Zahid Zaman Khan Vs Khan Afsar

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SYET) MUHAMMAD ATTIO UE STIATI. I

'l'hr instant rcvision pctition under section 115 (.PC has bccn filed by thc petitioncrs against tho order datcd 22.05.2018 passed by learned I)istrict Judgc, Abbottabad in Civil Appcal No.16/13 <tf 201,6, whereby, the requcst o1' pctitioncrs qua rcmand of thc ca5^c back to thC learned trial Court for frarning of additional issues in suit No.1 66/1 of 2007 arising oltl. ol th(l pleadings of the parties and to providc opportunity to both thc parLics tcr adducc ihcir' cvidcnce, was declincd

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2 The brief and esscntial lacts lcading to institution of instant rcvision pr:tilion :irc ll-ral pctitioners Zahid 'laman l(han ctc iiled suit No.167 /1. of 2007 against thc respondcnts sccl<ing dcclaration and permanent injunction ctc lrl respcct of property comprising in 'l(hasro' Nos.5U6 and 587 measuring 1.3 'Marlas' siLuatcrd ln 'Mauza' Dhamtaur, Tchsil and District Abbottabad and similarly, respondcnt No.1, I(han Afsar, also filed suit No.166/1 ol 2007 for dcclaration and possession etc rcgarding thc same property, referrcd to above. Uoth thc parties appeared before the learned trial Court.

and filcd their written statcmcnts in lhcir rcspcctive suits. The learned trial Court consolidated both the suits and out of thc plcadings of the parties framed as rnany as clcvct't r:onsoliclatcd issues and both the parties woro allowcd to produce thcir evidencc in support of' thcir respective issues. After recording evidcncc, the lcarned trial Court, while hearing argumcnt.s ol lcarncd counsel for thc parties on thc application of prcsent petitioners Zahicl Zamztn t

ctc for appointment of local commission, with thc:

consensus of both the parties also lramcd an additional issue and also produced evidence in rcspect of the said additional issuc. 'l'he lcarned lriai (lourt, after hearing argument.s of lcarncri counscl for the partics, dismissed suit No.167/1 <'tf 2007 filcd by the petitioners, while decrccd the conncctcd suit No.166/1 of 2007 iilcd by rcspondent No.1 vide its judgmcnt and dccroc dated 31.01.2012. The said judgment and dc<;rr:c was irnpugncd by both the parties in their separate appeals before the learned I)istrict Judge, Abbottabad. During pendcncy of said appcals, thc present petitioners Zahid Zaman ct<;

rccluested lilr remanding ol thc casc to thc learned trial Court fbr framing of additional issut:

and providing opportunity to thc partics to producc evidcnce in support of sa id additional lssuc IIowever, thc learned Appellatc Court vidt:

impugned order dated 22.05.2018 declined thir requ()st ol the petitioners. Ilence, thc prcscnt revision pct.ition.

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j Learned counsel appcaring on br:halI of' rcspondent No.1, at the very outset of thc procccdings, has challenged the maintainability oI thc prescnt revision petition on thc ground that thc same is not competent, as thc appeal has not yet becn finally decided by the learnccl Appeal Court, thcrefore, the prescnt revision pcLition under section 115 CPC is no[ competcnt againsl the said order, as the impugncd ordcr of' thc lcarncd Appeal Court does not fall within thc ambit of' '(lase Dccidcd'

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Learned counsel for the petitioners, on thc othcr hand, while controverting thc arguments ollearned counsel for thc rcsponclcnt, arguccl that the present TCVISIOII pr:tit.ion ls m:rintainable because the learncd Appellatc Court has finally decided point of law rcgarding framing of issues as per pleadings of the partir:s and contendcd that thc impugncd order squarcly falls within the ambit of provisions of section 11 5

C.P.C.

5 Arguments of the learnc<l counscl [br Lhc part.ics hcard and the available rccord of tht:

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C;TSC thoroughly gone through with thcir ablc assistance

6.'l'he controversy involvcd in thc mattcr in hand pertains to the refusal of the lcarnccl Appeal Court to remand the casc for lraming of additional issuc and providing opportunity for recording evidence of thc partics in support thereof. I-lowever, the question arises, whether the impugned order has thc attribLlto of t,he 'case decided', which is the 'sine-qua-non' f<tr assunring thc jurisdiction under scction 115 C.P.C. F'or the Sal<c of convcnience, provisions of 115 CI']C are reproduced below:-

"115.Rcvision..-(1 lThc IIigh 0ourt may call for thc rccord of any casc which has bccn dccidcd by any Court suborclinatc to such IIigh Court and in which no appeal lics thcrcto, and il' such subordinatc Cou rt aPPcars Io) tb) ..:............................ cl

t3) t4) ..... .

7.tt is very much manifcst from thc very provision of section 115 CPC that the jurisdiction of thc Court is only provided in a situation wherc thc 'case' has been 'decided' by a subordinaLc

Court to such High Court. In the instant casc, thc lcarncd I)istrict Judge, through the impugnccl order, has declined the verbal request of pctitioners for remanding of casc bacl< to thc lcarned trial Court for framing ol additional issuc in thc case and it has not decided the appcal, which is still pending before it. It is to wortlr mentioning that Codc of Civil Procedure, 190i1 has proviclcd a mcchanism for impugning/challcnging inLcrloculory orders passed by the trial Court and in this rcspccl section 104 and Order Xl,lll Cl']C has specifically mentioned all thosc ordcrs, whir;h arc appealable. However, the orders, which do not iall within thc ambit of thc provisions of section 104 and Order-Xllll CPC could bc impugncd in a revision pctition. So far as thc interlocutory ordcrs of thc Appcal Court are concerned, no sut:h mcchanism and distinction has bcc'n providr:d hy scction 96 rcad with Order XLI of thc C.P.C. 'l-hus, in view ol' above it is hcld that inLcrlocutoly orders of Appeal Court which do not linally dccidr:

thc appeal or a contesting lssue during thc penclcncy ol appeal having the attribute of'a final .l

ordcr, zirc not challcngeable in revisiotr pctitiorr undcr section 115 CPC. In this rcgard, this Court would lil<c to refer to the judgment passed in casc litlt:r1 'Mian Muh mmad Luaman and 5 others v.

I;arida Khanam and another (1994 SCMR 1991) whcrein, it has s^pecifically been obscrvcd as undcr:

"lt is noL denied by Lhe responclcnt..s' leorned counsel that unless it is "o ctrse decided" the lligh Court has no iurisdiclion under section 1 15, C.P.C. to deol with the matl.cr on r:ivil llevisionol sitlc. On l.hr: spr:r:ilit point; where, thc order passed in this case by the trial courL whir:h was impugned beJbre Lhe lliplh Court did constitute u "cuse decided" the learned counsel, although hovinpl remoined Jbr considerable time hesiLant to odmiL thuL iL did not consLiLLtLc "u c(1sc rl,', iclt'rl" trltimtttr'11 Jrtil, ,l !; .::::..!,. Lhc Court Lhut it dirl (onstiLutc "o case tlecidetl."

'l'he same principle hus been reiteroted in the judgmenL reported as Nestle Milkpok Limited v. Classic Needs Pukistan [Pvt.)l,td. And .) others (2006 SCMR 21)."

Moreovcr, in support of abovemcntioned lcgal poin t, rcference may be made to Nawabzoda Malik Habib ullah Kh 0n's case (1969 SCMR e6s), 'Messrs PAK ASIA CNG.2, Filinq Station throullh Ahmad Dawood Sole Proprietor V' SNGP Lin es thro uoh Mana ainq Direct0 r and :l

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pJLets' ('2072 YtR 1247), 'lkt I ulaat M uhammod v. Haii A nwar lon ond3o thers' (2A1'2 YLR 2670), i Baz hamm ond

o er v, umer s Shi a an

others' (PLD 2003 Quetta 128) and 'Abdul AZZA and Vs. Muh tlA mol Kh n

IPLD 2018 Lahorc 491J 'fhus, in view ofabove, thc prcsent rcvision pctition is not maintainable undcr section 1.1 5

C.I',C

tl Ilven othcrwise, thc casc of thc pctitioncrs on merits is also not worth consideration because the record reveals thal on 05.01.2012, lcarned trial Court during thc coursc of arguments on application for appointment of lor;:rl commission and application fur rc examination of DW-3 Arif Khan, with concurrcnr:c of both thc parties had framcd the following acld itional issue:

"What is the market value of the suit property, including improvements, constructions and shops constructed over the

I disputed property for the PurPose

of suit valuation and court fees?"

After fiaming of abovementioned additional issue, plaintiffs were directed to record their aclditional evidence on 09.01.2012, which was accordingly recordcd in shape of AW-1 to AW-ft and they closed their evidence, subsequently, thc rcspondent/defendant recorded his evidencc and also closcd his evidence and thc cases wcrc decidcd by the learned trial Court through a consolidatcd judgment dated 31.01.201 2 Granted, that it is the duty ol'thc Court under Order XIV ol CPC to framc issucs arising out ol thc pleadings of the parties, however, it is also settlcd that the parties at ro undcr an obli ation to go through the issucs so framcd and il thcy notice any shortcoming/ deficicncy, it should be pointed out to thc Court al Lhc very outsct ln'EADA N v Mst. NWAII and others' [2004 SCMR 1524), the Ilon'blc Apcx Court has held that:

"lL is settled principle of low thul. if once the purties dre alive to the contentions rsised and when once evidence is adduced in support of such contentions, the

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froming or non-framing of issues Ioses significance."

'l'hc samc view has been adopted by thc august Apex Court irr casc titletl 'AMIAD__KEAN v- US'll ASIYA KAUSAR and 2 others' (20'tS SCMR 1l Rcliance in this respect is also placcd on

,MIIHAMMA D

YASIN throttoh L Rs and others v

Additional District ludpe and 2 othcrs' (2016 YLR Note 2031. 1'hercfore, the subscqucnt verbal request of the petitioners for framing of additional issuc and rccording of evidence at such a belated stagc bcfore the Appellate Court was not justif)cd and tcnable in view of settled principlcs ol law rcfc rred to above.

I(eeping in view the abovc facts ancl circumstances of present case and discussion madc thercupon, the present revision pctil-ion ts dismissed both on maintainability as well as on m crit.s.

,4n nounced:

Dt.08.10.2018.

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