1. QAISER KHAN, J.-The facts leading to the filing of this petition for special leave to appeal are as follows.
2. On the death of the father of the petitioner, Mr. Yvsuf A.I Khan, muta--petition of inheritance was sanctioned by the Assistant Collector, Jaranwala, on the 17th of July 1964 in favour of the petitioner and other heirs of the deceased. Some of the respondents in this petition filed an appeal against the order of attestation of the mutation and the Collector who accepted the appeal on the 22nd February 1966 set aside the mutation on the ground that the petitioner was not entitled to claim any share in the property of his father in view of an agreement executed by him during the lifetime of his father. The petitioner challenged this order of the Collector before the Commissioner and ultimately before the Board of Revenue but without any success. On the 20th of September 1968 the Assistant Collector, Jaranwala, implemented the appellate order dated the 22nd of February 1966.
3. The petitioner again challenged the order dated the 20th of September 1968 in appeal and revision but again without any success.
4. The petitioner thereafter on the 20th of October 1973 instituted a suit against the respondents in the Court of the Senior Civil Judge, Lyallpur, for a declaration to the effect that he was in possession of the property of his father to the extent of his share and for setting aside the order dated the 20th of September 1968 of the Assistant Collector. The respondents contested the suit and a number of issues were framed therein. On the 9th of September 1974 the petitioner submitted an application under Order XIV, rule 5 of the Code of Civil Procedure for the framing of the following additional issues:-
(1) Whether the impugned Farce: Order dated the 20th of September 1968 passed by the Assistant Collector, Jaranwala, was without jurisdiction, mala fide, illegal, void and inoperative and of no consequence whatsoever
(2) Whether the order dated the 22nd of February 1966 passed by the Revenue Assistant, Lyallpur, with powers of the Collector, Lyallpur, which forms the basis of the impugned order passed by the Assistant Collector, Jaranwala, on the 20th of September 1968 was male fide, illegal, void, inoperative and of no consequence whatsoever?
5. This application was resisted by the respondents on the ground that the matter raised is the application was covered by issue No. 7 already framed. Issue No. 7 was to the following effect:- "Whether plaintiff was owner of the suit property through inheri--tance?"
6. The learned Senior Civil Judge however by his order dated the 21st of October 1974 accepted the application and framed the following additional issue as issue No. 7 (a) 1.
7. "Whether the impugned order of the Assistant Collector dated the 22nd of February 1966 was illegal, void, inoperative, without jurisdiction and male fide?"
8. The respondents filed a revision petition against the framing of the aforesaid additional issue in the Court of the District Judge. On the 17th of December 1974 counsel for the petitioner gave a written statement in the Court of the Additional District Judge to whom the revision petition had been transferred for disposal, that since the petitioner had also applied on the 14th of November 1974 to the trial Court for the deletion if this issue to be substituted by other issues, suggested, he had therefore no objection to the deletion of the issue. The learned District Judge there--fore the same day i. e. On the 17th of December 1974 ordered the deletion of the issue. When the application dated the 14th of November 1975 of the petitioner came up for hearing before the trial Court on the 18th of December 1974 the trial Court dismissed the application of the petitioner on the ground that issue No. 7 (a) had already been deleted by the revisional Court.
9. The petitioner then submitted a review petition to the Additional District Judge alleging that his counsel bad not made the statement attributed to him. An affidavit of the counsel, namely, Mr. Muhammad Ashraf, was also filed with the review petition. The Additional District Judge however dismissed the review petition by a detailed order dated the 27th of January 1975. On the 31st of January 1975 the petitioner again approached the Additional District Judge under section 151 of the Code of Civil Procedure for the clarification of his order dated the 17th of December 1974 on the ground that the trial Court had in view of it refused to frame the additional Issues. This application of the petitioner was also dismissed by the Additional District Judge on the 4th of February 1975.
10. On the 11th of March 1975 the petitioner submitted an application to the Lahore High Court under Article 203 of the Constitution of the Islamic Republic of Pakistan praying for setting aside the order dated the 17th of December 1974 of the Additional District Judge on the grounds that it was mala fide, without lawful authority and without jurisdiction. This peti--petition however was later on converted into a writ petition. This writ petition was dismissed in limine by a learned Judge of the High Court by his order dated the 22nd of April 1975. In this order it was remarked that even if the revision petition before the Additional District Judge was no: competent the discretionary writ jurisdiction could not be exercised in favour of the petitioner in view of the statement of his counsel and that at any rate the dispute raised by the petitioner was covered by issue No. 7.
11. The petitioner filed an appeal under section 3 (1) of the Law Reforms Amendment Act No. VIII of 1972 against the aforesaid order dated the 22nd of April 1975 of the learned Single Judge. A Division Bench of the Lahore High Court however by its order dated the 5th of June 1975 held the appeal to be incompetent and dismissed it as such.
12. It is against the aforesaid order dated the 5th of June 1975 of the Division Bench of the Lahore High Court that the petitioner has approached this Court for special leave to appeal.
13. Mr. Yusuf A.I Khan, petitioner in person heard. Since the petition for special leave to appeal is against the order dated the 5th of June 1975 of the Division Bench it is therefore evidently within time and the question of condonation of delay does not arise. So far as the merits are concerned the Division Bench of the High Court has hold that the appeal before it was not competent as no appeal lay to a Division Bench against the order of a Single Judge under section 3 of the Law Reforms Ordinance XII of 1972, as amended from time to time for the order of deletion of the issue was revisable before the District Judge. This order of the Division Bench is unexceptionable as according to the authority of a Full Bench of the West Pakistan High Court reported in PLD 1964 Kar.
14. 149 a revision under section 115 of the Code of Civil Procedure was competent even against an order at the intermediate stages in the course of the trial of a suit. As a matter of fact revision petition was filed before the District Judge which was disposed of by the Additional District Judge.
15. The assertion of the petitioner that the provisions of section 115 of the Code of Civil Procedure ware not attracted and therefore no revision lay before the District Judge, has no force in it because the existence of jurisdiction and the exercise of jurisdiction are two different things. Whether the District Judge in the circum3tancas of the case should or should not have exercised the jurisdiction does not mean that he had no jurisdiction to entertain the revision. Under the circum--stances this is therefore not a fit case in which leave to appeal should be granted. The petition is therefore dismissed.
16. However before parting with the case we would like to make the follow--ing observation.
17. The petitioner's apprehension are that in view of the order of the learned Single Judge he would not be allowed by the trial Court to lead evidence of the points raised by him in connection with the framing of the additional issues. These apprehensions in our opinion are, however, not well- founded as the order of the learned Single Judge clearly shows that all the points raised by the petitioner were covered by issue No. 7 and the petitioner can therefore apparently lead evidence eon these points.