' MRS. SYEDA TAHIRA SAFDAR, J.---The petitioners, 21 in numbers, questioned order dated 28th September 2013 of Senior Civil Judge-II, Quetta, whereby the applications, four in numbers, were decided, and the reliefs claimed in the two were allowed and the remaining two were refused. The petitioners, plaintiffs in the suit, were before the trial court to get them declared owners to the extent of their shares of the property, subject matter of the suit, jointly purchased by their (parties) predecessors namely Muhammad Hanif and Muhammad Amin. In addition cancellation of the mutation entries, possession of their respective shares in the property and also in its income were claimed. Defendants Nos. 1 to 8 (respondents Nos. 1 to 8) in reply claimed themselves to be the sole owners of the suit property. The issues arising out of the pleadings of the parties were framed on 19th September 2003, and the parties produced their respective evidence. Meanwhile, the plaintiffs (petitioners) filed applications, four in numbers, with distinct prayers, but decided with a joint order dated 28th November 2013, impugned before this Court.
2. The trial court allowed the applications filed under Order XIV, Rule 5, Civil Procedure Code (C.P.C.) for correction of issue No,2, and under section 151, C.P.C. For correction of the number of the exhibit Exh.P/11 in the terms as prayed. As far the reliefs in the application filed under Order XIII, Rule 2 read with Order XVI, Rule 1(2), C.P.C. To place certain documents on the record, and to call the persons relevant to establish the documents, and in the application filed under Order VI, Rule 7, C.P.C. To discard the cross-examination on the part of defendants Nos. 9 to 21 on the statement of the defendant's witness No,1 (DW-1) were refused for the reasons:-- "As far as applications under Order XIX, Rule (2), Order VII, read with section 151, C.P.C. Is concerned, the both applications have been moved at belated stage beyond any good cause or .Special cause for the satisfaction of this court. Prosecution has been given full and complete opportunity of recording ten 10 P.Ws. Applications latter rejected due to non inspiring one Applications be complied with the case file.
3. The refusal of the reliefs resulted in filing of the instant petition. Learned counsel for the petitioners repeated the stance taken in the revision petition, with an addition that the order was without any reason. In reply the learned counsel for the respondents Nos. 1 to 21 only stated that there was no deviation from the pleadings, and the relief was outside the scope of Order VI, Rule 7.
C.P.C. Further, the extract from the revenue record i,e, Jamabandi ( , if-4012 ), for production of which the application was moved, had already been produced and made part of the evidence as an exhibit. Learned Additional Advocate General, though in attendance, but with no submissions. In reply the learned counsel for the petitioners was of the view that the relief was only to the extent to allow them to produce additional evidence in order to establish a clear title in their favour.
4. The order sheet maintained for 2nd December, 2013 spelt that a pre-admission notice was issued to the respondents, subject to maintainability of the instant revision petition filed under Section 115, C.P.C. Against an interim order.
5. The counsel for the parties argued their case on merit, and failed to address the point. The learned counsel for the petitioners only stated that revision petition lies against an interim order, without reference to any law. Section 115, C.P.C. Reads as under:-- "Section 115, C.P.C. 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 subsection, he 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 further that such application shall be made within ninety 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 six months.
(2) The District Court may exercise the powers conferred on the High Court by subsection (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.
' If any application under subsection (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.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."
6. The powers available in the Section are wide enough to empower this Court to correct the errors committed by a court subordinate to High Court or District Court pertaining to exercise of jurisdiction within the ambit of clauses (a), (b) & (c) of subsection (1) of section 115, C.P.C. The first part of the Section enumerates the conditions under which the High Court or a District Court can interfere in the decision of a court subordinate to it subject to no appeal lies against the order.
While the second part contained the defects presence whereof empowered this Court or a District Court to interfere in an order, under consideration, in exercise of its revisional jurisdiction. In the case in hand an interlocutory order had been questioned, therefore, the moot question would be the availability of the power to interfere in an interlocutory order in exercise of revisional jurisdiction.
Section 104, C.P.C. And Order XLIII, Rule 1, C.P.C. Described and enumerates the orders against which an appeal shall lie, thereby make a distinction between the appealable and non appealable orders. A comparative study of the referred provisions and the provisions whereby the reliefs were claimed reveals non inclusion of the latter in the referred provisions, thereby turned the impugned order non appealable in nature. Consequent thereto he settled principle that where no appeal lies a revision lies would have its course. In addition the terms order, judgment or decree are not used in section 115, C.P.C., rather it spelt "any case which has been decided." The term case decided nowhere defined in the Code (Civil Procedure Code). To assume jurisdiction under section 115, C.P.C. With reference to the case in hand the phrase case decided is of much importance and also the determinative factor of maintainability of the instant petition. The view taken by the Honorable Supreme Court in case tilted as Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board reported in 1998 SCMR 1978, while dealing with the same question, would be of much help to decide the issue. It was held:- "14. It is well-settled that the term, "case decided" can be 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 cause pending before a Court subordinate to the High Court. Reference may be made to Umar Dad Khan v. Tila Muhammad Khan (PLD 1970 SC 288),wherein this Court approved the statement of law in Bibi Gurdevi v. Muhammad Bakhsh (AIR 1943 Lah. (65), wherein the word "case" was explained as follows: -- "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a 'case' for the purpose of section 115, C.P.C., is to be deduced not from the meaning of the word 'case, but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a 'case' but not another and the word may includes any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc. Could be looked upon as 'cases'. But when a decision relates to some matter in controversy affecting the rights of the parties, 1 do not see why it should not be looked upon as a 'case'. This wide interpretation of the word 'case' is not, 1 think likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revision jurisdiction. Theoretically the extraordinary jurisdiction is unlimited, but in practice it is held to be subject to important and well-recognized limits. "
7. In view thereof the ambit of the revision extends to the interim orders made during the course of trial, subject to the fact that such an order decide a material aspect of the case, and have an effect on its final decision. The orders impugned before this court though interlocutory in nature, but it deals with a question substantial in nature and have an effect on the rights of the parties, otherwise matter in issue in the. Suit. In presence thereof covered by the term "case decided" and brought the case in hand within the ambit of section 115, C.P.C., for exercise of the power available therein.
8. On determination of maintainability of the instant petition, a decision on merit is to be given as the counsel for the parties have already argued their case on merit. The prayer, in the application filed under Order VI, Rule 7, C.P.C. To the effect that the cross-examination by defendants Nos. 1 to 21 on the statement of DW-1 be discarded, was rightly refused by the trial court. Firstly, because the referred Rule was not relevant, as it spelt about the pleadings and not about the evidence. Further, if there was any departure from the pleadings, Rule 7 of Order VI would come into action, the relevant one. In addition the grievance was about the evidence, therefore, the benefit arising from the referred Rule would not be available in the circumstances. Besides that the petitioners (plaintiffs) have every right to point out any such contradiction or deviation from the pleadings at the time of final hearing of the matter for the due consideration of the trial court.
9. As far the application under Order XIII, Rule 2 read with Order XVI, Rule 1(2), C.P.C., filed for the purpose of placement of certain documents on the record and calling for the relevant witnesses, is concerned it needs consideration. Rule 2 of Order XIII, C.P.C. Not only described the effect of non- production of documents at the required stage, but also placed a bar on belated filing of the documents. There is an exception to this mandatory provision, and a discretion lies with the court to receive documents in the evidence if a good cause for non-production of the document as required by Rule 1 of the Order is shown, but this exercise of the discretion must be with the reasons recorded in writing. Order XVI, Rule 1(2), C.P.C. Is also with a bar to produce witness other than those whose names contained in the list, required to be filed under Rule 1 of Order XVI, C.P.C. It is also with an exception that if a good cause is shown for omission of the said witness from the list, the court may call such witness on recording of the reasons for doing so. Both the provisions are mandatory, but with a discretion which is to be exercised within the limits provided in the Rules.
10. In the case in hand the petitioners (plaintiffs) on basis of the submissions made during the course of cross-examination whereby there were certain deviations from the plea taken in the written statement by the defendants , intend to produce several witnesses with some record. The application failed to contain the necessary details of the persons, and the documents intended to be produced. Secondly the documents which they intend to produce were in their knowledge, and if not in possession, they might have obtained the copies when they were in the process of producing their evidence, but it was not done. Even when the attorney for the defendants was in the witness box, none of the referred documents were confronted to him, the stage relevant and proper for the purpose. Though additional evidence can be allowed in exercise of the powers available under Order XVI, Rule 1(2), C.P.C., but the plaintiffs (petitioners) have already produced their evidence, and at the time of close of their side, there was no request to reserve their right of rebuttal as available under Order XVIII, Rule 1(3), C.P.C. The petitioners (plaintiffs) appeared with the request when the evidence of the parties were already completed. In view thereof the right to produce additional evidence is not available to them at this stage.
11. Apart from what has been discussed in the preceding paras it is observed that the judgment dated 11th September, 2002 of Senior Civil Judge Quetta and the remaining judgments dated 13th July 1995 and 22nd November, 2004 could be referred and their certified copies could be placed before the trial court at the final hearing of the matter, and the trial court may take judicial notice of the same. The contradictions, if any, arising therefrom could be pointed out at the relevant time to enable the trial court to dilate upon the same while recording its final decision. Furthermore, the right to give notice for admission of the documents under Order XII, Rule 2, C.P.C. Or calling for the evidence in rebuttal under Order XVIII, Rule 3, C.P.C. Always available to a party to the suit, with a discretion for its exercise within the given bounds.
12. The trial court though not recorded detailed reasons, but fortunately arrived to a correct decision, thus needs no interference by this Court. The petition is dismissed for want of merit with no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.