MUHAMMAD NAWAZ (deceased) Versus GHULAM SHABBIR (deceased)

AAMER FAROOQ, J.--- The instant lis has a chequered history inasmuch as the matter has been remanded time and again for decision afresh to the trial court as well as appellate court without its final culmination. The petitioners filed a suit for possession through pre-emption against respondents with respect to the land described in detail in the plaint. After recording evidence of the parties, the petitioners were directed to deposit decretal amount after deducting Zar-e-Panjum, failing which, the suit shall be deemed to be dismissed vide judgment and decree dated 10.02.1982. The respondents, feeling aggrieved, filed an appeal which was allowed vide judgment and decree dated 13.12.1982 and the suit of the petitioners was dismissed. The petitioners preferred second appeal before learned Lahore High Court which was accepted on 25.01.2000 by setting aside judgment and decree dated 13.12.1982 and consequently appeal was held to be pending before the appellate court. Learned Additional District Judge, Bhakkar, seized of the matter after remand, accepted the appeal and remanded the matter to the trial court for decision afresh on two issues. The petitioners preferred appeal before learned Lahore High Court which was allowed and the case was remanded to the appellate court for dissatisfied, filed a petition before this Court (C.P.L.A. No. 2817-L-2003), which was dismissed on 28.02.2006. The appellate court, hearing the matter, dismissed the appeal vide judgment and decree dated 31.10.2011, which resulted in filing of Regular Second Appeal before learned Lahore High Court (RSA No.208-2011), which was allowed vide the impugned judgment dated 17.10.2023, whereby matter was remanded to the appellate court for decision afresh in light of observations made by the learned High Court.

2.Learned counsel for the petitioners inter alia contended that lis is pending for the last many years without its final conclusion and there was no occasion for the Regular Second Appeal to be remanded to the appellate court inasmuch as entire record was available before learned High Court. Learned counsel for the petitioners was confronted that certain observations have been made by the second appeal court as to fact finding inquiry, to which, he had no plausible response.

3.Heard.

4.The background, leading to filing of instant petition before us, is mentioned hereinabove.

5.Before adverting to the merit of the arguments addressed by learned counsel for the petitioners, it is only pertinent to discuss the relevant law. The instant petition has been filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and the parameters for entertaining such a petition are that there has to be substantial question(s) of law of public importance for this Court to determine. Over a period of time, this Court deliberated on the matter and much judicial ink has been spent on laying down the parameters for filing a petition for leave to appeal. In this regard, it is now entrenched law that the bar, which a petition has to cross in an application for leave to appeal under Article 185(3) of the Constitution, is that there is a prima facie question of law; there are inconsistencies in evidence or where not granting leave to appeal may amount to miscarriage of justice. 1

6.The impugned judgment before us is in the nature of a remand order, whereby learned High Court remanded the lis to the first appellate court for decision afresh. It is an accepted position that remand order is not a final determination and all it does is that it remits the issue before the first forum or the appellate forum for redetermination of the rights of the parties. Generally, this Court is reluctant to interfere in the remand order on the basis that no issue has been decided finally and the matter is to be re-examined by the forum, to which, it has been remanded. The only exception(s) which can be taken to the general rule is that where the remand order is perverse or there is some jurisdictional error or the matter could have been decided on the basis of available record, even perhaps no decision is made out for remitting the matter to any forum and the court remanding the issue should decide the same itself. 2

7.The order impugned before us, in the instant petition, does not fulfill the criteria evolved over a period of time for entertaining a petition for leave to appeal generally or against a remand order specifically. In this regard, examination of the impugned judgment shows that it was observed by the learned High Court that the first appellate court has held that thumb impressions were superimposed by the respondents, however, no inquiry or basis for the referred finding, was handed down by the appellate court and without evidence/inquiry, no final conclusion can be drawn in this regard. It was also observed by the learned High Court that Exh.D1 to D3 have been disbelieved/discredited by the first appellate court due to superimposition of the thumb impression which again without factual inquiry could not have been concluded. The argument by learned counsel for the petitioners that the matter should have been decided by the second appeal court is not justifiable inasmuch as observation of the learned High Court is absolutely correct, as there has to be some basis for finding recorded and if there is no inquiry then the conclusion ought not have been arrived about the document(s) in question. The judgment impugned before us does not qualify to fall within the parameters of interpretation rendered to Article 185(3) of the Constitution, as the learned High Court has not exceeded its jurisdiction and judgment impugned is not patently illegal nor there is any misreading or non-reading of evidence leading to miscarriage of justice to any party. The impugned judgment clearly shows that it required further probe which could not have been done by the learned High Court in the second appeal. The case of the petitioner also does not call for interference, as the matter does not fall within the ambit of principles for interference against a remand order.

8.For what has been stated above, instant petition is without merit and is accordingly dismissed. Leave is refused.

UN/M-100/SC Petition dismissed.

1 Muhammad Shamim Ali v. Mst. Asma Begum and others" (2024 SCMR 1642), "Abdul Baqi v. Haji Khan Muhammad (PLD 2022 SC 546), "Muhammad Ain-ul-Haq v. Abdul Ali and another" (2024 SCMR 1767), "Ghulam Rasool v. The State" (PLD 2022 SC 806), "Abdul Rehman v. Raboo" (2010 SCMR 1344) and "Ghulam Rasool v. Government of Balochistan" (PLD 2002 SC 381).

2 "Allah Ditta v. Member (Judicial) Board of Revenue" (2018 SCMR 1177), "Kaniz Fatima v. Meyiber (Revenue) Board, Board of Revenue" (PLD 1973 Lahore 493), "Ramzan v. Rehabilitation Commissioner (Sargodha)" (PLD 1963 Lahore 461) and Ghulam Rasool v. Khudai Dad" (PLD 1986 Quetta 130).