' Through this Constitutional Petition Sajid Mahmood petitioner wants this Court to declare the order, dated 3-6-1984 passed by learned District Judge, Bhahawalpur as an appellate Court to be without lawful authority and of no legal effect.
2. The facts leading upto this petition briefly are that Sheikh Kabir Ahmad respondent No.2 filed suit against Sajid Mahmood Nazeer petitioner for possession through pre-emption. During the hearing of the suit Sheikh Kabir Ahmad moved an application under Order XIII, rule 2, C.P.C. for permission to produce additional documents. The trial Court rejected the application on 6-12-1983. Feeling aggrieved by this order Sheikh Kabir Ahmed respondent/plaintiff filed an appeal before the learned District Judge, Bahawalpur who, vide impugned order, dated 3-6-1984 while accepting the appeal allowed the application of the respondent/plaintiff for permission to produce documents, hence this petition.
3. The learned counsel for the petitioner contends that since no appeal under Order XLIII, rule 1, C.P.C. lies against the order passed under Order XIII, rule 2, C.P.C. therefore, the impugned order has been passed without lawful authority. Conversely the learned counsel for the respondents has supported the order of the learned appellate Court on the ground that it was well within the authority of the appellate Court to treat appeal as revision.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that the impugned order has been passed by the learned District Judge in exercise of his powers under section 104 read with rule 1, Order XLIII, C.P.C. It has been frankly and very rightly conceded by the learned counsel for respondent No. 2 that the order appealed against before the learned District Judge was nit an appealable order. I further find that the learned District Judge despite request made on behalf of the appellant therein in his mem.). of appeal that in case the appeal was not maintainable the memo. be treated as an revision, the learned District Judge entertained the matter as an appeal and disposed of the same accordingly.
5. That being the position, I am of the considered view that the impugned order has been passed without lawful authority and is of no legal effect. The respondent No.2 may file revision or take any appropriate action to challenge order, dated 6-12-1983 of the trial Court if so advised.