RABIA BIBI and otherss vs MANZOOR HUSSAIN and others
This matter arises from a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, impugning the judgment of the Lahore High Court which dismissed in limine the petitioners' revision petition against the District Judge's order allowing an application under Order XLI, Rule 27 of the Code of Civil Procedure 1908. The core legal question concerned the propriety of the High Court's directions remanding the case and ordering the framing of issues regarding minority. Upon hearing counsel for the parties, who agreed that the appeal remained pending before the District Judge under a misconception by the High Court, the Supreme Court converted the petition into an appeal, set aside the offending paragraph of the High Court's judgment, and remanded the matter to the District Judge for decision after hearing the parties. The principle laid down is that an appellate court's judgment misconstruing the pendency of an appeal and prematurely issuing remand directions without deciding the appeal will be set aside by consent.
- Can the Supreme Court convert a petition for leave to appeal into an appeal by consent of the parties?
- Whether the High Court can direct remand of a case and framing of issues while proceeding under a misconception as to the pendency of an appeal?
- What is the effect of a concession by counsel regarding the setting aside of a portion of an impugned judgment?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
- Order XLI Rule 27, Code of Civil Procedure 1908
' CH. MUHAMMAD ARIF, J.---This is a petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 impugning the judgment, dated 19th January, 1998 of a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur whereby the Revision Petition brought by the petitioners against the order, dated 23rd of July, 1997 passed by the learned District Judge, Rahimyar. Khan allowing the application of the respondent under Order XLI, Rule 27, C.P.C.
Was, dismissed in limine.
2. Mr. A.R. Shaukat, learned Senior Counsel appearing in support of this petition, has confined his arguments to the fact that the learned Judge in Chambers was not quite right in directing the remand of the case to the trial Judge and further to frame issues according to pleadings of the parties. On the questions among others of minority of the plaintiff. His plea was that the appeal was still pending before the learned District Judge, Rahimyar Khan and the assumption that the same had been decided by the Appellate Forum was under some misconception.
3. Ch. Abdul Wahid, learned counsel appearing for respondent No.1/caveat or was present in Court and candidly stated that the arguments being pressed into service by the learned counsel for the petitioners is in order. He further stated that paragraph 5 of the impugned judgment, dated 19-1- 1998 may be excised from the record.
4. In view of the statement of the learned counsel for the parties, we are inclined to convert this petition into appeal, allow the same and set aside the impugned para. 5 of the judgment, dated 19-1-1998. The result is that the matter will go back to the learned District Judge, Rahimyar Khan for decision, after hearing the parties. No costs.
Cited by 1 case
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