2017 PLP 2066 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioner has challenged the judgment and decree dated 19.9.1996 passed by the learned District Judge, Khanewal whereby appeal filed by the petitioner was dismissed and judgment and decree dated 24.1.1996 whereby a suit for declaration filed by the plaintiff-petitioner was dismissed.

2. Brief facts of the case are that plaintiff-petitioner on 20.01.1991 filed a suit for declaration challenging therein registered Sale Deed No. 1561/1 registered on 1.11.1990 in favour of defendant No. 1 allegedly executed on behalf of the plaintiff-petitioner. Written statement was filed, suit was contested. Learned trial court framed the issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court dismissed the suit vide judgment and decree dated 24.1.1996. Appeal was preferred, the same has also been dismissed vide judgment and decree dated 19.9.1996 by the learned District Judge, Khanewal. Hence, this Civil Revision.

3. Learned counsel for the petitioner at the very outset stated that as in his view it is a case of remand, therefore, stated that he will argue to substantiate his points rather advancing arguments on the merits of the case.

4. No one is present on behalf of respondent No. 1, therefore, he is proceeded against ex parte.

5. I have heard learned counsel for the available parties on this preliminary point. Learned counsel for the petitioner has referred Para No. 3 of the judgment passed by the learned appellate court, which is reproduced for ready reference:-- "Crucial issue No.10 was decided in favour of the defendant No. 1 and all other issues alike. The appeal is only against the findings on Issue No. 10 and there are no cross-objections." Learned counsel has referred his grounds of appeal filed before the learned lower appellate forum wherein all the issues which have been decided by the learned trial court against the plaintiff-petitioner have been challenged. I have noted that before the learned trial court Issues Nos. 3, 4, 5 and 7 were not pressed, all other issues have been decided, the learned trial court has decided all the issues on the basis of findings recorded by it on Issue Nos. 8, 9 and

10. The arguments of learned counsel for respondent No. 2 to the effect that when only Issue No. 10 was a crucial issue and court was not bound to decide all the issues, I do not agree with the argument of the learned counsel for respondent No. 2, it was the duty of the learned trial court to decide the issues findings of which were agitated before the learned first appellate court or to frame points for determination in accordance with Order XLI, Rule 31 of C.P.C. and then to decide said points. Admittedly, the learned lower appellate court has not complied with this procedure which fatally affected the decision rendered by the learned lower appellate court. As under the law when plaintiff has challenged the execution of sale deed and appeared before the court, stated on oath that she has not got the sale deed registered, then onus shifted upon the other side for which on their pleadings issues Nos. 8 and 9 were framed, therefore, both these issues were also material issues, which required decision by the learned first appellate court. By ignoring the mandatory provisions of procedure and by not deciding the issues findings of which were agitated before the learned lower appellate court fatal defect has been committed by the learned lower appellate court. I agree with the arguments advanced by learned counsel for the petitioner though this court while exercising jurisdiction under section 115 of the C.P.C. is not a court to interpret the evidence led by the parties and it was the duty of the learned first appellate court to decide the issue after preponderance of evidence, which has not been done by the learned first appellate court, therefore, judgment and decree passed by the learned first appellate court is not sustainable under the law, same is set aside. This civil revision is allowed and matter is remanded back to the learned first appellate court to decide the appeal afresh strictly in accordance with law.

6. Before parting with this judgment it is important to note that respondent No. 2/Spintex Enterprises was made party in this revision petition on the basis of application moved by respondent No. 2 claiming to have interest in the suit property, therefore, petitioner to implead respondent No. 2 as party in the appeal. The petitioner will file amended memo of parties. Parties are directed to appear before the learned District Judge, Khanewal i.e. the first appellate court on 28.4.2015. The learned first appellate court to decided the appeal afresh after issuing notice to respondent No.1 and hearing available parties. Both the parties will be at liberty to raise any objection they want before the learned first appellate court. RR/A-62/L Case remanded.