Mst Nazeeran Mai vs Muhammad Mumtaz

Form No: HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, MULTAN BENCH,

MULTAN.

JUDICIAL DEPARTMENT

Office Objection No.10 of 2026 Mst. Nazeeran Mai Vs. Muhammad Mumtaz S.No. of Date of Order with signature of Judge and that of parties or counsel Order/ order/ where necessary Proceeding proceeding 16.01.2026 Mr. Ashfaq Hussain Bhatti, Advocate for the petitioner. Rana Ghulam Hussain, Assistant Attorney General for Pakistan.

Mr. Musleh ud Din Khan, Assistant Advocate General Punjab.

Malik Muhammad Bakhsh Khakhi, Assistant Advocate General Punjab.

Syed Faiz-ul-Hassan, District & Sessions Judge/Senior Additional Registrar Lahore High Court, Multan Bench, Multan.

Nasr Ullah Khan Niazi Additional Registrar (Judicial), Masoom Usmani Deputy Registrar (Judicial), Lahore High Court, Multan Bench, Multan.

Imran Asghar Ansari, Admin Office Coordinator (AOC) Urgent Cell of Lahore High Court, Multan Bench, Multan.

Through this Civil Revision filed under Section 115 of Code of Civil Procedure, 1908 (‘CPC’), which has been put up as an objection case before this Court, Mst. Nazeeran Mai/ petitioner (defendant before the trial court) has called in question judgment & decree dated 15.12.2025 (‘Impugned Judgment/Order’) passed by learned Additional District Judge, Multan whereby while allowing the appeal filed by Muhammad Mumtaz/ respondent (plaintiff before the trial court), matter has been remanded to the learned trial court to decide the same afresh after providing one opportunity to the respondent to lead evidence. Office has raised objection

at Serial No.3 of the objection sheet that court fee is insufficient to the extent of Rs.14,500/-.

2.Learned counsel for the petitioner states that as the petitioner has called in question the impugned Judgment/ Order, which is a remand order passed by the learned Appellate Court, therefore, in terms of amended Schedule-I of the Court Fee Act, 1870 (also referred to as the First Schedule/Schedule-I), court fee of Rs.500/- only is required to be affixed on the revision petition filed before this Court, which has already been affixed, and demand of Rs.14,500/- more as deficient court fee is not justified.

3.Perusal of the record shows that respondent had filed a suit for specific performance of agreement to sell dated 03.02.2021 (‘Agreement to sell’) against the petitioner relating to suit property situated in Khata No.447, Khatuni Nos.1022 to 1026, measuring 4-Kanal and 3-marlas out of total 43-Kanal in Mouza Bandha Sandila, Tehsil & District Multan (‘Suit property’) for total agreed sale consideration of Rs.25,00,000/- and the value of the suit for the purpose of court fee and jurisdiction was fixed equal to the same amount and court fee of Rs.15,000/- was affixed accordingly. In the plaint of the suit, it was claimed by the respondent that said property originally belonged to Ghulam Hussain, father of the present petitioner, from whom the same had been transferred to the name of the petitioner on the basis of decree dated 15.04.2023 passed by the Civil Court, Multan, whereafter the petitioner executed agreement to sell in favour of the respondent. It was also claimed that out of total consideration of Rs.25,00,000/- fixed in the agreement, Rs.20,00,000/- were paid in presence of the witnesses at the time of execution of the agreement and

out of remaining amount of Rs.5,00,000/-, Rs.3,50,000/- were to be paid on 25.02.2021 as per agreed schedule which the respondent paid on 20.02.2021 and remaining Rs.1,50,000/- was scheduled to be paid at the time of transfer of property to the respondent after decision of suit titled Nazeeran Mai v. Allah Ditta by the court. It was also claimed that as the petitioner had resiled from her commitment to abide by the terms of the agreement, suit for specific performance of aforementioned agreement was filed in the trial court.

4.The said suit was contested by the petitioner by claiming the said agreement to be forged and fabricated document and after framing of issues, as the respondent despite availing some opportunities failed to produce evidence in support of his claim in the suit, his right to produce evidence was closed and the suit was dismissed vide order dated 24.10.2025 by applying the provisions of Order XVII rule 3 CPC and decree sheet was prepared accordingly. The operative portion of the said order is reproduced below:- “Today, the instant suit was fixed for recording of cross-examination over the PWs with last and final opportunity but PWs are not present in the court. Learned counsel for the plaintiff requested for adjournment in this regard without any plausible reason. It is pertinent to mention here that the date of institution in this suit is 26.06.2023. Examination in chief of PWs was recorded on 07.10.2024. On last date of hearing, it was made clear that in case of failure to produce and record his complete evidence provision under order XVII rule 3 of Code of Civil Procedure, 1908, shall be invoked. Thereafter despite availing sufficient opportunities, plaintiff has failed to record his evidence. Therefore, there is no plausible reason to

grant further adjournment, hence, request for adjournment of learned counsel for the plaintiff is hereby turned down. The law helps the vigilant and not indolent. The precious time of court cannot be wasted in fruitless adjournments. Hence, right of evidence of plaintiff is hereby closed and suit is hereby dismissed for want of evidence under order XVII rule 3 of the Code of Civil Procedure, 1908. Decree sheet be prepared. File be consigned to the record room after its due completion.”

5.Thereafter respondent filed an appeal against the said decree under Section 96 CPC before the learned Appellate Court, which appeal has been allowed vide impugned judgment dated 15.12.2025 subject to payment of Rs.10,000/- as cost, whereby the order and decree dated 24.10.2025 passed by the learned trial court has been set aside and matter has been remanded to the trial court for decision afresh after providing one clear opportunity to respondent to produce oral as well as documentary evidence. However, while passing the impugned judgment/order, the learned Appellate Court mentioned that decree sheet be prepared. The operative portion of the impugned judgment/order is reproduced for reference:- “In view of above in the interest of justice, this appeal is accepted subject to payment of cost of Rs.10,000/- (ten thousand rupees), impugned judgment and decree dated 24.10.2025 of the learned Trial Court is set aside and case is remanded to the learned Trial Court for decision afresh on merits after providing only one clear opportunity to the appellant/plaintiff to produce his complete oral and documentary evidence. Parties are directed to appear before the learned Trial Court on 22.12.2025 where-after the learned Trial Court shall provide one clear opportunity to the

appellant/plaintiff to produce his complete oral and documentary evidence. Decree sheet be prepared.” (emphasis supplied)

6.The petitioner being aggrieved of the impugned judgment/order has filed the instant civil revision before this Court whereupon the afore referred objection of insufficiency of court fee has been raised.

7.The contention of the learned counsel for the petitioner is that although appeal has been decided yet remand order has been passed, therefore, despite the fact that decree sheet was ordered to be prepared, the remand order/impugned judgment does not amount to be a decree and revision filed against the same before this Court was to bear the court fee of Rs.500/- as the revision petition is against the remand order and not against the decree, which, if filed, would have to bear court fee of Rs.15,000/- as per value of the suit for the purpose of court fee and jurisdiction.

8.On the other hand, Office Coordinator namely Imran Asghar Ansari AOC, from the Urgent Cell of this Bench has stated that as appeal against decree had been decided and the learned Appellate Court has also mentioned that decree sheet be prepared and the petitioner himself while filling the opening sheet of the revision petition had fixed the value for the purpose of court fee and jurisdiction as Rs.25,00,000/- and mentioned amount of court fee of petition as Rs.15,000/- but affixed court fee of Rs.500/- only, and in terms of Entry No.12 of Schedule-I of Court Fee Act, 1870 was required to affix court fee of Rs.15,000/-, hence in view of the above objection was raised through Entry No.3 of the objection sheet that court fee is insufficient to the extent of Rs.14,500/-. For ready reference the Entry

No.12 of the First Schedule of Court Fee Act, as amended by the Punjab Finance Act, 2024 (VII of 2024), published in Punjab Gazette (Extraordinary), dated 27 June 2024 pp. 4999-5005 is reproduced below:-

“SCHEDULE I

Ad Valorem fees Sr. Article Proper Fee No.

12 Application to a High Court for the exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908-

Where the application is for revision Five hundred of an order and the amount or value rupees of the subject-matter is less than two thousand rupees.

Where the application is for the Five hundred revision of an order and subject- rupees matter is two thousand rupees or more.

Where the application is for the The fee leviable on revision of an appellate decree. the memorandum of appeal”

9.The perusal of the aforementioned Entry No.12 of the Schedule-I makes distinction between civil revision against order and civil revision against decree to the extent of court fee to be affixed on the revision petition filed before the High Court. In the said entry, orders against which revision is to be filed before the High Court have been divided into two categories based on value of subject matter of suit before the court for the purpose of affixation of proper fee payable on the same. First category is of the cases where amount of value of subject matter is less than two thousands rupees and the second category is where the said amount is two thousand rupees or more. The proper fee for both the said categories through the amendment by the Punjab Finance Act, 2024 in the Schedule-I has been provided as Five hundred Rupees. However, prior to the amendment in the

Schedule-I of Court Fee Act, for the first category the court fee was fixed at Seven Rupees and fifty paisa and for the second category was fixed at Fifteen Rupees. After the amendment, although categories of order based on valuation of subject matter has been maintained but court fee for both categories of revision against orders has been fixed as Five Hundred Rupees. Moreover, for the purposes of Civil Revisions to be filed before the High Court against decrees of the Appellate Court, the proper court fee has been provided as fee equal to the court fee leviable on the memorandum of appeal. This means that the petitioner while filing a revision against the decree passed by the Appellate Court has to affix the court fee equal to the fee affixed on the memorandum of appeal, regardless of the fate of the appeal before the Appellate Court.

10.The question that arises is that whether in the cases where the Appellate Court remands a matter to the trial court for decision afresh, the said decision is to be treated as a decree or an order of the Appellate Court, which would determine the nature of remedy available to the aggrieved party and the corresponding court fee to be affixed on the same. The learned Senior Additional Registrar of this Court, who has appeared on Court”s call, states that in case Appellate Court passes a decree, then court fee equal to the fee affixed on the memorandum of appeal before the Appellate Court is to be affixed and in all other cases, revision has to bear court fee equal to five hundred rupees by treating the same as revision against an order. However, further states that office has raised objection to affix court fee of Rs. 14,500/- more as the learned Appellate Court had directed to prepare decree sheet and petitioner himself in the opening sheet had

mentioned that court fee of Rupees 15,000/- had to be affixed.

11.To determine the aforementioned question of law, reference to the definition of decree in sub-section (2) and decree-holder in sub-section (3) of Section 2 of CPC would be of help, which are reproduced below:- “Section 2. Definitions. In this Act, unless there is anything repugnant in the subject or context.

(1)“Code” includes rules:

(2)“decree” means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within Section 144 and an order under Rules 60,98, 99, 101 or 103 of Order XXI, but shall not include--

(a)Any adjudication from which an appeal lies as an appeal from an order, or

(b)Any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

(3)“decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.”

12.In addition to the above the contents of decree are provided in the Order XX Rule 6 CPC, which is reproduced below: - “Contents of decree. (1). The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2)The decree shall also state the amount of costs incurred in the suit, and by whom or out of what

property and in what proportions such costs are to be paid.

(3)The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.”

The perusal of definition of a decree shows that it is formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final, which means that the decision may finally dispose of a portion of the suit for which the court becomes functus officio and for the remaining portion some further proceedings have to be taken by the said court before the suit can be completely disposed of. It is pertinent to mention here that regardless of the fact that whether the prayer in the suit is allowed, declined or partially allowed and partially declined and the rights of the parties are finally determined, the same amounts to a decree.

13.Through a deeming clause, some orders have been included in the definition of decree such as the rejection of a plaint, the determination of any question within Section 144 and an order under Rules 60,98, 99, 101 or 103 of Order XXI CPC.

14.Through exclusion clause, some orders despite finality attached to the same have been excluded from the

definition of a decree, which include any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default.

15.The definition of decree holder provides that the decree holder means any person in whose favour a decree has been passed or an order capable of execution has been made. This means that the orders that can be got executed by the process of the court may also be treated as decrees.

16.The Rule 6 of Order XX CPC provides that the decree shall agree with the judgment and it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.

17.Now reverting to the case in hand, in the instant matter suit was dismissed by closing the right of the respondent to lead evidence under Order XVII Rule 3 CPC, which for all intents and purposes, amount to a decree as finality was attached to the same and the trial court that was cognizant of the said case had reached the conclusion that the respondent did not have any evidence available with him to support his claim in the suit. Hence this was a final adjudication of the matter pending before the said court on the basis of material available with the said court and the matter had been disposed of and the same amounted to conclusive determination of rights of

the parties to the extent of suit pending adjudication before the trial court. This is the reason that appeal lies against an order of dismissal of suit passed under Order XVII Rule 3 CPC. However, where only right to produce evidence is closed but suit is kept pending for further proceedings, the same would not be a final appealable decision and revision may be filed against such decision. In the instant case as the suit had been dismissed for want of evidence, the petitioner preferred an appeal under Section 96 of CPC against the same, which has been allowed through the impugned judgment and decree sheet has also been prepared in compliance of the order of the Appellate Court directing to prepare the same. There is no cavil to the legal proposition that the Appellate Court enjoys all the powers of the trial court and may finally determine the dispute, hence allowing or dismissal of the claim in the suit by the Appellate Court for all intents and purposes would amount to a decree but as a necessary corollary where the rights of the parties are not finally determined and matter has to proceed further, the same would not in ordinary circumstances amount to a decree, subject to the exception of orders mentioned as decree through deeming clause provided in the definition of decree in Subsection (2) of Section 2 CPC.

18.In the present case, it is observed that despite the appeal being finally disposed of, the rights of the parties to the extent of the prayer in original suit have not been determined, rather the matter had been remanded for the purpose of providing the respondent with an opportunity to lead evidence and join further proceedings in the suit, hence the rights of the parties are yet to be determined and the matter in the suit is still alive. In this scenario, the order passed by the Appellate Court only determines the

dispute to the extent that whether the right of the respondent to lead evidence in the matter was rightly or wrongly closed and whether further opportunity is to be provided to the respondent or not. Had the Appellate Court upheld the order of dismissal of suit, the adjudication would have culminated into a final decision determining the rights of the parties and would amount to a decree but where such order is set aside, as in the present case and matter is remanded for further proceedings, the same cannot be treated as a decree in terms of definition of decree and decree-holder provided in sub-sections (2) and (3) of Section 2 CPC.

19.Besides another aspect of the matter is that through Section 2(2)(a) CPC, an adjudication from which an appeal lies as an appeal from an order has been expressly excluded from the definition of “decree”. The orders against which appeals lie under the law are provided under Section 104 CPC read with Order XLIII CPC. Section 104 CPC is reproduced below:- “104. Order from which appeal lies. (1) An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(f)an order under Section 35-A;

(ff)an order under section 47;

(fff) an order under Section 91 or Section 92 refusing leave to institute a suit.

(g)an order under section 95;

(h)an order under any of the provision of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i)any order made under rules from which an appeal is expressly allowed by rules;

Provided that no appeal shall lie against any order specified in clause (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2)No appeal shall lie from any order passed in appeal under this section.”

20.The aforementioned Section provides the details of orders against which appeal lies as an appeal against order and not as a decree. Sub-Section (1)(i) of Section 104 CPC provides that appeal shall lie against orders made under rules against which an appeal is expressly allowed by rules. Details of such orders are provided under Order XLIII CPC. Rule 1 clause (u) CPC is the relevant provision of Order XLIII relating to remand orders, where against appeal is available, which is reproduced below:

“1. Appeals from orders. An appeal shall lie from the following orders under the provisions of section 104; namely:-

(u)an order under Rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.”

21.In terms of the said rule, an order passed by the Appellate Court under Rule 23 of Order XLI CPC remanding the case to the trial court is appealable as an order, which is reproduced below for ready reference:- “23. Remand of case by the 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 direction 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.”

22.The above-referred provisions of Order XLI and XLIII CPC clearly provide that where the suit is decreed by the trial on a preliminary point, whether by allowing or dismissing the same, and on first appeal before the Appellate Court, the same is remanded to the trial court instead of finally deciding the same, which could in that eventuality have resulted in a decree, such an order would be appealable as an order, provided that in case if the decree had been passed by the Appellate Court, second appeal was available under the law i.e. under Section 100 CPC, against the said decree.

The term “preliminary point” used in Order XLI Rule 23 CPC means that where the case is not decided after full trial but on such a ground that would not require decision of remaining issues arising in the suit and avoids the necessity of full hearing of the suit on merits. Reliance in this regard is placed on Hoshang and Others v. Dr. Eddie P. Bharucha and others (PLD 1973 Supreme Court 206), wherein while dealing with a matter relating to refund of court fee in a case where remand order was passed by the appellate court, the term “preliminary point” as used in Order XLI Rule 23 CPC came up for consideration at it was observed as under:- “It will be seen, therefore, that the appellants would be entitled to a refund of the court‐fee paid on the Letters Patent Appeal, if it is found that the suit

had been disposed of by the trial Court upon a preliminary point, and that the same was remanded in appeal for a second decision by the trial Court on the reversal of its decision on the preliminary point. The question, therefore, is what is the meaning of the words "a preliminary point.”

In Malayath Veetil Rama Nayar and others v. C. Krishnan Nambudripad and another (A I R 1922 Mad. 505) a Full Bench expressed the view that the meaning of the words "Preliminary point" in rule 23, Order XLI "is any point the decision of which avoids the necessity for the full hearing of the suit. The points are preliminary to the final disposal of the case." This view was adopted by the Lahore High Court in Khuda Bakhsh v. Ata Mohammad (A I R 1942 Lah. 135). It was observed that "a preliminary point does not necessarily mean a point collateral to the merits of the case but includes any point whether of fact or law, the decision on which renders the decision on other issues arising in the case unnecessary."

We find ourselves In agreement with the view taken in the two cases cited at the Bar, namely, that a preliminary point is any point the decision of which avoids the necessity for the full hearing of the suit on merits. The point may be a point of fact or of law but is essentially preliminary to the final disposal of the case. Now, the judgments rendered by the learned trial Judge in this case while dismissing the suit and by the Letters Patent Bench while accepting the appeal and remanding the suit for decision on merits, leave no doubt that the suit had indeed been dismissed on a preliminary point, and the decision on that point had avoided the disposal of the suit on merits. Such being the case, the appellants were entitled, in terms of section 13 of the Court Fees Act, to obtain a certificate

from the High Court for the refund of the court‐fee paid by them on the Letters Patent Appeal. It was submitted by Mr. A. A. Fazeel for the respondents that the Letters Patent Bench had directed that the costs shall abide the event, and therefore, it was not necessary for the High Court to grant a certificate for the specific purpose of refund of the court‐fee paid on the appeal. The submission cannot be accepted for the reason that the refund of the court‐fee under section 13 of the Court Fees Act is distinct from, and independent of, the award of costs on the final conclusion of the suit.”

In the present case, the trial court closed the right of the respondent to produce evidence by applying the provisions of Order XVII rule 3 CPC instead of full- fledge trial, hence despite the fact that such an order amounts to a decree and may be tantamount to res judicata yet could be treated as a decision on a preliminary point.

The question that next arises is that what would be the position of remedy against the remand order passed by the appellate court where the provisions of Order XLI rule 23 and Order XLIII Rule 1 clause (u) of CPC are not simultaneously applicable. In Sher Muhammad and another v. Jamadar Ghulam Ghaus (represented by heirs) (1983 SCMR 133) while discussing provisions relating to a remand of case, it has been held as under: “6. An examination of the Rules relating to remand as contained in Order XLI, rules 23, 23‐A, 24 and 25 alongwith the right of appeal as provided in Order XLIII, rule 1, clause (u) reveals that not all orders of remand are appealable. It is only the orders made under rules 23 and 23‐A of

Order XLI which have been made appealable on the strength of Clause (u) referred to. Rule 23 of Order XL1 deals with a case where the suit has been disposed of upon a preliminary point and the decree is reversed in appeal. In such cases as conform strictly to the requirements of rule 23 there can be no question of a decision on the entire case or on merits of the case as was given by the trial Court in this case.”

23.In cases where the decree of the Appellate Court was not made appealable in a particular suit, then appeal against such remand order would not be available under the afore-mentioned Rule 1 clause (u) of Order XLIII CPC. However, the same would be revisable before this Court by filing a revision petition against the order and not against the decree as provided under Section 115 CPC, which provides that the High Court may call for the record of any case which has been decided by any court subordinate to High Court and in which no appeal lies thereto, to correct a jurisdictional defect in the said order, which exercise of jurisdiction has been made subject to the conditions provided therein. Section 115 CPC is reproduced below for clarity:- “115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:-

(a)to have exercised a jurisdiction not vested in it by law, or

(b)to have failed to exercise a jurisdiction so vested, or

(c)to have acted in exercised of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.”

24.Collective reading of rule 1 clause (u) of Order XLIII CPC and Section 115 CPC would show that a remand order passed by the Appellate Court under the provisions of Rule 23 of Order XLI CPC shall be subject to challenge as an order either through an appeal or a revision petition against the said order in terms of the condition mentioned in rule 1 clause (u) of Order XLIII CPC and not as a decree as no decree by the Appellate Court had been passed. However, a case may arise where a matter is partially remanded and partially decreed by the appellate court, by finally allowing or dismissing a portion of the claim in the suit and remanding the remaining claim for decision by trial court. In the said case, if the decreed portion of the suit, whether with or without the remanded portion of said decision is called in question, the revision in that case would lie as a revision against a decree and not against an order and the court fee applicable on the revision against the decree would have to be affixed.

25.The question that would next arise is that what would be the remedy available to a party against a remand order which has been passed in the matter where the case is remanded to the trial court by the Appellate Court in exercise of any provision other than rule 23 of Order XLI CPC. For instance the Appellate Court may remand the case under rule 25 of Order XLI CPC by framing an additional issue for decision. The said rule is reproduced for clarity:- “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 an 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 therefor.”

26.Another situation may arise that the Appellate Court may in exercise of its powers under rule 27 of Order XLI CPC allow the application of a party for recording additional evidence and refer the matter in terms of Rule 28 of Order XLI CPC for the said purpose to the trial court. The same is reproduced below:- “28. Mode of taking additional evidence. Wherever additional evidence is directed or allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court.”

27.For whatever the purpose and under whichever provision of law the case is remanded by the Appellate Court, except for condition mentioned in rule 1 clause (u) of Order XLIII CPC where appeal is provided, the principle for challenging the said order would be that if the decision of Appellate Court has resulted in partial decree, whether by finally allowing or dismissing portion of claim in the suit and said portion is challenged along with the remand order, then the same shall be treated as

revision against decree and court fee equal to the fee affixed on memorandum of appeal shall be affixed and in cases where no portion of the suit has been finally decided, the order of remand shall be challengeable through revision filed against an order, if finality is attached to the said order and court fee of five hundred Rupees only would have to be affixed.

28.The question now arises that whether appeal would have been available in the instant suit if the decree was passed by the Appellate Court for applicability of provisions of Order XLIII Rule 1 Clause (u) CPC. Reference may be made to Section 102 CPC as amended by Section 16 of the Punjab Act 14 of 2018 (w.e.f. 20.03.2018), which provides that no second appeal shall lie in any suit when the amount or value of subject matter does not exceed Rs.25 million. In the instant case, the valuation of the suit is fixed as Rs.25,00,000/- which is less than Rs.25 million, hence, provisions of Order XLIII Rule 1 Clause (u) CPC would not be attracted and said order can be challenged to a revision.

29.As regards the objection of the office that court fee equal to fee affixed on memorandum of appeal is required to be affixed in the matter for the reason that the Appellate Court has ordered for preparation of a decree sheet, which had been prepared and that the petitioner himself mentioned in the opening sheet that the court fee of Rs.15,000/- was to be affixed, the learned counsel for the petitioner states that in the opening sheet it has inadvertently been mentioned that court fee of Rs.15,000/- was required to be affixed and instead Rs.500/- only was required to be mentioned and he seeks permission to correct the same accordingly. Although the Appellate Court has directed that decree sheet be

prepared but the order of the Appellate Court has not finally decided any portion of the claim raised in the suit before the trial court and its order does not fall within the definition of decree as provided in Section 2(2) CPC and despite passing of the decree at the direction of the Appellate Court, the decision does not become a decree and remains an order/judgment to the extent of remand order only, hence the decree sheet prepared by the orders of the Appellate Court would be treated as a memorandum of costs as required to be prepared under rule 6 of Order XX CPC, which is reproduced below:- “6. Contents of decree. (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2)The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3)The Court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.”

30.For all intents and purposes, as the decision of the Appellate Court is an order and not a decree as the same does not qualify as a decree in terms of Section 2 of Sub Section 2 CPC, hence the intention of the order of the Appellate Court for issuing direction for preparation of decree sheet appears to be that memorandum of costs be prepared in terms of sub-rule (2) of Rule 6 of order XX CPC and the decree sheet prepared as a consequence of the same is to be treated as memorandum of costs only.

31.In view of what has been discussed above, it is observed that the order passed by the learned Appellate Court was only an order and not a decree; hence the revision petition filed by the petitioner is to be treated as a revision petition against an order and not against a decree. Consequently objection raised by the office that court fee Rs.14500/- more be affixed for making up deficiency of court fee for the reason that Court fee of Rs.15000/- was affixed before the learned appellate court on the memorandum of appeal is not sustainable and is over ruled. As court fee of Rs.500/-has already been affixed by the petitioner in terms of Entry No.12 of amended Schedule of the Court Fee Act, 1870 (VII of 1870) providing for Court fee of Rs.500 to be affixed on a revision against order, therefore, it is held that the court fee of Rs.500/- has rightly been affixed.

32.In view of the above, as the office objection has been overruled, Office is directed to number this petition and fix it for hearing on the judicial side.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*Iftikhar/KMSubhani/naveed*

Approved for reporting.