' Briefly stated the facts are that Mst. Shukaran Bibi respondent No,1 was the owner of land measuring 15 Kanals, 17 Marlas situated in Mouza Kot Hemraj, Tehsil and District Bahawalnagar. She filed a suit for declaration on 18-9-1989 that the registered sale-deeds, dated 11-10-1984 and 17-4- 1985 in favour of the petitioner through respondent No,2 acting as general attorney were null and void and ineffective upon her rights as the general power of attorney registered on 19-12-1983 in favour of respondent No,2 was a forged and fictitious document. The suit was resisted by the petitioners and issues were framed on 4-3-1989.
2. The parties concluded their evidence. On 15-6-1989 when the case was fixed for arguments, respondent No,1 moved an application with the prayer that her thumb-impression may be compared with the thumb-impression obtaining on registered power of attorney and for this purpose the matter may be referred to a Finger Print Expert. This application was heard and dismissed vide order, dated 20-6-1989 passed by the trial Court. Respondent No,1 challenged the said order by way of Revision No,84 of 1989. However, said revision petition was dismissed vide order, dated 5-10-1989 passed by the learned District Judge, Bahawalnagar which is reproduced as under:-- "Present: Counsel for the petitioner.
' Respondent No,5 is not being served due to reason that the petitioner has not paid the costs. The petitioner does not appear to be interested in the case which is accordingly dismissed."
' This order was not challenged by the respondent No,
1. After the disposal of the revision petition the learned trial Court proceeded to hear arguments in the main case and vide judgment and decree, dated 30-10-1989 proceeded to dismiss the suit of respondent No,1 on merits.
3. Respondent No,1 preferred an appeal under section 96, C.P.C. Against the said judgment and decree. The learned Appellate Court who was seized of the appeal accepted the same vide judgment and decree, dated 19-6-1990 reversed the findings of the trial Court on Issues Nos.7 and 8 and remanded the case to the trial Court with the direction to get the thumb-impression of respondent No,1 compared with her purported thumb-impression appearing on the alleged power of attorney as well as appearing on the register of the Sub-Registrar, Lodhran and then to decide the case in accordance with law. The petitioner has challenged the said judgment, dated 19-6- 1990 of the Appellate Court in this civil revision.
4. Ch. Naseer Ahmed, Advocate, the learned counsel appearing in support of the civil revision has raised the following contentions:--
(i) That the application, dated 14-6-1989 filed by respondent No,1 before the trial Court for the purpose of comparison of her thumb-impression with her alleged thumb-impressions on the general power of attorney was dismissed by the trial Court vide order. Dated 20-6-1989. The civil revision filed against the 'Said order by respondent No,1 was also dismissed on 5-10-1989 by the District Judge, Bahawalnagar on the ground that respondent No,1 had not paid the costs for service of Allah Ditta. This order dismissing the revision petition was not challenged by respondent No,1 in any higher forum and thus the order of the trial Court, dated 20-6-1989 and that of the revisional Court, dated 5-10-1989 would attain finality. He further submitted that after the trial Court dismissed the suit of the respondent No,1 vide judgment and decree, dated 30-10-1989, it was not open for the Appellate Court in appeal to have disregarded the order. Dated 5-10-1989 passed by a Court of coordinate jurisdiction and the order of remand, dated 19-6-1990 allowing the comparison of the thumb-impression of respondent No,1 was without lawful authority;
(ii) that after the framing of the issues the parties were obliged under Order 16, rule 1. C.P.C. To file the list of witnesses within seven days. It was not open for respondent No,1 to have bypassed this provision of law by attempting to record the evidence of the Finger Print Expert by filing an application for comparison of "her thumb-impression;
(iii) that the parties had concluded their evidence, particularly respondent No, 1 had produced her affirmative evidence on 4-4-1989 and had also closed her complete evidence on 11-6-1989 without reservation. The application for comparison by Finger Print Expert was not maintainable after the close of the evidence by respondent No,1.
5. Mr. M.M. Bhatti, Advocate the learned counsel appearing for the respondents submitted that the order of the learned District Judge, passed on 5-10-1989 by virtue of which the earlier revision petition was dismissed for non-deposit of process fee, was an order under Order 9, rule 2, C.P.C.
And such an order can be set aside by moving an application under Order 9, rule 4 (ibid). He further submitted that in such circumstances even a fresh suit was not precluded. The learned counsel for the respondents submitted that the Order 16, rule 1, C.P.C. Was no bar to the filing of an application for comparison of the thumb-impression and this in no way offended any provision of Order 16, rule 1. C.P.C. He further contended that on no principle of law, respondent No,1 could be prevented from moving such an application even after the close of her evidence. He lastly contended that entire case gets reopened in appeal against the final judgment and decree of the trial Court and it was within the jurisdiction of the Appellate Court to have accepted the request for comparison of the thumb-impression and that the Appellate Court had rightly set aside the findings by the trial Court upon Issues Nos.7 and 8 and remanded the case for comparison of the thumb-impression of respondent No,1 with those appearing on the registered power of attorney etc.
6. Arguments have been heard and record perused.
7. It is apparent from the record that on 5-10-1989 when the earlier revision petition was dismissed, respondent No,1 was represented through her counsel. The revision petition was dismissed solely on the ground that the process fee for summoning respondent No,5 namely Allah Ditta had not been deposited. As this order has been passed in the presence of the learned counsel for respondent No,1 it cannot be termed to be an order dismissing the revision petition for non- appearance of the parties. The order was passed under the provisions and principles contained in.
Order 9, rule 2, C.P.C. Although Order 9, rule 2, C.P.C. May not ipso facto apply to proceedings in revision, yet its principles are applicable upon the strength of section 141, C.P.C. Although the revision petition was dismissed, it is not a dismissal on merits of, the case. As noticed above, the trial Court proceeded to hear the arguments after dismissal of the revision petition and dismissed the suit of respondent No,1 on merits vide judgment and decree, dated 30-10-1989. When respondent No,1 preferred an appeal against the said judgment and decree under section 96, C.P.C. The entire matter was reopened, the jurisdiction of the Court in first appeal is indeed wider than its revisional jurisdiction. The First Appellate Court can go into all questions of law and fact and can lawfully reconsider and predetermine any interlocutory order passed by the trial Court.
While proceeding to decide the appeal the Appellate Court could not be influenced by the fact that an earlier revision against the interlocutory order was dismissed by the trial Court for non-deposit of process fee. As observed earlier an order under Order 9, rule 2, C.-P.C. Is not a determination on merits. The matter can be viewed from another angle. Even under Order IX, rule 2, C.P.C. The filing of a fresh suit on the same cause of action is not precluded. Applying this principle to the appeal, it can be safely concluded that the same question which was the subject-matter of the earlier revision petition dismissed under Order IX, rule 2, C.P.C. Could be agitated through the appeal filed against the final judgment and decree of the trial Court. In this view of the matter, the submission of the learned counsel for the petitioner that the order, dated 5-10-1989 was final is devoid of force.
The other contention of the learned counsel for the petitioner that no application for comparison of thumb-impression of respondent No,1 can be after the framing of the issues or after conclusion of the evidence is also devoid of force as no law prohibits the filing of such application at any stage of the proceedings.
8. Having concluded, thus it is, however, felt that the learned Appellate Court should have not hastily set aside the findings of the trial Court upon Issues Nos.7 and 8 and should not have directed the remand of the case to the trial Court. The entire evidence was present on the record and if the Appellate Court considered that it was necessary to have the thumb-impression of respondent No,1 compared with the purported thumb-impression on the registered power of attorney and the relevant register, it should have proceeded to do the same itself at the appellate stage. The parties are in litigation for a long time. By opting to carry out these proceedings itself the Appellate Court would have curtailed the duration of litigation. It is a cardinal principle of administration of justice that Courts should act in aid of expeditious justice rather than protracting the same through unnecessary remand orders.
9. In view of the above, this civil revision is allowed only to the extent that the order of the Appellate Court, dated 19-6-1990 inasmuch as it set aside the findings of the trial Court on Issues Nos.7 and 8 and remanded the case to the trial Court for comparison of thumb-impression is set aside and a direction is issued to the Appellate Court to itself get compared the thumb-impression of the respondent No,1 with her alleged thumb-impression obtaining on the alleged power of attorney and on the register of the Sub-Registrar, Lodharan through a Finger Print Expert and thereafter decide the appeal in the light of evidence in accordance with law. As this is an old case, the learned Appellate Court shall decide the appeal within a period of four months from the date of receipt of this order. Parties to appear before the Appellate Court on 5-11-2001.