Shafiq Ahmad Khan VS Ashfaq Qadir Kha

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No. 1114-D of 2011

Shafique Ahmad Khan and Others

Versus Ashfaq Qadir Khan and Others

JUDGMENT

Date of hearing 12.05.2026 Revision- Mr. Munawar Iqbal Thaheem, Petitioners by learned Advocate.

Respondent No. Syed Muhammad Hanfia Abbas, 1 by learned Advocate.

Respondents No. Nemo.

2 to 10

Sultan Tanvir Ahmad J:- Through this civil revision, filed under section 115 of the Code of Civil Procedure-1908 (the ‘Code’), judgment and decree dated 07.12.2010 passed by learned Additional District Judge, Jampur as well as order and decree dated 13.04.2010 passed by learned Civil Judge 1st Class, Jampur have been challenged.

2.Learned counsel for the revision-petitioners has argued that the learned Appellate Court fell to error while ignoring that an application dated 13.04.2010 under Order XII Rule 6 of the Code (the ‘application’) was instituted by the revision-petitioners; that it was incumbent upon the learned trial Court to decide the application before passing final judgment or order, however, instead of deciding the application final order and decree has been passed, which is

against the settled principles of law. He has further argued that the respondents have made admission of certain facts, which required the learned trial Court to pass the judgment and decree without waiting for the determination of any other question between the parties in dispute. He has also stated that before proceeding to invoke penal provision of Order XVII Rule 3 of the Code, a specific warning was required to be given, which escaped the view of the learned Courts below. He has finally sought an order of remand.

3.Conversely, Syed Muhammad Hanfia Abbas, learned Advocate for respondent No. 1, has vigorously defended the challenged judgment / order and decrees. He has stated that this civil revision is pending for the last fifteen years but till to date the revision-petitioners have even failed to append the necessary documents. He contended that one of the main grievance set-up in this civil revision is regarding alleged insufficient opportunities before invoking the penal provision under Order XVII Rule 3 of the Code, which could have been only established from order-sheet of the learned trial Court, however, the relevant orders are not made part of the record; that this is deliberate on the part of the revision-petitioners, who have full knowledge that they were permitted numerous chances for producing evidence but they willfully neglected them. He said that the calculated move and ploy is to drag the respondents into undesired litigation, just to blackmail them, and this has not merely added to the agony of the respondents but at the same time this has caused undue burden on the Court. He stated that failure to seek any permission in this regard, in the last over one and a half decade, is itself sufficient to dismiss this civil revision. Learned advocate

requested to impose exemplary costs against the revision- petitioners.

4.I have heard the arguments of the learned counsel for the parties and gone through the documents available in the file. The submission of the learned counsel for respondent No. 1 that the necessary documents, including relevant orders of the learned trial Court, are not available with this civil revision, is found correct. As a precautionary measure, copies of these orders and other relevant documents were summoned from the learned trial Court, which are also examined.

5.The suit seeking declaration was instituted by the revision-petitioners on 24.02.2003. The learned trial Court framed the relevant issues on 25.06.2003 and also observed that no other issue is claimed to be settled by the parties. On the said hearing, the case was adjourned for filing the list of witnesses, certificate of readiness and with the direction to the revision-petitioners to produce the evidence on the subsequent date. The revision-petitioners instead of producing evidence, kept on making different requests and / or filing applications. This continued until 31.01.2009 when the learned trial Court proceeded to close the right to produce evidence and dismissed the suit. This decision was challenged in civil revision No. 10 of 2009. Benefit of some alleged ambiguity in order dated 19.01.2009 was extended to the revision-petitioners by the learned Appellate Court. It was specifically undertaken before the learned Appellate Court to produce evidence upon grant of an opportunity in this regard. Keeping in view the same, on 21.07.2009, the learned Appellate Court passed the following order:-

“...However, he undertakes that if an opportunity is given to him for presentation of evidence, he will produce the evidence before the learned trial court. The appeal is thus accepted, the impugned judgment and decree is set aside and the case is remanded to the learned trial court with a direction to provide last and final opportunity to the appellants to present their evidence which shall be presented by the appellants, on the date fixed.

7.Parties are directed to appear before the learned trial court on 30.07.2009 when the learned trial court will fix the case for evidence of the appellants...”

6.It is noticed that despite the above leniency and order of remand, the revision-petitioners kept on delaying the matter. On 06.04.2010, the evidence of the revision- petitioners was absent again, when their learned counsel made request for another opportunity for the specific purpose of producing evidence. The learned trial Court shed light on the fact that the matter is pending since 2003 and directed the revision-petitioners to produce the entire oral and documentary evidence. The case was adjourned to 13.04.2010. Instead of producing evidence, the revision- petitioners instituted the application when the learned trial Court observed that the same had been filed merely to cause further delay in the progress of the suit. The learned trial Court dismissed the application being devoid of any merit, observing that if any order on the basis of admission was required, instead of seeking countless opportunities to produce evidence, the request should have been made at some earlier stage.

7.The revision-petitioners themselves gave undertaking before the learned Appellate Court on 21.07.2009 as evident from the above reproduced order and then failed to do the

requisite despite the clear order dated 06.04.2010. The trend of affording undue opportunities for a step necessary for the progress of suit without sufficient and just cause, is repeatedly discouraged by the Supreme Court.

8.Next contention of the learned counsel for the revision-petitioners is regarding Order XII Rule 6 of the Code and the alleged admission of the other side. The application in this regard was filed after more than seven years and in this period revision-petitioners sought numerous opportunities to produce evidence. The relevant clause of the application provides that some admission has been made in the written statement directly or indirectly, although without saying it outright.

Order XII Rule 6 of the Code reads that any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as the Court may think just. It provides a summary and speedy remedy in cases where admission is made in the pleadings or outside the same, however, to attract this provision, the admission must be unequivocal, clear, unconditional and unambiguous. The Court, upon the same, can pass such judgment as the Court may think just. Provisions of the Order VIII Rule 5 of the Code reflect that a Court may in its discretion, requires any fact, even if admitted, to be proved otherwise then by such admission. A combined reading of the two sub-rules reveals that it is at the discretion of the Court, regulating the proceedings, as Order XII Rule 6 of the Code

does not provide the foundation to depart from the settled norms of justice. In case titled “Amir Bibi through Legal Heirs Versus Muhammad Khurshid and Others” (2003 SCMR 1261), the Honourable Supreme Court of Pakistan has observed that a undisputed part or whole of the case can be decided on the basis of admission, as per the circumstances of each case but such power is not unfettered. It is a bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. The relevant extract reads as follows:-

“...The said question has been examined in the light of provisions as contemplated in Order 8, rule 4 and Order 12, rule 6, C.P.C. which are free from any ambiguity and hardly need any scholarly interpretation being couched in a simple and plain language. In view of the provisions as contained in Order 12, rule 6 a Court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categoric and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. It would, however, be discretionary for the Court to accept or reject such application. In this regard we are fortified by the dictum laid down in East and West Steamship Co. v. Queensland and Insurance Co. (PLD 1963 SC 663), Naseer Ahmad v. Asghar Ali (1992 SCMR 2300). This case has been examined on the touchstone of the criterion as mentioned hereinabove. After having gone through the entire record we are of the considered view that the entire suit could not have been decreed as the claim of

respondents has been controverted on various legal and factual grounds which can only be decided on the basis of evidence and not on mere admission.”

(Underlining is added)

9.In case titled “Macdonald Layton & Company Pakistan Ltd. Versus Uzin Export-Import Foreign Trade Co. and Others” (1996 SCMR 696) it has been ruled that the power to pass any order or judgment on admission is subject to qualifications, and it is the discretion of the Court, which should be exercised in judicial manner and it is not a matter of right. It will be beneficial to reproduce paragraph No. 3 of the said judgment:-

“3. Mr. Fazal Ghani Khan, learned counsel for the appellant contended that the plaint was signed and verified by an authorised person and further that the admission being unqualified attracts Order XII, rule 6, C.P.C. Order XII, rule 6, C.P.C. provides a summary and speedy remedy in cases where admission is made by the defendant in the pleadings or outside it, but in order to attract this provision it is necessary that the admission should be unequivocal, clear, unconditional and unambiguous. Such admission should not only be in respect of the amount but the liability to pay the same as well to the plaintiff. The Court in deciding such application exercises its discretion which is regulated by the well-recognised principles. In this regard, reference can be made to Tahilram Tarachand v. Vassumal Deumal and another (AIR 1926 Sindh 119) wherein it has been held that to pass judgment on admission of the defendant is within the discretion of the Court which should be exercised in judicial manner and is not a matter of right. However, if it involves questions which cannot be conveniently disposed of in an application, the Court may exercise discretion in rejecting the

application. Reference can be made to Premsuk Das Assaram v. Udairam Gungabux (AIR 1918 Calcutta 467). Same view has been taken in Izzat Khan and another v. Ramzan Khan and others (1993 MLD 1287), a Full Bench decision of the Sindh High Court.”

(Emphasis supplied)

Further reference can be made to cases titled “Izzat Khan and another Versus Ramzan Khan and Others” (1993 MLD 1287) and “State Life Insurance Corporation of Pakistan Versus Qazi Majid Ali and 2 Others” (2016 CLC

10.In the present case, the pleadings were before the parties for seven years. No request for any order on the basis of any admission was made by the revision-petitioners and merely to cause further delay, the application has been filed by the revision-petitioners on the basis of a so-called admission with the assertion in the relevant paragraph of the application that the admission has been made directly or indirectly, although without saying it outright.

11.I asked the learned counsel for the revision-petitioners to demonstrate the admission pursuant to which any order can be passed but he failed to give any answer on the two hearing dates fixed before me. He instead has stated that the learned two Courts below have ignored that the application should have been decided before the final decision on the merits of the case. The Supreme Court of Pakistan in case titled “Sultan Ali alias Sultan through L.Rs. and Others Versus Rasheed Ahmad and 45 Others” (2005 SCMR 1444) while dealing with an application before the first Appellate Court filed under Order XLI Rule 27 of the Code, categorically ruled that no law has been declared by the

Supreme Court that in every case the Court has to decide the application before the decision; observing that litigation is pending since 1978, the Honourable Supreme Court also discouraged order of remand in the absence of any compelling reasons. The following extract from the said judgment is relevant:-

“...We are afraid that the view expressed by the learned Judge in Chambers of the Lahore High Court is incorrect. No such law has been declared by this Court that in every case the Court has to decide the application for permission to adduce additional evidence prior to the decision of the main appeal through separate orders and cannot give a composite judgment. In Muhammad 'Umar's case (supra) the Appellate Court had dismissed the appeal without deciding the application under Order XLI, rule 27, C.P.C. and in this background the case was remanded by holding that the application under Order XLI, rule 27, C.P.C. ought to have been adjudicated upon before disposing of the appeal and the words "before disposing of the appeal" employed by this Court in the said judgment did not and do not mean that the same cannot be done by the Court seized of the matter, in the same judgment. In the case in hand the First Appellate Court in paras.5 of its judgment, had given reasons in detail for dismissing the application for producing the additional evidence and thereafter proceeded to dismiss the appeal on merits. The procedure adopted by the First Appellate Court did not suffer from any illegality and was in accordance with the procedural law and the law as settled by the superior Courts of this country. Furthermore, it is a settled law that remand is not to be lightly ordered. In the present case, the parties are in litigation since the year 1978 and in the absence of any compelling reasons the order of remand cannot be permitted to remain in the field...”

12.Learned counsel for respondent No. 1 has requested to impose cost for filing frivolous applications before the learned trial Court as well as neglecting to support the civil revision with several documents as well as orders of the learned Courts below for more than one and a half decade. He stated that this is intentional maneuver and having full knowledge of the fact that the revision-petitioners have no case to answer. In this regard, a clear order was also passed by this Court on 04.05.2026, affording an opportunity, which was again neglected by the revision-petitioners. This is in complete defiance of the relevant proviso of section 115 of the Code as well as the law laid down in cases titled “Mst. Banori v. Jilani through Legal Heirs and others” (PLD 2010 SC 1186), “Saleem Khan and others versus Province of Punjab through District Collector and others” (2013 MLD 1618) and “Defence Science and Technology Organization through Director General v. Arif Engineering International through Sole Proprietor” (2021 CLC 103).

13.For what has been discussed above, I am of the view that this civil revision is devoid of any merit. The same is dismissed, with cost of Rs. 100,000/- .

(Sultan Tanvir Ahmad) Judge Approved for reporting Announced on 01.06.2026.

Judge J.A. Hashmi/-