1. MUHAMMAD HALEEM, C.J.-- This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 11th of November, 1971 by which Civil Revision No.297 of 1965--- was dismissed.
2. Leave was granted to consider the following questions:
(a) That the question whether the grant of an amendment application is a case decided within the meaning of section 115 of the Code of Civil Procedure, requires full consideration, as the observations appearing in the case relied upon by the High Court cannot be regarded as conclusive on the subject, especially because they were made in a short order refusing leave to appeal and had reference only to the facts of that case.
(b) That even if the other defects and omissions noticed in the plaint be held to be mere irregularities, capable of being cured at the discretion of the Court, the same could not be said about the presentation of the plaint by a Pleader who did not hold a written Power of Attorney from the plaintiff or his next friend, with the necessary consequence that the plaint could not be regarded as having been validly presented within the period of limitation allowed by law.
3. The appeal arises in the following circumstances: By a registered sale-deed dated 11th of February, 1964, Allah Baksh son of Muhammad Ali sold his lard to Abdul Aziz Shah and Mst. Agha Rashida Bibi for Rs.36,000 On 11th of February, 1965, Abdul Ghafoor son of Allah Bakhsh, through his next friend, Ghulam Rasool, filed a suit to pre-empt the sale of this land although he was a major. The plaint was neither signed not verified by him or his next friend nor was the Vakalatnama duly authenticated. Even the suit was not valued for the purpose of court-fee although court-fee stamps of Rs.22/8/- were affixed, and it was stated that the proper court-fee had been paid. It transpires that before the suit was entered in the Register maintained for this purpose, the appellants appeared and filed an application stating that the plaint was incompetently filed as it was neither signed nor verified by the respondent nor was the Advocate authorised to file it. Accordingly, it was prayed that the plaint should be rejected. Abdul Ghafoor, one of the respondents herein, thereupon filed an application under Order VI, rule 17 , C . P .
4. C . Seeking the amendment of the plaint in to respects. Firstly, that he be permitted to sue as major; and, secondly, that he should be allowed to give the valuation of the suit for the purpose of court- fee. As to these omissions in the plaint, it was stated that they were procedural in nature and did not render the plaint invalid. This application was resisted on the ground that as the suit was not competently filed, no question of any amendment could arise in view of the limitation having expired. After hearing the counsel for the parties, the trial Court held that the omission to sue as major or to sign and verify the pleadings, or the presentation of the plaint without a proper Vakalatnama were mere irregularities, which could be subsequently rectified. Accordingly, the trial Court allowed the application to amend the plaint by its order dated 26-5-1965.
5. Being aggrieved the appellants went in revision to the High Court, but did not succeed as it was held that the mere allowing of the application to amend the plaint did not amount to 'a case decided', and as such it was not revisable. In holding so, the High Court placed reliance on a case reported as Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd. Bhalwal 1971 SCMR 507. This decision was given on a petition while refusing leave and could not be regarded as a considered judgment as no reasons were given. The case more in point is that of Bashir Ahmad Khan v. Qaiser Ali Khan and others PLD 1973 SC 507 wherein it was held that if a Court subordinate to the High Court renders its decision in respect of any state of facts after judicially considering the same it will amount to a case decided. The paragraph containing the relevant observations is as under:- "An appraisal of the cases cited by the learned counsel shows that they deal generally with the scope of revisional powers conferred on the High Court by section 115 of the Code of Civil Procedure, but not with the precise question of the maintainability of a revision petition in certain situations. There has undoubtedly been conflict of judicial opinion as to the meaning of the phrase "case decided" but it seems to us that the view, taken by the majority of the Full Bench of 7 Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq PLD 1964 Kar.. 149 states the position correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court. Two of the present Judges of this Court Muhammad Yaqub Ali and Waheeduddin Ahmad, JJ., were party to this decision. Applying this test, it would appear that the order made by the trial Court in the case, rejecting the to applications made by the plaintiff-respondents, did amount to a case decided, and was therefore amenable to correction in the exercise of the revisional power of the High Court if it fell within the ambit of any of the clauses of section 115 of the Code."
6. In this case the order of the subordinate Court rejecting the prayer for .The amendment of the plaint was held to be a case decided. Applying the test laid down in this case an order which allows an amendment of the plaint after juridically considering the facts can also be said to be a case decided. However, this exercise is now academic as in an appeal against a decree all the questions raised before the trial Court can be re-agitated and disposed of by the appellate Court.
7. The High Court also held so while dismissing the revision application.
8. Accordingly, even if the High Court was in error in holding that the order allowing the amendment application was not a case decided, we do not find any justification to decide the appeal on our own conclusion as it will be a futile exercise. Hence the second question does not need any consideration. The appeal fails and is hereby dismissed but with no order as to costs.