Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2026 IHC 249190. In this matter between Mulana Abdul Qayyum and Muhammad Shafi, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Islamabad High Court (Honourable Mr. Justice Mohsin Akhtar Kayani) AUTHOR JUDGE: Honourable Mr. Justice Mohsin Akhtar Kayani DECISION DATE: 02-FEB-2026 CASE NO: Civil Revision-56-2026 CITATION: 2026 IHC 249190 PARTIES: Mulana Abdul Qayyum VS Muhammad Shafi LAW / SECTION: under Section 96 of the Code of Civil Procedure, 1908 (CPC) | under Act XIV of 2018 | under Act No. XVII of 2010 | under Article 4, 202 of the Constitution of Pakistan, 1973 | under Article 117 of the Qanun-e-Shahadat Order, 1984. SUBJECT: Against Interim Order, REMARKS: Judgement debtor/defendant of recovery suit is aggrieved that Appeal has decreed the recovery suit ============================================================ JUDGMENT SHEET ISLAMABAD HIGH COURT, ISLAMABAD, JUDICIAL DEPARTMENT

Regular Second Appeal No.02-2023 Converted into Civil Revision No. 56 / 2026 Moulana Abdul Qayyum Versus Muhammad Shafi.

Appellant / petitioner by: Mr. Gul Hussain Jadoon, Advocate.

Respondent by: Mr. Usman Rasool Ghumman, AAG. Mr. Muhammad Minhas, Advocate. Mr. Muhammad Wajid Hussain Mughal, Advocate, Amicus Curiae , assisted by Mr . Ghulam Qasim Bhatti, Advocate. Mr. Muhammad Saqib Bhatti, Advocate, Amicus Curiae. Mr. Nauman Munir Paracha, Advocate on behalf of Mr. Muhammad Munir Paracha, Advocate, Amicus Curiae.

Date of Hearing: 26.01.2026.

MOHSIN AKHTAR KAYANI, J : Through this Regular Second Appeal, the appellant has challenged the judgment and decree dated 27.11.2023, passed by the learned First Appellate Court under Section 96 of the Code of Civil Procedure, 1908 (CPC), whereby the respondent’s suit for recovery w as decreed to the extent of Rs.1,580,000/ - (Rupees fifteen lakh eighty thousand) along with markup at the bank rate.

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2. Learned counsel for the appellant contends that the respondent’s claim is based on paragraph 5 of the plaint, wherein it is alleged tha t the respondent, Muhammad Shafi, residing abroad, transmitted an amount of Rs.1,480,000/- to the appellant as a loan for personal use, with a promise that the amount would either be returned or utilized towards the purchase of a plot on his behalf. Upon h is return to Pakistan, it is alleged, the respondent demanded the said amount, which the appellant failed to return. In response, the appellant denied the receipt of any loan in his written statement, rather asserted that he had purchased the following properties on behalf of the respondent:  The first property was a 22 marla plot situated at Pind Parrian, Islamabad, purchased in the year 2008, which area subsequently fell within Roshan Pakistan Housing Society. With the consultation and permission of the respondent, the said plot was later sold for Rs.1,320,000/- .  The second property was an 18 marla plot situated at Ghorra Sardar , Islamabad, purchased in the year 2012, upon which the respondent constructed a house and currently resides.  The third property was a 10 marla plot situated at Khanna Dak, Islamabad, purchased on 11.04.2016 for a total consideration of Rs.2,800,000/-, out of which the appellant paid Rs.1 ,320,000/- from the proceeds of the sale of the Pind Par rian plot, and the respondent transmitt ed the remaining Rs.1,480,000/-. 3. Learned counsel further submits that since the respondent was abroad at the relevant time and the 10-marla plot was initially

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transferred in the name of the appellant’s son and later transferred to the respondent. Accordingly, no loan was due, misappropriated, or received. 4. It is further contended that during the course of evidence, the respondent admitted that he had not produced any documentary evidence or witness to establish that the amount of Rs.1,480,000/- was ever transmitted through any banking channel to the appellant. It is argued that after such admission, the first appellate Court could not have passed the impugned decree, and that the findings recorded by the learned first appellate Court are contrary to the evidence produced before the trial Court. 5. Conversely, learned counsel for the respondent argued that the appellant had, during proceedings before the trial court, admitted receiving Rs.1,480,000/- in 2008, part of which was used to purchase the 22 -marla plot in Pind Parrian. He also admitted receiving an additional Rs.100,000/ - for registration expenses. The respondent contended that the appellant failed to prove that the plot was sold with his consent and that the amount was properly adjusted. The First Appellate Court rightly passed the decr ee for recovery of Rs.1,580,000/-. 6. Arguments heard and record perused. 7. During the course of argument, learned counsel for the appellant was confronted with the mandate of Section 102 CPC, which states that no second appeal shall lie in any suit exc ept when the amount or value of the subject matter of the original suit

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exceeds the amount as may be prescribed. However, no concrete view has been given. 8. In order to decide the question of maintainability, t his Court, vide order dated 20.01.2026, ap pointed Mr. Muhammad Munir Paracha, Senior Advcoate Supreme Court, Mr. Wajid Hussain Mughal, Advocate Supreme Court and Mr. Saqib Bhatti, Advocate Supreme Court, as amicus curiae to examine whether a regular second appeal is maintainable when no pecuniary jurisdiction is specified in Section 102 CPC, and the same has not been prescribed under the post -amendment provisions after 2023. In this regard, learned amici curiae, appointed by this Court, attended the proceedings, assisted the Court, and submitted th eir observations, apprising the Court qua developments in this part of the Civil Procedure Code. Prior to the amendment of Section 102 CPC through Act VIII of 2004, the provision reads as follows: (a) In any suit of the nature cognizable by courts of small causes, when the amount or value of the subject matter of the original suit does not exceed (Twenty-five Thousand) rupees; and (b) In any other suit when the amount or value of the subject matter of the original suit does not exceed (two hundred fifty thousand) rupees.” 9. A bare perusal of Section 102 CPC prior to the amendment shows that there were two distinct provisions for filing a second appeal. The first related to suits cognizable by Courts of Small Causes, and the second related to other su its. Under Section 102(a), the value of suits cognizable by Courts of Small Causes, for which a second appeal could be filed, was fixed at Rs.25,000/ -,

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whereas for other suits, the limit was fixed at Rs.250,000/ -. After the amendment through Act VIII of 20 04, the filing of second appeals in suits cognizable by Courts of Small Causes was bar red completely. In respect of other suits, the amount or value of the subject matter of the original suit was made dependent upon the limit as the provincial government m ay, by law, determine. The provision, as amended, reads as follows: “ No second appeal shall lie in any suit of the nature cognizable by courts of small causes and in any other suit when the amount or value of the subject matter of the original suit does not exceed the amount or value as the provincial government may by law determine.”

10. From the above, it is evident that after the amendment, Section 102 CPC does not fix any value of the subject matter for suits cognizable in a second appeal, unlike the pre -amendment limit of Rs.250,000/-. Instead, the authority to determine the value of the subject matter was vested in the provincial government. The section, however, is silent as to whether this value is to be determined through an Act of Parliament or by a notification issued by the Government. Since no value was fixed in the enactment of Section 102 CPC and the word “Government” is used, it may be safely inferred that the value was intended to be prescribed by the Government through notification. 11. It has further been argued that the amount was never notified by the Government at any stage, which reflects that Section 102 CPC remained redundant after the amendment made through Act

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VIII of 2004. In Punjab, under the Code of Civil Procedure, 1908 — which was originally part of the concurrent legislative list under the Constitution of Pakistan, 1973, and was included in the provincial legislative list after the 18th Amendment —Section 102 CPC was again amended through Punjab Act XIV of 2018, which provid es as follows: “"No Second Appeal in certain cases. - No second appeal shall lie in any suit when the amount or value of the subject matter of the original suit does not exceed rupees twenty - five million.”

Accordingly, in Punjab, for suits filed after the amendment under Act XIV of 2018, only those suits in which the value of the subject matter exceeds Rs.25 million are amenable to a second appeal. The right of appeal arises from the date of institution of the suit, and not from the date on which it decided. 12. Now, adverting to the position in the Islamabad Capital Territory (ICT) prior to the establishment of the Islamabad High Court under Act No. XVII of 2010, the ICT was under the appellate jurisdiction of the Lahore High Court. Consequently, all provi sions relating to appeal, review, and revision that applied to the Lahore High Court were applicable for exercising jurisdiction over the ICT. As per Section 6(1) of the Islamabad High Court Act, 2010, all civil, criminal, tribunal, and special courts established under any law and exercising jurisdiction in the ICT were required to continue their functions on the same terms and conditions applica ble

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immediately before the commencement of the Act. Consequently, under Section 9 of the said Act, all appeals, petitions, and other proceedings pending before the Lahore High Court were transferred to the Islamabad High Court. When Sections 6(1) and 9 are read together, it is evident that all laws governing the filing of appeals, reviews, and revisions that applied before the Lahore High Court became applicable to proceedings before the Islamabad High Court. In 2010, no value had been fixed in Punjab for f iling second appeals before the Lahore High Court; therefore, the same position continued in the ICT until 2020, when Sections 100 and 102 CPC were omitted through the Code of Civil Procedure (Amendment) Act, 2020 (Act No. VII of 2020).In 2023, Section 102 CPC was re - inserted for the ICT, which provides as follows: “No Second Appeal in Certain Cases. - No second appeal shall lie in any suit except when the amount or value of the subject matter of the original suit does not exceed the amount or value as may be prescribed.”

13. A plain reading of section 102 CPC, as re -inserted through the Code of Civil Procedure (Amendment) Act, 2023, shows that the legislature has consciously not specified any pecuniary value in the statute itself and has instead , employed the expression “ value as may be prescribed .” The term “ prescribed,” as defined under the Code of Civil Procedure, means prescribed by rules. The rule has also been defined in sub-clause (18) of section 2 of CPC i.e. Rule s means “rules and forms contained in the first schedule or made

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under section 122 or section 125 ”, whereas, section 125 empowers the High C ourt to make rules . This clearly indicates legislative intent to delegate the fixation of pecuniary limits through subordinate legislation. Where a sta tute expressly contemplates prescription of a matter, its fixation through rules or notification does not offend any constitutional or legal principle, nor does it require a separate Act of Parliament. Admittedly, no rules have been framed, nor has any pec uniary value been prescribed for the Islamabad Capital Territory to date. Consequently, in the absence of any prescribed pecuniary limit, the bar contained in section 102 CPC cannot be mechanically applied so as to defeat the right of second appeal. 14. However, at this stage, the learned amici curiae are unanimous on the point that the President of Pakistan promulgated the Code of Civil Procedure (Amendment) Ordinance, 2019 on 01.11.2019, duly published in the Gazette of Pakistan, whereby sections 100, 10 1, 102 and 103 of the Code of Civil Procedure, 1908 stood omitted. As a direct consequence thereof, the statutory right of Regular Second Appeal ceased to exist during the subsistence of the said Ordinance. This legal position was carried forward when the Ordinance was subsequently replaced by the Code of Civil Procedure (Amendment) Act, 2020, published in the Gazette of Pakistan on 22.02.2020, whereby the omission of the aforesaid provisions was expressly maintained. It was only through the Code of Civil P rocedure (Amendment) Act, 2023 that section 102 CPC was re -inserted for the Islamabad Capital Territory.

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Consequently, for the interregnum period commencing from 01.11.2019 till the enforcement of the 2023 Amendment Act, no Regular Second Appeal was mainta inable under the law. It is also important to note that all the above referred enactments i.e. ordinance of 2019, Act of 2020, Act of 2023, provided saving clause to the proceedings. 15. As such , the civil suit in which the present regular second appeal has been filed must be considered with reference to the date of filing of the suit, which shows that it was filed on 05.11.2019, after the promulgation of the Code of Civil Procedure (Amendment) Ordinance, 2019 on 01.11.2019 , when sections 100, 101, 102 and 103 were omitted by virtue of the said Ordinance, and the position remained same until the enactment of the Code of Civil Procedure (Amendment) Act, 2023 . Hence, no second appeal was maintainable during this period. 16. At this stage, learned counsel for the appellant contends that the law, including the Constitution of Pakistan, safeguards the rights of every individual by affording an opportunity to convert one type of proceedings into another, unless expressly barred by law . As a result whereof, this Court takes guidance from the mandate of 1993 SCMR 1955 (Faqir Muhammad vs. Muhammad Din) , therefore, this Court is competent to convert one type of proceeding into another in order to protect the legal rights of an individual under Article 4 of the Constitution of Pakistan, 1973. Accordingly, while the RSA is not competent, it has been converted into a Civil

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Revision under section 115 CPC , and the Office is directed to number it accordingly. 17. In view of changed position, the appellant is now referred as petitioner. Perusal of the record reflects that the petitioner and the respondent are close relatives. The respondent, while residing abroad, entrusted amount to the petitioner to purchase prope rties and manage related transactions on his behalf. These circumstances demonstrate a relationship of mutual trust and financial confidence between the parties. The dispute arose when the respondent claimed recovery of Rs.15,80,000/ - from the petitioner and instituted the suit. It is an admitted legal position that the burden of proof lies upon the plaintiff under Article 117 of the Qanun-e-Shahadat Order, 1984. 18. For a just determination of the dispute, the respective stances of the respondent and the petitioner are set out in juxtaposition as follows: Muhammad Shafi (Respondent) Moulana Abdul Qayyum (petitioner) That while serving abroad, the petitioner demanded Rs.14,80,000/- from the respondent as a loan for personal use, with a promise to either return the same or utilize it towards the purchase of a plot on his behalf.

That para No.5 is vehemently denied. The petitioner denies ever receiving any amo unt from the respondent as a loan. On the contrary, he purchased three properties for the respondent, as detailed below:

i. A 22 Marla plot situated at Pind Parrian, Islamabad, purchased in 2008. As the area of this plot later fell within the

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boundaries of Roshan-e- Pakistan Housing Society, it was sold, with the consultation and permission of the respondent, for Rs.13,20,000/-. ii. An 18 Marla plot situated at Ghorra Sardar, Islamabad, purchased in 2012, on which the respondent constructed a house and currently resides. iii. A 10 Marla plot situated at Khanna Dhak, Islamabad, purchased on 11.04.2016 for Rs.28,00,000/-, of which Rs.13,20,000/- was paid from the proceeds of the sale of the Pind Parrian plot, and the remaining Rs.14,80,000/- was transmitted by the respondent. Sin ce the respondent was abroad at the relevant time, the ownership of this plot was initially transferred in the name of Inamullah, the petitioner’s son. Thereafter, Inamullah transferred ownership to the respondent, and an agreement between the parties was executed to this effect. It is pertinent to note that any amount claimed as a loan by the

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respondent or his son should have been reflected or adjusted in this agreement.

19. When the respective stances of the parties are put in juxtaposition, it is established that, although the petitioner formally denied the claim, his explanation amounts to an admission that he received Rs.14,80,000/ -. This aspect was rightly recorded by the learned first appellate Court. 20. The petitioner, however, has taken specific plea that he sold the property, adjusted the amount, and subsequently purchased another plot from the funds transmitted by the respondent, which was later transferred in the name of the respondent. In this context, Article 119 of the Qanun -e-Shahadat Order, 1984 applies, which provides that the burden of proof as to any particular fact lies upon the person who seeks to have the Court believe in its existence, unless otherwise provided by law. Accordingly, the petitioner was required to prove the sa id instances, which are detailed as follows: i. یہ درست2008 مجھے میں14,80,000/- روپے بیرونبھیجے تھے۔ یہ درست ہے کہ ان پیسوں سے میں نے مدعی کے لئے 22 ری دا۔

مرلہ پلاٹ پنڈ پڑی اں میں خ ii. تت یہ درست ہے کہ میں اسوق 22 مرلے پلاٹ واقع پنڈ پڑی اںری دنے کا ثبوت عدالت میں نہ دے سکتا ہوں۔

خ iii. میں ایسا کوئی ثبوت عدالت میں نہ دے سکتا ہوں کہ وہ 14 کھلا 08 ہ رار رو 10 مرلے پلاٹ میں ادا کئے۔ iv. یہ درستExD/2 میں14 کھلا80 ہ رار روپے کا ذکر موجود نہ ہے۔ v. یہ درست ہے کہ میں نے روشن ی اکستان کو پلاٹ 13 کھلا20 ہ رار روپے میں بیچنے کی ی اب ت تحری ری ثبوت نہ دی ا ہے۔

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21. Upon examining the admissions made by the petitioner during cross-examination, it is evident that, having taken a specific plea regarding the sale and adjustment of the amount, the burden of proof squarely rested upon him, which he failed to discharge. On this ground alone, the learned first appellate Court rightly passed the judgment and decree against the petitioner after considering the entire factual matrix and the evidence on record. Consequently, this Court, while exercising its jurisdiction under section 115 of the Code of Civil Procedure, finds no illegality, infirmity, or perversity in the findings recorded by the learned first appellate Court. Even otherwise, the appreciation of evidence by the learned first appellate Court, in exercise of its powers under section 96 of the Code of Civil Procedure, deserves due weight, as all issues of fact and law were properly considered and the evidence was evaluated in accordance with law. 22. Before parting with this judgment, in the light of foregoing discussion, this Court reaches to the irresistible conclusion that no pecuniary value has been prescribed in the Islamabad Capital Territory. In this regard, let the matter be placed before the Honorable Chief Justice of this Court to convene a meeting of Full Court to propose an amendment to Order XLII of the Civil Procedure Code, whereby the amount or value of a suit for the purposes of section 102 CPC may be specified through an amended rule. The recommendation of Full Court may then be forwarded to the Government of Pakistan for submission to the Pre sident of Pakistan for approval and thereafter publication in the Gazette

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notification. It is further observed that, this High Court is competent to exercise such powers under sections 122 and 125 of the Civil Procedure Code to make rules regulating its ow n procedure and that of the civil courts. These powers are conferred under Article 202 of the Constitution of Pakistan, 1973. Accordingly, a copy of this judgment shall be forwarded to the Registrar of this Court to be place before the Honorable Chief Justice for appropriate action. 23. In view of above, instant civil revision petition being devoid of merit, is hereby DISMISSED.

(MOHSIN AKHTAR KAYANI) JUDGE

Announced in the open Court on: 02.02.2026.

JUDGE

Approved for reporting.

A.Waheed/-

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