JAMSHAID AKHTAR vs ABDUL HAMID KHAN O — 2023 YLRN 23 LAHORE-HIGH-COURT-LAHORE

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JAMSHAID AKHTAR VS ABDUL HAMID KHAN O. XIV, R. 5, O. XVI, R. 1 & O.XLI, R. 27---Suit for declaration filed by petitioner claiming that he was owner in possession of the suit property; that he had neither sold the same property to respondent nor received any sale consideration; and that sale deed was without consideration and based on fraud/forgery---Respondent contested the suit on ground that petitioner had transferred the suit property to him after obtaining consideration and executed registered sale deed---Trial Court decreed the suit---Respondent filed appeal and submitted two applications before the appellate Court: firstly, for production of additional evidence; and secondly, for framing of additional/proper issues---Appellate Court allowed the appeal and remanded the matter to the Trial Court---Petitioner contended that an order of remand was only necessary where major issues had been left unattended and where the actual dispute between the parties had not been understood by the court and court proceeded to decide the matter erroneously; that an application for additional evidence ought to be allowed only where the court itself considered it necessary and not in a routine manner---Validity---Order of remand by appellate Court was neither perverse nor fanciful nor without jurisdiction, rather, the same was quite well reasoned and based on acknowledged, trite and justiciable reasons---Reasons prevailing with the appellate court in remanding the matter were that: (a) suit was not properly valued and despite a specific objection raised by the defendant in his written statement, no issue was framed and no finding was given; (b) since Sub-Registrar had not been impleaded by the petitioner in the suit, so an application was filed by the respondent to summon him along with original record of the sale deed in issue; and even after allowing such an application the Trial Court instead of insisting on the presence of the Sub-Registrar who was a witness to the sale deed, it proceeded to record the statement of a Registry Moharir; (c) it was necessary for the Trial Court to compare the thumb impression/signature appearing on the sale deed with those of the petitioner and which is why the application under O. XLI, R. 27, C.P.C. was allowed since the dispute in issue could not be resolved in the absence of the original sale deed being placed on record and (d) the greatest flaw noted by the appellate Court pertained to the fact that evidence of three defendant witnesses was not recorded by the Trial Court itself nor any memorandum to that effect was signed and which in turn violated the provisions of O. XVIII of C.P.C.---Three important/vital points had been left unattended by the Trial Court, so the order of remand had been passed in accordance with law---Petitioner during his cross-examination refused to get his thumb impression compared with that affixed on the sale deed even when he had himself claimed in his suit that the sale deed was a result of fraud/forgery---Trial Court's reliance on the testimony of a Registry Moharir had also caused great prejudice to the respondent---Revenue officials were not impleaded as respondents, the petitioner's suit ought to have been dismissed on that score alone, and the Trial Court should have itself summoned such revenue officials---Present petition could be dismissed on the score alone that petitioner while filing revision petition did not append either the copies of the applications under O. XIV, R. 5, C.P.C. & O. XLI, R. 27, C.P.C., nor the orders passed on such applications---Revision petition was dismissed accordingly.

JAMSHAID AKHTAR vs ABDUL HAMID KHAN O — 2023 YLRN 23 LAHORE-HIGH-COURT-LAHORE

Case information

Judgment text as reported