JAMSHAID AKHTAR Versus ABDUL HAMID KHAN
MUHAMMAD SHAN GUL, J.--- Through this judgment, the titled Civil Revision is sought to be decided.
2. Brief facts of the case are that on 20.05.2014 the petitioner Jamshaid Akhtar instituted a suit for declaration against the respondent Abdul Hamid Khan stating that he was owner in possession of property measuring 18 kanals 17 marlas situated at Patti Dargahi Tehsil Chowbara and that he had never sold that property to the respondent nor received any sale consideration and that sale deed No. 287 dated 26.11.2013 was without any consideration and based on fraud and forgery. It may be important to mention here that no revenue official was cited as a respondent and this may have a crucial bearing on the eventual decision in this civil revision.
3. The respondent contested the suit and maintained that the petitioner had himself transferred the suit property to him after obtaining sale consideration of Rs. 8,00,000/- and had executed the registered sale deed No. 287 dated 26.11.2013.
4. Out of the divergent pleadings of the parties, the following issues were framed:-
ISSUES
1. Whether the sale deed No. 287 dated 26.11.2013 is against law and facts, based on fraud without consideration and ineffective upon the rights of plaintiff as well as mutation No. 2057 dated 16.01.2014 is liable to be set aside? OPP
2. Whether the plaintiff has no cause of action to file this suit? OPD.
3. Whether the defendant is entitled to get special costs under section 35-A, C.P.C.? OPD.
4. Relief.
5. After hearing the parties, learned trial court decreed the suit vide judgment and decree dated 02.11.2017. The trial court specifically held while deciding issue No.1 that it was the responsibility of the respondent to produce the original sale deed but he had not produced it and that it was his responsibility being beneficiary to prove the sale transaction as also execution of document i.e. the sale deed but he had failed on both counts.
6. The respondent before this Court challenged the decision of the trial court in appeal and also filed two applications before the appellate court, one pertaining to production of additional evidence under Order XLI, Rule 27, C.P.C., amply explaining the reasons for not producing the original sale deed at the time of filing of the suit and explaining why the production of sale deed was necessary for an effective resolution of the matter. It was also highlighted in this application that the production and perusal of the sale deed was indeed necessary for an effective adjudication of the matter. In the other application filed by the respondent under Order XIV, Rule 5, C.P.C., he prayed that additional and proper issues be framed because according to him, the trial court had not properly framed issues or for that matter determined such issues. This application was, likewise, allowed as well by the appellate court. Vide decision dated 28.04.2021 the appellate court allowed the appeal filed by the respondent before this Court and remanded the matter to the trial court for a decision afresh after taking into consideration the original sale-deed No. 287 dated 26.11.2013 and after framing proper issues.
7. The learned appellate court ruled that since the respondent before this Court had raised a specific objection in his written statement about the suit not being properly valued for the purpose of court fee and jurisdiction, it was incumbent on the trial court to have framed an issue on this point and record its findings. The appellate court relied on the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Bashir v. Muhammad Hussain and 16 others (2009 SCMR 1256) to state that where proper issues have not been framed by the learned trial court, the appellate court can remand the case for framing of proper issues and a decision afresh.
8. Moreover, the appellate court noted that revenue officials have not been impleaded by the petitioner in the suit for declaration and hence the respondent had moved an application before the trial court to summon Tehsildar/Sub-Registrar along with the original record of sale-deed No. 287 dated 26.11.2013. The said application was accepted vide order dated 28.07.2017 but later on the trial court instead of summoning the Tehsildar/Sub-Registrar who was a witness of the said sale deed, recorded the statement of a Registry Moharrir as PW.4 and continued with the trial. This, according to the appellate court, caused great prejudice to the case of the respondent and amounted to miscarriage of justice.
9. The appellate court also noted that the attested copies of the sale deed No. 287 dated 26.11.2013 were tendered in evidence and which sale deed contained the purported thumb impression and signatures of the petitioner Jamshaid Akhtar but during cross-examination, the petitioner refused to get his thumb impression compared with that affixed on the sale deed. In view of the fact that the thrust of the civil suit was aimed at having the sale deed declared as fraudulent and based on forgery, the comparison of thumb impression or disputed signatures was indeed necessary and inevitable and it is therefore, that the appellate court noted that the application of the respondent for additional evidence had been allowed so that the original sale deed could be brought on record and the thumb impression and signatures thereon could be compared with the thumb impression and signatures of the petitioner. However, the most glaring reason for remanding the matter prevailing with the learned appellate court is the fact that evidence of DW.1, DW.2 and DW.3 was not recorded by the Judge himself nor any memorandum in that context was written or signed by the Judge himself and therefore, Order XVIII, C.P.C. was blatantly violated.
10. In view of these glaring errors and illegalities, the appellate court set aside the impugned judgment and decree dated 02.11.2017 and remanded the matter back to the trial court for a decision afresh after framing proper issues and after allowing the respondent to produce the original sale deed in evidence and after getting a comparison of the thumb impression and signatures appearing on the sale deed with those of the petitioner Jamshaid Akhtar.
11. The petitioner, aggrieved of the judgment passed by the appellate court has approached this Court and invoked its revisional jurisdiction.
12. Learned counsel for the petitioner contends that an order of remand is only necessary where major issues have been left unattended and where the actual dispute between the parties has not been understood by the court and which proceeds to decide it erroneously. He has relied on Ashiq Ali and others v. Mst. Zameer Fatima and others (PLD 2004 SC 10) for the said purpose. He has also objected to the allowance of an application for additional evidence because in his view such an application ought to be allowed only where the court itself considers it necessary and not in a routine manner. Likewise, learned counsel for the petitioner has expressed serious concerns about the decision of the appellate court in allowing applications filed by the petitioner at a belated stage and submits that even in the presence of the original sale deed that was allowed to be brought on record by the appellate court, there is no way that the respondent will ever able to prove the sale deed in question because of the absence of marginal witnesses.
13. On the other hand, learned counsel for the respondent has relied on the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Allah Ditta and others v. Member (Judicial), Board of Revenue and others (2018 SCMR 1177) to canvass that a remand order is not a final order and does not finally determine the claim or rights of the parties and that against any such subsequent decision or judgment an alternate remedy is always available to the parties. Adds that while the remand order passed by the appellate court is not only reasoned but rational and unequivocal in alluding to at least five reasons on the basis of which the said order has been passed and, therefore, is unexceptionable. Submits that a remand order can only be interfered with if it is perverse or sans jurisdiction which is not the case here. States that the petitioner has also not appended the order sheet of both courts below and that on this score alone, this revision should be dismissed. Rounds of by submitting that serious prejudice has been caused to the case of the respondent by the act of the trial court in neither recording the evidence of DW.1, DW.2 and DW.3 itself nor providing a memorandum to this effect either and has relied on the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Hassan Nawaz v. Atta Muhammad (deceased) through his LRs. (2021 SCMR 857).
14. I have heard the learned counsel for the parties and have perused the available record.
15. It may straightaway be observed that the Hon'ble Supreme Court of Pakistan on numerous occasions has held that an order remanding a matter can only be interfered with if the same is perfunctory, perverse, without jurisdiction or extremely arbitrary. In the present matter, the order of remand by an Addl. District Judge is neither perverse nor fanciful nor without jurisdiction rather the same is quite well reasoned and based on acknowledged, trite and justiciable reasons. The learned appellate court has alluded to atleast four reasons, recognized in law, for remanding the matter to the trial court so as to be decided afresh. In the present matter, learned appellate court has done nothing more than merely remand and send it back to the trial court. Against such an order the facility of a civil revision is only available when the order directing remand is manifestly perverse or evidently illegal.
16. The Hon'ble Supreme Court of Pakistan in "Noor Ahmed through L.Rs. and others v. Province of Punjab and others" (2016 SCMR 2174), and "Allah Ditta and others v. Member (Judicial), Board of Revenue and others" (2018 SCMR 1177) has clearly opined that a civil revision, against an order of an appellate court whereby the appellate court remands the matter to a trial court, is not maintainable and for such a hurdle to be crossed the order of the appellate court sanctioning remand has to be manifestly perverse or absolutely illegal.
17. In "Noor Ahmed through L.Rs. and others v. Province of Punjab and others" (2016 SCMR 2174), it has been held as follows:-
"In the revision before the learned High Court primarily the order of remand dated 25.2.2010 was challenged which could not be assailed for the reason that it was not amenable to revisional jurisdiction."
18. In "Allah Ditta and others v. Member (Judicial), Board of Revenue and others" (2018 SCMR 1177), it has been held as follows:-
"Order of remand is not a final order and simply sends the matter for re-examination for the second time. It does not finally determine the claim or the rights of the parties. The forum to which the case is sent for fresh decision is free to re-examine the case and pass a fresh judgment. Against any such subsequent decision, alternate remedy is available."
19. The reasons prevailing with the appellate court in remanding the matter are as follows:- a) the suit was not properly valued and despite a specific objection raised by the defendant in his written statement in this respect, no issue was framed and no finding was given; b) since revenue officials have not been impleaded by the petitioner in the suit and which on the face of it is derogatory and offensive to the law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs. and others (2020 SCMR 483), Ghulam Muhammad v. Zohran Bibi and others (2021 SCMR 19) and Sakhi Jan and others v. Shah Nawaz and others (2020 SCMR 832), an application was filed by the respondent to summon the Sub-Registrar along with original record of the sale deed in issue. Even after allowing such an application the trial court proceeded to ignore its own order and instead of insisting on the presence of the Sub-Registrar w ho is a witness to the sale deed, it proceeded to record the statement of a Registry Moharir without demur losing sight of its own earlier order countenancing an application for summoning the Sub-Registrar.
This part of the order also takes care of the objection raised by the learned counsel for the petitioner before this Court about the lack of presence of any witness of the sale deed in question. c) the learned appellate court laid great emphasis on allowing the application filed by the petitioner under Order XLI, Rule 27, C.P.C. because in its opinion the production and presentation of the original sale deed was essential so as to decide the pivotal point in the matter about whether the thumb impression and signature of the petitioner on the sale deed in question were forged or fabricated and that therefore, it was necessary for the trial court to compare the thumb impression and signature appearing on the sale deed with those of the petitioner and which is why the application under Order XLI, Rule 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. d) The greatest flaw noted by the appellate court pertains to the fact that evidence of DW.1, DW.2 and DW.3 was not recorded by the trial court itself nor any memorandum to that effect was signed and which in turn violated the provisions of Order XVIII, C.P.C. Likewise, the dates of their deposition could not be reconciled with and did not sit well with the interim order sheet.
This also brings into focus the crucial mistake of the petitioner in not appending the interim order sheets of the courts below with this revision petition.
20. After having noted and considered the reasons prevailing with the appellate court what is obvious is that the order of remand in question, for from being perverse or fanciful is rooted in reasons. In fact, the appellate court has very soundly recorded reasons for remanding the matter as also for allowing two applications, one under Order XIV, Rule 5, C.P.C. for framing of proper issues and the other under Order XLI, Rule 27, C.P.C. for production of additional evidence and which additional evidence according to the appellate court is indeed essential and necessary for a just decision in the case.
21. It has been held by the Hon'ble Supreme Court of Pakistan that an order of remand, as a general rule would not be objectionable if an important and vital point in the controversy has been left unattended by the trial court. Reliance is placed on the case of Hussain Shah and 31 others v. Ghulam Hassan and 92 others (2004 SCMR 1844). Instead of one important and vital point, atleast three important and vital points have been left unattended by the trial court in the present matter and therefore, the order of remand has been passed in accordance with law.
22. Besides the non- framing of the issue of valuation of suit which is most glaring and conspicuous in view of the pleadings of the parties, another very important reason why the remand order is sound and fair and not susceptible to interference is that the petitioner before this Court did not array as respondent any revenue officials and in the absence of whom the summoning of such revenue officials became essential. The trial court instead of recording the evidence of the relevant revenue officials proceeded to record the testimony of an irrelevant revenue official who has no concern with the sale deed in question. This gains importance when considered alongside the fact that the petitioner during his cross-examination before the trial court refused to get his thumb impression compared with that affixed on the sale deed even when he had himself claimed in the suit filed by him that the sale deed was a result of fraud and forgery. Therefore, the comparison of thumb impression and signature of the petitioner with those available on the original sale deed is of the essence and which is why the application under Order XLI, Rule 27, C.P.C. was allowed by the learned appellate court. The Sub-Registrar who was ordered to be present in the court but who did not attend the proceedings had attested the sale deed in question and therefore, his presence was imperative. The trial court's reliance on the testimony of a Registry Moharir in his stead has also caused great prejudice to the respondent and quite rightly allowed the appellate court to remand the matter so as for the trial court to ensure comparison of thumb impression and signatures in this respect.
23. The aspect of the judgment of trial court and that of the appellate court being at variance can be attended to by relying on what the Hon'ble Supreme Court has held in "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398) at paragraph No.7 has held as follows:-
"7. It is well-settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment are arbitrary, fanciful and perverse."
24. Likewise, the Hon'ble Supreme Court of Pakistan in "Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others" (2007 SCMR 969) has held at paragraph No.10 as follows:-
"10. It is well-settled proposition of law that in the event of a conflict between the judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analyzing the evidence of the parties. The rule is, however, neither absolute nor inflexible. In case the judgment of the Appellate Court is not well-founded and the reasons assigned for taking a different view from that of the trial Court appear to be not warranted by record, it cannot be preferred. In the present case, oral as well as documentary evidence has been analyzed carefully, correctly and consciously by the Appellate Court, which has been rightly affirmed and not interfered with by the High Court, therefore, the judgments of both the above forums are not open to any exception."
25. As has been discussed in the preceding narrative, the judgment of the appellate court is in consonance with law while that of the trial court is erroneous and suffers from material irregularities since it does not proceed on the basis of proper issues and has been passed while disregarding the fact that the presence of revenue officials especially the Sub-Registrar who had attested the sale deed in question was imperative and necessary and gained impetus in the absence of such officials having been arrayed as respondents by the petitioner in his suit before the trial court.
26. Since revenue officials were not impleaded as respondents in the matter the suit filed by the petitioner ought to have been dismissed rather than entertained or the trial court should have itself summoned such revenue officials and in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs. and others (2020 SCMR 483) and Sakhi Jan and others v. Shah Nawaz and others (2020 SCMR 832), this aspect is crucial as well. However, most of all it was the bounden duty of the trial court to frame proper issues in view of the laid down by the Hon'ble Supreme Court in the case of Mst. Sughran Bibi and others v. Mst. Jameela Begum and others (2001 SCMR 772).
27. What also needs to be addressed is the point raised by the learned counsel for the petitioner about the application for production of additional evidence being allowed too late in the day and without demur. It may observe that delay per se is no ground to disallow the parties to lead additional evidence and reliance with advantage is placed on the cases of Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58) and Muhammad Sarwar and others v. Rehmat Ali and others (2005 CLC 1719). It may also be added here that for Order XLI, Rule 27, C.P.C. to be brought into operation, the documents sought to be produced by way of additional evidence should be absolutely necessary for the court to pass a judgment. The order passed by the appellate court allowing the application under Order XLI, Rule 27, C.P.C. is very well reasoned and carefully notes that in the absence of such additional evidence a decision of the suit cannot be effectively reached and hence it is necessary for such sale deed to be brought on the record for the court to pronounce a judgment. It may be interesting to note that the petitioner while filing this civil revision did not bother to append either the copies of the applications under Order XIV, Rule 5 and Order XLI, Rule 27, C.P.C. with this civil revision nor the orders passed on such applications. While this civil revision could have been dismissed only on this score, this Court exercised restraint and ordered for such copies to be brought on the record on its own motion through the Addl. Registrar of this Court.
28. In terms of the law laid down in the case of Kamal Shah through Legal Heirs v. Namdar Khan through Legal Heirs and others (1999 MLD 3082), the appellate court has to record reasons for allowing additional evidence to be produced and these reasons must lead to an inference of necessity. In the present matter, the presence of the sale deed in question on the case file is indeed essential especially when the respondent had very fairly acknowledged before the appellate court that he had misplaced the sale deed in question at the time of filing his written statement in the matter.
29. Insofar as the decision of the appellate court with reference to the violation of Order XVIII CPC is concerned, suffice it is to refer to the law laid down in the cases of Muhammad Yousaf v. Mehmood Ahmad (2019 YLR 1404) at paragraph 4 and Atta Muhammad (deceased) through L.Rs. and another v. Hassan Nawaz (2019 CLC 1392) at paragraph 2.
30. Seen from all angles, this revision petition calls for no interference and is hereby dismissed with no order as to costs.
ZH/J-5/L Revision petition dismissed.