P L D 2011 Peshawar 7 (PLP)

ZIA-UR-RAHMAN KHAN, J.

Impugned herein is the judgment and decree dated 20-6-2009 passed by the learned District Judge, Karak whereby while dismissing appeal of the petitioner, the judgment and decree dated 24-4-2008 recorded by the learned Civil Judge decreeing the suit of the respondent asking the petitioner to pay the disputed amount, has been upheld.

2. Facts in precise manner of the instant litigation are that the respondent in the capacity of plaintiff filed a suit for recovery of the disputed amount to the tune of Rs.2,60,000 on the basis of an award dated 10-7-2005, the details whereof are duly given in the plaint. As per details, the said amount was claimed from the petitioner being price of a Datsun Pick-Up bearing Registration No.B-2038 which according to the respondent, was sold to him by the petitioner. But the same was subsequently taken into custody by another person claiming its ownership and till the filing of the suit the same was not available with the result that arbitration was made between the parties which was reduced into writing on 10-7-2005 by the arbitrator. Due to the non-fulfilment of its terms, the petitioner was sued for the recovery of the said amount. The petitioner on being summoned, opted to contest the suit by filing written statement wherein he raised many legal and factual objections. The learned trial Court instead of reducing all the objections into proper issues, framed few issues and put the parties on trial. On the conclusion of trial, the suit as prayed for was decreed in favour of the respondent which judgment and decree was assailed by the petitioner through appeal but the same did not bear any fruit. Thus the instant revision petition.

3. The learned counsel for the petitioner not only raised objection over the non-framing of necessary issues including the issue of jurisdiction as according to him under section 32 of the Arbitration Act the enforcement of award could not be sought through ordinary suit. He also contended that both the courts below have misread and non-read the evidence available on the record because according to him, the respondent in clear words has admitted in his statement before the court that he did not purchase the disputed vehicle directly from the petitioner, rather it was purchased from one Ayaz and was subsequently sold by him to one Banat Khan. He also referred to a portion of his cross-examination pointing out that the respondent/decree-holder has admitted that at the time of sale the said vehicle stood entered in his name in the record of the concerned department. He lastly argued that after the judgment of the trial Court, the same was assailed through appeal and not only in the memorandum of appeal, different grounds were agitated but also at the time of arguments the same was agitated before the learned appellate Court and the said court despite mentioning all the submissions in para. No.5 but have been left un-attended. Thus, he added that it was clear violation of Order XLI, Rule 31, C.P.C. and on this ground alone the appellate court being the first court of facts has refused to exercise the jurisdiction vested in it.

4. On the contrary, the learned counsel for the respondent/decree holder while opposing all the contentions of the learned counsel for the petitioner supported the concurrent findings recorded by the two forums below adding that no irregularity or illegality has been committed by the said court. He maintained that the instant petition is liable to dismissal.

5. I have heard the learned counsel for the parties and have gone through the record with their valuable assistance.

6. Apart from other contentions raised by the learned counsel for the petitioner, the most weightful contention is the non-observance of the formality of the provisions of Order XLI, Rule 31, C.P.C. whereunder the court of appeal being first court of facts is obliged to state the points for determination, the decision thereon and the reasons for the decision. But unfortunately in this case, the learned appellate court has tried to decide the appeal of the petitioner in a very slipshod manner without accepting its responsibility of dealing with each and every ground having been agitated in the memorandum of appeal. The said memo of appeal embodied many grounds with regard to the non-framing of proper issues emanating from the pleadings of the parties, non-availability of jurisdiction, non joinder and mis-joinder of necessary parties but a bare look over the judgment of the learned appellate court shows that these grounds have never been adverted to, meaning thereby that the formality of the said provision of law stands unobserved and in this way the case of the petitioner has been immensely prejudiced. The apex courts from time to time have laid down certain principles by making it incumbent upon the appellate court to deal with each and every aspect of the case while hearing appeal of an aggrieved person, so that all questions of facts are decided at appellate stage. The rationale behind such direction is that the appellate court is the first court of facts and the entire controversy reopens and the whole material is supposed to be gone through and discussed thread bare to the satisfaction of the appellant before it. In the case in hand, the judgment of the appellate court shows that the learned Presiding Officer has not taken the pain to take into consideration one by one all the grounds mentioned in the memorandum of appeal. Rather after reducing the facts and narration of the parties to some extent, the learned appellate court has easily agreed with the learned trial Court with regard to the correctness of the stance of the respondent/decree-holder without paying any heed to the legal formalities. Agreeing in this manner with the learned lower court while maintaining the judgment appealed against, the learned appellate court has definitely fallen into a grave error and in this way the cause of the petitioner has been badly prejudiced. Even the learned counsel for the respondent, although hesitatingly, but admitted this legal position. Since it is not a mere technicality but rather the appellate court has avoided to perform its legal duty by not dealing with each and every aspect of the case and in this way the procedural law has been badly violated. In this view of the matter, without dilating upon other aspect of the case, this court is not left with any other option but to remand the matter to the learned appellate court to first consider all the grounds contained in the memorardum of appeal and thereafter re-write proper judgment. The appellate court shall also frame necessary issues arising out of the pleadings of the parties and if necessary may also record further evidence. Accordingly, this revision petition is accepted, the impugned judgments are set aside and the matter is remanded to the appellate court at Banda Daud Shah with the aforesaid directions leaving the parties to bear their own costs. H.B.T./339/P Case remanded.