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Writ Petition No.2830 of 1985, heard on 4th December, 1985.
‑‑‑S.115‑‑'Case decided'‑‑Refusal of Court to correct an incorrectly framed issue, held, was 'case decided' as contemplated by S.115.‑‑[Words and phrases].
Muhammad lqbal and others v. Allah Wasaya P L D 1950 B J 30 ref.
Mazhar ul Haq Sh. for Petitioners.
Irshad Ahmad Qureshi for Respondent No.l.
Nemo for Respondents Nos.6, 7, 8 and 9.
Date of hearing: 4th December, 1985.
In a declaratory suit to which the petitioners were arrayed as defendants, they moved an application (Annexure 'F') for amendment of issue No.4, which was disallowed by the learned trial Court on 28‑11‑1984. This dismissal was called in question by the petitioners through a revision but the learned District Judge took the view that the order impugned before him, could not be treated as a case decided within the meaning of section 115, C.P.C. He, therefore, dismissed the revision.
2. No one appears for respondents Nos.6, 7, 8 and 9. They are proceeded against ex parte. The learned counsel for the petitioners and respondents Nos.3 to 5 have been heard. The record has also been perused.
3. On behalf of the petitioner, on the authority of Muhammad Iqbal and others v. Allah Wasaya P L D 1950 B J 30, it is contended that the refusal to correct an incorrect issue, is, in contemplation of section 115, C.P.C. a case decided and, therefore, the District Judge's refusal to hear the appeal on merits, amounts to failure to exercise jurisdiction lawfully vesting in him which error can be corrected through judicial review.
4. The precedent fully supports the petitioners' contention. When faced with this situation, the learned counsel for respondents' Nos.3 to 5 did not have much in opposing this writ petition and remand of the case to the learned District Judge for decision of the petitioners' revision afresh.
5. Accordingly, this writ petition is accepted and the order passed by the learned District Judge is declared to have been made without lawful authority. The petitioners' revision, shall be treated as pending and disposed of afresh, in accordance with law. The parties are left to bear their own costs.
H . B . T . Petition accepted.
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