This writ petition has been filed against the order of a learned Civil Judge invoking the provisions of Order XVII, rule 3, C. P. C. And partially closing the evidence of the writ petitioner who was defendant in a suit for possession.
2. This writ petition had been admitted to regular hearing in order to examine the question as to the effect of a counsel making an application for adjournment on account of his own professional pre- occupations and whether in such a situation the party could be penalized when its witnesses were present in a civil suit.
3. I do not think it is necessary to decide the question for the consideration of which this writ petition was admitted to regular hearing. The reason for this would be that the petitioner only challenged the order of the learned Civil Judge in terms of Order XVII, rule 3, C. P. C. In revisional jurisdiction and the revisional Court i. e. the District Judge, Jhang refused to interfere. The petitioner's defence evidence had partly been recorded.
4. In other words, the present writ petition is directed against an order in a civil suit which is still pending adjudication before a learned Civil Judge at Jhang. There are many impediments which stand in the way of the petitioner from successfully invoking the constitutional jurisdic--tion of this Court. First of all, it is any body's guess as to what the A fate of the petitioner would be at the hands of the trial Court. It is very difficult to know at this juncture as to whether the petitioner would be successful in that litigation or would be defeated. In case of his success there would hardly be any grievance left for him to invoke the jurisdiction of any Court. In the alternative, if the petitioner is the losing party in the pending litigation then it is not denied before me that the petitioner has a vested right of appeal. It is well-settled that an appeal is a continuation of the original proceedings and that on institution of the appeal the whole matter gets re-opened and becomes subjudice before the appellate Court. In the appellate proceedings, it will be open for the Court of appeal to go into the matter in depth t and to pass appropriate orders to redress petitioner's grievance even in respect of closing of part of his evidence should the ends of justice in Court's view demand it or the closing of defence be shown to be unjustified or illegal.
5. I may here advantageously refer to the decision of the Supreme Court of Pakistan In re: Ghulam Hussain and another v. Malik Shahbaz Khan and another (i). In this precedent case, non- interference by the High Court in Constitutional jurisdiction was held to be justified in a matte arising out of a civil suit on the view that appellate remedy was still available to a petitioner and the revisional order would not constitute a bar to the appellate proceedings. The following observations from the precedent case are apt:- "3. The learned Judge in the High Court while dismissing the writ petition noted that as a result of revisional order the plaint had not been rejected, meaning thereby, that if rejected the petitioner would have a right of appeal. Therefore, obviously the High Court was not inclined to interfere in the matter which had arisen out of a civil suit.
4. Learned counsel for the petitioners has contended that the learned Additional District Judge has ignored the latest law declared by this Court on the question of deficiency in court-fee. When ques--tioned, however, as to why this very point cannot be raised before the appellate forum if and when the plaint is rejected on the basis of deficient court-fee, learned counsel replied that the revisional order might operate as a bar.
5. We do not agree with him. The order of the High Court is sufficiently indicative of the fact that the revisional order will not be a bar when regular remedy by way of appeal is sought by the petitioners against either the dismissal of the suit or against the rejection of the plaint."
6. The learned counsel next relied on a single Bench decision of this Court reported as Karam Hussain v. Abdul Karim and 2 others (2),'which appears to be in line with the Supreme Court precedent supra. Even on, general principles, this Court does not ordinarily favours interference 1 with interlocutory orders unless there is a complete absence, excess orwant of jurisdiction shown in the subordinate Court or tribunal.
7. In view of what has been stated above, I am not minded to interfere with the proceedings in a pending civil suit in exercise of my constitutional jurisdiction. The writ petition fails for reasons stated above and is hereby dismissed. In the circumstances of the case there will be no order as to costs.
(1)1985SCMR1925(2)1985CLC794