' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order of the Additional District Judge, Lahore dated 24th of September, 1990 whereby while hearing a revision petition against the order of the trial Court allowing amendment to the petitioner he dismissed the suit filed by him.
2. The dispute arises out of a suit instituted by Shamas Rashid petitioner on 28th August, 1989 praying for a permanent injunction restraining the respondent from interfering in his ownership and possession. Along with the suit an application for temporary injunction was also filed. During the course of hearing a Local Commissioner was appointed by the Court, according to whose report the petitioner was not in possession of the suit property. On this report certain objections were filed by the petitioner on 15-2-1990 which are still pending adjudication. On the same date the petitioner applied for permission to amend the plaint so as to claim the relief of declaration in addition to permanent injunction. The trial Court accepted the application for amendment on 15th April, 1999 subject to payment of Rs,100 as cost. Earlier on 10th April, 1990 the Court had deferred the decision on the objections on the report of the Local Commissioner.
3. Aggrieved by the order dated 15th April, 1990 allowing the petitioner to amend the plaint, the respondents filed a petition under section 115 of the C.P.C. For the revision which was heard by an Additional District Judge who while allowing the revision petition not only set aside the order of the trial Court allowing amendment but also proceeded to dismiss the suit on the ground that as petitioner was out of possession, he could not maintain a suit for declaration and permanent injunction. This order of the Additional District Judge, Lahore has been assailed by the petitioner in the present writ petition.
4. Mr. A. Waheed Saleem, learned counsel for the petitioner has submitted that as the Additional District Judge was hearing a petition for revision against an interim order of the trial Court allowing amendment to the petitioner, he had no jurisdiction whatsoever to dismiss the suit which was subjudice before the Civil Court. Reliance in this respect has been placed by the learned counsel for the petitioner upon Alam Ali and another v. District Judge, Multan and 3 others (PLD 1983 Lab.
278).
' As regards the dismissal of the application for amendment of the plaint, the learned counsel has submitted that as the relief for permanent injunction in itself includes declaration, the amendment prayed for was unnecessary and to that extent the order of Additional District Judge may not be set aside.
' Mr. Asghar Ali Bhatti, the learned counsel for the respondent has, on other hand, maintained that the revisional Court in the exercise of power conferred upon it by section 115 of the C.P.C. Can pass any order as it deems fit and therefore, the suit filed by the petitioner could have been dismissed by the Additional District Judge. The learned counsel emphasised that the Additional District Judge was, in any case, correct in holding that the amendment prayed for could not have been allowed to the petitioner.
' It is not necessary to decide as to whether the trial Court had rightly allowed the application for amendment of the plaint filed by the petitioner as according to the learned counsel for the petitioner himself the prayer for amendment was not called for and for this reason he did not object to the order of the revisional Court refusing the amendment. However, after hearing the learned counsel for the parties, there can be no doubt that the order of the Additional District Judge dismissing the suit of the petitioner is absolutely without jurisdiction. The only matter before the Addl. District Judge was as to whether or not the application for amendment could have been allowed by the trial Court. It was that question alone which could have been decided by the Additional District Judge. The suit filed by the petitioner was subjudice before the trial Court and while hearing a revision petition against as interlocutory order, no jurisdiction was vested in the Additional District Judge to dismiss the suit. The order passed by the Additional District Judge, is therefore, wholly without jurisdiction.
' For the reasons aforesaid this petition is accepted, the order dated 24th September, 1990 passed by the Addl. District Judge dismissing the suit of the petitioner is declared to be without lawful authority and of no legal effect with the result that the suit filed by the petitioner shall be deemed to the pending before the trial Court who, shall proceed to decide it in accordance with law.
' The parties are left to bear their own costs.