2016 PLP 678 (MLD)

MUHAMMAD ALAM, J.

This revision petition has been directed against order dated 11-09-2013, passed by the learned District Judge Skardu. Through impugned order, the learned first appellate court accepted CFA No.28/2012 of the said court.

2. Petitioners and respondent No.1 filed a suit (C.S. No.32/2008) in the trial court, who completed trial proceedings of the suit up to the recording of the evidence of parties. One Mr. Qamar Abbas appeared for plaintiffs as their attorney and got his statement recorded on behalf of the petitioners/ plaintiffs as well as respondent No.1. The said Qamar Abbas produced PWs also whose statements were also recorded as evidence on behalf of petitioners and respondent No.1. On 20-06-2012, respondent No.1 filed an application praying that:-- Suit for declaration of right of Mutuwaliship of the Qatilgah Sharif Skardu. The trial court received reply to the said petition and passed an order dated 15-10-2012, whereby, dismissed the said petition of respondent No.1. Feeling aggrieved from the same, respondent No.1 filed appeal (CFA No.28/2012).

3. I have heard learned counsel for parties at length and have gone through the relevant record of the case. The simple questions debated before me are, what are the adverse affects of statements of the attorney for respondent No.1 and the statements of the PWs? And whether respondent No.1 can cross examine his own witnesses, i.e., PWs, although their statement was recorded in presence of respondent No.1.?

4. It is not disputed that the impugned order is result of application dated nil, initialed by the judge of trial court on 20-06-2012. The trial court obtained reply to the said petition through reply dated nil. The learned trial court, admittedly, did not frame issues in the light of said application and reply thereto. This is the only irregularity that I have noted in the proceedings of the trial court regarding hearing of the case on the said application. The second irregularity I have noted is that the learned first appellate court has not given any finding regarding the maintainability of a regular appeal against an order on a miscellaneous application, as is in the case in hand. I, therefore, deem it proper to direct the trial court for framing issues in the light of said application and reply thereto. Then the trial court should record evidence of parties in proof and rebuttal of said issues and thereafter any order should come. The trial court is free to conduct the proceedings on the said application on day to day basis and take notice of relevant law governing the question of disputing statements given in the court.

5. In the sequel of above discussion, I accept this petition, set aside impugned order as well as order dated 15-10-2012 of the trial court and remand the case to the trial court for completing the trial proceedings on the application of respondent No.1, referred in para No.4 above. Petition is allowed in the above terms. This file be consigned to record. ZC/125/GB Revision allowed.