1. ' MUZAFFAR ALI, J.--- Through the instant 2nd appeal, the appellants have assailed the concurrent judgments and decrees dated 12-10-2005 and 4-4-2005 passed by learned District Judge, Skardu in 1st appeal and by the learned Civil Judge, Skardu in Civil Suit No,57 of 2003. Since the value of subject-matter of the suit as fixed in the plaint is less than the value fixed under law for filing of second appeal; as such, the second appeal is not maintainable, but in my opinion, the case involves some legal points, which touch, the roots of the case, hence the appeal is converted into revision and disposed the same in exercise of my revisional jurisdiction.
2. ' The brief facts of the case are as such that the present respondents preferred Suit No,57 of 2003 for declaration cum perpetual injunction plus temporary injunction with the contention that, they were owners of 3 Kanals land in Moza, Astana Skardu, as per Mutations Nos.281, 282 attested on 11- 2-1985, but later one, they became owners of 2 Kanals, 3 Marlas of land under Khasra No,684/1556 situated in Moza Olding Skardu as alternative arrangements and Mutation No,6654 was attested in their name. They also claimed the order, dated 10-10-2002 to be voidable for want of notice, unheard etc. The defendant denied the averments of the plaint through filing their written statement before the trial Court. The trial Court proceeded the suit on 9-4-20(44 framed as many as 6 issues vide order-sheet, dated 9-4-2004, and the learned trial Judge on his own accord, felt no need of calling oral evidence from the parties to the suit and instead of fixing a date for list of witnesses under Order XVI, rule, 1, C.P.C., the learned trial Judge fixed the case for final arguments, as in his view the documentary evidence on the record was sufficient for final disposal of the case.
3. The order-sheet dated 9-4-2004 is reproduced as under:-- " Parties" along with their counsel present. Issues have been framed. Perusal of case shows that the documentary evidence produced by both the parties are sufficient to dispose of the all issues in case and I do not feel it necessary to record oral evidence in the case. Hence I am going to proceeding the case under Order XV, rule 3, C.P.C. Case to come up on 22-5-2004 for arguments."
4. ' The case could not finally argue on the above fixed date and arguments were adjourned for various dates for the reasons recorded by the learned trial Judge in his order-sheets. Finally on 4- 4-2005, the learned trial Judge heard the parties and the suit was decreed in favour of the plaintiffs vide judgment/decree dated 4-4-2005. The decree was challenged before the learned District Court Skardu, in 1st appeal, but the learned District Judge also upheld the decree passed by the learned trial Judge and the 1st appeal was dismissed, hence the matter is before this Court.
5. ' I heard the learned counsel for the parties.
6. ' The learned counsel for the petitioners contended that (a) the learned trial Judge has misconstrued the provision of Order XV, rule 3, C.P.C. And has deprived the parties from their right of adducing oral evidence in the case as such, the learned trial Judge has exercised a jurisdiction not vested with him and the learned 1st Appellate Court has also failed to exercise his jurisdiction to set aside the decree passed by the learned trial Court, hence both the impugned decrees are liable to be set aside in the eyes of law (b) that both the lower Courts have failed to understand the real purpose of Order XV, rule 3, C.P.C. Which purports disposal of matter exclusively on a pure issue of law for proving, which no evidence either oral or documentary is required to adduce, hence both the impugned decrees are without jurisdiction and void.
7. ' The learned counsel for the respondents vehemently denied the above points and urged that (a) the lower Courts have exercised the jurisdiction vested in them, with full care and diligence as such interference of this Court in its revisional jurisdiction is not required under law (b) that the petitioners have not challenged the order, dated 9-4-2004 before any Court of competent jurisdiction within time as such the order has got finality, hence the impugned decree could not be interfered on the pretext of order, dated 9-4-2004.
8. ' The above points raised by the learned counsel pro and contra, compelled me to scrutinize Order XV, rule 3, C.P.C. With a deep juristic approach, getting guidance from judicial precedents framed by the august Supreme Court of Pakistan and various High Courts on the subject, but before going enquire into the provision to find out its real purport, I, deem it proper to understand the type of issues which may arise in a case from the pleadings.
(a) Issues of law. The issues for proving of which no evidence either oral or documentary is required.
(b) Issues mixed question of law and facts. Adducing of evidence is required to prove, the factual aspect of the issues, are called issues of mixed question of law and facts.
(c) Issues of facts. The issues arise out of factual controversy between the parties, evident from the perusal of pleadings and whole of the issues are required to be proved through adducing evidence.
9. ' After going through the above types of issues arising from the pleadings of the parties in a case, the real purpose of Order XV, rule 3 becomes clear into one's mind and the higher judiciary has categorically interpreted the same and in this regard the case titled Miss Benazir Bhutto v. News Publications (Pvt.) Ltd. And 4 others 2000 CLC 904 may be very properly cited, wherein my learned brother Judge of Sindh High Court holds, while discussing Order XV, rule 3, C.P.C. As that "It is settled law that the legal issues which go to the root of the subject-matter of suit and do not involve question of fact should be decided first in order to dispose of the whole cause. This in no manner will amount to piecemeal decision. There may be issues in respect of pecuniary or territorial jurisdiction of the Court seized of such matter or an issue pertaining to limitation or there may be an issue relating to the legal competency of the suit. If on admitted facts, any or all of such issues could be decided thereby saving the Court's time and saving the defendants from protraction of unwarranted litigation, such issues should be decided first and independent of other disputes involved in the suit. Some of such instances have been referred by the Lahore High Court in the case of Sindbad Travels 1990 MLD 2049. In the instant case the two preliminary issues under reference do not touch either the question of jurisdiction or of any legal bar to the maintainability of the suit. The other judicial precedents from which, this Court has taken guidance are as under:-- - ' (1) 1990 MLD page 2049, (2) 1991 MLD page 1017, (3) PLD 1998 SC page 823.
10. The above passage from the cited case, construes Order XV, rule 3, C.P.C., that the powers under the provision may be exercised by a Court only when an issue of pure law arises as preliminary issue in a case for proving of which, no evidence is required and the issue touches, the roots of a case and the order of the Court does not amount to piecemeal decision and keeping in view the criteria laid down by the higher judiciary, now let me discuss the case in hand to understand that the learned trial Judge has rightly exercised his power under Order XV, rule 3, C.P.C. Or not. The learned trial Judge framed the following issues in the instant case as:---
(1) Whether the plaintiffs have cause of action to file the present suit? OPP
(2) Whether the order of Collector for cancellation of Mutation No,6654 dated 10-10-2002 is liable to be set aside being ex parte and against the procedure? OPP
(3) Whether the Mutation No,6654 dated 1-2-2001 has been attested illegal and through fraud? OPP
(4) Whether this Court has no jurisdiction to try the present suit OPD
(5) Whether the suit of plaintiff liable to be rejected under Order VII, rule 11, C.P.C.? OPD
(6) Whether the Collector is not competent to allot the alternate lands? OPD
(7) Relief.
11. ' Through the same order-sheet, he came to the conclusion that, the issues could be finally decided on the basis of documentary evidence on the record and ornamented the order-sheet, dated 9-4-2004, with Order XV, rule 3, C.P.C. To cover his wrong conception, while the order-sheet itself is evidence to hold that Order XV, rule 3, C.P.C. Has no application at all, on the case, for the reason that the learned trial Court himself is of the opinion that, the issues framed are required to be determined through documentary evidence and there is no second opinion on the point among all the higher judiciary that Order XV, rule 3, C.P.C. Has no application where in a case either documentary or oral evidence is required to lead and the powers under Order XV, rule 3, C.P.C. Are available to determine an issue or issues, which are purely relating to law and are sufficient for disposal of the case finally, as such, the learned trial Judge has wrongly quoted Order XV, rule 3, C.P.C. For depriving the parties from adducing their oral evidence in the case, but at this juncture, question arises that, whether Civil Procedure Code provides any other provision to enable a Judge, in exercise of his discretion to exclude a pasty from his right to adduce oral evidence, whenever the learned Judge deems the documentary evidence to be sufficient to dispose of the case, on record.
12. But I failed to find out such a. Provision in C.P.C., which may empower a learned Judge to deprive a party from adducing oral evidence in exercise of his, discretionary jurisdiction, unless the party himself undertakes not to adduce oral evidence and abandons the right.
13. Since the above discussion of law transpires that the order, dated 9-4-2004 passed by the learned trial Judge is empty of sanction from any provision of law, while Courts of law are bound to pass their orders in accordance with the law and failure of a Judge to follow the law in its letters and spirit, tantamounts the order to be void and without jurisdiction and if the initial order is proved to be void and without jurisdiction then subsequent orders in sequence or consequential are also having no force of law and are considered to be void and without jurisdiction. In this regard PLD 1964 SC page 101 may be quoted, wherein their Lordships have hold that, a void or without jurisdiction order even passed by any highest or apex Court, comes to the notice even of a Sub- Judge either collaterally or directly, the sub-Judge may ignore and set aside such an order and all the subsequent orders, in pursuance of the initial void or without jurisdiction order are without jurisdiction and void. So in the light of the above observation made by the august Supreme Court of Pakistan, I, may say that, in the instant case, the learned District Judge has not taken notice of void orders passed by the learned Civil Judge as such both the impugned decrees passed by the learned Courts below are also void and without jurisdiction and are liable to be set aside.
14. ' Last but not the least, the issues framed by the trial Court seem to be not sufficient to determine the whole controversy between the parties from plain perusal of pleadings and require more issues to be framed, hence the trial Court is directed to frame more issues after going through the pleadings of the parties again.
15. ' The upshot of the above discussion is that the impugned decrees, passed by both the lower Courts are set aside and the case is remanded to trial Court to give chance to the parties to adduce oral evidence, after framing more issues as the above framed issues are insufficient to solve the real controversy between the parties. At the end, the learned trial Court is strictly directed to deal the matter on priority basis to expedite the trial for the reason, the parties have suffered a lot of time for wrong done by trial Court. No orders as to costs. File.