1994 PLP 669 (SCMR)

SAEEDUZZAMAN SIDDIQUI, J.‑The Petitioner has sought leave to appeal against the order of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, dated 28‑6‑1993 whereby Civil Revision Application No.413‑D of 1986 filed by the respondent was allowed and the case was sent back to the first appellate Court for decision according to law. The respondent instituted a suit against the petitioner seeking relief of permanent injunction alleging that he is owner in possession of Property No. 2794‑2795 situated in Gali Gain Mandir, Saddar Bazar, Rawalpindi, which was transferred to him by Settlement Department. It was alleged that the petitioners' predecessor was transferred a portion of the said property bearing No. 2787 to 2790. That the petitioners have started using entrance which is exclusively meant for the premises in possession of the respondent. The following relief was claimed by the respondent in the suit. "It is therefore, prayed that a decree be granted in favour of the plaintiff and against the defendants with costs for permanent injunction restraining the defendants from using any portion of ground floor entrance and rooms of the plaintiff's House No. 2794‑2795 as passage to their adjacent House No. 2787‑2790 and from taking water connection for their house from the side of Mandir Gall Goal Centre and laying down water pipes in the said ground floor of the plaintiff's house and for restraining the defendant from drainage of their house water through the plaintiffs ground floor and for mandatory injunction directing the defendants to close their drain passing through one room of the ground floor of the plaintiff's mid‑three‑storeyed House No. 2794‑2795." The suit was resisted by the petitioners/defendants and after hearing the parties the trial Court decreed the suit. On appeal, the first appellate Court set aside the judgment and decree passed by the trial Court and remanded the case for further trial after framing certain additional issues. The respondent challenged the order of first appellate Court in revision before the High Court which was accepted by the learned Judge in Chambers through the impugned order. The learned Judge in Chambers reached the conclusion that the framing of additional issues in the case was quite unnecessary as the parties had joined on the issues framed in the suit and were fully aware of the real controversy in the case. The learned Judge in Chambers also came to the conclusion that if certain additional evidence was required to be produced by the parties, it was open to them to have applied for production of such evidence before the first appellate Court. On these considerations, the order of remand was set aside and the case was sent back to the first appellate Court with the direction that the appeal may be decided in accordance with the law. In seeking leave to appeal, the learned counsel for the petitioners contended before us that the first appellate Court had ample power to amend the issues already framed in the suit by the trial Court if the real matter in controversy was not put in the issues framed in` the case by the trial Court. It is also contended by the learned counsel that the petitioners are now in possession of substantial evidence which they cannot produce unless issues are amended as directed by the first appellate Court and they are allowed opportunity to lead further evidence. After hearing the learned counsel for the petitioners, we are of the view that no case for interference with the order of learned Judge in Chamber is made out. It is clearly observed by the learned Judge in Chambers in the impugned order that the controversy sought to be raised in the additional issues framed by the first appellate Court is already covered by the issues framed in the suit by the trial Court. It has been further observed by the learned Judge in Chambers that if there was some deficiency in the evidence, the proper course for the parties was to apply for production of additional evidence before the first appellate Court. This later observation by the first appellate Court takes full care of the apprehension expressed by the learned counsel for the petitioner that unless issues are amended as directed by the first appellate Court, he cannot lead further evidence in the case. As observed by the learned Judge in chambers, if the petitioners feel that some more relevant evidence has to be produced in the case, they are free to apply to the appellate Court in terms of the impugned order, for production of additional evidence which request will be considered by the first appellate Court in accordance with the law. No case for interference is made out. The petition is, accordingly, dismissed and leave to appeal is refused. AA./Q‑51/S ??????????????????????????????????????????????????????????????????????????????????????? Leave refused.