2019 PLP 2344 (YLR)

SYED ARSHAD ALI, J.

Through the instant revision petition, the petitioners have challenged the judgment/ order of the learned appellate Court dated 13.05.2016, whereby the learned appellate Court while recasting three (3) additional issues has remitted the case back to the learned Trial Court for further evidence.

2. Brief but essential facts of the case are that the plaintiff/respondent No.1 filed a suit for declaration to the effect that the defendants (hereinafter called the petitioners and the respondents Nos. 2 to 5) are not entitled to interfere in the suit property and deny his ownership. He has also prayed for possession and permanent injunction against the defendants. The claim of the plaintiff/ respondent No. 1 in the plaint was that he had purchased the suit property vide deeds dated 15.06.2008 and 31.03.2010 and was also handed over possession by the vendor. The petitioners who were defendants No. 1 to 4 in the said suit contested the claim of the plaintiff/respondent No. 1 by filing their written statements, wherein they denied the execution of the said two deeds upon which the claim of the plaintiff/ respondent No. 1 was based and have stated that indeed they had purchased the property which is in their possession from the same vendor through deed dated 27.04.1978. However, the defendants 5 to 8 (hereinafter called the respondents Nos.2 to 5) also filed their written statements in favour of the plaintiff/ respondent No.

1. The controversy between the parties was narrowed down in form of the following ten (10) issues:- Accordingly the parties were asked to produce their respective evidence and after closure of the evidence, the suit of the plaintiff/respondent No. 1 was dismissed by the learned Trial Court vide judgment and decree dated 30.06.2015. The plaintiff/respondent No. 1 feeling aggrieved of the said judgment and decree had preferred an appeal before the learned Additional District Judge/IZQ Samarbagh Dir Lower along with an application for recasting of issues. The learned appellate Court accepted the said application and remanded the case back to the learned Trial Court by framing three (3) additional issues with the direction to learned Trial Court to allow the parties to lead further evidence on additional issues. The additional three issues are as under:-

3. Learned counsel appearing on behalf of the petitioners has argued that the impugned order is patently illegal as the already framed issues fully covered the contested pleas of the parties and there was no need of framing of additional issues. Learned counsel appearing on behalf of the respondents has argued in favour of the impugned judgment.

4. Arguments heard and record of the case was perused with able assistance of learned counsel for the parties.

5. The close perusal of the issues recasted by the learned appellate Court would show that the same controversy is duly reflected in the issues Nos. 6, 7 and 8 framed by the learned Trial Court. The question which was referred to the learned lower Court in form of framing of additional issue No. 1 essentially relates to encroachment by the defendants in the property of the plaintiff is fully covered in earlier issue No. 7 framed by the learned Trial Court. Similarly, the issue No. 2 recasted by the learned appellate Court is also covered in the already issue No. 8 framed by the learned Trial Court. Likewise, the anxiety of the learned appellate Court reflected in issue No. 3 is also covered in issue No. 5 framed by the learned Trial Court.

6. It appears that the learned appellate court wanted that the issues should be precise according to the pleadings. However, it is settled law that the issues originally framed and settled are aimed that the parties were aware that what was the subject matter of the controversy requiring the relevant evidence to be led upon and when the parties from very inception knew about the real controversy in dispute, then even non-framing of specific issue in such circumstances was inconsequential.

7. Indeed the pleadings and the issues as originally framed in this case show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the controversy canvassed by the plaintiff in the plaint. The non-framing of a specific issue in such circumstances is inconsequential. It was held by the august Supreme Court of Pakistan in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the "issues is not illegal". The aforesaid law laid down by the august Supreme Court of Pakistan was re-affirmed in its subsequent pronouncements. Reliance can be placed on "Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others" (1993 SCMR 2018), "Muhammad and 9 others v. Hasham Ali" (PLD 2003 Supreme Court 271) and "Abdul Karim v. Haji Noor Badshah" (2012 SCMR 212).

8. Even otherwise, the issues additionally framed by the learned appellate Court required no further evidence as evident from tenor of the said issues. The parties more particularly the plaintiff/respondent No. 1 had the knowledge of the controversy involved and he was given full opportunity to lead evidence in support of his plea which opportunity he has availed. Therefore, remanding the case to lead further evidence was not warranted in view of the law laid down by the august Supreme Court of Pakistan as stated above.

9. In this view of the matter, the impugned order of the learned appellate Court is not sustainable which is accordingly set aside. The learned appellate Court shall decide the main appeal on the available record.

10. This petition is disposed of accordingly. ZC/131/P Case remanded