1989 PLP 234 (MLD)

N. W. F. P. v. Said Kamal Shah PLD 1986 SC 360 ref. Sardar Muhammad Akram for Petitioners. Najamul Hassan Kazmi for Respondents. Date of hearing: 22nd January, 1989. This is a vendees' revision against the judgment and decree of the Additional District Judge, Lahore, dated 26th of May, 1982 whereby the dismissal of the suit of the respondents by the learned trial Court on 13th of February, 1978 was set aside and their suit was decreed.

2. The suit was filed on 25th of September, 1973 by the respondents seeking to pre‑empt the suit land measuring about 122 Kanals 11 Marlas situate in village Hero Jabbo Tehsil and District Lahore. It was sold by its owner Rehmat Ali to Taj Din and Said Muhammad, the two petitioners and was evidenced by mutation dated 12th of September, 1972 which was attested on 27th September, 1972. The superior right of pre‑emption was claimed by the respondents on the basis that they are collaterals of the owner, co‑sharers in the Khata and owners in the estate.

3. The suit was resisted by the petitioners by filing a written statement in which various objections were taken. It was pleaded that the suit was barred by time; that the respondents‑plaintiffs were estopped by their own conduct by filing the suit; that the suit was not properly valued for the purposes of court‑fee and jurisdiction. On merits the allegations in the plaint were repudiated. On the pleadings of the parties as many as 11 issues were framed by the trial Court.

4. The learned trial Court on 13th of February 1978 decided issues No. 1, 8 and 9 and dismissed the suit. Under issue No. 1 it was found that the suit was not within time. This finding was reversed in appeal of the respondents by Additional District Judge who held the suit to be within time.

5. The learned counsel for the petitioners has contended that though an issue was framed regarding the valuation for the purposes of court‑fee and jurisdiction, the same has not been decided either by the trial Court as also by the Additional District Judge. It has been pointed out by the learned counsel that an application under Order VII rule 11 C.P.C. was filed by the petitioners before the trial Court which was however, rejected on the basis that an issue regarding valuation for the purpose of court‑fee and jurisdiction already stood framed and a decision in this respect will be taken while deciding the said issue. This grievance of the learned counsel is well founded. It is evident from a perusal of the judgment of the learned Civil Judge dated 3rd of February 1978 that he declined to decide issue No. 5 as according to him, the finding on that issue had already been given by his learned predecessor. These observations were based on clear misreading of the order passed by the trial Court on 5‑9‑1975 on the application under Order VII rule 11 C.P.C. The said application was rejected on the ground that the question of court‑fee will be decided at the time of final decision of the suit as an issue had already been framed. No decision as to valuation was given at that time. In these circumstances the Courts below were under an obligation to have recorded a finding on issue No. 5 relating to court‑fee which they failed to do.

6. The learned counsel for the petitioners has also taken exception to the findings of the lower appellate court on issue No. 1 regarding limitation and has also challenged the decision of the trial Court on issue No. 2 regarding estoppel. In this respect, it is contended that the Courts below have misread the evidence and have also failed to consider important material brought on the record by the petitioners. He has particularly relied on an agreement Ex. D/1 and the endorsement bearing on its back. The execution of this agreement was disputed by the respondents. Unfortunately, however, both the Courts below have failed to advert to this important document and its legal effect. It is, therefore, obvious that the judgments of the two Courts below are not sustainable and the case will have to be remanded to the trial Court. The learned counsel for the respondents has also voiced a grievance that they were not allowed to produce evidence to rebut the agreement Ex. DW.2/1. For this reason also, a remand of the case is called for. It may be clarified that since the suit filed by the respondents had been decreed by the trial Court before 30th of July, 1986 it will not be hit by the rule laid down in N.W.F.P v. Said Kamal Shah PLD 1986 SC 360 and will be decided on its own merits. For the foregoing reasons this revision is accepted, the judgments and decrees of both the courts below are set aside. The suit is remanded to the trial Courts for its decision afresh after allowing the parties to lead such evidence as they desire. The parties to bear their own costs. H.B.T./T-53/L????????????????????????????????????????????????? Revision accepted/Order accordingly.