MUHAMMAD SALEEM Versus AHMAD DIN

This civil revision arises out of a guardianship matter in which, by the impugned order dated 16-11-1972, the learned trial Court rejected there application of the petitioner for deciding the issue relating to territorial jurisdiction first in time and separately from the other issues. The learned trial Court had framed the following issues in the case :-

"(1) Whether the petition is defective and cannot proceed as it is ?

(2) Whether the Guardian Judge at Lyallpur has no jurisdiction ?

(3) Whether Guardians and Wards Act is not applicable to this dispute ?

(4) Whether it is in the welfare of the minor to give him in custody of the petitioner."

2. On merits of this revision petition, learned counsel for the respondent; agreed that issue Nos. 1 to 3, all being legal, should have been decided separately from issue No. 4 which is on merits. But he vehemently opposed the revision petition on the basis of a preliminary objection, namely, that the impugned order does not amount to a 'case decided.' His main. reliance is on Ch. Ahmad Din and others v. The Australasia Bank Ltd., Bhalwal (1971 S C M R 507).

3. Learned counsel for the petitioner has tried to distinguish the facts of the case before their Lordships of the Supreme Court. With regard. to his contention that in the circumstances of the case the refusal of the learned trial Court to decide the issue of territorial jurisdiction separately amounts to "case decided", he sought support from Udmi Ram-Ram Sarup v.. Ghasi Ram-Sakhan Lal (A I R 1933 All. 753), Janki Dos and another v. Kalu Ram and another (A I R 1936 Pat. 250),. P. C. Gangulee v. Sm. Aadhurl Devi (A I R 1952 Pat. 281), Partap Singh Kairon v. Gurmej Singh (A I R 1958 Pb. 409), Ramrichpal Singh v. Dayanand Sarup minor through Bhagwat Sarup (A I R 1955 All. 309), Municipal Committee v. Mool Chand (A I R 1951 Ajmer 90) in order to show as to, what is really meant by "case decided" he referred to and relied upon Bibi Gur Devi represented by Prithvi Raj Khaosla v. Chaudhri Muhammad Baksh and others (A I R 1943 Lah. 65), S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149), Umar Dad Khan and another v. Tile Muhammad Khan and 14 others (PLD 1970SC288) and Bashir Ahmad Khan v. Qaisar Ali Khan and 2 others (PLD1973SC507).

4. At page 511 of the report of the last cited ruling of the Supreme Court, it was observed as follows :-

"There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase "case decided" but it seems 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 P L D 1964 Kar. 149 states the position 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. The decision need not necessarily dispose of-the whole matter or suit pending before the subordinate Court. Two of the present Judges of this Court (Muhammad Yaqub Ali and Waheeduddin Ahmed, JJ.) were party to this decision. Applying this test, it would appear that the order made by the trial Court in this case, rejecting the two applications made by the plaintiff-respondents, did amount to a case decided, and was therefore amenable to correction in the exercise of the revisions power of the High Court, if it fell within the ambit of any of the clauses of section 115 of the Code."

In tile Full Bench ruling in the case of S. Zafar Ahmad, approved by the Supreme Court in the above observation, the conclusions in para. 19 at page 158 of the report were expressed as follows :-

"19. The position with reference to section 115 may thus be summarised in the following proposition.

(i) The High Court may in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision,

(a) has exercised or assumed a jurisdiction not vested in it by law, or

(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or

(c) while exercising its ,jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or

(d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of We law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that step was taken.

(ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal:

(iii) When a complaint is made to the High Court that a Court subordi?nate to it has acted in any of the four ways mentioned in the first pro?position and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but is not bound to send for the record, if it can satisfactorily ascertain by other means the facts necessary for a decision of the point raised"

Both the learned counsel have agreed with regard to the legality or otherwise of the procedural step taken by the learned trial Court in the impugned order, namely, that he has refused to decide the issue on territorial jurisdiction separately from the issue relating to the merits of the case. That being the position, the learned counsel for the petitioner has, for this case, relied upon the observations made by the Full Bench in sub-pare. (d) and also indirectly on sub-pare. (c) quoted above. The learned trial Court in exercise of its jurisdiction could under Order XIV, rule 2, C. P. C. hold that 'the case or any part thereof may be disposed of on the issues o law only. But by refusing to consider the question of law as to territorial jurisdiction separately and first in time, has taken a procedural step contrary to what is provided in the first part of the said rule which as,, distinguished from its second part is directory. If the Court had held so (as pointed out above) then it was mandatory for it under second part of rule 2 to decide the said issue separately first in time. All this has give to the respondent an advantage over the petitioner which the respondent would not have otherwise, got.

In the light of the above discussion, I hold that the impugned order amounts to 'case decided'. That being so, the preliminary objection is overruled.

5. On merits, the learned counsel for the petitioner, relying on order XIV, rule 2, C. P. C., and Akhtar Ali Parvez v. Altafur Rehman (P L D 1963 Lah. 390), West Pakistan Province v. Hazrat Gul Khan and another (P L D 1966 Pesh. 34) and Mst. Razia Shafi v. Major M. S. Malik (P L D 1971 S C 247) contended that in the circumstances of this ease it was necessary for the learned Guardian Judge to have considered the question of disposal of the case on the issues of law only and if he would have done so it was necessary for him then to try the issue relating to territorial jurisdiction separately and first in time. He has also relied on Parvez Waheed v. Punjab Province (1972 S C M R 417) in support of his contention the as a revisional Court the High Court "has full powers to correct any errors committed by the Courts below and to ensure that the discretion is exercised in accordance with sound judicial principles. Learned counsel for the respondent agreed that the learned Guardian Judge should have tried and disposed of the first three issues first in time and separately from the fourth issue.

Both the learned counsel have agreed on the following order to be passed :-

"(a) that issues Nos. 1 to 3 be tried and decided in the first instance ;

(b) that after the resolution of the questions with regard to the territorial jurisdiction and the application of the Guardians and Wards Act, to the present case, if they are decided against the petitioner then the learned Judge would proceed to try the fourth issue ;

(c) that the evidence which would be recorded on the first three issues (if the learned trial Judge proceeds to try the fourth issue) might in case of need be taken into account, meaning thereby that it would not be necessary for the parties to repeat/produce the same evidence on fourth issue if it has already been recorded under the first three issues ;

(d) there shall be no order as to costs.

I order accordingly.

K. B. A. ??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.