therefore, permission could not be legally granted to produce secondary evidence for proving the said documents.
14. The impugned order passed by respondent No,1, on 27-7-1994 shows that subsequent application was accepted without adverting to the said legal objection. Section 141 of C.P.C.
Provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
15. Where section 11 of the C.P.C. Does not in its terms apply, the principles underlying the rule of res judicata can nevertheless be invoked.
16. Decision of respondent No,1, dated 17-4-1994 on the application for admitting documents was a bar to the subsequent application based on the same grounds. When permission to produce original documents was refused, production of their photo copy by way of secondary evidence could
17. Order, dated 27-7-1994 was, therefore, passed by respondent No,1 in non-compliance of the statutory provisions of law and it is accordingly declared as illegal, without lawful authority and of no legal effect. Resultantly, application of respondent No,3, for seeking permission to produce secondary evidence shall be deemed to have been dismissed.