JUDGMENT CHAUDHARY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the judgment and order passed by the High Court on 22.11.2003 whereby the same was accepted.
2.The facts are that the appellant herein filed a suit for permanent injunction in respect of the suit land in the Court of Sub-Judge, Mirpur. Alongwith the suit an application for Issuance of a stay order was also moved which was granted. An appeal filed by the respondent before the District Judge; Mirpur, failed and a revision against the aforesaid order was also dismissed by the High Court.
3. The. . Respondent thereafter filed another revision petition challenging the inspection note prepared by the Trial Judge after making inspection of the spot. The aforesaid revision petition was accepted by setting aside the note of the Trial Judge. This appeal challenges the aforesaid order.
4. Ch. Muhammad Yunus Arvi, the learned counsel representing the appellants, contended that stay order was issued in favour of plaintiff-appellant by the Trial Court in a suit filed by him. An appeal against the aforesaid order was dismissed and a revision before the High Court also met the same fate but the respondent again filed a revision petition challenging the inspection note prepared by the Trial Court after making spot inspection on the application of the appellant. It was forcefully argued that no appeal or revision was competent against the aforesaid order as neither it was a judgment nor an order. It was also argued by the learned counsel that the Court could not decide the matter on the basis of spot inspection, therefore, the appeal or revision was not maintainable and the order for setting aside the same was also against the accepted law.
5. Ch. Jahandad Khan, the learned counsel representing the opposite side, opposed the contentions of the learned counsel for the appellant on the grounds that the note prepared by the Trial Judge practically decided the matter against him as it was held that record of "khasra- girdawri' was against the situation at spot, therefore, it was necessary to file a revision for its setting aside. It was also argued that the revenue officials keeping in view the aforesaid observation of the Trial Court proceeded further against the respondent.
6. We have heard the learned counsel for the parties And also gone through the record It may be stated that the stay order was issued in the matter in favour of the appellant by the Trial Court which was maintained by the District Judge and the High Court/However, before the order passed in application filed by the respondent for cancellation of the stay order the learned Judge proceeded on the spot and after inspection prepared the note in question. The Court under Order XVIII, Rule118, C.P.C. In any suit can inspect any property or thing at any stage of the proceedings.
The relevant provision of law is useful reproduced:-- "Order XVIII, Rule 18. Power of Court to inspect.-The Court may at any stage of a suit inspect any property or thing concerning which any question may arise."
7. A perusal of the provisions of law shows that the Court can make spot inspection of property or thing at any stage of the proceedings but cannot decide the matter on the basis of its views or impression on inspection. The Court is obliged to decide the matter, on the basis of evidence on record and cannot supersede the evidence by its on. Views during inspection. The Court may for the purpose of understanding the controversy and the evidence inspect any property or thing concerning which any question may arise. The Court can make appointment of a commission if it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute etc. Under Order XVI, Rule 9, C.P.C. The purpose is to clarify evidence on record or for obtaining the spot information. Sometimes it is necessary that local investigation be made to have a clear view. The relevant provision of law is also reproduced:- "Order XVI, Rule 9.-Commission to make local investigation.-In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount, or any manse profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such / investigation to report thereon to the Court."
8. In the present case the Trial Judge made observation in respect of 'khasra-girdawri' recorded in favour of the respondent that he same was against the position at spot. It is correct that while making spot inspection or that a commission to be appointed by the Court the investigation is made for clarifying or appreciating the evidence on record. It may have a clear view for just decision of the matter. It may also be mentioned that the object or a commission is not to collect the evidence but to obtain evidence to elucidate the matter which Js local in character. The question arises whether a revision petition was competent before the High Court.
9.The exercise of revisional jurisdiction is made under section 115 of the C.P.C. For proper perception the relevant provisions of law are reproduced "115. Revision.-(1) The High court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that where a person makes an application under this sub-section, the shall, in support of such application, furnish, copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: Provided that such application shall be made within ninety days of the days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.
(2) . The District Court may exercise the powers conferred on the High Court by sub-section (1) in. Respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject- matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. . I
(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) bys the District Court."
10. The provisions of section 115, C.P.C. Are in two parts. The first part enumerates the conditions under which the Court can interfere and the second part specifies the types of the orders that are susceptible to revision.
A. The Court can interfere' in revision if the following conditions are fulfilled:-
(1) There should be a case decided.
(2) The decision should be of a Court subordinate to the revisional Court.
(3) No appeal should lie to the revisional Court from such decision.
B. Where the above conditions are fulfilled, the Court may interfere where the subordinate Court has:-)
(a) Exercised a jurisdiction not vested iq it, or
(b) Failed to exercised a jurisdiction vested it, or
(c) Acted in the exercise of its jurisdiction illegally or with material irregularity.
11. It may also be added that a revision lies against a case decided. The word case is more comprehensive than the word suit as to be understood in the broadest and most ordinary sense so also include a part of a case or an issue or an interlocutory order. Reference in this regard may be made to a case reported as Pakistan Fisheries Limited Vs. United Bank Limited (PLD 1993 SC 109) where it was held as under:- "......... :.... It is now well-settled that under section 115 of Code of Civil Procedure, a revision is provided against a 'case decided'. The. Expression 'case decided' fell for appraisal before this Court in Bashir Ahmad Vs. Qaiser Ali (PLD 1973 SC 507) and was .Construed as a decision given in respect of any state of facts after judicially considering the same, which need not necessarily dispose of the whole matter in a suit pending before a Court subordinate to the High Court......................... "
Similar view was expressed in another case (1992 SCM R 718) where the proposition was resolved as follows:- " ...... The expression 'case decided' does not necessarily mean the decision of the entire suit. It may relate to a decision of an interlocutory matter requiring a judicial mind. The old view that an interlocutory matter did not fall within the expression 'case decided' was abandoned by the High Court in Bibi Gur Devi's case (AIR 1943 Lah. 65), and the case cited by the learned counsel for the agents is no longer good law. The order of the Trial Judge was passed on no material and ex facie appeared to be perverse. The learned Single Judge, therefore, could have interfered under section 115 of the Code. See Bashir Ahmed Khan Vs. Qaiser AH Khan (PLD 1973 SC 507). The learned Single Judge has given cogent reasons for interfering with the lower Court's order. The order of the learned Single Judge granting leave conditionally to the agents to defend, is legal and proper and now exception can be taken to it."
12. In the present case the observation recorded by the Trial Court was neither a judgment nor an order therefore-no revision was competent. If the Trial Judge would have passed his judgment or any order on the aforesaid observation ten that could lawfully be challenged before appellate or revisional forum as the case may be. Therefore, we are of the view that the revision was not competent and could not be filed against the aforesaid observation. However, the respondent is not debarred to take his grievance at the time of passing any order, judgment or decree in case he feels adversely effected by these remarks for being outside the ambit of the Court while making spot inspection. Therefore, the order of the High Court is not maintainable and the same is set aside by accepting the appeal with no order as to costs.