1995 PLP 1461 (CLC)

I propose to dispose of two Civil revision petitions i.e. Civil Revision No. 18/90 (Haji Sher Bhadar v. Pir Hussan‑ur‑Rehman etc.) and Civil Revision No. 48/90 (Inyatullah Khan etc. v. Pir Hassan‑ur‑Rehman etc), these civil revision petitions have arisen out of two declaratory suits filed by the rival parties against each other with a common bone of contention i.e. a shop about 2 Marlas situated in Khasra No. 344/258/36 the total area of which is 7 Kanals, 2 Marlas in Mauza Nar Sultan Muqarrab Khan, Tehsil and District Bannu.

2. The facts of the cases are that a part of Khasra number mentioning above was evacuee property consisting of, agricultural as well as built up area in the shape of houses and shops. One Suit i.e. No. 134/1 was instituted by Pir Hassan‑ur‑Rchman on 10‑3‑1983 against the various persons including Inayatullah who is plaintiff in the other suit. His claim is that he is the owner of the disputed shop on the strength of a P.T.D. issued in his favour and challenged the P.T.D. issued in favour of the defendants and stated to be the result of collusion, illegal and ineffective on his rights. Inayatullah and Haji Sher Bahadar were stated to be the subsequent transferee through a registered deed which he also alleged to be ineffective upon his rights.

3. The other Suit No. 252/1 instituted by Inayatullah who is defendant No.7 in the former suit, against Pir Hassan‑ur‑Rehman who is the plaintiff in the previous suit and his to sons. He also sought a declaration from the Court that he is the owner of the disputed shop and alleges the transfer of the disputed property in favour of defendant as ineffective on his rights with a further assertion that the shop is not situated in the area which is 1 Kanal 17‑1/2 allegedly purchased by the defendant. According to him if the transfer in favour of the defendant is taken to be correct even then he has not purchased the shop, the property in dispute as . the total area of the Khasra Number' is more than 7 Kanals and defendant allegedly purchased a portion of it.

3. Both the suits were contested and in former suit 16 issues were framed while in the latter 12 issues were framed. In both the suits the issue with regard to the jurisdiction was also struck. The evidence produced by both the parties and at the conclusion of the trial the learned trial Court in both. the suits returned the plaints under Order 7, rule 10 for the lack of jurisdiction of the Court to adjudicate upon the matter and in view of section 41 of the Administration of Evacuee Property Act.(according to the trial Court). Both the plaintiffs have filed the appeals against the judgments and decrees of the Courts below in their respective suits. The learned appellate Court did not concur with the trial Court in respect of the verdict given by it on the preliminary point i.e. the jurisdiction of the Court and held that in view of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975 which has repealed almost all the laws relating to the evacuee properties and which were having the provision for ousting the jurisdiction of the Civil Court, after repeal of which, the Civil Court has got the jurisdiction. After holding as such the appellate Court proceeded with the appeal by deciding the suit on merits by observing that the material on record is sufficient for the disposal of the case. After discussion the merits of the case it dismissed the appeal filed by Inayatullah Khan and inconsequence of which his suit stand dismissed while accepted the appeal filed by Pir Hassan‑ur‑Rehman and decreed his suit. The petitioners filed two revision petitions mentioned above against the judgments and decrees of the District Judge in both the appeals.

4. The learned counsel for the petitioner contended that the appellate Court has committed illegality and irregularity by deciding the appeal himself instead of sending it back to the trial Court for adjudication on merits issue wise and if it was inclined to do the same i.e. decide the suit himself then he should given findings on each issue separately. Even on merits, it was contended, he misread the evidence and the judgment is the result of wrong appreciation of the evidence.

5. According to Order 20, rule 5 that in suits in which the issues have been framed, the Court shall states its findings or decision with reasons there?fore, upon each separate issue, unless findings upon any one or more of the issues is sufficient for the decision of the suit. In the instant case the trial Court has not given findings on each separate issue but has decided the case on the preliminary point i.e the jurisdiction of the Court and holding the lake of jurisdiction in the Court returned the plaint. In such eventuality then the appellate Court will act in accordance with Order 41, rule 23 according to which, where the Court from whose decree an appeal is preferred disposed of the suit upon a preliminary point and, a decree is reversed in appeal, the appellate Court may, if it think fit by order remanding the case and may further direct what issue or issues shall be tried in the case so remanded. According to Order 41, rule 24 the appellate Court may after resettling the issues if necessary finally determine the suit when the evidence upon record is sufficient to enable the Court to pronounce the judgment. By reading the abovementioned two rules i.e. 23 and 24 the appellate Court within its discretion instead of remanding the case may determine the suit finally after resetting the issues if the evidence on record is sufficient. According to Order 41, rule 31 the judgment of the appellate Court shall state:‑‑ (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) ............................... Though this rule has made incumbent upon the appellate Court that it should specify the points for determination and then should give the decision on such points with the reasons thereof 'taut unlike the trial Court it had not been made obligatory that the decision be given on separate issues. If we look at the scheme of the C.P.C. then it seems that it is the requirement of the law that when once in a suit the issues have been framed then the first decision which is to be given by any forum would be on the basis of separate issues. Rule 31 envisages provisions for a situation when the parties are having a decision in the suit by a Court on separate issues and then the appellate Court would render the decision not on the basis of the findings on separate issues but on certain points determined by the appellate Court which require a decision and which will be given with the reasons therefor. But when the appellate Court has bent upon to take the job of the trial Court upon itself and has opted for exercising the discretion of deciding the case because of the provisions of rules 23 and 24 of Order 41, then the same be done in accordance with the provisions of law and in the manner expected of the trial Court i.e., decision issue was as the parties are not having had their fate decided in the way contemplated by the law. To exploit the provisions of Order 20, rule 5 by an appellate Court on the basis of the provision of Order 31 for the first time for a decision of a suit on merits without having it firstly decided by a forum on the basis of findings, on separate issues within the meaning of Order 20, rule 5 would be an irregularity committed by the appellate Court in the procedure which attract the revisional jurisdiction to set it right by providing an opportunity to the parties to have a decision in the suit firstly on the basis of findings on separate issues in accordance with Order 20, rule 5 and for this purpose the suit is required to be remanded to either of the Court i.e. the trial Court as well as the appellate Court for a decision on the basis of findings on separate issues as rules 23 and 24 of Order 41 also empower the appellate Court to do as such. But the proper course would be to remand the case to the trial Court as by remanding to the appellate Court would deprive the parties of an adjudication by one forum i.e. the trial Court and in consequence of which they would also not he having the chance of an appeal.

6. Thus, while agreeing with the appellate Court that the civil Court has got the jurisdiction but disagreeing with it on the manner of the disposal of the suit by itself, as explained above, the revision petitions are accepted. The judgments and decrees of the appellate Court in both the cases are set aside and the suits are remanded back to the trial Court for adjudication within the meaning of Order 20, rule 5 C.P.C. The parties are left to bear, their own costs. A.A./1744/P??????????????????????????????????????????????????????????????????????????? ??????????? Case remanded.