' This writ petition calls in question the legality of the order dated 4-6-1981 of the learned Additional District Judge, Bahawalpur whereas he accepted the revision petition filed by the respondents Nos.
1 and 2 and set aside the order, dated 5-3-1981 passed by the learned Civil Judge, Bahawalpur and directed the trial Court to decide the application, dated 18-2-1981 filed by the respondents afresh keeping in view the provisions of section 65 of the Evidence Act.
2. The relevant facts of the case are that Muhammad Afzal petitioner instituted a suit for rendition of accounts wherein preliminary decree was passed on 19-7-1978 and appointment of Local Commissioner was also made by the trial Court. The plaintiff/petitioner herein, moved an application on 18-2-1981 seeking direction to the respondents for production of some original documents mentioned in para. 2 of the aforementioned application. The application was resisted by the respondents on the ground that the documents in question were fictitious and forged and were not in their possession and also that no secondary evidence could be led in proof of those documents. The learned trial Court allowed the application, vide order, dated 5-3-1981 and the same was set aside in revision by the learned Additional District Judge on 4-6-1981 as aforementioned.
3. Learned counsel for the petitioner contended that the impugned order before the learned Additional District Judge was not a case decided and, therefore, he had no jurisdiction to set aside the order. It was submitted that the learned trial Court permitted production of secondary evidence in proof of existence of the documents before the Local Commissioner and the admissibility or otherwise of the evidence recorded by the Local Commissioner would 'be adjudged by the trial Court when the report was submitted by the Local Commissioner. It was also pointed out that the Local Commissioner had already recorded evidence of the parties. It was also submitted that the Local Commissioner has to first determine the existence of the documents from the secondary evidence produced by the parties and only then he has to proceed further whether the documents were in possession of the respondents. He relied on Habibullah Khan v. Pak Cement Industries Ltd.
And others (1).
4. Learned counsel for the respondents Nos. 1 and 2, on the contrary, pointed that it was incumbent upon the Local Commissioner or the Court to first decide through secondary evidence about the existence of the documents and whether the same were in possession of the respondents. It was also stated that the trial Court allowing the petitioner/ plaintiff to lead secondary evidence did not make it clear to first determine the 'existence of the documents in question by the Local Commissioner. It was next contended that since the learned trial Court finally decided this question permitting the petitioner to lead secondary evidence it was a case decided within the ambit of section 115 of the Civil Procedure Code. He relied on Rahmandad v. Sajawal Khan (2).
5. I have considered the arguments advanced by learned counsel for the parties and find that the learned trial Court while allowing the petitioner to lead secondary evidence for proving the documents as mentioned in para. 2 of his application decided this matter judicially and therefore, it being a case decided the revision petition filed by the respondents was competent before the learned Additional District Judge.
(1) 1969 SCM R 965 (2) 1976 SCM R 350
6. Learned counsel for the parties expressed their unanimity for a direction to the Local Commissioner to determine first the existence of the documents in question and whether the same were in possession of the respondents before embarking upon making his report in respect of the other ancillary matters as envisaged under section 65 (a) of the Evidence Act. Undoubtedly the order passed by the learned trial Court dated 2-4-1981 did not clarify the above point and allowed production of secondary evidence before the Local Commissioner. The learned revisional Court in the impugned order, dated 4-6-1981 set aside the order, dated 5-3-1981 of the learned trial Court and directed for decision of petitioner's application afresh by keeping in view the provisions of section 65 of the Evidence Act. In view of the unanimity of learned counsel for the parties highlighted above on the point that the Local Commissioner shall determine first the existence of the documents sought to be proved and as to whether the same were in custody and possession of the respondents before making further report to the trial Court which of course would again be subject to objection by the parties. The order, dated 5-3-1981 of the learned Civil Judge and the order, dated 4.6-1981 of the learned revisional Court are set aside, and Local Commissioner is directed to determine first, the existence of documents in, question and if existed, in whose possession they were, before dealing with other points, as envisaged under section 65 of the Evidence Act and send his report to the trial Court. This petition is disposed of subject to the above observation.
7. There shall be no order as to costs. M. Y. H. .