2010 PLP 946 (MLD)

PERVAIZ INAYAT MALIK, J.

Briefly stated the facts as those emerge out of this petition are that the respondent Malik Muhammad Munir filed a suit for Specific Performance of the contract against one Pir Bakhsh on the basis of agreement to sell, dated 15-12-1979 which was dismissed vide judgment and decree, dated 13-2-1995 passed by learned Civil Judge, Muzaffargarh, whereagainst an appeal was preferred by the respondent. During the pendency whereof the respondent Malik Munir Ahmad filed an application seeking amendment of the plaint including therein the relief of possession and also filed an application for producing an additional evidence, which were accepted by the learned appellate Court and case was remanded to the learned trial Court with a direction to frame an additional issue to the following effect:-- Whether the possession of the suit-land was forcibly taken by the defendants? OPP Which order was being assailed through his appeal.

2. It is inter alia contended that the learned lower appellate Court committed an illegality by remanding the case through impugned order nor could the additional issue be directed to be framed; that there was sufficient material on the file on the basis whereof the petition could be decided on merits; 'that the impugned order of remand is violative of law laid down by the Hon'ble Supreme Court of Pakistan as well as this Court. In support of his contention places reliance upon 2001 CLC (sic); 1995 CLC 1889 and 1993 CLC

450. Thus prays that this appeal may be allowed and impugned judgment passed by the learned lower appellate Court may be set aside.

3. Conversely, the learned counsel for the respondent vehemently opposes the submissions made at bar by the learned counsel for the appellants and submits that no appeal was competent against the remand order; that by now, it is well-settled law that amendment can be made in the pleadings at any time; that the impugned order is well-reasoned.

4. Arguments heard. Record perused. I find that the learned Lower Appellate Court keeping in view the real controversy between the parties, remanded the case with a direction to the learned Civil Court for deciding the suit afresh, by framing an additional issue and by doing so committed no illegality. The submissions made at bar by the learned counsel for the petitioner are without substance in view of settled proposition of law on the subject, it may be observed here that amendments in the pleadings can be allowed at any stage and appeal being continuation of the suit/trial, learned appellate Court committed no illegality by allowing applications filed by respondent. Likewise by framing additional issue the learned lower appellate Court acted absolutely in accordance with law, which finding are un-exceptionable calling for no interference. The case law relied upon by learned counsel for the petitioner in view of peculiar facts and circumstance of the case has no application. The petition therefore, being devoid of any merits, is hereby dismissed. No order as to costs. M.H./K-63/L Appeal dismissed.