Through this Revision Petition filed under Section 115 C.P.C., the petitioners, who were defendant Nos.
1 to 3 before the trial Court, have called in question Order dated 07.07.2025 passed by the learned Civil Judge, 1st Class Bahawalpur, whereby in a suit for specific performance of agreement to sell filed by the respondent No. 1, the application filed by the petitioners for dismissal of the suit as being not proceedable in view of the Arbitration Clause available in the agreement to sell, has been dismissed.
2. The learned counsel for the petitioners states that learned Civil Judge, while passing the impugned order dated 07.07.2025 to dismiss the aforementioned application, relied upon the case-law i.e. judgment reported as Mrs. Farkhanda Talat vs. Federation of Pakistan through Secretary Establishment Division, Islamabad and others (2007 SCMR 886) as precedent to observe and conclude that suit is maintainable where Arbitration Clause exists but no arbitrator is named or appointed and no procedure is agreed upon to appoint an arbitrator. He has placed copy of the said judgment on record to maintain that said principle is not mentioned or laid down in the afore-referred judgment, hence the reliance by the trial court on the said case law is misplaced. The operative portion of the impugned order is reproduced below for clarity of the contention and argument raised by the counsel for the petitioner, which is as follows: - "4. Perusal of record reveals that agreement contains an arbitration clause but no arbitrator is named and no procedure is agreed upon to appoint as arbitrator. Reliance is placed upon 2007 SCMR 886 suit is maintainable where arbitration clause exist but no arbitrator is named or appointed. In view of above facts and circumstances, application in hand is hereby dismissed."
3. The learned counsel for the respondent No. 1 has defended the impugned order by stating that although the aforementioned judgment does not relate to arbitration proceedings, yet some general principles of law laid down in the said judgment may be applicable to the present case.
Besides mere wrong mention of the citation of the judgment relied upon in the order through a clerical mistake or inadvertence, does not make the said order illegal, if the same is otherwise sustainable. Moreover, it is claimed that the petitioners were required to file an application under Section 34 of the Arbitration Act, 1940 for stay of proceedings before taking any other step in proceedings, which has not been done rather the application that has been filed does not mention any specific Section under which the same has been filed and the same seeks dismissal of the suit as not proceedable and could at the most be treated as an application under Order VII Rule 11 C.P.C., which was not maintainable as the same could not be filed independently unless the said objection was raised through written statement as provided by addition of Rule 11-A of the Order VII C.P.C. The said Rule is reproduced below:- "11-A. Separate application barred. A plea for rejection of plaint under rule 11 may be raised by the defendant in his written statement and not by a separate application."
4. On the other hand the learned counsel for the petitioners state that mere non-mentioning of any law or mentioning incorrect Section under which an application is filed does not take away the jurisdiction of the court to decide a matter on merits and the court has to look into the intent and not the form of the application to be decided. It is further claimed that the petitioners in the aforesaid application had mentioned that the suit could not further proceed and was liable to be dismissed due to availability of Arbitration Clause and the said application for all intents and purposes was to be treated as an application under Section 34 of the Arbitration Act, 1940.
5. Although the learned counsel for the respondent No. 1 has vehemently defended the decision rendered through the impugned order on merits, yet the perusal of the case-law relied upon by the learned trial court as precedent shows that the same relates to service matter of a civil servant, who was declared as surplus and reverted to lower post by the relevant authorities and the Supreme Court while deciding the matter set aside the said order and held that the said civil servant shall be appointed against a post equivalent to the post held by him before the order declaring him as surplus was passed. The said case does not relate to resolution of a civil dispute through Civil Court or Arbitration and was distinguishable on facts and proposition of law discussed therein. Hence, the question arises that whether the judgment referred to in the impugned order was correctly applied as a precedent case-law for decision of the matter solely by basing the decision on the same as per observation recorded in the impugned order.
6. Although the learned trial court while deciding the case on merits may not refer to precedent case law, which would not make its decision without jurisdiction or lawful authority, yet where the said court relies upon some case law in support of the order, the proposition required to be decided by reference to said case law should have nexus to the principles laid down therein. Some judgments on the subject discussed below may be relevant to consider the principles of application of case-laws as precedents to decide subsequent cases.
The Supreme Court of Pakistan, in Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan and others vs. Ghulam Sadiq and others (2002 SCMR 677), while discussing principles relating to application of precedents, has held that peculiarities of each case have their own repercussions on all questions of law and facts involved therein.
Furthermore, in Muhammad Mal Khan vs. Allah Yar Khan (2002 SCMR 235), while discussing the application of rule as a precedent, the Supreme Court held that no inflexible rule can be laid down for application of a rule enunciated in a judgment to each and every case, as each case proceeds on its own diverse facts.
Moreover, while explaining application of precedents where facts of the case were diverse from the facts of precedent case in which dictum was laid down, the Supreme Court in case titled Tariq Mehmood and another vs. the State (2002 SCMR 32), held that, while relying upon a precedent to decide the case, where facts of the same hardly resemble with the diverse facts of the precedent case in which the dictum is laid down, some foundation must be laid down in the said case for the application of dictum in the earlier decided case.
On the question of applicability of precedents, in Director Housing, A.G's Branch, Rawalpindi vs. M/s. Makhdum Consultants Engineers and Architects (1997 SCMR 988), it has been held that observations made in specific cases must be understood and interpreted with reference to the facts of those cases and it is not a correct approach to apply such observations as a generalised principle of law applicable to similar cases.
As regards categories of precedent cases, in Trustees of The Port of Karachi versus Muhammad Saleem (1994 SCMR 2213), it was observed that precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first category of precedent cases. So in order that a decision on a question of law is binding within the meaning of Articles 198 and 201 of the Constitution it is not enough that a legal proposition follows logically from it rather that question must have been actually decided.
It is pertinent to mention here that in recent judgment reported as Ghulam Sarwar through his L.Rs. vs. Province of Punjab through District Collector, Lodhran (PLD 2025 SC 60) it has been held by the Supreme Court as follows: "It is of course well settled that any case, whether of the Supreme Court or of a High Court, that establishes binding precedent turns on facts proved or admitted. The facts and circumstances in which this Court delivered the cited decision were, with respect, materially different from what is now before the Court. The cited decision provides no assistance to the appellant."
7. Keeping in view the principles laid down in the afore-mentioned judgments and in view of the diverse facts between the instant case and case-law cited in the impugned order, it is held that as facts of case and principles of decision of case through Civil Court or Arbitration were neither the subject matter of the aforesaid case-law nor had been discussed in the same, therefore, the reliance on said case-law for reaching the conclusion in the matter is prima facie misplaced.
8. Contention has also been raised by the learned counsel for the respondent No. 1 that mere wrong mention of citation of case-law relied upon in the impugned order as precedent, which may be through a clerical mistake or inadvertence, would not take away the sanctity of order of the court, if the same was otherwise sustainable on merits.
It is claimed that as only the citation and not the title of the case-law has been noted in the impugned order, may be, the learned judge wanted to mention citation of some other case-law in the said order whereas through a clerical mistake incorrect citation had been mentioned in the same. The counsel representing the respondent No. 1 have not pointed out that if the citation of judgment i.e. 2007 SCM R 886 had been incorrectly mentioned through a clerical mistake in the impugned order, what was the actual citation of the case-law relied upon by the trial court and on query they state that as the said judgment was cited by the trial court itself, therefore, it is not clear as to which judgment it intended to rely upon in support of its order. Besides, no other case-law on the subject laying down the legal principle of law mentioned in the impugned order has been placed before the Court to support their assertion.
9. As regards the contention that the impugned order, if otherwise sustainable, could not be set aside merely because of inadvertent mention of incorrect or irrelevant citation, it is important to mention here that the perusal of the impugned order shows that the impugned order is not an order in which detailed discussion of merits of the case has taken place before decision was made and while doing so reference to irrelevant case-law was inadvertently made, rather in the present case, the tenor of impugned order clearly shows that the learned trial court has based its decision on the principles of law allegedly laid-down in the referred case-law by treating the same is a binding precedent relating to the proposition under discussion, whereas on the contrary the case- law relied upon in the said order does not lay down the said principles of law and as such the order is not only a non-speaking order, it suffers from misreading and non-reading and is based on an irrelevant case-law, hence jurisdictional defect is apparent on the record.
A similar situation came up for discussion before the Sindh High Court in case titled Mrs. Shamim Akhtar and others vs. Mrs. Sultana Mazhar Baqai and 5 others (2003 CLC 1521) where in the Appellate Court had set aside the decision of the trial Court without considering the facts and the case and while relying upon case law only, the High Court accepted revision petition, set aside impugned judgment and restored that of trial Court by holding that the Appellate Court without examining contents of plaint or discussing its effect had decided matter merely on basis of case- law without at all examining whether such case law was applicable to the facts of the case or not.
In another matter a Division bench of the Sindh High Court in case titled Collector of Sales Tax and Federal Excise (RTO) versus Messrs Zeal Pak Cement Factory, Hyderabad (2010 PTD 147) while hearing a matter wherein the impugned decision based on a judgment of Supreme Court had been passed without touching the merits of the case, set aside the said order by holding that the forum below had not given proper reasons for holding that the case fell within the ambit of the judgment of the Honourable Supreme Court and remanded the matter for its decision afresh.
10. In view of the above it is observed that although, an order which is otherwise sustainable on basis of merits of the case should not be set-aside merely because reference to a judgment based on distinguishable facts and unrelated and irrelevant case law has inadvertently been made in the same, yet where the impugned order is based solely by placing reliance on a judgment which does not discuss or lay down the principle(s) of law subject matter of the case in hand and is distinguishable on facts mentioned therein, and Court gives no other reason for reaching the conclusion that how said case law was relevant, then making reference to such a case-law based on previous judgment to reach the conclusion is not sustainable. In fact, the impugned order was devoid of plausible reasoning and patently ambiguous and there was no explanation in the same as to how the conclusion was reached in the matter and is also based on misreading or non- reading of the judgment relied upon in the same, hence the reliance on the aforesaid judgment is misplaced. In view thereof, it appears that the jurisdiction vested in the learned trial court has not been exercised properly.
11. In view of what has been discussed above, without further commenting upon the merits of the case, lest it may prejudice case of either of the parties, the impugned order dated 07.07.2025 is set- aside and the matter is remitted to trial court where the aforesaid application shall be deemed to be pending and the trial court shall decide the same afresh on its own merits in accordance with law after taking into consideration stance of both the parties, inter-alia, objection of the respondents as to maintainability of said application under Rule 11-A of Order-VII CPC. However, the observations recorded by this Court are purely tentative in nature related to legal question decided herein and shall not be treated as observations on the merit of the case. The said exercise shall be carried out by the trial court as expeditiously as possible, preferably till 30.09.2025.
12. With these observations, this petition stands disposed of.