2019 PLP 1320 (CLC)

C.M. No.3 of 2018 AMIN-UD-DIN KHAN, J.

This is an application for permission to place on record certified copies of the documents annexed with this petition. C.M is allowed subject to all just and legal exceptions. Main Case:

2. With the concurrence of learned counsel for the parties this case is being decided as 'Pacca Case'.

3. The facts are that the plaintiff-respondent No.3 on 18.09.2014 filed a suit for specific performance of an agreement to sell dated 22.03.2013. The date for performance as per learned counsel for the parties fixed in the agreement was 27.03.2013. The suit was initially decreed as ex-parte vide judgment and decree dated 14.02.2015. Thereafter on application of the defendant, judgment and decree was set-aside and learned trial court on 05.05.2016 framed the following only one issue:- "Whether plaintiff had failed to pay the remaining consideration amount within stipulated time period due to which the agreement between the parties has been cancelled? OPD" The burden to prove this issue was placed upon the defendant holding that this issue will decide the fate of the case. If the defendant succeeds to prove this issue, the suit shall be dismissed and if he fails to prove this issue, then the suit shall stand decreed. The record shows that statements of Shehzad Iqbal as DW-1, Uzma Iqbal as DW-2 and Syed Kafeel Ahmad as DW-3 were recorded on 01.02.2018. The said witnesses were cross-examined on 31.03.2018. Learned counsel for the defendant made statement that he closes his right to produce oral as well as documentary evidence. The record shows that thereafter defendant/petitioner moved an application for permission to produce additional evidence, which was dismissed on 19.05.2018. A revision was filed against the said order, which too was dismissed vide judgment dated 09.10.2018. Hence, this writ petition.

4. I have heard the learned counsel for the parties.

5. At the very outset, learned counsel for respondent No.3/plaintiff was asked that how he can defend the order dated 05.05.2016 whereby only one issue regarding factual controversy between the parties was framed and it was ordered that the fate of this issue will decide the whole case. States that at the relevant time the present petitioner/defendant had not challenged the said order, now the question before this court is only with regard to the fact that application for permission to produce additional evidence was dismissed by the learned trial court and revision there against too was dismissed. Therefore, states that this Court cannot go beyond that. I am afraid that this Court cannot be privy to an illegality and shut its eyes when both the courts below are proceeding with the matter absolutely against the law while ignoring the procedure which prejudiced the case of any of the parties. I am unable to understand that how a civil matter can be decided in piecemeal by framing a single issue with regard to factual controversy. In exceptional cases a legal issue can be framed as preliminary issue but not the issue relating to factual controversy between the parties. Otherwise the matter in hand is a suit for specific performance and learned trial court framed a preliminary issue relating to factual controversy between the parties and further the onus was placed upon the defendant. It was pre-determination of the suit that if the defendant fails, then the suit shall stand decreed. It is not a way to decree the suit for specific performance. Therefore, I. have no other option except to declare the judgment impugned through this writ petition dated 09.10.2018 passed by the learned Additional District Judge, Lahore dismissing the revision petition filed by the petitioner, the order dated 19.05.2018 passed by the learned trial court dismissing the application for permission to produce additional evidence as well as the order dated 05.05.2016 passed by the learned trial court whereby a preliminary issue was framed and it was held that if issue is proved by the defendant, then the suit shall stand dismissed, to be without jurisdiction and same are set-aside. The suit is still pending before the learned trial court. Learned trial court is directed to frame proper issues and proceed with the matter in accordance with law. The writ petition is allowed in the above terms. SA/S-5/L Case remanded.