UMAR DAD KHAN Versus TILA MUHAMMAD KHAN

1. MUHAMMAD YAQUB ALI, J. ‑--Umar Dad Khan and Mir Hamza Khan, appellants, have instituted Civil Suit No. 77 of 1963 in the Court of the Senior Sub‑Judge, Mardan, for specific performance of the contract of sale of 256 kanals of land situated in village Parkho, tehsil and district Mardan, on the basis of the agreement allegedly executed by Tila Muhammad Khan, respondent No. 1, in their favour on the 30th March 1961. The latter denied the execution of the agreement scribed in the private note book of the appellants and also disputed his purported signatures on it.

2. To resolve the controversy about the genuineness of the signatures of Tila Muhammad Khan on the agreement of sale, the trial Judge at the request of the appellants sent the agreement along with the admitted signatures of Tila Muhammad Khan on the written statement and power‑of‑attorney filed by him in the suit and two other documents and his 'request' signatures obtained in Court, to the Examiner of Questioned Documents, Intelligence Bureau, Government of West Pakistan, Lahore, for comparison, The report sent by the Examiner was vague whereupon the Court at the instance of the appellants called for another report. Mr. Abdul Majid examined the aforesaid documents again and submitted a detailed report on the basis of comparison of the disputed signatures on the agreement to sell and the signatures of Tila Muhammad Khan on the power of‑attorney and written statement, etc. He however, did not compare the disputed signatures with the request signatures obtained in Court and gave adequate reasons for his inability to carry out the comparison. The appellants, however, did not feel satisfied with the report and on 11‑6‑1966 applied to the trial Judge for a further comparison of the signatures on these documents. The prayer was refused by the order dated the 24th June 1966, on the ground that it will serve no useful purpose to recall the Expert for further comparison.

3. Dissatisfied with the order of the trial Judge the appellants filed a revision petition under section 115, C. P. C. in the High Court which was dismissed in limine by a learned Single Judge on the ground that the Expert was not called upon to compare the disputed signatures of Tila Muhammad Khan with his request signatures obtained in Court.

4. Leave to appeal was granted on the contention that the Expert had not compared the disputed signatures on the agreement to sell with the admitted signatures of Tila Muhammad Khan. As seen above, this was an incorrect statement made by the learned counsel from the bar at the leave stage. A comparison of the disputed and admitted signatures was made by the Examiner of Questioned Documents, but he had expressed inability to carry out comparison with the `request' signatures obtained in Court for reasons which on their face appeared good and sufficient. . Be that as it may, the question is whether the High Court had jurisdiction to interfere with the order of the trial Judge under section 115, C. P. C.

5. Firstly it had to be determined whether the order dated the 24th June 1966, was a `case decided' within section 115, C. P. C. The question as to when does an order passed during the trial of a suit constitute a `case decided' came up for examination before a Full Bench of seven Judges of the High Court of Judicature at Lahore in Gurdev v. Muhammad Bakhsh (A I R 1943 Lah. 65). Delivering the leading judgment Bhide, J. remarked :‑

6. "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a `case' for the purpose of section 115, C. P. C., is to be deduced not from the meaning of the word `case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a `case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness etc., could be looked upon as `cases'. But when a decision relates to some matter in controversy, affecting the rights of the parties, I do not see why it should not be looked upon as a `case'. This wide interpretation of the word `case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction. Theoretically the extraordinary jurisdiction is unlimited, but in practice it is held to be subject to important and well‑recognised limits." This is the correct `statement of law and we are in complete accord with it. The order dated the 24th June 1966, refusing to call for a further report from the Examiner of Questioned. Documents was in this view not a `case decided' within the purview of section 115, C. P. C. to attract the revisionat jurisdiction of the High Court. Secondly, orders from which no appeal is provided in Order XLIII, rule 1, C. P. C., are intended by the Legislature to be final and not open to further interference by the High Court‑See Venkatagiri v. H. R. E. Board, Madras (AIR1949PC156). Reviewing the scope of section 115(c) of the Code their Lordships laid down :‑

7. "In Mohunt Bhagwan Ramanuj v. Khetter Mon! Dassi 1 C W N 617 the High Court of Calcutta expressed the opinion that subsection (c) of section 115, Civil P. C., was `intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts, so as to prevent gross injustice in non‑appealable cases'. This passage was dissented from by the Calcutta High Court n Enat Mondul v. Baloram Dey 3 C W N 581, but was cited with approval by Lord Williams, J. in Gulabchand v. Kabiruddin 58 Cal. 11=A I R 1931 Cal.

27. Their Lordships can see no justification for any such view ; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) That the order of the subordinate Court is within its jurisdiction ; (b) that the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction that Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justification."

8. It is not disputed that the trial Judge had the jurisdiction to pass the order dated the 24th June 1966. It is also not the case of the appellants that the trial Judge had omitted to exercise jurisdiction vested in him by law while making that order. It must follow, therefore, that even if the impugned order was a `case decided', though we have held that it is not so, there was no jurisdiction in the High Court to interfere with it under clause (c) of section 115, C, P. C. The revision petition filed by the appellants should, therefore, have been dismissed on the ground only that‑it was not competent in law. We appreciate the anxiety of the learned Judges to correct an error which has occurred in the trial of a suit. This, however, does not justify transgressing the boundaries of their jurisdiction vested by law. In practice it causes inordinate delay in the disposal of civil suits which are notoriously tardy in their progress and adds appreciably to the back log of cases in the High Courts.

9. In the result we find no substance in this appeal and dismiss it with cost. The records shall be sent back to the trial Judge forthwith.

10. S. Q. Appeal dismissed.