1987 PLP 229 (CLC)

4. The learned trial Judge on the pleadings of the parties framed the following issues:‑ (1) Whether plaintiff has a cause of action? (2) Whether the suit is bad in form? (3) Whether the suit has not been properly valued for the purposes of court‑fee and jurisdiction? (4) Whether the plaintiff is an exclusive owner in possession of the suit property through Manjawars? (5) Whether the plaintiff is entitled to the injunction prayed for? (6) Relief." This case was pending before the learned trial Judge of recording evidence of the parties for considerable period as there had been moved several applications by the parties from time to time for maintenance of status quo and for permission to produce additional evidence etc. However, ultimately when evidence of both the parties was recorded and arguments of the learned counsel for the parties were heard, the learned Civil, Judge took up issues Nos. 1 and 2 together and held that in the absence of any judicial pronouncement in respect of the plaintiff ownership of the suit property which fact has been specially denied by the defendants, the present suit for simple injunction under section 54 of the specific relief Act without seeking declaration of his right of ownership was incompetent and bad in the present form. He therefore, decided both these issues against the plaintiff and dismissed the suit without giving his finding on rest of the issues vide his judgment and order dated 19‑1‑1980.

5. Aggrieved by the judgment and order the plaintiff went in appeal against it in the Court of Additional District Judge, Peshawar. The learned Additional District Judge considered the finding of the trial Court on Issues Nos. 1 and 2 and after having affirmed it dismissed the appeal.

6. The learned counsel for the respondents raised preliminary objections to the maintainability of the revision petition on the grounds firstly, that Phool Badshah one of the respondents died on 23‑2‑1982 but his L. Rs. were not brought on the record within the prescribed period under the law, the revision petition has, therefore, abated; secondly, that all the L.Rs. of late Syed Ali Sajjad Bukhari (plaintiff) have not filed the present revision petition as Mr. Abdullah Jan Mirza, the learned Advocate who filed the petition, was empowered by the power of attorney executed in his favour by one of the L. Rs. The power of attorney executed in favour of Mr. Tahirkheli, Advocate appearing for the petitioners was also objected to. Lastly the revision petition was objected to be incompetent as the grounds raised therein pertained to the determination of questions of facts which are beyond the scope of revisional jurisdiction. It may be pointed out that the petitioners have also moved an application under Order VI, rule 17 read with Order I, rule 10 of Civil Procedure Code which is Civil Miscellaneous Yo. 401 of 1985 for amendment of the plaint to add the claim for declaration and in the alternative for possession of the suit property.

7. Both the learned counsel for the parties addressed lengthy arguments on the preliminary objections raised by the learned counsel for the petitioners, on the application for amendment of the plaint as well as on merits of the case.

8. The objection regarding the abatement of the revision petition has got no force. Admittedly, the present suit was instituted in the trial Court on 31‑7‑1979 i. e. before amendment brought about in Order XXII of Civil Procedure Code by the Law Reforms Ordinance, 1962. It A was, therefore, that both the parties did not file the list of their respective L. Rs. Even otherwise the provision of Order XXII, rule 4, C.P.C., are not applicable to the revision petition. This question was referred to a Division Bench of this Court in a case Pordil and others v. Barkat and others P L D 1953 Pesh.

14. When an objection was raised before the learned Single Judge that application for bringing the L.Rs. of the deceased respondent in a revision petition having not been made within 90 days the petition will abate. Their Lordships of the Division Bench after considering various judgments of the superior Courts for and against the question referred to hold:‑ "We accordingly hold that the provision of Order XXII of the C . P. C . are not applicable to the revision petition and this revision petition, cannot therefore, be dismissed on the ground of abatement."

9. The objection of the learned counsel for the respondents than the revision petition has not been filed by all the L. Rs. of the plaintiff is also misconceived. From the perusal of the certified copies of the decree sheet of the appellate Court it is evident that Mr. Muhammad Shafi, learned Advocate was representing the appellant (petitioners) herein) in the Court of Additional District Judge, Peshawar. The revision petition filed in this Court apart from it having been signed by Mr. Abdullah Jan, Advocate also bears the signature of Mr. Muhammad Shafi. He is also present in Court today and represents the petitioners. It, therefore, cannot be said that the revision petition has not been filed by all the L . Rs . of the plaintiff. Even otherwise one of them could competently move a revision petition.

10. The other question raised pertains to the merits of the case. The grievance of the learned counsel for the petitioners is that Issue No.4 reproduced above, was framed by the trial Court in the presence of the learned counsel for the parties which apparently arose out of the pleadings of the parties. However, without giving his finding over the issue which goes to the roots of the case, the learned trial Judge took up Issues Nos. 1 and 2 jointly and without making reference to any evidence produced by the parties, decided both these issues against the plaintiff and thereby dismissed the suit. His further grievance is that though this question was seriously agitated before the learned Additional District Judge, he committed the same error by affirming the finding of the trial Court on issues Nos. 1 and 2 and dismissing the appeal without giving his finding on Issue No.4.

11. In order to appreciate the contentions of the learned counsel 44 for the petitioner reference may be made to the relevant part of the judgment of the learned trial Judge giving his finding on Issues Nos. 1 and 2 which is as follows: "Plaintiff has alleged that he is exclusive owner in possession of the property in dispute. Defendants have denied the plaintiff's allegation. The record shows that there is no judicial pronouncement in favour of the plaintiff in respect of his rights over the suit property, nor he is owner of the same by purchase or inheritance. In such circumstances, there is no obligation existing in favour of the plaintiff. Moreover, the defendants are allegedly asserting their claim over the property in dispute, so the plaintiff's suit for simple injunction under section 54 of Act 1 of 1877 without seeking declaration of his rights over the suit property is ab initio incompetent and is bad in its present forms."

12. Similarly the learned Additional District Judge has dealt with the objection raised before him as follows:‑ "The learned counsel for the appellant has referred to various documents purporting to be lease deeds executed in between the predecessor‑in‑interest of the plaintiff and other persons and has claimed that the plaintiff was in possession of the suit property through the 'Manjawar' and he claimed that the learned lower Court must have given findings on the evidence on record taking into consideration these documents, but the contention of the counsel for the appellant does not carry any weight as they have not been .able to prove that there was any obligation on part of the defendants in favour of the plaintiff because the plaintiff has not disclosed the source of his ownership in clear words in his plaint." In spite of the fact that there was a specific issue framed with regard to the claim of ownership and possession and both the parties have led considerable evidence oral and documentary in support thereof, no finding was given on this issue though it has direct bearing on Issues Nos. 1 and

2. In their findings both the Courts below have observed that no prayer of ownership and possession has been made in the plaint and this observation was made the basis for giving their findings on Issues Nos. 1 and 2 ignoring that specific issue on the point had already been framed. If the Courts were of the view that the issue did not arise of the pleadings of the parties, though from the allegations made in the plaint it did arise, the same was to be struck off as unnecessarily framed. While giving their finding the Courts below have made observations regarding the ownership and possession of the plaintiff without making reference to the evidence on which the plaintiff had based reliance and rejecting such evidence. Under the law, it was incumbent upon the trial Court to have based its judgment on the evidence produced by the parties after judicially scrutinising it so that it may be gathered there from that the Court has applied its mind to the facts of the case. Finding and decision upon each separate issue material to the decision of the case was essential excepting it the case could be disposed of upon one or more issues. The appellate Court was also supposed to formulate the point for determination and to give its decision therein backed by reasoning getting support from the evidence on the record. Undoubtedly both the parties have produced overwhelming oral and documentary evidence over the issues framed in the case, both the Courts below have not referred to an iota of such evidence) but have based their findings on mere conjectures.

13. In view of what has been stated above, I have no option but to set aside the judgment and decree of both the Courts below and remand the case to the trial Court for decision in accordance with law.

14. As earlier pointed out that the learned counsel for the petitioner has made an application under Order VI, rule 17, C.P.C. for amendment of the plaint to remove the ambiguity observed by the Courts below and to add the prayer for declaration of ownership and in the alternative for possession of the property if the plaintiff is found out of possession. The learned counsel for the respondents, however, objected to the amendment on the plea of delay, estoppel and conduct of the plaintiff. Both the learned counsel for the parties cited numerous authorities in support of their pleas. However, the broad principle laid down in al those authorities is that prayer for amendment is to be liberally allowed so that the rights of the parties are fairly and conclusively determined and multiplicity of suits avoided. Technical hurdles in the administration of justice are to be overcome by liberally exercising discretion in allowing amendment. As the case is to be remanded to the trial Court, there is a no need to discuss the authorities relied upon by both the learned counsel for the parties but I would allow the application for amendment of the plaint so that all the questions requiring determination by the Court are specifically brought out in the plaint and in the written statement for final determination. The amendment of plaint would definitely prolong the agonies of the defendants, therefore, to compensate them the plaintiffs are to pay a sum of 88.1,000 as costs for the amendment prayed for. For the reasons stated above, this revision petition is accepted, the judgment and decree of both the Courts below are set aside and F the case is remanded back to the trial Court for retrial of the suit afresh as observed. Both the parties are, however, left to bear their own costs of this revision petition. A. A . Revision accepted.