1. ' By this order I will dispose of this Civil Misc. Appeal directed against the order dated 12-12-1990 passed by the learned VIth Additional District Judge South,. Karachi in Civil Misc. Appeal No,12 of 1985 on the application of respondent under Order 39, Rule 2(3), C.P.C. Whereby the learned Judge directed that the engineers should inspect the disputed shop after removal of chip-board from the pillar in the shop.
2. ' The dispute relates to a shop situated on Plot. No,18/2, S-B/5, Saddar Karachi of which the respondent is the owner/landlady and the appellant a tenant. The said shop is situated on Zaibunnisa Street, Saddar, a fashionable area of Karachi. In order to meet the business requirements of the shop the appellant decided to replace old fittings, fixtures and show boxes and the renovation started from 25-6-1986. While the said renovation work was nearing completion the respondent with the mala fide intention filed Civil Suit No,2364/85 on 11-7-1985 in the Court of XXVI Civil judge, Karachi for declaration and permanent injunction alleging that the appellant under the pretext of replacement and renovation had started carrying out major and material construction, additions and alterations in the shop. In the said suit the respondent also submitted an application under Order 39, Rules 1 and 2, C.P.C. In which the learned Judge granted status quo till the next date of hearing. The appellant also moved an application dated 15-7-1985 in the said suit for inspection of the shop on which the Nazir of the Court was appointed as Commissioner who submitted his report as per directions given by the Court. The application of the respondent under Order 39, Rules 1 and 2, C.P.C. Was dismissed vide order dated 21-7-1985 with the result that the order of status quo also got vacated. The respondent, however, moved another application under Order 39, Rule 7, C.P.C. For inspection of the shop by an engineer which was also dismissed vide order dated 21-7- 1985. Aggrieved by this order the respondent filed Civil Misc. Appeal No,12 of 1985 alongwith application under Order 39, Rules 1 and 2, C.P.C. Before the learned IVth Additional District Judge South, Karachi. In this application the appellants were restrained from carrying out demolition, alteration, addition or reconstruction in the premises. However, on 27-7-1985 the appellant moved another application under Order 39 Rule 7, C.P.C. Praying for appointment of a licensed architect or Engineer for the inspection of the suit shop as the Nazir's report was not clear on the material points and called for further inspection for clarification of these point& This application was allowed by a consent order whereby the learned IVth Additional District Judge South appointed M/s. Khalid and Iqbal and Mr. Muhammad Bashir as Commissioners to inspect the premises and report as to addition, alteration and ,demolition in structure of the shop. Accordingly on 5-8-1985 the two Engineers inspected the said shop and submitted their reports to the said Court. Subsequently on 17-8-1985 the respondents submitted an application under section 151, C.P.C. That since the appellants did not allow the engineers to remove the wooden panelling from the pillars enabling them to inspect them, they may be directed once again to examine the pillars and submit their report. This application was dismissed by the learned IVth Additional District Judge, South Karachi vide order dated 25-11-1985. On 23-12-1985 the respondent filed an application under Order 47, rule 1, C.P.C. For review of the order dated 25-11-1985. This application was also rejected vide order dated 2-9-1987. After more than three years of inspection, on 7-1-1989, the respondent filed an application under Order 39, Rule 2(3), C.P.C. Read with section 3 of Contempt of Court Act, 1976 against the appellant alleging inter alia that the said two Engineers were not allowed to inspect the pillars of the shop in question because the appellants refused to remove the wooden panelling from the pillars which amounts to disobeying and disregarding the orders of the Court and also amounts to breach of terms of the said order and interference with the order which calls for an action against the appellants for contempt of Court It was further prayed that the properties of the appellants, may be attached and its Directors and/or the concerned officers may be detained in civil prison. This application also met the same fate and was dismissed vide order dated 5-7-1989.
3. It will, however, be advantageous to reproduce the operative part of the order as follows:- "I have perused the inspection reports submitted by the said engineer& The reports do trot state that the respondent (appellant herein) did not allow the engineers to inspect the suit shop. The appellant (respondent herein) in paragraph 3 of the application states that the respondent (appellant herein) refused to remove the wooden panelling from the pillar& The respondent (appellant herein) was not directed by the Court to remove the wooden panelling from the pillars. I am of the view that the application does not merit therefore, the same is dismissed.
4. ' Aggrieved by the order dated 5-7-1989, the respondent filed Civil. Misc. Appeal No39 of 1989 in the High Court of Sindh and this Court vide order dated 12-11-1989 remanded the case for disposal of the contempt application observing as follows:- "I have heard the learned counsel for the parties and have perused the impugned order. The contention of the learned counsel for the appellant is that the learned District Judge has not applied his mind to the facts of this case. His further submission is that this is a fit case for remand.
5. Mr. Abdul Ghafoor Khan, the learned counsel for the respondent has frankly conceded that this is a fit case for remand. I have already noticed that the engineers were directed to submit report after inspecting the shop in question. The Messrs Khalid and Iqbal Consultants Ltd. Submitted a report dated 6-7-1985. A perusal thereof would show that they requested for removal of chip board fixed on the column completely so as to expose the pillar for complete inspection. This was not done. In my view the question of incomplete report has not been satisfactorily dealt with by the learned District Judge. I think the request for remand is just and proper in these circumstances. In the result MA. No,39/1989 is allowed and the order dated 5-7-1989 is set aside and the case is sent back to the District Judge (South) Karachi for disposal of the application in accordance with law. The parties through their counsel are directed to appear before the learned District Judge (South), Karachi on 2-12-1989. The learned District Judge is directed to decide the same on merits within one month from 2-12-1989."
6. ' Accordingly the case was remanded for disposal of the said contempt application on. Merits in accordance with law. On 12-12-1990 learned VIth Additional District Judge South Karachi passed an order on the run said application under Order 39, Rule 2(3), C.P.C. For contempt of Court directing the parties to take their Engineers to inspect disputed shop after removal of the chip board fixed on the columns completely as to expose the pillars for complete inspection and submit report before the Court on or before 23-12-1990 for further order on the contempt application. Aggrieved by this order the appellant has preferred this appeal under Order 43, C.P.C.
7. ' Learned counsel for respondent Mr. Nizam Ahmed raised a preliminary objection that the impugned order is not appealable under section 104 read with Order 43, Rule 1, C.P.C. As it was passed under Order 18 Rule 18, C.P.C. Which is not appealable order. Besides no final order has been passed in the said Civil Misc. Appeal No,12 of 1985 and the impugned order was interim in nature.
8. Learned counsel brought to my attention the impugned order itself which states that the engineers should submit their report on or before 23-12-1990 for further order on the contempt application." It was contended that since no finding has yet been given in regard to the question referred, it is not what we call "The case decided" and even a Revision under section 115, C.P.C. Is not maintainable.
9. ' In support of his contention, learned counsel for respondent placed reliance on Ghulam Yakub Bandai v. Mst. Qamar Sultana and others PLD 1967 Pesh. 70 in which it was held, "Order XLIII Rule 1 is controlled by section 104 and not vice versa. Section 104(2) of the Code specifically bars appeal from order passed in appeal. Therefore, only one appeal lies against the order passed by the trial Court...." It was further held that "If the right of first appeal is exhausted by the aggrieved party the successful party in the trial Court cannot avail right of appeal on the pretext that so far he is concerned, he is availing the right of appeal for the first time." Reference was then 'also made to, the case of Umar Dad Khan and another Tilla Muhammad and 14 others PLD 1970 SC 288, in which it was held by the Supreme Court of Pakistan that "the order refusing to call for a further report from the examiner of questioned documents is not a case decided within the purview of section .115, C.P.C. To attract the revisional jurisdiction of the High Court. Orders from which no appeal is provided under Order XLIII, Rule 1, C.P,C. Are final and not open to further interference by the High Court."
10. ' In reply Mr. Sharaf Faridi learned counsel for the appellant contended that even if this appeal is not maintainable, the Court has ample power to treat this appeal as a revision. Reference was made to Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 in which it was held by the Supreme Court of Pakistan that the High Court may treat a second appeal as a revision. Reference was also made to S. Zafar Ahmed v. Abdul Khaliq PLD 1964 Kar. 149 in which a Full Bench of the High Court of West Pakistan summarised the guiding rules of practice for exercise of revisional powers by the High. Court. According to Mr. Sharaf Faridi it is a fit case in which the judicial discretion may be exercised in favour of the appellant and this appeal may be treated as a revision as the learned,A/1th Additional District Judge, South Karachi has relied on material 'extraneous to the case and exercised jurisdiction not vested in him. Learned counsel for the appellant vehemently contended that the controversy between the parties is restricted to the respondent's application under Order. 39, Rule 2(3), C.P.C. Read with section 3 of the Contempt of Court Act, 1976 in which the respondent has prayed for punishment of the appellant under the law of Contempt. This application has nothing to do for inspection or reinspection of the shop in question. Learned counsel brought to my notice again and again the prayer made by the respondent in his said application for contempt of Court which nowhere seeks any, order for reinspection or further inspection of the shop. The learned Vlth Additional District Judge, therefore, rightly rejected this application. In the High Court in Civil Appeal No, 39/87 this aspect of`the case was not specifically pointed out by the parties which resulted into remand. However, the crux of the matter remained that even in the said Misc. Appeal No,39/89 the question related to Contempt of Court and not to inspection or re-inspection of the shop.
11. I agree with Mr.. Sharaf Faridi that the High Court may treat a second appeal as Revision and in a fit case may even condone delay in filing it. But what requires a closer examination is whether the instant case falls within the meaning of a 'case decided' as contemplated under section 115 of C.P.C. Which reads as follows:- "115. Revision.--(l,) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court costs. ' and in no appeal lies thereto, and if such subordinate Court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that:
(2) ..
12. (3)
(4) .............................................................................................................................................................
13. ' In Mst. Hassan Perveen and others v. Muhammad Zafarullah and others PLD 1986 Lah. 409 a learned Judge of the Lahore High Court placing reliance on Bashir Ahmed Khan v. Qaisar All Khan and 2 others PLD 1973 SC 507 observed:- "Unless these two conditions are satisfied, it is not competent for the revisional Court to entertain the revision petition muchless to interfere in the exercise of revisional jurisdiction. Needless to state that the revisional jurisdiction can be exercised only if the case falls under either of the clauses (a),
(b) and (c) of section 115, C.P.C. As regards the competency of the revision petition, law is well- settled that revision under section 115, C.P.C. Lies against a 'case decided' which term though not defined in the Code of Civil Procedure has been the subject-matter of interpretation in a large number of cases. A case is said to be decided when the Court considers any state of facts juridically and gives a decision relating to a question in controversy between the parties affecting their rights."
14. ' It was candidly conceded by Mr. Sharaf Faridi learned counsel for the appellant that the contempt application has not been finally decided by the learned VIth Additional District Judge but in the process of deciding the contempt application his direction for re-inspection with direction to Engineers to submit report was uncalled for, without jurisdiction and extraneous to the contempt application. This situation perhaps would not have arisen, had the appellant not been a party to a consent order made in Civil Appeal No,39/87 before this Court.
15. Accordingly, I hold that the appeal is not maintainable as there is no provision for a second appeal under Order 43, C.P.C. Similarly, this appeal cannot be converted into a Revision as it is not directed against a 'case decided' within the meaning of section 115, C.P.C.
16. ' In the circumstances of the case, the parties are left to bear 'their own