Muhammad Asif vs Muhammad Arshad etc.

FORM No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, MULTAN BENCH,

MULTAN.

JUDICIAL DEPARTMENT

C.R. No. 1594 of 2025 Muhammad Asif versus Muhammad Arshad Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary Proceedings 26.12.2025 M/s Muhammad Adnan Ahmad Khichi and Malik Bahadur Iqbal Drigh, Advocates for the petitioner. Malik Muhammad Bakhsh Khaki, A.A.G.

Brief background of the case is that, petitioner, Muhammad Asif (plaintiff), on 22.03.2021, filed a Suit for Specific Performance of agreement to sell dated 04.04.2020 against the respondent, Muhammad Arshad (defendant), before the learned Civil Judge Tehsil Jatoi, District Muzaffargarh (“Trial Court”) for purchase of land measuring 8-kanals against sale consideration of Rs.10,00,000/-, which was dismissed on 27.03.2025 and against the said decree, the petitioner filed an appeal on 24.04.2025 under Section 96 of Code of Civil Procedure, 1908 (“CPC’). During the pendency of the said appeal, petitioner filed an application for amendment and reframing of issues No.1 and 2 by claiming that the said issues had been incorrectly framed by the learned Trial Court, which application was contested by the respondent and has been dismissed through impugned order dated 10.12.2025 (“the Impugned Order”) by the learned Additional District Judge, Jatoi, District Muzaffargarh (‘Appellate Court’). Being aggrieved of the impugned order, which is an interlocutory order and the main appeal is still

pending before the Appellate Court, the petitioner has approached this Court through the instant Civil Revision filed under Section 115 CPC to challenge the same and prays for allowing the afore-referred application.

2.The learned counsel for the petitioner claims that the petitioner in his suit had mentioned that he had entered into “an agreement” with the respondent to purchase afore-referred property but instead of the same, the Trial Court framed issue No.1 by mentioning “a written agreement” and has also claimed that he had mentioned in the suit that out of total sale consideration of Rs.10,00,000/- earnest money of Rs.8,60,000/- had been paid and possession was transferred to him and remaining amount of Rs.1,40,000/- was to be paid by 08.03.2021 for obtaining registration of sale deed and entering of sale mutation in revenue record but it is claimed that contrary to the same, the Trial Court mentioned in the issue No.2 that “entire sale consideration had been paid” and the onus to prove both issues was placed on the petitioner. It is further claimed that as the said issues were improperly framed, contrary to the averments in the plaint where in the words “written agreement” were not mentioned, therefore, the petitioner could not be required to prove the same contrary to his pleadings, which has resulted in dismissal of the petitioner”s suit for the reason that written agreement had not been got exhibited in evidence, hence, in the given circumstances of the case, the application for amendment and reframing of issues No.1 & 2 filed before the learned Appellate Court merited to be allowed but the same has wrongly

been dismissed, thus, the impugned order is not sustainable and is liable to be set aside.

3.For ready reference, issues No.1 and 2 framed by the Trial Court on 17.03.2022 are reproduced below:

“1. Whether defendant entered into a written agreement to sell regarding suit property (detail and description of which is fully captioned in head note of the plaint) for consideration of Rs.10,00,000/-? OPP

2.Whether the defendant received the whole consideration amount from plaintiff in the presence of witnesses and subsequently, he handed over the possession of suit property to the plaintiff? OPP”

4.The petitioner seeks amendment of the afore-referred issues by deletion of the words “a written agreement” in issue No.1 and its replacement by words “an agreement” and the words “whole consideration amount” in issue No.2 and its replacement by words “amount of Rs.8,60,000/- as earnest money”.

5.It is pertinent to mention here that although under rule 5 of Order XIV of CPC, the petitioner could have filed an application for amendment of issues but no such application was filed before the Trial Court. The decision of the aforementioned issues against the petitioner has resulted into dismissal of his suit by the Trial Court which gave rise to filing of appeal before the Appellate Court on 24.04.2025 but plea of framing of wrong issues was not raised in the same and for the first time application for amendment of issues was filed subsequently on 19.11.2025 during the pendency of the said appeal. However, it is claimed that the petitioner in his appeal had raised ground that the Trial Court has not properly exercised the

jurisdiction vested in it and decision suffered from misreading and non-reading of evidence of the parties, which according to him amounts to raising all grounds of law and fact available to him.

6.The Appellate Court has dismissed the afore-mentioned application and declined to amend issues by observing as under: “4. Under Order XIV Rule 1 CPC, issues are framed on the basis of material propositions of fact or law arising from the pleadings of the parties. Once issues are properly framed and parties lead evidence accordingly, amendment or reframing of issues is not to be allowed lightly, particularly at the appellate stage, unless it is shown that such omission or defect has resulted in failure of justice.

5.Furthermore, Order XLI CPC circumscribes the powers of the appellate court. An appellate court may interfere with framing of issues only where it finds that improper framing has caused serious prejudice or has materially affected the decision of the case. Mere dissatisfaction with the wording of issues or an attempt to improve one's case after leading evidence does not justify amendment.

6.In the present case, the petitioner has neither demonstrated any ambiguity in the existing issues nor established that improper framing has caused grave prejudice or miscarriage of justice. The record reveals that the petitioner led evidence in line with his pleadings without any objection at the relevant time.

7.In view of the above discussion, the application seeking amendment of issues is found to be devoid of merit.

8.Consequently, the instant application is dismissed.”

7.When confronted that after the decision of the main suit by the Trial Court, under which provision of law, the petitioner had filed the application for amendment and reframing of issues, learned counsel states that the Appellate

Court while hearing the appeal, which is the continuation of the suit has got ample authority to reframe issues and for the said reason the provision of law was not required to be mentioned in the said application.

8.There is no cavil to the proposition of law that appeal is the continuation of the suit and the Appellate Court has the jurisdiction to exercise all the powers vested in the Trial Court which includes power to amend issues. Reference may be made to judgment of this Court in case titled Syed Amjad Hussain Jaffri and others versus Additional District Judge and others (2023 CLC 2071), wherein it was held that the Appellate court could exercise power to amend issues available before the Trial Court under rule 5 of Order XIV CPC where the case cannot be disposed of on the basis of issues already framed for the reason that although, it is the duty of the parties to point out framing of necessary issues, yet the Court is equally bound to frame correct issues, which are necessary for determination of real controversy between the parties. Similar principle of law is also laid down in judgment reported as Abdul Rahman and others versus Muhammad Farooq and others (2025 CLC 323), where the matter was remanded by this Court for decision of the matter afresh after reframing of issues.

9.Moreover, it is also true that the entire case reopens before the Appellate Court for which reference may be made to case titled Khudadad versus Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933), wherein it is laid down that appeal is continuation of

proceedings of the suit wherein entire proceedings are again opened for consideration by the Appellate Court and the Powers of Appellate Court mentioned under Section 107 CPC are co-extensive with the powers and obligations conferred upon the Courts of original jurisdiction in respect of suits. Moreover in a judgment reported as Ghulam Qadir and others versus Sh. Abdul Wadood and others (PLD 2016 SC 712) it has been laid down that appeal was the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision and the appeal was not merely a matter of procedure but a substantive right; it was the continuation of a suit and during appellate proceedings the entire matter stood reopened and Jurisdiction of an Appellate Court could be invoked by a person who believed that the subordinate court had erred in law or in fact whilst passing the judgment/order under appeal.

10.However, the question arises that whether the power of amending issues has to be exercised while passing the final decision on the appeal or through an application filed during the pendency of said appeal which application has been dismissed on merits by the learned Appellate Court by observing that issues could only be reframed or amended if Appellate Court concluded that prejudice had been caused to the applicant and now said interlocutory order is under challenge before this Court. The principles for entertaining the petition before this Court against interlocutory orders and decisions of

Trial Court and Appellate Court was considered and the said principles and exceptions have been discussed in Rashid Baig and others versus Muhammad Mansha and others (2024 SCMR 1385). The operative portion of said judgment is reproduced below:

“3. When a party challenges any interim order during the pendency of a suit under revisional jurisdiction or constitutional jurisdiction vested in the revisional court or the High Court, we are of the view that the court has to exercise the jurisdiction keeping in view that it is an interim order, as every interim order need not to be challenged at that stage because it is now settled that when a suit is finally decided by the trial court, all the interim orders become open in appeal, if there is a defect in the interim order that is open to scrutiny at the stage of final appeal, as the first appeal is continuation of a trial and first appellate court is a court of fact and law. But, if a party to the suit opts to challenge an interim order when it is passed through appellate jurisdiction, revisional jurisdiction or constitutional jurisdiction, while exercising such jurisdiction the scope of jurisdiction vested in the Court must be in the view of the party challenging the same and we expect that while dealing with the interim order the court must also keep in view the scope of jurisdiction to scrutinize the interim orders.

4.We are clear in our mind that when a party comes to the High Court in constitutional jurisdiction, he is bound to show that the order challenged through the constitutional jurisdiction is without jurisdiction then the High Court can exercise the constitutional jurisdiction to declare the order as such. When an order has been passed while exercising discretion, the same cannot be declared by any stretch of imagination to be without jurisdiction, therefore, the High Court has rightly exercised the jurisdiction while dismissing the writ petition as the orders impugned before the High Court were with jurisdiction while exercising discretion in favour of the vigilant party.”

11.In view of the principles laid down in Rashid Baig’s case (supra) for addressing the question that after decision of the suit by the Trial Court, whether jurisdiction of amendment and reframing of issues in an appeal filed against the final decision of the Trial Court, could be exercised by the Appellate Court while deciding an application interlocutory in nature during the pendency of the main appeal and said order could be called in question in revisional jurisdiction of this Court, reference may be made to provisions relating to framing, reframing and amendment of issues. It is manifest to note that issues are framed in a suit under Order XIV CPC, sub rule (5) of rule 1 thereof provides that at the first hearing of the suit, the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. The rule 5 thereof provides for power to amend and strike out issues. Sub rule (1) thereof mentions that the Court may, at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. Sub rule (2) thereof provides that the Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

12.The perusal of the above mentioned provisions makes it clear that it is for the Trial Court that has to frame issues and the said court may amend the same before the final decree is passed by the said court. This means that even when the issues have been framed by the court, application under Order XIV rule 5 CPC may be filed by any party to the proceedings to amend the said issues and the court has the jurisdiction either on its own motion or on hearing such application to pass an order amending, addition or deletion of the issues before passing the final decree. In the present case, the petitioner did not make any attempt to get the aforesaid issues amended, modified or reframed by filing an application under Order XIV CPC during the pendency of suit. Once the final judgment was announced, the learned Trial Court became functus officio. The petitioner thereafter had the remedy to raise ground of wrong framing of issues in his appeal against dismissal of his suit to challenge the said decree due to some illegality or jurisdictional defect in the said decree but the said ground was not specifically raised in the grounds of appeal. However, it is claimed that the ground has been raised that the decree of dismissal of suit suffers from misreading and non-reading of evidence and improper exercise of jurisdiction which by necessary implication also includes ground of wrong framing of issues.

13.Be that as it may, the application for amendment of issues was raised for the first time on 19.11.2025 i.e. after approximately 07 months of filing of the appeal. The Appellate Court while

deciding the said application observed that issues could not be reframed unless the Appellate Court reached the conclusion that such omission or defect had resulted in failure of justice or that improper framing of issues had caused serious prejudice and affected the decision of the case. The aforementioned grounds can be taken into consideration at the time of final arguments of the appeal pending before the Appellate Court and the impugned order having been passed without determination of grounds of main appeal through an interlocutory order is purely discretionary in nature and could not be called in question through revisional jurisdiction of this Court in the light of principles laid down in judgment passed in Rashid Baig’s case (supra) which bars exercise of said jurisdiction against such like discretionary orders and such orders can be challenged after final decision of the appeal.

14.However, it is pertinent to note here that the Appellate Court in terms of Order XLI rules 23 to 25 CPC still has the jurisdiction to frame additional issues, amend, reframe or modify existing issues for decision of the case. The said powers may be exercised by the Appellate Court while hearing the main appeal if the Appellate Court in its discretion reaches the conclusion that decision of such like issues is essential for final determination of the suit against decision of which appeal is pending before it. The said provisions of law are reproduced below:

“23. Remand of case by Appellate Court.– Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit,

by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

24.Where evidence on record sufficient.– Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25.Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.– Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore.” (Emphasis supplied)

15.The perusal of the aforementioned provisions of law makes it clear that despite the dismissal of the aforementioned application, the Appellate Court still retains the power to reframe issues, if any of the aforementioned grounds and reasons, question of law and fact provided in Order XLI rules 23 to 25 CPC arises during the hearing of the main appeal and the order earlier passed by it on the aforementioned application would not be a hindrance in the exercise of such powers vested

in the Appellate Court by law. Moreover, as already observed above, the Appellate Court can also exercise jurisdiction vested in the Trial Court under Order XIV rule 5 CPC while deciding the main appeal if issues for determination of actual dispute between the parties are required to be framed for just decision of the case. In exercise of jurisdiction by applying any of the aforementioned provisions of law, the interim orders earlier passed by the Appellate Court would merge in the final order to be passed by the said court.

16.The learned counsel for the petitioner at this stage also states that in order to avoid any confusion in decision of the matter to be passed on main appeal by the Appellate Court, the petitioner may be permitted to amend the grounds of appeal so that the Appellate Court also addresses the grounds relating to reframing of issues. As the said aspect of the matter is not under consideration before this Court and the main appeal is still pending adjudication before the Appellate Court, therefore, this Court refrains itself from commenting upon the said aspect of the matter, however, the petitioner if advised may raise the said grounds before the learned Appellate Court for consideration.

17.For what has been discussed above, this petition having been filed against interlocutory discretionary order is premature is disposed of accordingly.

(MUZAMIL AKHTAR SHABIR)

JUDGE

KMSubhani*

Approved for reporting.