Saqib Iqbal Vs Khalid Iqbal etc

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P. No.22348 of 2026

Saqib Iqbal Vs. Khalid Iqbal etc.

JUDGMENT

Date of Hearing 19.05.2025 The Petitioner by Mr. Salah-Ud-Din Siddiqui, Advocate Respondent No.3 by Sardar Abdul Majeed Dogar, Advocate Respondents No.1 & 2 by Nemo.

Malik Waqar Haider Awan, J. Through the instant constitutional petition, the petitioner has assailed orders dated 18.12.2025 & 21.02.2026 passed by learned District Judge, Faisalabad. Through the former order, an application under section 151 CPC read with sections 33, 38 & 40 of the Stamp Act, 1899 was accepted and original register of stamp vendor was sent to Punjab Forensic Science Agency (PFSA) for forensic examination, whereas through the latter order, while accepting appeal filed under Order XLIII Rule 1 CPC against an interim injunction order, the learned District Judge not only set aside the order granting temporary injunction but also rejected the plaint of the petitioner under Order VII Rule 11 CPC. Hence, this petition.

2 Brief facts of the case are that the petitioner instituted a suit for specific performance on the basis of agreement to sell dated 20.04.2011 along with an application under Order XXXIX Rules 1 & 2 CPC which was accepted by learned trial court vide order dated 11.10.2025. Feeling aggrieved, respondent No.3 preferred an appeal under Order XLIII Rule 1 CPC before learned District Judge. During pendency of the said appeal, respondent No.3 moved an application under section 151 CPC read with sections 33, 38 & 40 of the Stamp Act, 1899 seeking forensic examination of the relevant entry in register of stamp vendor. The said application was accepted vide order dated 18.12.2025 and matter was referred to PFSA. Report dated 20.01.2026 was thereafter received wherein it was opined that at least two different

inks/writing instruments had been used in entry No.2093 dated 20.04.2011 and portions thereof appeared to have been erased mechanically and overwritten. Relying upon the said report, learned District Judge vide impugned judgment dated 21.02.2026 accepted the miscellaneous appeal, set aside the injunctive order passed by learned trial court and further proceeded to reject the plaint of the petitioner under Order VII Rule 11 CPC. Hence, this writ petition 3. Learned counsel for the petitioner contends that learned District Judge grossly exceeded his jurisdiction while exercising appellate powers under Order XLIII CPC. Submits that scope of such appeal was confined to examining legality or propriety of interim injunction order and the appellate court could neither adjudicate upon disputed questions of fact nor reject the plaint itself. Further contends that expert opinion is merely corroborative evidence which could only be tested through regular trial after recording evidence and affording full opportunity of cross-examination to the parties. Adds that learned appellate court virtually decided the entire suit at an interlocutory stage, thereby depriving the petitioner of valuable substantive and procedural rights available under the law.

4.Conversely, learned counsel for respondent No.3 submits that once forensic report established tampering in stamp vendor’s register, continuation of trial would have been a futile exercise. Further adds that the learned appellate court, being a court of competent jurisdiction, was fully empowered to pass appropriate orders in order to prevent abuse of process of law.

5.Despite repeated calls, none has entered appearance on behalf of respondents No.1 and 2. Learned counsel for respondent No.3 states that respondent No.3 is subsequent purchaser of the suit property from respondents No.1 and 2 and perhaps for said reason they have lost interest in litigation. Consequently, respondents No.1 and 2 are proceeded against ex parte.

6.Arguments heard. Record perused.

7.At the very outset, learned counsel for respondent No.3 was confronted with the jurisdictional question as to how learned District Judge, while seized of an appeal under Order XLIII Rule 1 CPC against grant of interim injunction, could assume jurisdiction to reject the plaint itself under Order VII Rule 11 CPC. Learned counsel attempted to justify the impugned exercise on the premise that substantial justice had been done and continuation of trial would have served no useful purpose.

8.The contention is devoid of force. Admittedly, learned District Judge was exercising limited appellate jurisdiction arising out of an interlocutory order passed under Order XXXIX Rules 1 & 2 CPC. Scope of such proceedings was confined to examining whether learned trial court had rightly exercised discretion in granting temporary injunction on the touchstones of prima facie case, balance of convenience and irreparable loss. The appellate court could either affirm, modify or set aside the interim order, however, it could not travel beyond the subject matter of appeal and adjudicate upon the maintainability of the suit itself.

9.It is by now well settled that powers under Order VII Rule 11 CPC can only be exercised on the basis of averments contained in the plaint and documents appended therewith. Defence taken by defendant, disputed questions of fact or material collected subsequently cannot be made basis for rejection of plaint. For ready reference, Order VII Rule 11 CPC is reproduced below:-

“11. Rejection of plaint.— The plaint shall be rejected in the following cases:

a) where it does not disclose a cause of action;

b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

d) where the suit appears from the statement in the plaint to be barred by any law.”

In the present case, learned District Judge relied upon a forensic report procured during pendency of miscellaneous appeal and entered into factual controversies regarding genuineness of agreement to sell while illegally assuming and exercising the powers provided under section 96 CPC. For ready reference Section 96 CPC is reproduced below:- “96. Appeal from original decree. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2)An appeal may lie from an original decree passed ex parte.

(3)No appeal shall lie from a decree passed by the Court with the consent of parties.

PUNJAB AMENDMENT

In section 96, in subsection (1), for the full-stop at the end, the expression “, and the Court shall decide the appeal within sixty days from the date of first appearance of the respondent in appeal.” shall be substituted.”

10.It is conspicuous to note that the learned District Judge failed to differentiate between the jurisdiction conferred upon him under Order XLIII Rule 1(r) CPC which pertains to orders passed under the provisions mentioned therein and are purely miscellaneous in nature and the jurisdiction under Section 96 CPC which deals with appeals arising from original decrees. To elaborate the distinction between the two provisions, Order XLIII Rule 1(r) CPC is reproduced as under:- “1. Appeals from orders. An appeal shall lie from the following orders under the provisions of section 104, namely:-

(r)an order under rule 1, rule 2, rule 4 or rule 10 of Order

XXXIX;”

11.If the learned appellate court would have been exercising jurisdiction under Section 96 CPC then definitely could had exercised powers provided under Section 107 CPC as well as Order XLI Rule 33 CPC. For ease of reference, Section 107 CPC is hereunder:- “107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a)to determine a case finally;

(b)to remand a case;

(c)to frame issues and refer them for trial;

(d)to take additional evidence or to require such evidence to be taken.

(2)Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

Order XLI Rule 33 CPC is also reproduced below:- “33. Power of Court of Appeal. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:

[Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]

Needless to observe that reproduction of the aforesaid statutory provisions clearly demonstrates the distinction between the nature and scope of appellate jurisdiction exercised under Order XLIII Rule 1(r) CPC and the wider appellate powers available under Section 96 read with Section 107 and Order XLI Rule 33 CPC. Order XLIII Rule 1(r) CPC pertains only to interlocutory orders passed under Order XXXIX Rules 1, 2, 4 & 10 CPC and limits the appellate court to examining legality or propriety of such interim orders, whereas Section 96 CPC read with Section 107 and Order XLI Rule 33 CPC confers comprehensive powers upon an appellate court while hearing appeals arising out of final decrees after complete adjudication of rights of parties. Learned District Judge, while dealing with a miscellaneous appeal against an interim injunction order under Order XLIII Rule 1(r) CPC unlawfully transgressed the limited boundaries of jurisdiction vested in him and exercised powers which could only be invoked while deciding a regular first appeal under Section 96 CPC.

12.Even otherwise, expert opinion is merely a type of corroborative evidence and cannot, by itself, conclusively determine rights of parties without regular trial. The PFSA report relied upon by learned appellate court was yet to be proved in accordance with law and subjected to scrutiny through cross-examination. Learned appellate court fell into patent illegality by treating such report as conclusive proof and non- suiting the petitioner without framing issues or recording evidence.

13.Another significant illegality committed by learned appellate court is that the plaint itself was not pending before it. The suit continued to remain before learned trial court and no proceedings under Order VII Rule 11 CPC were pending before learned District Judge. In absence of any substantive lis regarding rejection of plaint, learned appellate court could not assume original jurisdiction and reject the plaint suo motu while deciding miscellaneous appeal against interim injunction order. Such exercise clearly amounts to acting beyond jurisdiction vested by law.

14.Furthermore, rejection of plaint at such premature stage seriously prejudiced rights of parties. Learned appellate court virtually decided the entire suit without trial, thereby depriving parties of their valuable statutory right to lead evidence, thereafter, avail remedy of appeal under section 96 CPC against final judgment and decree. The procedure adopted by learned District Judge offended settled principles of fair trial and due process guaranteed under law.

15.The order dated 18.12.2025 whereby forensic examination was directed also suffers from jurisdictional infirmity. The question regarding genuineness, execution or otherwise of agreement to sell directly pertains to merits of suit pending before learned trial court. Such disputed factual controversies ought to have been determined by the trial court after framing issues and recording evidence. Learned appellate court, while hearing miscellaneous appeal against interim injunction order, could not convert itself into trial court for collection of evidence on merits of main suit.

16.Consequently, both the impugned order dated 18.12.2025 and judgment dated 21.02.2026 are found to be without lawful authority against the scheme of law and suffering from material jurisdictional illegality. Same cannot be sustained in the eye of law.

17.Resultantly, this constitutional petition is allowed. Impugned orders dated 18.12.2025 & 21.02.2026 passed by learned District Judge, Faisalabad are hereby set aside. The appeal filed under Order XLIII Rule 1 CPC shall be deemed to be pending before learned District Judge, Faisalabad who shall decide the same strictly in accordance with law and within the limited scope of appellate jurisdiction relating to interim injunction matter without being influenced by any observation made herein or in the impugned orders.

18.Parties are directed to appear before the learned District Judge, Faisalabad on 09.06.2026 for further proceedings.

19.Last but not the least, it is pertinent to observe that learned Presiding Officer of the Courts are required to exercise their respective jurisdiction strictly within the bounds and framework prescribed by law. Each jurisdiction conferred under the statutory scheme operates in its own distinct sphere and such powers cannot be intermingled or exercised interchangeably at the discretion, will or whim of the court. This indeed, reflects the true intent, object and underlying philosophy of codified laws.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed

*Sadheer Ahmad*

APPROVED FOR REPORTING

JUDGE