Akhtar Ali Alias Akhtar Hussain vs Mst. Sarwari etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

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Akhtar Ali. Vs. Mst. Sarwari, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 27.01.2025. Ch. Sohail Akhtar Alkara, Advocate for petitioner. Mr. Jamshed Iqbal Khakwani, A.A.G. for respondent Nos. 15 to 17.

Through this Civil Revision, the petitioner Akhtar Ali, who was the defendant in the suit for declaration (‘petitioner’ / ‘defendant’), has called in question order dated 04.12.2024 (‘Impugned order’) passed by learned Addl. District Judge, Bahawalnagar (‘Appellate Court’), whereby application filed by the petitioner, in his pending appeal against decree, seeking relief of remanding the matter to the learned Civil Judge, Bahawalnagar (‘trial court’), for decision of the suit afresh after providing opportunity to lead evidence on issue Nos.2 and 2-A framed by the learned trial court, has been dismissed.

2.Learned counsel for the petitioner states that vide order dated 15.01.2021, issue No.2 was reframed and an additional issue No. 2-A was also framed and on the very next date i.e. 16.01.2021 the suit was decided by the learned trial court without seeking evidence from the parties on the said issues and the petitioner has been condemned unheard; hence, the impugned Judgment and decree dated 16.01.2021 passed by the learned trial court and order dated 04.12.2024, whereby the Appellate Court by dismissing the petitioner’s application has declined to

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remand the case to the trial court for decision afresh, are not sustainable.

3.The learned law officer has defended the impugned order by stating that the matter is still pending before the learned Appellate Court, which is yet to be decided on merits, hence interference at this stage is uncalled for.

4.As a short legal question is involved, therefore, this matter is being decided while dispensing with notice to the private respondent Nos.1 to 14 as issuing notice may unnecessarily delay the matter and cause unnecessary expense to them.

5.Perusal of the record shows that one Manga son of Nawab (predecessor in interest of the petitioner and respondent Nos.1 to 14) was owner of suit property comprising of Agricultural land measuring 106K-9M through Jamabandi for the year 2004-05 which was 2129/5169 share in Khata No.69 situated at Mouza Manohar Ghar, Tehsil and District Bahawalnagar. Respondents No.1 to 13 filed a suit for declaration by claiming that they and respondent No.14/Mst. Asghari Bibi being heirs of Manga son of Nawab are owners of aforementioned property and petitioner/defendant, who is son of afore-mentioned Manga, had fraudulently got prepared mutation No.461 attested on 11.02.2005 regarding oral gift/ Tamleek from their predecessor in interest in his own favour to deprive the legal heirs from share in property and sought direction to official respondents to correct the same in official/revenue record. The official respondent Nos.15 to 17, who were defendant Nos.1 to 3, filed written statement as per their record, whereas the petitioner defended the said suit by filing contesting written statement, after which parties led their evidence in support of their respective claims

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and after hearing arguments, the trial court on 15.01.2021 reframed issue No.2 and framed an additional issue No.2-A. On the very next day, the suit was decreed vide judgment and decree dated 16.01.2021 and mutation No.461 attested on 11.02.2005 was set-aside.

6.The claim of the petitioner is that issue No.2 was reframed and additional issue No.2-A was also framed by the learned trial court on 15.01.2021 but the parties were not provided opportunity to lead evidence on the said issues before decreeing the suit. The additional issue is reproduced below “2-A Whether the deceased Manga S/o Nawab gift the suit property in favour of the defendant No. 4 namely Muhammad Akhtar Hussain and the impugned mutation No. 461 attested on 11.02.2005 was effected genuinely in favour of the defendant? OPD”

7.The petitioner challenged the impugned judgment and decree and also assailed findings on the said additional issue by filing an appeal before the Appellate Court, and during the pendency of the said appeal, which is still pending the petitioner filed an application for remanding the matter to the trial court for providing opportunity to lead evidence on additional issue to the parties and decision of the same afresh. The said application has been dismissed by the learned Addl. District Judge, Bahawalnagar through impugned order dated 04.12.2024, the operative part of which is reproduced below.

“Record indicates that, after recording oral as well as documentary evidence of parties, learned trial Court proceeded to decide the suit of appellant/petitioner vide impugned judgment and decree. The appellant/ petitioner moved this application for remand of instant appeal to learned trial Court on the ground that, learned trial Court framed additional issue No. 2-A and substituted issue No. 2, on 15.01.2021 and on the very next day i.e. on 16.01.2021 decided the

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suit, without seeking evidence from parties on the said additional issue. First of all, it is pertinent to mention here that as per order dated 15.01.2021, both learned counsel for the parties had given consent, by making their signatures on the margin of order sheet, regarding framing and correction of issues and then, advanced their final arguments but appellant/ petitioner did not raise any such objection before learned trial Court, and secondly if this court deems it appropriate to remand the instant case, can remand the case, after hearing the final arguments of the parties. The grounds or reasons advanced by the learned counsel for the appellant are not sufficient for the acceptance of captioned application. Resultantly, the application is hereby dismissed being devoid of force. Now file to come up for final arguments on main appeal, as last opportunity for 07.12.2024.”

8.Although the application filed by the petitioner for remand of case to trial court for decision afresh after providing opportunity to the parties to lead evidence has been dismissed, which is claimed to be final order by the respondents, however, the relief claimed through the said application was more or less the final relief that has also been claimed in the grounds of main appeal. The learned Addl. District Judge while dismissing the said application has observed that the reasons advance by the learned counsel for the petitioner/appellant for acceptance of said application are not sufficient and said matter shall be decided at the time of final disposal of the appeal, hence, finality is not attached to the decision of the application as nothing has been finally decided and the said ground still remains open to be decided at the time of final decision of the appeal; consequently, the same cannot be treated as case decided which is a pre- requisite condition for entertaining revision petition against the impugned order, which requires finality to be attached to the decision under challenge. Reliance in this regard is placed on judgments reported as

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2006 SCMR 21 (Nestle Milkpack Limited Vs. Classic Needs Pakistan (Pvt.) Ltd and 3 others) and 1994 SCMR 1991 (Mian Muhammad Luqman and 5 others Vs. Farida Khanum and another). Relevant portion of latter judgment is reproduced below for clarity: “It is not denied by the respondents’ learned counsel that unless it is “a case decided” the High Court has no jurisdiction under section 115, C.P.C. to deal with the matter on civil revisional side. On the specific point; whether the order passed in this case by the trial court which was impugned before the High Court did constitute a “case decided” the learned counsel although having remained for considerable time hesitant to admit that it did not constitute “a case decided” ultimately failed to satisfy the Court that it did constitute “a case decided.”

9.Another aspect of the matter is that the petitioner wants the court to adopt procedure of his choice to regulate proceedings of the court to decide the matter by remanding it to trial court through an interlocutory order before hearing final arguments in the pending appeal, whereas the Appellate Court while passing the impugned order has observed that it shall decide the main appeal on merits after hearing final arguments, wherein the said aspect of the matter shall also be considered on its own merits. It is settled law that individuals do not possess a vested right in any particular course of procedure hence the petitioner cannot compel the court to adopt procedure of his choice instead of the court regulating its own procedure. Reliance is placed on 2025 SCMR 303 (Muslim Commercial Bank Limited Vs. Punjab Labour Appellate Tribunal through Chairman, Lahore and others) and 2006 SCMR 10 (District Officer, Agriculture (Extension), Sargodha and another Vs. Atta Ullah).

10.It is pertinent to mention here that it is not the case of the petitioner that the Appellate Court had

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not adopted a particular procedure provided by law to be mandatorily followed to the exclusion of all other procedures or had adopted a procedure which was prohibited by law for this Court to determine whether there was any jurisdictional defect in the impugned order for this Court to warrant interference at this stage in exercise of power vested in it under Section 115 of Code of Civil Procedure, 1908 (‘CPC’).

11.In the instant case, the Appellate Court was competent to order that the matter shall be decided at the time of final decision of appeal and not through an interlocutory application, which was well within its discretionary jurisdiction as the learned Appellate Court was competent to regulate its own procedure and unless any illegality is pointed out or prejudice is caused to a party by any particular mode or procedure adopted by the court of competent jurisdiction, the High Court does not interfere in the same in revisional jurisdiction to be exercised against an interlocutory discretionary order for the reason that the said court is competent to cure the irregularities in its previous interlocutory orders, if any, arising out of the procedure adopted by it, while passing the further orders in the matter, which also includes the passing of final order whereby the pending appeal is to be decided in due course. Reliance is placed on 1995 SCMR 991 (Abdul Aziz and others Vs. Additional District Judge and 4 others), wherein it is provided that discretionary orders passed by court of competent jurisdiction are not required to be interfered with in revisional jurisdiction.

12.Moreover, the application to remand the case for decision afresh, decision of which may amount to a final decision of the matter i.e. appeal in the instant case pending before the Appellate Court

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requiring application of mind to the entire case pending before the said court, was not required to be allowed summarily before decision of the main case as the same would amount to putting the cart before the horse and if the said application is summarily decided by allowing the same at an interlocutory stage resulting in remand of case without considering merits of the same, nothing would remain outstanding to be decided in the main appeal despite the fact that the entire case decided by the trial court had reopened before the Appellate Court and all material of the said file was available with it for decision of appeal on merits. In these circumstances, the learned Appellate Court was justified to dismiss the said application by holding that the grounds or reasons advanced by the learned counsel for the appellant are not sufficient for acceptance of said application at that interlocutory stage and the matter shall be decided after hearing final arguments of the parties relating to the pending appeal and if the court deems it appropriate at the said stage and if need be, it may remand the matter to trial court for recording of evidence and decision afresh.

13.The aforementioned decision has not been shown to be suffering from any illegality or jurisdictional defect and parties are still in a position to advance their stance before the Appellate Court through final arguments on appeal, hence no prejudice has been caused to any party. Furthermore, as the main appeal is still pending adjudication before the Appellate Court, while hearing and deciding the stance of the petitioner on application for remand of case, it would not be proper for this Court to pass any decision on merits of the grounds of appeal pending before the Appellate Court lest it may cause prejudice to stance of any party in the main appeal.

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14.In view of the above, as no illegality or jurisdictional defect causing prejudice to either of the parties has been pointed out in the impugned order resulting in dismissal of the application for remand of the case, which even otherwise is a discretionary order passed by the Appellate Court, hence, no interference is called for at this stage and this Civil Revision being premature is dismissed with observation that the petitioner may wait for decision of the appeal by the Appellate Court before raising grievance any further.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Zeeshan Khan

APPROVED FOR REPORTING

JUDGE