1985 PLP 2028 (CLC)

The appellant instituted a suit against the respondent seeking a declaration that he was the owner of House No. 105-Pak Colony, Lahore. He also prayed for an injunction order restraining the respondent from transferring the aforementioned property and interfering with his possession over it in any manner. The above suit was filed by the appellant on receipt of letter No. MRE-887/23749, dated 15-10-1977 from the respondent wherein the appellant was required to pay a sum of Rs.17,000 being the price of ten Marlas of excess area allowed to be retained by the appellant and a sum of Rs.12,500 as development charges. The respondent's claim for the aforementioned amount was based on the ground that Pak Colony, where the appellant's house was situated, had been adjusted in the residential scheme of the respondent known as 1600 Acres Scheme and that after the inclusion of the appellant's house, he was entitled to retain an area of ten Marlas of land while he was liable to pay the price of the excess' area of ten Marlas allowed to be retained by him in accordance with the provisions of the scheme. After the inclusion of the appellant's house in the residential scheme, he was also liable to pay the development charges to the respondent. The appellant controverted the respondent's above claim and pleaded that his house had not been acquired by the respondent and that he being the owner of one Kanal of land, over which he had constructed his house, was not liable to pay anything to the respondent. He further contended that he was not liable to pay the development charges as the respondent had not insurred expenses in carrying out the development in the Colony in which his house was situated.

2. The suit was contested by the respondent inter alia on the grounds that the suit, as framed, was not maintainable; that the appellant had no cause of action and also had no locus standi to file the suit; that the suit was not triable by the Civil Court in view of the provisions of sections 42 and 43 of the Lahore Development Act, 1975.

3. From the pleadings of the parties, the learned trial Court framed the following issues:- (1) Whether the suit is not maintainable in the present form? O.P.D. (2) Whether the plaintiff has no locus standi or cause of actioh to file this suit? O.P.D. (3) Whether this Court has the jurisdiction to try this suit? O.P.D. (4) Whether the plaintiff is entitled to the relief prayed for? A.P.D. (5) Relief. Issue Issues Nos. 1 and 3 were decided against the respondent, while the Nos. 2 and 4 were found in favour of the appellant. As a result of above findings, the appellant's suit was decreed by the learned trial Court on 1-7-1980. The respondent challenged the judgment and decree of the learned trial Court in appeal. The learned Additional District Judge, who heard the appeal, set aside the judgment and decree of the learned trial Court and remanded the case with a direction that the suit should be decided afresh after framing proper issues arising out of the pleadings of the parties by giving them opportunity to produce evidence vide order, dated 12-10-1981. The appellant has preferred the present appeal in this Court against the order of remand passed by the learned Additional District Judge.

4. Learned counsel for the appellant has contended that there was no justification for the learned Additional District Judge, to remand the case because the respondent had raised no objection with regard to the issues framed by the learned trial Court either before the learned trial Court or before the learned appellate Court. None of the parties had been prejudiced by the learned trial Court's omission to frame proper issues in the suit, as they were given ample opportunity to lead evidence by the learned trial Court in support of their respective contentions and that the parties had in fact availed of that opportunity by producing evidence during the trial. Learned counsel for the appellant has further submitted that the learned trial Court has indirectly allowed the respondent's prayer for producing additional evidence which they had made in the memorandum of appeal for which, however, there was no justification as the learned trial Court had afforded adequate opportunity to the parties to produce their evidence during the trial.

5. Learned counsel for the respondent has, on the other hand, submitted that in the absence of proper issues, which arose from the pleadings of the parties, there was no proper trial of the suit and that the learned appellate Court was quite justified in remanding the case for fresh trial. The fact that the respondent has not raised any objection with regard to the issues framed by the learned trial Court was immaterial as both the learned trial Court and the learned appellate Court were legally bound to see that the proper issues arising out of the pleadings of the parties were framed for the disposal of the suit.

6. On going through the pleadings of the parties, it has been noticed that although the appellant had mainly questioned the respondent's right to recover Rs. 17,000 as being the price of ten Marlas of land, which according to the respondent, he was allowed to retain after the inclusion of the appellant's house in the residential scheme of 1600 Acres, the appellant had also challenged the respondent's demand of Rs. 12,500 on account of development charges. The appellant however, had only prayed for a declaration that he was the owner of the plot, over which he had constructed his house, and that the respondent be restrained from interfering with his possession over the said plot. In other words, the appellant had sought no relief in respect of the respondent's, claim for payment of Rs. 12,500 on account of development charges. The appellant was conscious of the above omission' and for that reason he submitted an application under Order VI, rule 17, C.F.C., during the trial of the suit, for the amendment of the plaint so as to incorporate a prayer in the plaint to the effect that the demand made by the respondent, vide letter No. MRE 887/23749, do% 15-10-1977, was illegal and that the respondent be directed to withdraw the said letter. This application was, however, dismissed by the learned trail Court. It seems that the appellant did not pursue the matter further. The relief granted to the appellant by the learned trial Court in terms of the prayer made by him in his plaint, therefore, is evidently incomplete as the respondent's demand for development charges has not been adjudicated upon by the Court. The learned trial Court should have allowed the amendment of the plaint as prayed for by the appellant because on the basis of the amended plaint, the entire controversy between the parties would have been finally resolved by the Court. According to the averments in the plaint, the appellant had questioned the respondent's right to demand the price of the excess land and either the development charges, but these averments were not fully reflected in the title of the suit or in the prayer made by him, as there he only referred to his ownership of the plot on which he had constructed the house. The main question for determination in the suit instituted by the appellant was whether the house constructed by him in the Pak Colony stood acquired after the adjustment of the aforementioned Colony in the residential scheme known as 1600 Acres and if so, was the respondent entitled to claim price of 42% of the area underneath the house, which under the scheme stood acquired for the purposes of roads and open spaces, but was allowed to be retained by the appellant. The issues framed by the learned trial Court for the disposal of the suit, however, did not include the aforementioned questions, as the learned trial Court thought that issue No. 4 would cover all that had been stated by the parties in their pleadings. Issue No. 4, however, did not meet the legal requirement as it was contrary to the provisions of Order XIV, rule 1, C.P.C., which inter alia contemplate that each material proposition of fact or law affirmed by the one party and denied by the other shall form the subject of a distinct issue. A comprehensive and all embracing issue like issue No. 4 certainly cannot help the Court in resolving the controversy between the parties. In the absence of proper issues, both the parties are at a disadvantage in the matter of production of evidence as well as in making submissions at the conclusion of the trial.

7. Having regard to the above facts and considerations, it can be safely concluded that there has been no proper trial of the suit and the order passed by the learned appellate Court remanding the case for framing proper issues and deciding the case afresh in the light of the evidence to be produced by the parties, does not seem to be unwarranted. The mere fact that the respondent had raised no objection when the issues were framed by the learned trial Court or when the appeal was preferred against the judgment and decree of the learned Court, would not preclude the Court from examining whether the case had been properly tried by the Court or not. After finding that there was no proper trial as there were no proper issues framed by the Court, the appellate Court had jurisdiction to remand the case under section 107 (1) (b) read with Order XLI, rule 23-A, C.P.C. and for exercising that jurisdiction, it was not necessary that the Parties should have made a request to the Court in that behalf.

8. Learned counsel for the appellant has referred to some case-law on the Point that the omission on the part of the trial Court to frame issues in respect of a matter, which otherwise was agitated before the Court after the parties had led evidence in support of their contentions was merely a procedural irregularity, which could be cured under section' 99, C.P.C. The aforementioned procedural irregularity, however, i not cured where the parties have been prejudiced by the omission of the Court to frame proper issues. In the instant case, both the parties have been prejudiced. As noticed above, the parties had not been able to place the real controversy for adjudication between them before the learned trial Court, partly because of the defective pleadings and partly due to the Court's omission to frame proper issues. Section 99, C.P.C would, therefore, be inapplicable in the instant case. Learned counsel for the appellant contended that by remanding the case for fresh trial, the learned appellate Court has indirectly acceded to the respondent's request for additional evidence. According to the learned counsel, the power to remand a case should not be exercised by the Court with a view to fill up a gap and enable a party to produce evidence, which it had failed to produce during the trial. It is true that the power to remand a case should not be exercised to enable the party to produce additional evidence, which it had failed to produce earlier, but in the present case, the order of remand has not been passed by the learned appellate Court to provide opportunity to the appellant to produce evidence, but the same is justified for the reason that there had been no proper trial. Now after the remand of the case, if the respondent gets opportunity to produce evidence when proper issues are framed by the learned trial Court, it cannot be said that the order of remand is unjustified and illegal.

9. Learned counsel for the appellant has also contended that the learned appellate Court itself should have framed the issues and thereafter sent the case to the learned trill Court for trial. According to the learned counsel, the case should be withdrawn from the learned trial Court and the learned appellate Court should be directed to frame issues, which according to it arose from the pleadings of the parties. The above request of the learned counsel for the appellant would have been allowed, if the amendment of the plaint had not been found necessary. It has been noticed above that the learned trial Court should have allowed the amendment of the plaint as prayed for by the appellant as it would have enabled the Court to finally resolve the controversy between the parties. Under the circumstances, it would be proper to leave the matter of framing of issues to the learned trial Court in the light of the pleadings of the parties.

10. The upshot of the above discussion is that order, dated 12-10-1981 passed by the learned Additional District Judge remanding the case to the learned trial Court is maintained with this modification that the appellant should be allowed to amend his plaint as prayed for by him in his application, dated 19-12-1979 and the respondent be given an opportunity to file written statement. After framing the issues arising from the amended plaint and the written statement, the parties should be given opportunity to produce evidence and the case be decided afresh in accordance with law. With these observations, the present appeal is dismissed. The parties are left to bear their own costs. M.Y.H. Appeal dismissed.