1985 PLP 996 (MLD)

Muhammad Yaqub Sindhu for Respondent No.l. Nemo for Respondents Nos. 2 to

4. Date of hearing: 21st February, 19,

84. This petition for Civil Revision calls in question the judgment and decree, dated 27-10-1981 passed by a learned Additional District Judge, Sheikhupura.

2. Muhammad Ashraf respondent No.l (hereinafter referred to as the respondent) filed a suit against the petitioner and respondents Nos. 2 to 4 (proforma respondents) seeking a declaration to the effect that he was owner in possession of' 2 Kanals 10 Marlas of land as described in detail in paragraph 1 of the plaint, and that the defendants (the petitioner and the proforma-respondents herein) were wrongfully trying to dispossess him by force from his land. Thus, as a consequential relief, a decree for perpetual injunction was sought to the effect that the defendants should not interfere into the possession of tire plaintiff over the suit land.

3. The suit ware resisted by the, petitioner rind the proforma respondents who pleaded inter alia that the land in dispute was their ownership and was actually in their possession .They had already constructed their houses on that land 30 years ago after spending huge amount on the construction. Necessary issues arising out of the parties pleadings were framed. The learned trial Court, after considering the oral as well as documentary evidence adduced before it by the parties, decreed the respondent's suit.

4. The petitioner and the proforma-respondents preferred on appeal. Alongwith the memorandum of appeal, they also submitted on application under Order VI, rule 17, C.P.C. seeking amendment in the written statement so as to contend that on account of adverse possession for more than 12 years they had become owner of the suit land. An application for additional evidence was also moved by the petitioner and the proforma-respondents before the learned lower appellate Court. The learned Additional District Judge who was seized of the petitioner's appeal admitted the appeal to regular hearing vide his order, dated 27-6-1981. Through the same order, he appointed Mr. Riaz Ahmad Riaz Advocate as local Commissioner to ascertain, after local inspection, as to who was actually in possession on the spot on the land in dispute.

5. Subsequently, however, the learned Additional District Judge, without awaiting the report from the Local Commissioner and without deciding the application of the petitioner and the proforma-respondents for amendment of the written statement, dismissed their appeal vide his judgment, dated 27-10-1981. He ref course, rejected tire: application of the petitioner and the proforma-respondents whereby they had sought the permission to produce additional evidence. Hence the present petition for Civil Revision.

6. It has been contended on behalf of the petitioner that the learned Additional District Judge has failed to consider all the points which had been raised by the petitioner in the memorandum of appeal. This contention, of course, is without any substance because it has been specifically mentioned in the impugned judgment that but for the argument which has been discussed by the learned Additional District Judge, no other argument had been addressed at the time of hearing of appeal. The learned lower appellate Court could lawfully and justifiably. Omit to take into consideration the points raised in the memorandum of appeal which were not urged on behalf of the appellants at the time of hearing of appeal.

7. As already observed, the learned Additional District Judge lids failed to pass any order in regard to petitioner's application for, amendment of the written statement. Under- Order VI, rule 17, C.P.C., an application for amendment of the pleadings can be filed at any stage of tire proceedings, even at tire stage of a. second appeal. The Court (the learned lower appellate Court) was under legal obligation to pass appropriate orders about the disposal of such an application. It is also noteworthy that while admitting the appeal for regular hearing, the learned Additional District Judge has passed orders regarding appointment of a Local Commissioner so that he could ascertain, after local inspection, as to who was in possession of the suit land actually and whether that land formed part of Khasra numbers owned by the respondent or not. In the cirumstances of this case, Muhimmad Ashraf respondent sought the declaration in regard to 2 Kanals and 10 Marlas of land forming part of Khasra number 21/2 of Square No. 39 (measuring 15 Marlas) and Khasra number 1/1 of Square No. 43 (measuring 1 Kanals and 15 Marlas.) The respondents on the other hand were owners of Khasra number 1/2 of Square No: 43 to the extent of 19 Marlas and of Khasra number 21/3 of Square No. 39 (measuring 5 Marlas). Thus, in the circumstances of this case, it was an appropriate ;tt~p to demarcate the suit land on the spot through a local Commissioner to find as to whether in fact the suit land belonged to the plaintiff or not. The learned lower appellate Court, however, may be on account of its anxiety for the early disposal of the appeal, proceeded with undue haste and decided the appeal without awaiting the report of the local Commissioner who was appointed by itself. Failure on the part of the learned lower C appellate Court to pass an order on the application for amendment of the written statement and the slipshod manner in which it proceeded to decide the appeal without awaiting the report of the local Commissioner appointed by it amount to failure to exercise its jurisdiction which is certainly an illegality and material irregularity within the meaning of section 115, C.P.C.

8. For the foregoing reasons, the under consideration Revision Petition is allowed. The impugned judgment and decree passed by the learned lower appellate Court (Additional District ,fudge, 5heikhupura) are set aside and the case is remanded to the learned lower Appellate Court with a direction to decide the appeal afresh in accordance with law after disposing of the application for amendment in the written statement filed before it by the petitioner and the proforma-respondents and after obtaining the. report of the Local Commissioner appointed by the said learned Court. No order, however, is made as to costs. H . B . T . Revision petition allowed.