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Civil Petition for Leave to Appeal No. 542‑K of 1984, decided on 10th June, 1985.
(On appeal from the judgment of the High Court of Sind, Sukkur Bench, Sukkur, dated 12‑9‑1984, in C.R.A. 121 of 1982).
‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 105(2)‑‑Remand order for specific purpose‑‑Scope of such order‑‑Court exceeding jurisdiction in transgressing limits of remand order‑‑Suit for declaration‑‑Allegation of Benami transaction‑‑Case remanded in revision to appellate Court for recording additional evidence on alleged payment of entire price by respondent through cheques‑‑Finding of appellate Court in favour of respondent that only a part of consideration was proved to have been made through cheques and remaining by cash, impugned as transgressing limits of remand order‑‑Leave to appeal granted to consider (i) whether in circumstances of case Court could exceed limits prescribed by remand order, by holding in favour of respondent even though he had failed to prove entire payment of price by means of cheques; and (ii) whether respondent could succeed by setting up a case that said price was paid partly by means of cheques and partly otherwise.
Shahanshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate on Record for Petitioner.
Nemo for Respondent.
Date of hearing: 10th June, 1985.
‑‑Petitioner Anwar Hussain has brought this petition for leave to appeal calling in question the judgment of a learned Single Judge of Sind High Court dated 12th September, 1984, whereby the revision petition filed by him was dismissed in limine
2. The dispute in this case pertains to urban property comprised in survey No. 707, measuring 4166 sq. ft., situated in Khairpur. On 18th November, 1975, the petitioner, apprehending encroachment upon this property by the respondent Allah Bux, filed a suit in the civil Court at Khairpur, for a declaration of his title and for permanent injunction to restrain the respondent from committing trespass upon it, According to the petitioner he was forcibly dispossessed during the pendency of the suit and therefore, by amendment of the plaint he also sought the restoration of possession. The petitioner claimed that a portion of the aforesaid plot of land was purchased by him through a sale‑deed dated 4th April, 1969, for a total price of Rs.6,500 and the remaining portion of the plot was sold to the respondent on the same day. The respondent admitted the transaction but pleaded that the purchase in the name of the petitioner was Benami and contended that the entire sale consideration was paid by him to the vendor.
3. The trial Court held that there was no proof of the Benami character of the transaction. The suit was, therefore, decreed as prayed on 30th June, 1980. On an appeal by the respondent, the learned Additional District Judge reversed the finding of the trial Court and held that the transaction in the name of the petitioner was Benami as the real owner was the respondent vide judgment dated 7th June, 1982. The petitioner then brought a revision before the High, Court of Sind, Sukkur Bench, Sukkur. The learned Judge who heard the revision formed the view that as the evidence on the question of payment of the price by the respondent through cheques as claimed by him in his oral evidence was inconclusive, the case required to be remanded to the appellate Court for recording additional evidence "on the question of cheques and if it is found that factually the price for both the plots was paid by the respondent through cheques the conclusion arrived at by him in the judgment under revision shall be maintained." The learned Judge also gave a direction that if the appellate Court comes to the conclusion that the payment of the price has not Peen proved by the respondent through the cheques as alleged, the judgment and decree of the trial Court shall be restored. Thus, the case was remanded to the appellate Court below vide the judgment dated 3rd November, 1983.
4. On remand the Additional District Judge recorded further evidence adduced by the parties and came to the conclusion that the entire price was proved to have been paid by the respondent to the vendor. In view o this finding he maintained the earlier judgment of the appellate Court dated 7th June, 1982, holding that the transaction was a Benami transaction vide judgment dated 26th May, 1984.
5. Being aggrieved by the aforesaid judgment of the learned Additional District Judge, the petitioner again filed a revision petition in the High Court. The main argument advanced by the petitioner in support of the revision application was that as the finding of the appellate Court was to the effect that only a part of the consideration was proved to have been through cheques and the remaining by cash the appellate Court has exceeded its jurisdiction in transgressing the limits laid down by the remand order, which in specific terms directed that the previous judgment in favour of the respondent shall be maintained only in case he is able to prove the payment of entire sale consideration by means of cheques as deposed by him in his evidence. The learned Single Judge, however repelled this contention in the following words:‑
"I am afraid I cannot agree with this contention because payment may be made through banking channels or it may be otherwise. If the first appellate Court is satisfied that payment has been made then the directions of the High Court that the payment should be only through cheques and not otherwise, perhaps would not be in conformitys with law. I do not see any such directions that if payments have been made otherwise they should 1 be ignored. As such there is no violation of the order and there is no merit in this revision and is dismissed in limine."
Hence this petition.
6. In support of the petition Mr. Shahanshah Hussain, Advocate, has contended that the remand order of the High Court was for specific purpose and the consequences of the findings were also determined by the High Court, accordingly the learned appellate Court was not competent to give a decision in violation of the directions given in the remand order. The perusal of the judgment of the High Court in the earlier civil revision dated 3rd November, 1983, clearly shows that it was directed in the remand order that the finding on question of Benami nature of the transaction in dispute will be given in favour of the respondent only if it is found "that factually the price for both the plots was paid by the respondent through cheques." Prima facie, we consider that such a restricted direction by the High Court may not have been justified to tie down the hands of the appellate Court on an issue of fact. However, the question raised seems to turn on the point whether the respondent was competent, at any subsequent stage to challenge the validity of the remand order and refuse to be bound by it. Section 105(2), C.P.C. provides for the binding effect of the remand order and lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness. It seems to us prima facie that no appeal lay from the order of remand in this case and therefore, one possible view is that the respondent could challenge the correctness of the remand order in subsequent proceedings. Thus, if he was not bound by the terms of the remand order strictly, he could support the finding given in his favour even through it violated such terms of the remand order. Mr. Shahanshah Hussain contended that the respondent cannot do so in view of the fact that the respondent took advantage of the remand order, without challenging its correctness at any stage and produced evidence before the learned Additional District Judge in pursuance thereof.
7. He further contended that a new case could not be set up by the respondent in contradiction of his oral testimony in which he categorically stated that the entire payment of the sale consideration was made by him to the vendor by cheques.
8. After hearing the learned counsel at some length, we feel that the question whether in the circumstances of this case the Court could exceed the limits prescribed by the remand order, by holding in favour of the respondent even though he had failed to prove the entire payment of price by means of cheques requires consideration. The further questions for consideration is whether the respondent could succeed by setting up a case that the aforesaid price was paid partly by means of cheques and partly otherwise.
9. Leave is accordingly granted to consider these questions of law. The petitioner shall furnish security in the sum of Rs. 2,500.
M.I Leave granted.
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