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Civil Petition for Leave to Appeal No. 846 of 1981, decided on 2nd April,

1983,

(On appeal from the judgment and order of Lahore High Court, dated 3‑6‑1981 in Civil Revision 96 of 1980/BWP).

(a) Civil Procedure Code (V of 1908)‑

‑‑ O. XIV‑Issues, framing of‑Framing of additional issue likely to narrow down controversy and necessary for ultimate decision of case Held, objection to framing of such issue cannot be raised.

(b) Evidence Act (I of 1872)‑

‑‑ S. 74‑Admissibility of judicial proceedings‑Statements previously made in Court‑Held, cannot be allowed to form part of proceeding unless identity of persons making such statements established.

Rao Hamid Mukhtar Khan, Advocate Supreme Court of Pakistan and Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 2nd April, 1983.

MIAN BURHANUDDIN KHAN,

J.‑Leave is sought to appeal against the judgment and orders of the Lahore High Court dated 3‑6‑1981 passed in Civil Revision No. 96/1980/BWP.

2. Ghulam Muhammad respondent entered into an agreement to sell 100 Kanals of land to Rahim Bakhsh petitioner for a sum of Rs. 42,000 and received an amount of Rs. 10,000 as earnest money with the stipulation that the balance will be paid within a year. The respondent failed to perform his part of the agreement and sold the land in question to Haji Nazir Ahmad respondent No. 2. The petitioner filed a suit for specific performance on 13‑1‑1973 while defendant No. 1 sold the land in question on 23‑4‑1973. The suit of the petitioner was decreed by the Civil Judge vide judgment dated 30‑I1‑1976. This judgment and decree was challenged in appeal by respon dent No. 1 and the learned Additional District Judge on 18‑3‑1981 accepted the appeal, framed additional issue No. 5‑A and remanded the case to the trial Court for fresh decision. Against this order of remand a revision was filed by the petitioner which was dismissed vide the impugned judgment dated 3‑6‑1981.

3. Learned counsel for the petitioner contended that from the plead ings of the parties issue framed by the Additional District Judge does not arise that the learned High Court Judge had fallen into error by observing that documents Exhs. P. 5, P. 6, P. 7 were not admissible in evidence. It is wrongly observed that unless the identity of witness who had deposed in a Court of law was established, his statement could not be brought on the record and read into evidence. As Exhs. P. 5 to 7 have been proved without objection and could be objected to only at the time of reception.

We have examined the contentions raised by the learned counsel and find that the additional issue No. 5‑A reads as "whether the defendant No. 2 had purchased the suit land for consideration and without notice of the agreement of sale dated 12‑11‑1971 between the defendant No. 1 and the plaintiff, if so, with what effect"

No prejudice would be caused to petitioner in the event of this newly added additional issue and it is correctly observed by the learned Judge of the High Court that it will

narrow down the controversy ultimately the decision of the case. As regards the second point that the statements Exhs. P. 5 to P. 7 brought on the file are admissible in evidence being part o the records of judicial proceedings under the amended provisions of section 74 of the Evidence Act, 1872 but before allowing the statements to form part of the proceedings identity of the persons who bad made these statements in Court, would appear necessary for the determination of the points involved in the case. Thus, we find that this petition is without any merit and the, same is accordingly dismissed.

S. Q. Leave refused.

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