Mst Naseem Mai (Deceased) Through Lrs etc. vs Muhammad Saleem Anjum

FORM No. HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

Judicial Department C.R.No. 10 of 2026

Mst. Naseem Mai (deceased) Vs. Muhammad Saleem Anjum. through L.Rs.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary Proceedings 12.01.2026. Mr. Abdul Khaliq Dogar, Advocate for petitioners.

Through this Civil Revision, the petitioners have called in question order dated 28.11.2025 (‘the Impugned Order’) passed by learned District Judge-I, Jampur, District Rajanpur, whereby the said court has summoned attesting witnesses of agreement dated 04.03.2017 as Court Witnesses, which has been referred by said court as subsequent agreement.

2.It is claimed by the learned counsel for the petitioners that the aforementioned proceedings had arisen from a suit for specific performance of agreement to sell dated 20.11.2015 (‘the Original Agreement’) filed by Muhammad Saleem Anjum, respondent against Mst. Naseem Mai (since deceased), original owner of the property, who is now being represented by the petitioners as her legal heirs, and it is claimed that the said suit had nothing to do with the agreement dated 04.03.2017, marginal witnesses of which have been summoned as Court witnesses, and in view thereof it is claimed that the said order is not justified. Besides it is also claimed that as the learned trial court had dismissed the said suit but on appeal filed by the respondent the same was decreed ex-parte against the petitioners, where-after petitioners filed an application for setting the same aside, which

application was allowed and as a result of the same ex- parte judgment and decree and proceedings initiated against the petitioners were set-aside by the appellate court, therefore, opportunity should have been provided to them to file written statement and reply to applications, where-after issues were required to be framed before proceeding further in the matter and in view thereof, vehemently asserts that the impugned order for summoning the Court Witnesses was not justified.

3.Brief facts of the case are that the respondent filed a suit for specific performance of agreement to sell against the predecessor-in-interest of the petitioners namely Mst. Naseem Mai before the learned Civil Judge, Jampur, with averments that on 20.11.2015, Mst. Naseem Mai, the deceased petitioner offered to sell her property measuring 11K-02M situated in Khata No. 442 Mauza Bukhara Tehsil Jampur, District Rajanpur, to the respondent in presence of witnesses, which was accepted by the respondent in consideration of Rs. 14,56,875/- and agreement to sell was reduced into writing and he paid Rs. 4,50,000/- as earnest money on the said date; it was further agreed that the remaining amount would be paid on 20.01.2016 and on 20.01.2016 the respondent asked Mst. Naseem Mai, predecessor-in-interest of the petitioners to transfer the suit property after receiving remaining amount but she refused, resulting in filing of suit for specific performance of agreement dated 20.11.2015. On 13.09.2017, she was proceeded against ex-parte and after recording ex-parte evidence, the learned trial court dismissed the suit of the respondent vide judgment and decree dated 14.09.2019. Being

aggrieved, the respondent preferred an appeal before the learned Addl. District Judge Jampur, which was allowed ex-parte and the suit of the respondent was decreed vide judgment and decree dated 21.12.2021. The petitioner submitted an application for setting- aside the ex-parte proceedings dated 18.12.2019 and judgment and decree dated 21.12.2021, in which the respondent submitted written reply, the same was accepted vide order dated 22.05.2024 and ex-parte judgment and decree dated 21.12.2021 was set-aside. Later on, the case was fixed for final arguments and vide order dated 28.11.2025, the learned appellate court after hearing arguments of the parties instead of deciding the case on merit called the attesting witnesses of agreement dated 04.03.2017 as Court Witnesses. For clarity the said order is reproduced below:- “After hearing arguments of the parties, it has been found that in subsequent sale agreement dated 20.11.2015 another agreement dated 04.03.2017 was allegedly effected between the parties and the same was written backside of the original stamp paper. There is possibility that the appellant/ plaintiff mistakenly did not produce attesting witnesses of agreement dated 04.03.2017 under confusion that the attesting witnesses of agreement dated 20.11.2025 would suffice to prove the sale agreement between the parties. In order to meet the ends of justice, this court considers it appropriate to summon attesting witnesses of subsequent agreement dated 04.03.2017 as court witnesses therefore, attesting witnesses namely Shamshad s/o Ch. Muhammad Din caste Dogar r/o Muhammadpur and Javed Bukhari advocate Jampur be summoned as court witnesses for

4.The aforesaid impugned order is under challenge before this Court through the instant Civil Revision, however, it is pertinent to mention here that the petitioners subsequently filed an application for

remand of matter to the learned trial court for decision afresh on the ground that as they had been proceeded against ex-parte by the trial court, they be allowed opportunity to produce written statement and lead evidence. The learned appellate court passed order dated 11.12.2025 on the said application, which although has not been challenged but the same has been reproduced below for better understanding the nature of proceedings presently pending before the appellate court:- “The respondent has made an application of remand of this appeal to the trial court for fresh decision.

2.Arguments heard. Record perused.

3.This court has summoned the attesting witnesses of sale agreement as court witnesses and the respondent/defendant has filed this application for remand of case. After hearing arguments of the parties, this appeal after going through the entire evidence including the evidence of attesting witnesses, this court will decide as if it is a fit case for remand or the case should be decided on merits on the basis of available evidence. With this observation and finding, this application is hereby disposed of.

The Court witnesses namely Shamshad s/o Ch. Muhammad Din Caste Dogar r/o Muhammadpur and Javed Bukhari advocate Jampur be again summoned for 17.12.2025.”

5.Perusal of the record shows that although the suit for specific performance of the original agreement to sell dated 20.11.2015 has been filed yet through the impugned order the appellate court has summoned witnesses of subsequent agreement dated 04.03.2017 as Court Witnesses for the reason that said agreement between the parties has been written on the back side of stamp paper of original agreement to sell and according to the appellate court, the same had been done in order to meet the ends of justice. It is pertinent to mention here that the court has not yet expressed its

final opinion and the said aspect of the matter is also evident from the observations recorded in the subsequent order dated 11.12.2025 passed by the appellate court. It is also important to note here that court under the provisions of the Code of Civil Procedure, 1908 and the Qanun-e-Shahadat Order, 1984, is vested with ample authority to require the contesting parties to clarify their positions, to summon essential witnesses as Court Witnesses and to seek expert opinion when required. Reference is made to judgment rendered by Islamabad High Court in Case titled Muhammad Tariq versus Mrs. Marrium Sial and another (2023 CLC 1107). It may also be mentioned here that court is empowered to record, summon or call any witness of its own accord even a stranger to the proceedings of the suit if it thinks necessary for the just decision of the matter. The said power under various provisions of law may be exercised by the court prior to and/or subsequent to framing of issues. Under Order XVI Rule 14 CPC, where the court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be fixed, and may examine him as a witness or require him to produce such document. Under the provision of Order XIV Rule 4 CPC, where the court is of the opinion that the issues cannot be correctly framed without the examination of some person(s) not before the court or without inspection of such document not produced in the suit, it may adjourn framing of issues to a future day/date, and may (subject

to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession it is available by summons or other process. The court it also empowered under the Provisions of Order X of CPC to conduct preliminary proceedings and issue orders for expediting processing of the case, which may include examining of parties by the court at any stage. Under the Rule 2 of Order X, at the first hearing of the suit or at any subsequent hearing, any party appearing in person or present in court, or any person able to answer any material question relating to the suit by whom, such party or his pleader is accompanied, shall be examined orally by the court; and the court may if it thinks fit, put in the course of such examination questions suggested by either party. The said powers vested in the court can be exercised by the trial court as well as the appellate court as the appellate court while hearing the appeal, which is continuation of original suit/proceedings, is vested with all the powers of the trial court and entire case is reopened before the appellate court in appeal. Reliance is placed on Rashid Baig and others versus Muhammad Mansha and others (2024 SCMR 1385) and Ghulam Qadir and others versus Sh. Abdul Wadood and others (PLD 2016 SC 712). Besides it is pertinent to mention here that every procedure, which is not prohibited, is permitted to be followed by the court unless same specifically violates any law or rules. Reliance is placed on Additional Collector-II, Sales Tax, Lahore Versus M/s. Abdullah Sugar Mills and others (2003 SCMR 1026). In the present case, the petitioners have not been able to point out any prohibition or violation

of any law or rules and they have a right to participate in further proceedings, wherein they can raise all their objections and cross-examine the witnesses, if need be, hence, presently no prejudice has been caused to them by the procedure followed by the learned appellate court.

6.The impugned order, as also evident from subsequent order dated 11.12.2025, is an interlocutory procedural order which is purely discretionary in nature and finality is not attached to the same, to bring the same in the ambit of the expression “a case decided” as envisaged in Section 115 of CPC, which is a mandatory requirement for exercising jurisdiction of revision against a judicial order, therefore, Civil Revision against the said order is premature and not maintainable. Reliance in this regard is placed on the judgments titled as Mian Muhammad Luqman and 5 others vs. Farida Khanum and another (1994 SCMR 1991), wherein it has been held as under: “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.”

7.The same principle has been enunciated in the judgments titled as Nestle Milkpak Limited vs. Classic Needs Pakistan (Pvt.) Ltd. and 3 others (2006 SCMR 21) and Abdul Razzaq and others vs. Muhammad Ajmal Khan (PLD 2018 Lahore 491).

8.For what has been discussed above, the impugned order dated 28.11.2025 lacks mandatory ingredient of finality for being amenable to challenge in revisional jurisdiction for finding out any jurisdictional defect in the same. This Civil Revision is accordingly dismissed in limine as premature.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

APPROVED FOR REPORTING

Judge