2022 PLP 547 (CLC)

SHAHID BILAL HASSAN, J.

Precisely, the petitioners instituted a suit for specific performance of agreement to sell dated 04.03.1990 against the respondents, which was duly contested by them. The respondent No.12 also instituted a suit for specific performance of agreement to sell dated 07.02.1990 (Ex.D1), wherein written statements were duly submitted by the defendants in that suit. Both the suits were consolidated and out of divergent pleadings of the parties, the learned trial Court framed consolidated issues on 20.11.1993 and later on additional issues were framed on 05.09.1998 and evidence of the parties, oral as well as documentary, was recorded. The learned trial Court vide consolidated judgment and decree dated 26.02.2000 decreed the suit of the petitioners, whereas the suit of the respondent No.12 was decreed only to the extent of 02-Kanals 13-Marlas. The respondent No.12 being aggrieved preferred two separate appeals: one with regards to his suit and other in respect of suit of the petitioners. The learned appellate Court vide impugned consolidated judgment dated 02.09.2008 accepted the appeals and by setting aside the judgment and decree dated 26.02.2000, remanded the case to the learned trial Court for decision afresh after considering all evidence and was also directed to discuss all issues independently; hence, the instant revision petition.

2. Heard.

3. Before this Court, the order of remand is in question and main suit is not before this Court; therefore, the question whether this Court is competent to uphold the decree passed by the learned trial Court while setting aside the remand order; the answer is in negative. In this regard reliance is placed on Doctor Imran Manzoor and another v. Mst. Nighat Bahar Khanum and 10 others (2015 CLC 1428-Lahore), wherein it has been observed: '

Even through filing of an appeal against the order which was subsequently converted into civil revision, the main suit was not before the Court, rather the remand order was before this Court. The question is that whether this Court was competent to uphold the decree passed by learned trial Court while setting aside the remand order. The answer is certainly in negative. When a lis i.e. the proceedings of original suit were not before the revisional Court and only a remand order passed by the learned first appellate Court was before this court, this Court was having no jurisdiction to restore the decree passed by the learned trial Court and to affirm the same by its own judgment."

4. Rule 23 of Order XLI, Code of Civil Procedure, 1908 provides that:- "Remand of case by Appellate Court - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, an shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." In the instant case, when the impugned judgment is considered and is put in juxtaposition with the judgment and decree passed by the learned trial Court, it appears that the learned appellate Court has rightly pointed out the questions with regards to non-discussion of evidence produced the respondent No.12 with regards to his agreement to sell (Ex.D1.), because the learned trial Court, without discussing the evidence produced in the shape of Ex.P1, Ex.P2, D.W.3, D.W.4 and D.W.5 proceeds to pass the said consolidated judgment and decree and that to believing the said evidence partially as the learned trial Court decreed the suit of the respondent No.12 to the extent of 02, kanals and 13 marlas but could not consider and address the question of prior agreement to sell (Ex.D1). In this scenario, it is observed that the learned appellate Court has rightly appreciated the facts of the case and has reached to a just conclusion by exercising powers provided under Rule 23 of Order XLI, Code of Civil Procedure, 1908. There appears no illegality and irregularity in the impugned judgment warranting interference by this Court in exercise of revisional jurisdiction.

5. For the foregoing reasons, the impugned judgment passed by the learned appellate Court, being well-reasoned, does not call for any interference by this Court in exercise of revisional jurisdiction. Resultantly, the instant civil revision being devoid of any force and substance stands dismissed. No order as to the costs. SA/A-128/L Revision dismissed.