P L D 2026 Lahore 75

 P L D 2026 Lahore 75

Before Sultan Tanvir Ahmad, J

SHAHID HUSSAIN---Appellant

Versus

ABDUL JABBAR TASSADUQ---Respondent

R.F.A. No. 92515 of 2017, decided on 22nd October, 2024.

(a) Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 23 & 25---Remand of case by the Appellate Court---Trial

Court, responsibility of---Remand as a whole or only on specific

point(s)---Scope---Trial Court decreed the suit for recovery on the basis

of promissory note yet on appeal High/Appellate Court remanded the

case, however, on post-remand proceedings the suit was dismissed on

failure of the plaintiff was produce evidence---Argument of the

appellant/plaintiff was that Trial Court should have

discussed/considered the evidence adduced by the parties prior to the

order of remand---Question whether the Trial Court fell to error while

not discussing or considering the evidence adduced by the parties

prior to the order of remand?---Held, that on remand the Court trying

the suit has to regulate the proceedings or proceed with the case in

terms of order of remand passed by the higher Court---Attempt to

sidetrack issue or decision in a manner, not directed by Higher Court,

can result into defiance of remand order---In the present case, the

relevant part of order of remand passed in appeal by the

High/Appellate Court reflected that the Trial Court was ordered to try

the suit after placing onus of proving of execution and signing of the

promissory note by the respondent and also to refer the matter to

verify the signatures/thumb impressions on the promissory note; said

part of the order also revealed that post remand proceedings were

directed to be completed within stipulated time---It was not the case

that the Trial Court was directed to merely frame the issue or issues

and then return the findings to High Court---There was no direction in

the order of remand to return the matter after recording the evidence-

--The case visibly was not covered under O. XLI, R. 25, C.P.C.---

High/Appellate Court remanded the matter as a whole which fell

within the scope of O. XLI, R. 23, C.P.C.---Perusal of O. XLI, R. 23, C.P.C.,

does not reflect if the legislature has envisaged to discard the pre-

remand evidence altogether; which says the evidence recorded during

the trial shall be the evidence after remand, which is subject to all just

exceptions---The case has to be re-admitted by the Trial Court on the

number allocated to it originally in the register---The suit cannot be

treated as one freshly instituted on the date of the remand order Otherwise serious questions as to limitation would arise---In fact, if

any evidence was recorded before its earlier disposal, it would be

evidence in the remanded suit---Thus, stance of the appellant/plaintiff

(who sought to challenge the vires of a judgment on the point that the

same was based on evidence recorded prior to remand order) was

repelled as High/Appellate Court while deciding earlier appeal never

intended that pre-remand evidence should be discarded in totality

rather order was passed to place the onus on plaintiff and with the

direction to take assistance of expert---Upon receipt of the same the

Trial Court, which received the file, correctly perceived the order of

remand when after framing the issues, by placing the burden on

appellant as ordered by this/Appellate Court, the parties were directed

to get recorded the additional evidence---Thus, the Trial Court while

passing the final judgment hadrightly not considered the pre-remand

evidence---Appeal, filed by plaintiff, was dismissed with costs.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Masood Rahim and 7

others v. Abdul Majeed and 9 others 2009 MLD 106; United Bank of

India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. and others AIR 2000 SC 2957

and Noor and others v. Mst. Sattan through Legal Representatives and

others PLD 2013 Lah. 30 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XVII, R. 3 & O. XLI---Remand of the case by the Appellate Court---

Trial Court, responsibility of---Closing the evidence---Scope---Trial

Court decreed the suit for recovery on the basis of promissory note yet

on appeal High/Appellate Court remanded the case, however, on post-

remand proceedings the suit was dismissed on failure of the plaintiff

to produce evidence---Argument of the appellant/plaintiff was that

even in case of failure of party to comply with order to produce

evidence, the Court can ask the failing party to record its statement

and then to proceed with the matter---Validity---Record (remanded

order, order sheet, impugned judgment) reflected that while closing

right to produce evidence or invoking penal provision of O. XVII, R. 3,

C.P.C., no violation of settled law had taken place as the appellant/

plaintiff was directed to record his statement but he remained

reluctant and attempted to seek an adjournment---In pursuance to the

order of remand expert evidence was sought which went against the

interest of the plaintiff---It looked that after knowing the same the

plaintiff started adopting delaying tactics---The scope of remand was to

place the burden on the appellant (plaintiff) to prove the execution of

the promissory note and soliciting the expert evidence---Entire pre-

remand evidence as well as the post remand record reflected that the

appellant had failed to discharge the burden---The remand order was

passed giving six months time to complete the process of post remand proceedings.---Appellant (plaintiff) delayed the matter for about

fifteen (15) months, thus, neither any leniency can be shown nor

appellant remained able to prove his case---Appeal, filed by plaintiff,

was dismissed with costs.

Hasham Khan and others v. Haroon ur Rashid and others 2022

SCMR 1793 distinguished.

(c) Civil Procedure Code (V of 1908)---

----O. XLI---Remand of the case by the Appellate Court---Scope---Trial

Court decreed the suit for recovery on the basis of promissory note yet

on appeal High/Appellate Court remanded the case, however, on post-

remand proceedings the suit was dismissed on failure of the plaintiff

to produce evidence---Appellant/plaintiff sought an order of remand

from the High/Appellate Court yet again---Held: The entire evidence

and the material was before this/High Court and keeping in view the

fact that the promissory note pertained to the year 2003 and the suit

was instituted eighteen years ago, another order of remand would

serve no purpose but add to the agony of the litigants---Since the right

to produce evidence was rightly closed, therefore, keeping in view the

language of the order of remand and the law that the Trial Court was

supposed to stay within the scope of order of remand, the remand

order was passed giving six months time to complete the process of

post remand proceedings---Appellant (plaintiff) delayed the matter for

about fifteen (15) months, thus, neither any leniency could be shown

nor appellant was able to prove his case---Appeal, filed by plaintiff,

was dismissed with costs.

Rana Maqbool Hussain for Appellant.

Summair Jabbar, Bilal Ahmad and Anser Jabbar for Respondent.

Date of hearing: 08th October, 2024.

JUDGMENT

SULTAN TANVIR AHMAD, J.---The present Regular First Appeal is

directed against judgment and decree dated 18.01.2017 passed by the

learned Additional District Judge Sialkot, whereby, the suit of the

appellant filed under Order XXXVII of the Code of Civil Procedure,

1908 (the 'Code') has been dismissed.

2. Brief facts of the case are that the appellant filed suit No. 19 of

2016 dated 12.07.2006 (the 'suit') on the basis of promissory note dated

22.11.2003 (the 'promissory note') seeking to recover Rs.500,000/- from

the respondent. The leave was granted to the respondent to contest the

suit, vide order dated 28.04.2007. Thereafter, issues were framed on

06.06.2007 which followed the process of producing evidence. Learned

trial Court decreed the suit vide judgment and decree dated 14.12.2009. The same was assailed in regular first appeal No. 31 of

2010. On 05.10.2015 this Court remanded the case and then the

following issues were framed by the learned trial Court:-

1. Whether the defendant obtained a loan of Rs.500, 000/- from the

plaintiff and executed promissory note dated 22.11.2003 in

favour of the plaintiff? OPP

2. If the above issue is proved, then whether the plaintiff is entitled

to recover Rs.500, 000/- from the defendant as prayed for? OPP

3. Whether the suit of the plaintiff is false and baseless, therefore,

defendant is entitled to recover compensatory cost under

section 35-A of C.P.C.? OPD

4. Relief.

3. The appellant availed several opportunities to produce evidence

but upon his failure to do the needful his right to produce evidence

was closed. On 18.01.2017 the learned trial Court proceeded to dismiss

the suit. Being aggrieved from the same, the present appeal has been

instituted.

4. Rana Maqbool Hussain, learned counsel for the appellant, has

submitted that it was incumbent upon the learned trial Court to

discuss the evidence led by the parties prior to the order of remand;

that if the same is considered, the result could be different. He further

submitted that the learned trial Court has acted in haste while closing

the right of the appellant and he relied upon case titled "Hasham Khan

and others v. Haroon ur Rashid and others"

1.

5. Mr. Summair Jabbar, learned counsel for the respondent has

vehemently opposed the appeal and in course of his arguments he

relied upon several judgments including in the cases Duniya Gul2,

Moon Enterprises CNG Station

3, Rana Tanveer Khan

4, Syed Tahir

Hussain Mehmoodi

5, Atta Elahi

6 and Abdul Ghaffar

7.

6. Heard.

7. The following two questions have emerged from the arguments of

the learned counsel for the parties:-

(i) If the learned trial Court fell to error while not discussing or

considering the evidence adduced by the parties prior to the order of

remand dated 05.10.2015? and (ii) Whether the learned trial Court has failed to consider the facts

of the case by applying correct law?

8. It is well settled principle that on remand the learned Court trying

the suit has to regulate the proceedings or proceed with the case in

terms of order of remand passed by the higher Court as settled in

Jameel Ahmed

8 case. Attempt to sidetrack issue or decision in a

manner, not directed by Higher Court, can result into defiance of

remand order9. In order to correctly appreciate the argument as to the

first question reproduced above, it is now appropriate to reproduce

the relevant part of order of remand passed in R.F.A. No. 31 of 2010.

Paragraphs Nos. 3 and 4 reads as under:-

"3. In view of the above, the impugned judgment dated 14.12.2009 in

Civil Appeal No. 06 of 2006 titled Shahid Hussain v. Abdul Jabbar

Tassadaq passed by learned Additional District Judge, Sialkot is

set aside. The matter is remanded back to the learned trial Court

i.e. learned District Judge, Sialkot where the parties, who are

being represented through their learned counsel, will appear on

19.10.2015 and the learned District Judge, after requisitioning

the record, either himself hear the matter or entrust it to some

other court of competent jurisdiction to try the suit afresh after

putting the onus of proving execution and signing of promissory

note on the plaintiff of the suit and also after referring the

matter to the finger expert as also hand writing expert in order

to verify signatures / thumb impressions of the defendant shown

to have been put on promissory note with his admitted thumb

marks and signatures.

4. The suit was filed in the year 2006 and it would be appreciated if

after 19.10.2015, the first date of hearing of the parties in post

remand proceedings before the learned District Judge, the

matter will be finally concluded within next six months..."

(Underlining is added)

9. A reading of above order reflects that the learned trial Court is

ordered to try the suit after placing onus of proving of execution and

signing of the promissory note by the respondent and also to refer the

matter to verify the signatures / thumb impressions on the promissory

note. Para No. 4 of the above order reveals that post remand

proceedings were directed to be completed within stipulated time. It is

not the case that the learned trial Court was directed to merely frame

the "issue" or "issues" and then return the findings to this Court. There

is no direction in the order of remand to return matter after recording

the evidence. The case visibly is not covered under Order XLI, Rule 25

of the Code. This Court remanded the matter as a whole which falls within the scope of Order XLI, Rule 23 of the Code, which provides

...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 evidence (if any)

recorded during the original trial shall, subject to all just exceptions,

be evidence during the trial after remand.

10. Perusal of Order XLI, Rule 23 of the Code does not reflect if the

legislature has envisaged to discard the pre-remand evidence

altogether. It says the evidence recorded during the trial shall be the

evidence after remand, which is subject to all just exceptions. The case

has to be re-admitted by the learned trial Court on the number

allocated to it originally in the register. A similar question was

considered by the Supreme Court of India in United Bank of India

10

case and in paragraph No. 16 of the judgment it was observed that any

evidence if already recorded would be evidence in remanded suit. The

said paragraph reads as under:-

"16. But, it is now well settled that an order of remand by the

appellate Court to the trial Court which had disposed of the suit

revives the suit in full except as to matters, if any decided finally

by the appellate H Court. Once the suit is revived, it must, in the

eye of the law be deemed to be pending from the beginning

when it was instituted. The judgment disposing of the suit

passed by the single Judge which is set aside gets effaced trial

Court is restored, as a matter of law. The suit cannot be treated

as one freshly instituted on the date of the remand order.

Otherwise serious questions as to limitation would arise. In fact,

if any evidence was recorded before its earlier disposal, it would

be evidence in the remanded suit and if any interlocutory orders

were passed earlier, they would revive. In the case of a remand,

it is as if the suit was never disposed of (subject to any

adjudication which has become final, in the appellate judgment).

The position could have been different if the appeal was

disposed of once and for all and the suit was not remanded."

(Emphasis Supplied)

A contention of the learned counsel who sought to challenge the

vires of a judgment on the point that the same is based on evidence

recorded prior to remand order was repelled by this Court in Noor and

others

11 case.

11. The matter essentially is one of interpretation of the order of

remand and in my reading of this order the learned Judge deciding

appeal No. 31 of 2010 has never intended that pre-remand evidence

should be discarded in totality rather order was passed to place the onus on plaintiff and with the direction to take assistance of expert.

Upon receipt of the same the learned Judge who received the file

correctly perceived the order of remand when after framing the

issues, by placing the burden on appellant as ordered by this Court, the

parties were directed to get recorded the additional evidence. This

order dated 06.01.2016 reads as under:--

3"...No other issue sought. Now to come up for recording additional

evidence of the plaintiff, if any, on 11.01.2016..."

However, the learned Judge passing the final judgment has not

considered the pre-remand evidence.

12. Now coming to another aspect of the argument regarding closing

the evidence of the plaintiff. In this regard learned counsel for the

appellant relied on Hasham Khan and others case (supra) and stated

that even in case of failure of party to comply with order to produce

evidence, the Court can ask the failing party to record its statement

and then to proceed with the matter. There is no dispute as to this

settled law but the record reflects that while closing right to produce

evidence or invoking penal provision of Order XVII, Rule 3 of the Code

no violation of settled law has taken place. Reading of record as well as

the judgment assailed before this Court reflects that plaintiff was

directed to record his statement but he remained reluctant and

attempted to seek an adjournment. This fact is recorded in the

impugned judgment in the following words:-

"...Plaintiff was directed to record his own statement but he was

reluctant. By such right of plaintiff to adduce evidence was

closed under Order XVII, Rule 3 of C.P.C."

The reference made by the learned counsel for the appellant to

Hasham Khan and others case (supra), therefore, is misplaced.

13. Rana Maqbool Hussain, learned counsel for the appellant then

sought an order of remand. I am not inclined to do the same. The

entire evidence and the material is before this Court and keeping in

view the fact that the promissory note pertains to the year 2003 and

the suit was instituted eighteen years ago, another order of remand

will serve no purpose but adding to the agony of the litigants. Since I

am of the opinion that right to produce evidence was rightly closed,

therefore, I would like to give my findings, keeping in view the

language of the order of remand and the law already settled and

discussed above that the learned trial Court was supposed to stay

within the scope of order of remand.

14. In pursuance to the order of remand the matter was referred to

Finger Print Bureau, Punjab for comparison of thumb impressions,

which reaches to the conclusion that impression marked on the promissory note is dim and is not enough to permit the comparison.

Thereafter, vide order dated 13.01.2016 the case was sent to the Punjab

Forensic Science Agency, Home Department, Government of the

Punjab, after accepting the objections of the plaintiff for ascertaining

expert evidence as to the signatures of the plaintiff. The report dated

23.09.2016 is part of the record, which has the following conclusion:-

"...After careful examination and comparison of original Questioned

Signatures of Abdul Jabbar Tasaduq on Original Questioned

Promissory Note dated 22-11-2003 (item No. 03) with routine

signature of Abdul Jabbar Tasaduq on photocopy of CNIC (item

No. 04) and with original dictated signature exemplars of Abdul

Jabbar Tasaduq (item Nos. 05 and 06), it is concluded that

Questioned Signatures on original Questioned Promissory Note

dated 22- 11-2003 (item No. 03) are not done by Abdul Jabbar

Tasaduq. Hence, Abdul Jabbar Tasaduq is not the author of

original Questioned Signatures on Original Questioned

Promissory Note dated 22-11-2003 (item No. 03)..."

(Emphasis Supplied)

15. After receipt of the report adjournment was sought on

05.10.2016. The case was then fixed for 13.10.2016 when the evidence

of the appellant was not present. On 28.10.2016 the Court found that

the evidence of the appellant once again is not present and another

adjournment was given with the clear warning that no further

opportunity will be granted. Same remained the position on

10.11.2016. This continued for some dates of hearing and then the case

was fixed on 05.01.2017 when another warning was given. On

07.01.2017 the case was adjourned because the learned counsel for the

appellant was on general adjournment. The warning was repeated and

the case was then fixed for 18.01.2017 when the following order was

passed:-

"18.01.2017

Present: Plaintiff present in person. Counsel for defendant present.

Plaintiff seeks adjournment.

This is suit for recovery under Order XXXVII, C.P.C.

This suit was instituted on 12.07.2006. Earlier it was dismissed by

the predecessor of this court vide judgment dated 14.12.2009.

However, the Honourable High Court vide judgment dated

05.10.2015, remanded the case for its decision afresh after

putting the onus of proving execution and signing of promissory

note on the plaintiff. Thereafter the learned predecessor of this

court re-casted the issues on 06.01.2016 and directed the

appellant to adduce evidence. Since then the file is coming up

for evidence of plaintiff. Plaintiff was given last opportunity for

10.11.2016, then for 7.01.2017 and lastly for today i.e. 18.01.2017.

Today plaintiff has no evidence. He was directed to record his

own statement but he is reluctant to have adjournment. Since

warning of last opportunity has already been given any further indulgence will amount to abuse of process of court. Accordingly

right of plaintiff to adduce is hereby closed under Order XVII,

Rule 3, C.P.C. and through separate judgment, suit is

dismissed...."

16. In pursuance to the order of remand expert evidence was sought

which went against the interest of the plaintiff. It looks that after

knowing the same the plaintiff started adopting delaying tactics. The

respondent categorically denied execution of the promissory note; his

thumb impression or signing the same. This remained his stance in his

written statement as well as examination-in-chief when he appeared

as DW-1. He deposed in his examination-in-chief that false suit has

been filed because in some other case he was appointed as referee

against the interest of the appellant. The question was put to him as to

why he has not lodged any criminal proceeding against the appellant

which was convincingly answered by deposing that he gained

knowledge of fake promissory note at belated stage. He denied the

suggestion that he has given his thumb impressions or signatures on

the promissory note.

17. The scope of remand was to place the burden on the appellant

(plaintiff) to prove the execution of the promissory note and soliciting

the expert evidence. I have gone through the entire pre-remand

evidence as well as the post remand record and I have reached to the

firm opinion that the appellant has failed to discharge the burden.

18. The remand order was passed giving six months' time to

complete the process of post remand proceedings. The appellant

(plaintiff) delayed the matter for about fifteen (15) months, thus,

neither any leniency can be shown nor appellant remained able to

prove his case. This appeal is, therefore, dismissed with costs of

Rs.25,000/- (Rupees twenty-five thousand only).

MQ/S-70/L Appeal dismissed.