Mst. NAZIR BEGUM vs IQBAL HUSSAIN QURESHI And Other
This civil petition for leave to appeal arises out of a pre-emption suit regarding a residential house, wherein the respondents-plaintiffs sought to produce additional documents namely historical sale deeds through applications under section 151 and Order XIII, rule 2 of the Code of Civil Procedure. The trial court ultimately rejected the applications upon remand from the High Court, but a subsequent revision petition filed by the respondents was allowed by the High Court, permitting the production of the documents. The petitioner-defendant challenged this order before the Supreme Court, contending inter alia that the revision petition before the High Court was incompetent as the rejection of an application under Order XIII, rule 2 did not constitute a 'case decided' under section 115 of the Code of Civil Procedure. The Supreme Court declined to examine this legal contention, holding that the petitioner, having herself previously invoked the revisional jurisdiction of the High Court in the earlier round of litigation to challenge an interlocutory order in the same proceedings, was estopped from turning around and raising an inconsistent plea of incompetency. Consequently, the Supreme Court refused leave to appeal and dismissed the petition.
- Whether the rejection of an application under Order XIII Rule 2 of the Code of Civil Procedure constitutes a 'case decided' within the meaning of section 115 of the Code of Civil Procedure?
- Can a party who has previously invoked the revisional jurisdiction of the High Court against an interlocutory order subsequently challenge the competency of a revision petition filed by the opposing party on the same procedural grounds?
- Section 151, Code of Civil Procedure 1908
- Order XIII Rule 2, Code of Civil Procedure 1908
- Section 115, Code of Civil Procedure 1908
ORDER
S.A.NUSRAT, J.--The respondents instituted a suit for possession through pre-emption in respect of a house situated in Mohallah Qureshian, Bahawalpur which was allegedly sold through a registered sale-deed by Mst.
Noor Bibi on 21-2-1978 to the respondents /defendants. The respondents/ plaintiffs after closing their evidence applied for the production of certain documents through an application under section 151, C.P. C. By another application made under Order XIII, rule 2, C . P. C . , he object of making the earlier application under section 151, C.P.C. Was amplified. The said applications were allowed by the learned trial Court. The petitioner/ defendant herein challenged the said order through a revision petition before the High Court which was accepted by order, dated 23-2-1982 and the case was remanded to the trial Court with a direction to pass a speaking order. The learned Senior Civil Judge after due consideration rejected both the applications of the respondents on 19-1-1983. The respondents challenged the said order before the High Court. The revision was allowed as per impugned judgment and the respondents were permitted to file the additional documents.
2. The documents sought to be placed on the record were only two, namely, two sale-deeds, dated 5th December, 1888 and 28-1-1947 executed by Syed Ghulam Ali Shah and Mufti Ghulam Mustafa, respectively.
The first sale-deed was executed in favour of vendee Allah Dad and second in favour of Mst, Noor Bibi. Both the documents pertained to the disputed house.
3. The revision petition was contested before the High Court, inter alia, on the ground that rejection of application under Order XIII, rule 2, C.P.C. Did nut amount to a case decided within the meaning of section 115, C.P.C. And the revision was, therefore, incompetent. The same contention was reiterated before us by the learned counsel for the petitioner.
4. In deciding the above legal issue reliance was placed by the learned Judge in the High Court on a decision of this Court reported in 1976 SCMR 350 and a decision of the Sind High Court reported in PLD 1964 Kar. 149.
5. However, for another reason, we are not inclined to examine the above contentions any further in this case because in the earlier round of litigation, as mentioned above, the petitioner Mst. Nazir Begum had herself chosen to assail the order of the trial Court through a revision petition in the High Curt whereupon the case was remanded. The petitioner had thus succeeded in the matter and was benefited. It does not lie in her own mouth now to turn round at this stage and raise a plea which is clearly inconsistent with the course of action earlier chosen by her. On this ground alone leave is refused and the petition is dismissed.