1990 PLP 1699 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.

This appeal through leave of the Court by a defendant/vendee is directed; against part acceptance of respondent's first appeal by the High Court from an order of remand passed by the District Court. As a defence of the respondent/plaintiff's suit for pre-emption the appellant /vendees had pleaded that the transaction in question was an exchange and not a sale. This controversy was tried as a preliminary issue which was decided against the appellants' side. They instead of waiting for the final decision of the suit challenged the decision on the preliminary point through a revision. There was no stay order with regard to the suit proceedings by the Revisional Court. The same continued and during the pendency of the revision, the suit was decreed on the assumption that the transaction was sale. An appeal was filed by the appellants which was allowed by the District Court and the case was remanded to the trial Court for decision afresh on the finding that the issue; whether, the transaction in question was a sale should not have been decided as a preliminary issue and also for the reason that the defendants/appellants had been prejudiced in the trial of this issue. It was, in these circumstances, that the appellate Court remanded the case to the learned trial Judge `on all the issues'. Further direction was also given for an additional issue regarding the market value. The respondent/plaintiff preferred a further appeal before the High Court against the order of remand which was allowed on the assumption that the preliminary decision on the question of the nature of the transaction was in reality a preliminary decree and that after the decision of the suit the appellants had given up the pursuit of the revision petition challenging the said preliminary decree, therefore, the sane, as a decree had become final. And thus no remand order could be passed by the lower appellate Court for further trial of the same issue regarding the nature of the transaction. The remaining part of the appellate judgment was not disturbed. All the same it was set aside. Leave to appeal was granted to examine the validity of the High Court judgment and also to further examine the contention that `the decision of the trial Court on the preliminary issue could, by no means, be regarded as a preliminary decree and therefore, the High Court was not right in treating it as such'. Learned counsel for the appellants has contended that the decision of the trial Court on the so-called preliminary issue has been upheld finally by the impugned judgment despite the fact that the appellants have had no chance of being heard on the merits of the said controversy. The revision filed against the so-called preliminary decree, which in reality was a decision on a so-called preliminary issue, could not have been pursued any further and was rightly allowed to be dismissed as having become infructuous. It was so, as during the pendency of the same, the main suit had been decided against the appellant. This explanation in so far as it goes is not refutable. However, the appellant has a very formidable case on the second question; namely, that the learned Judge in the High Court could not have treated the decision on the so-called preliminary issue as a formal preliminary decree so as to clothe it with character of finality. Even if the relevant question regarding the character of the transaction in this case be treated as a preliminary issue, the decision thereon by no means was a preliminary decree nor the fact that it was challenged in the revision could convert it to a decree. It was otherwise not an appealable order either, under section 105, C.P.C. The appellants were entitled as of right to challenge the same when challenging the final judgment and decree passed against them. Learned counsel for the respondent could not meet this point. That being so this appeal is allowed. The impugned judgment and decree are set aside and that of the first appeal Court are restored. There shall be no order as to costs. A.A./M-1360/S Appeal allowed.