Find a Lawyer

‑‑‑ Art. 9 (1) (a) (ii)‑Civil Procedure Code (V of 1908), S. 115‑ Writ jurisdiction, exercise of‑Plaintiff closing his evidence in pre‑emption suit without reserving right of rebuttal on issues burden whereof on defendants‑Before closure of defendant's evidence plaintiff applying for permission to produce documents in rebuttal Trial Court declining permission but revisional Court accepting revision against refusal‑Defendant contending trial Court's order of refusal not amounting to case decided within meaning of 5..115, C. P. C.‑Held, every order passed in disregard of S. 115 by Court possessing revisional jurisdiction cannot be dubbed as order without jurisdiction‑Held further, impugned order (even if visited by some illegality) as long as within jurisdiction of Court, cannot be inter fered with in exercise of writ jurisdiction‑[Evidence‑Jurisdiction].

Muhammad Hussain Munir v. Sikandar and others P L D 1974 S C 139 rel.

Hassan Ahmad Khan Kanwar for Petitioner.

In a pre‑emption suit filed by. Hoshiar Khan respondent No. 2, against the petitioners and respondents Nos. 3 to 5, the plaintiff. respondent closed his evidence on 16th September, 1976, without reserving the right of rebut tal on the issues burden whereof lay on the . defendants. vendees. Before ‑the closure of evidence by‑ the latter, the respondent applied to the learned trial Court, for grant of permission to produce in rebuttal a copy of Khasra Girdawari of Canal Department and of register Haqdaran. This permission was declined. However, his revision against this refusal was accepted and the documents in question allowed to be produced in evi dence. The order dated 15th October, 1980 passed by the learned Addi tional District Judge in this behalf has been called in question through this writ petition.

2. I have heard the learned counsel. He argued that the respondent was well aware of the existence of these documents but the application was moved at a very late stage ; he merely wanted to fill‑in the lacuna in his evidence ; the Khasra Girdawari of the Canal Department was not a relevant piece of evidence. He thus supported the order passed by the trial Court. Another point urged by him was that the learned trial Court's order refusing the respondent's application, did not amount to a case decided within the meaning of section 115, C. P. C. and therefore, the learned Additional District Judge in entertaining the revision petition acted without jurisdiction.

3. These submissions do not provide ground to remove the impugned order through judicial review. To take up the last contention first, it is correct that the Supreme Court, in one of its judgments, took the view that refusal to allow additional evidence, does not amount to a case decided, and such an order is not amenable to the revisional jurisdiction under sec tion 115, C. P. C. It is, however, to be seen that' every order passed in disregard of this section, by a Court otherwise possessed of revisional C jurisdiction, cannot be dubbed as an order without jurisdiction. The term "jurisdiction" means, power to hear and determine issues of law and facts. It can hardly be denied that such a power vested in the learned Additional District Judge. There is no gainsaying that the expression "jurisdiction" does not denote an authority to make an order of a parti cular description. In case the Court has jurisdiction to decide the matter, its jurisdictional defect is misconceived. It is also to be noticed that the petitioner never raised this objection during the hearing of the revision petition.

4. It, thus, follows that even if the impugned order is visited by some illegality, as long as it is within the jurisdiction of the Court below, it cannot be interfered with in exercise of writ jurisdiction. This view is supported by Muhammad Hussain Munir v. Sikandar and others (PLD1974SC139).

5. .It was also urged that under the impugned order, no opportunity has been given to the petitioners to rebut the evidence to be adduced by the respondents.

6. This point also need not be determined in these proceedings. If the petitioners have any grievance in this behalf, they may move the learned Additional District Judge in the matter, in accordance with law.

With these observations the writ petition is dismissed in linaine.

K.M.A. Writ petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.