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MUHAMMAD AKHTAR SHABBIR, J. --- Facts giving rise to the instant writ petition are to the effect that Ghulam Muhammad, the predecessor-in-interest of the present petitioners had been allotted land in Chak No. 14 EB, Arifwala, Pakpattan measuring 12-Acres, 3-Kanals and 15- Marlas vide allotment order dated 20.03.1964 under the Islamabad Oustees' Scheme and he gave this land to respondent No. 1 to cultivate the same as tenant-at-will. The petitioners' predecessor died on 07.03.1977 and after his death respondent No. 1 Rehmat Ali had filed a suit for specific performance of contract on 21.06.1989 against the present petitioners in the Court of learned Senior Civil Judge, Sahiwal, which was entrusted to different Civil Courts and lastly it was under the trial in the Court of Mr. Naseer Ahmad Awan, Civil Judge, Sahiwal. The case was fixed for evidence when Civil Judge was appointed at Arifwala and the civil cases including the case of the petitioners was transferred to the Civil Judge, Arifwala. The transferee Court did not issue notice to the petitioner when the Civil Court had taken the cognizance of the matter. The petitioner was not served by the Trial Court and resultantly the ex parte decree was passed on 14.09.1991.
2. The petitioner moved an application under Order 9, Rule 13, C.P.C. For setting aside ex parte order and decree dated 14.09.1991 in the suit titled as Rehmat Ali v. Muhammad Rashid, Muhammad Fazil etc. On 19.04.1992. During the proceedings the counsel of the petitioners had expired. On the other hand, respondent No. 1 had prepared a forged Special Attorney and as a Special Attorney made a statement before the Court on 22.11.1992 that their counsel had expired and subsequently one Sarfraz Ahmad, Advocate filed power-of- attorney on behalf of the petitioners. The Special Attorney and power-of-attorney in favour of Sarfraz Ahmad, Advocate was forged and fabricated documents. After filing the power-of-attorney the learned Trial Court framed the issues and on 06.04.1993 recorded the statement of A.W.1 Muhammad Afzal who too died on 10.10.1992. After recording the oral evidence the case was fixed for production of documentary evidence on 04 05 199'3. Petitioner No. 1 the General Attorney of petitioners Nos.
2. To 11 met with serious accident and his back bone was fractured and due to mental disorder he went under medical treatment whose memory was badly affected. After some recovery, petitioner No., 1 moved an application for setting aside ex paste order and decree dated 14.09.1991 on 23.04.1992, which was contested by respondent No. 1. From the factual controversy appearing on the pleadings of the parties, the learned Trial Court led to frame the various issues on 30.01.1993 and the petitioners were directed to produce their evidence on 14.03.1993. Evidence of A.W.1 was recorded and the case was adjourned for documentary evidence, which application was then dismissed for non-prosecution on the said date. Thereafter the petitioners filed another application for restoration of the application dismissed for non-prosecution and setting aside ex parte order and decree dated 14.09.1991. The learned Trial Court on 02.06.2005 framed the issues and the parties were directed to file list of witnesses and documents within seven days and adjourned the case for petitioners' evidence. The said order has been assailed by respondent No. 1 before the revisional Court which came up for hearing before the learned Additional District Judge, Arifwala, who vide impugned judgment and decree dated 13.10.2005 accepted the revision petition of respondent No. 1. The impugned order has been assailed through the instant Constitutional petition.
3. The learned counsel for the petitioner contended that there are substantial questions involving with regard to the merits of the application and that is why the Trial Court has framed the issues and proceeded to record the evidence to reach to the correct conclusion of the case. Framing of issues on the application of the petitioners by the Trial Court is not a final order prejudicing the rights of any of the parties so it was not a "case decided" and the revision petition was not competent under Section 115. C.P.C. Learned counsel for the petitioners placed reliance on S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 (W.P.) Karachi 149). Further contended that the revisional Court has exercised jurisdiction illegally and with material irregularity.
While on the other hand, learned counsel for respondent No. 1 vehemently opposed the arguments of the learned counsel for the petitioners contending that the application filed by the petitioners was awfully time-barred; it was liable to be dismissed there and then. The framing of issues was not the requirement. The application of the petitioners could be dismissed on the sole ground of limitation. He vehemently supported the order of the revisional Court.
4. I have heard the learned counsel-for the parties and perused the record.
5. Section 115, C.P.C. Contemplates that:- "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 words "case decided" is to be understood in the broadest and most ordinary sense so as to include a part of a case or an issue or an interlocutory order when judicially considered by the Trial Court which will ultimately affect the rights of the parties, even though the order may be passed in the course of the trial of the suit, and include a step in and of the determination of the controversy and an interlocutory order which deals with a substantial question in controversy between the parties, and affects the rights of the parties will be a case decided". Reference in this context can be made to the case of Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 S.C. 507); Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others (1992 SCM R 718), Hassan All and others v. Ch. Bashir Ahmad and others (1985 CLC 605) and Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 S.C.
109). In the instant case the application filed by the petitioners for restoration of the application and for setting aside ex parte order and decree dated 14.09.1991 dismissed for non-prosecution has not been decided by the Trial Court, the impugned order of the Trial Court has not affected the rights of any party. The rights of the parties shall be 'prejudiced' if the application either accepted or rejected by the Court finally. The Court has not adjudicated upon the matter and has not applied its judicial mind as yet. The Court framed issues only to decide the application. The issue of time-barred is an issue of fact, which required the recording of evidence. The case is not covered within the purview of "case decided". This legal aspect of the case has not been adverted to by the learned revisional Court and it has set aside the order of framing the issues on the application of the petitioners on the sole ground that the application filed by the petitioners was hopelessly time- barred. It would not be out of place to mention here that the Trial Court has framed two issues which are as under:-
(1) Whether there are sufficient reasons to accept this application?
(2) Whether the petition is badly time-barred?
6. The issue of time-barred pertains to the question of facts, which required examination of record and recording of evidence and it is a vested right of the petitioners/applicants to establish their case for condonation of delay showing "sufficient"/good cause. The learned revisional Court has also not taken into consideration legal questions and accepted the revision and dismissed the application of the petitioners without providing the opportunity to the petitioners of establishing their case through sufficient and convincing evidence. There are chances that the petitioners could produce evidence to satisfy the Court by sufficient reasons to condone the limitation for filing the application. The learned revisional Court has passed the order on mere presumptions. It is the learned Trial Court, who was competent to give its verdict with regard to the question of limitation and that jurisdiction/right of the Trial Court has been interfered with by the revisional Court illegally.
The revisional Court has exercised its jurisdiction so vested in it illegally and with material irregularities.
7. In view of the above discussion and taking into consideration the dictum laid down by the Honourable Supreme Court in the above-referred. Cases, this writ petition is accepted and the impugned order passed by the learned revisional Court dated 13.10.2005 is declared to have been passed illegally and without lawful authority and hence quashed. The application of the petitioners for restoration of their earlier application dismissed for non-prosecution setting aside ex parte order and decree dated 14.09.1991 of the Trial Court shall be deemed to be pending adjudication before the Trial Court which will decide the same after recording the evidence of the parties. .