FAHIM & COMPANY Versus NATIONAL BANK OF PAKISTAN

1. MUHAMMAD GUL.J. This petition is from the judgment of a Letters Patent Bench of the High Court at Karachi dated 19‑8‑1975 dismissing act application, by the petitioner herein purporting to be under section 151, C. P. C. treating it, as 'frivolous', in the circumstances set out below.

2. A suit instituted on 5‑5‑1958 on the original side of the High Court for the recovery of Rs. 33,600 by the respondent 5 herein against the petitioners was decreed on 25‑3‑1964 aced a letters Patent Appeal was filed by the petitioners on 16‑5‑1964. On 2g‑3‑1974 the Letters Patent Bitch by consent of the parties allowed amendment in their pleadings. The amended pleadings were filed on 30‑4‑1974 and tire Letters Patent Bench framed two additional issues and adjourned the case to 15‑5‑1974 for the evidence of the parties on the additional issues so framed. However, the case could not be heard on the aforesaid date.

3. In April 1975 that is to say‑ after lapse of almost one dear since the additional issues were framed, and the parties were directed to produce evidence on the additional issues before the Letters Patent Bench, the petitioners applied to the Letters Patent Bench to remit the case to the trial Judge for recording the evidence on additional issues.

4. By means of the impugned order the prayer was refused firstly because of the long delay since the suit was initially filed in the High Court and the remand of the would have further delayed the ultimate decision in the case, and secondly, no appeal having been filed by the petitioners against the order dated 30-4-1974 requiring the parties to produce evidence of the additional issues before the Letters Patent Bench, it had attained finality.

5. Mr. Iqbal Kazi, petitioners' learned counsel submitted that the refusal by the Letters Patent Bench to remit the case to the learned Single Judge for recording the additional evidence was mainly influenced by what has been described as practice of the Court which in the submission of the learned Counsel had not the sanction of law having regard to the judgment of this Court in Karamat Ali and others v. Muhammad Younis Haji and others (P L D 1963 S C 191). This judgment has been noticed by the learned Judges in the impugned order but was distinguished, if we tray say so, with respect, rightly on facts. This Court had in the precedent case allowed the amendment of the plaint and had remitted the case to the trial Court for additional evidence. The judgment cannot be read as laying down the proposition canvassed by the petitioners, learned counsel namely that once ail appellate Court decides to frame conditional issues, it is bound to remand the case to the trial Court and bass power to record itself the evidence, if any, on the additional issues. Any such plea is plainly inconsistent with the provision of section 107(f)(d) C.P.C. which expressly empowers the appellate Court "to take additional evidence or to require such evidence to be taken". "Therefore, it is open to site appellate Court either to record the additional evidence itself or to remit the case to tile trial Court. In the instant case there were weighty reasons rich influenced the letters Patent Bench to record evidence itself instead of remitting the case to the trial court.

6. In the above circumstances no valid exception can be taken against the order of the Division Bench.

7. The petition is accordingly dismissed.

8. Petition dismissed.