' In a suit for damages for malicious prosecution the defendants filed an application on 22-12-1967, for leading (additional) evidence in the form of producing Iwo witnesses under Order XVIII, rule 2 and section 151, C. P. C., whose names did not exist in the earlier list of witnesses which was submitted at the time the evidence of the defendants started under Order XVI, rule 1 (Punjab amendment). This application is contained on pages 21-22 of the trial Court file. The learned Civil Judge by means of his order dated 21.3-1968, contained on pages 81-82 of that file accepted that application and allowed the defendants to produce Syed Nazir Hussain Shah and Maulvi Sirajul Haq, Advocate', as witnesses. Those witnesses appeared as D. W. 4 and D. W. 6, respectively and deposed about some compromise having taken place between the parties in certain proceedings before the Settlement and Rehabilitation authorities. While taking down the (additional) evidence on 11-3-1969, the Court made the following observations : {{URDU TEXT}} ' After the closure of the aforesaid (additional) evidence the plaintiff/petitioner filed an application for summoning the document of compromise which had been referred to by the aforesaid witnesses. However, the learned Civil Judge declined that request by means of his order dated 16- 6-1971: The plaintiff/petitioner has come up in revision against the aforesaid order of the learned Civil Judge.
2. Learned counsel for the defendants/respondents has raised a preliminary objection submitting that an order allowing or declining to allow production of additional document or evidence is not a "case decided" within the meanings of section 115, C. P. C. And, therefore, no revision against the impugned order lies in this Court. For this proposition he refers to Nawabzada Malik Habib Ullah Khan v. The Pakistan Cement Industries Limited and others (1) which was a case where the trial Judge allowed a party to place on record certain documents. That order was challenged in the High Court, but the petition under section 115, C. P. C. Was dismissed. The matter went to the Supreme Court. The Supreme Court was pleased to dismiss the petition for special leave to appeal observing that "an order admitting or declining to admit evidence oral or documentary does not amount to a "case decided" within the purview of section 115, C. P. C." The case cited, it is obvious, Is distinguishable from the facts and circumstances of the present case. Here the defendants had themselves led certain additional witnesses with reference to some document contained in the records of the Settlement and Rehabilitation authorities, namely, a compromise deed but when the witness concerned was cross-examined by the plaintiff the learned Civil Judge observed that for that purpose, namely, for the purpose of proving the contents of the document the plaintiff had a right to do so which he should independently exercise and not through the cross-examination of the D. W. Concerned. It is thus clear that this was a case of leading evidence of rebuttal to the evidence led by the defendants in the form of additional witnesses whereby they themselve were trying to introduce some settlement which did not exist on the file and which they had not produced in Court and for which special permission bad been granted to them by the Civil Judge himself. Refusal to allow t lead rebuttal evidence to the plaintiff in the circumstances, therefore, was not merely a formal order of admitting or declining to admit the evidence oral or documentary. The present is a case where there is a refusal on the part (1) 1969SOMR965 of the learned Civil Judge concerned to allow opportunity of rebuttal to the plaintiff which he had himself earlier reserved for him and which evidence the plaintiff in the context had a right to lead. In Bashir Ahmad Khan v. Qaisar Ali Khan and 2 others (1) it was held that "an appraisal of the cases cited by the learned counsel shows that they deal generally with the scope of revisional powers conferred on the High Court by section 115 of the Code of Civil Procedure, but not with the precise question of the maintainability of a revision petition in certain situations. There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase "case decided" but it seem to us that the view, taken by the majority of the Full Bench of 7 Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq (2) states the petition correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same". (That was a case of revision against dismissal of an application for amendment of a plaint and impleading a new defendant). It was held that the dismissal amounted to a "case decided". Respectfully following the aforesaid dictum, I would hold that, in that view of the matter, the order of the learned Civil Judge tantamounted to refusal to exercise jurisdiction or to exercise jurisdiction with material illegality and irregularity which cannot be sustained.
3. There was another document in the form of some summons which also was sought to be led in evidence by the plaintiff but Kh. Muhammad Farooq, learned counsel for the petitioner gives up that plea. The present revision petition, therefore, is confined to allowing of rebuttal evidence in the form of the compromise deed hereinbefore mentioned. The revision petition is accepted. The impugned order is set aside, The plaintiff is allowed to lead rebuttal evidence as aforesaid. The case is remanded to the learned Civil Judge to proceed accordingly. The defendants should bear the costs of this revision.
(1) PLD 1973 SC 507
(2) PLD 1964 Kar.
149.