2001 PLP 764 (YLR)

(9) Whether the suit is bad for non -joinder of necessary party? (10) Whether suit is time-barred? (11) Whether the Court has got no jurisdiction? (12) Whether defendants have acquired ownership by remaining in exclusive possession for more than 12 years. (13) What should the decree be?" The parties were directed to lead evidence and accordingly both the parties led their evidence and the learned trial Judge after hearing both the parties gave the findings and answered the Issues Nos. 1, 2, 3, 9, 10 and 12 in affirmative and Issues Nos. 4, 5, 6, 7, 8 and 11 were not pressed and in view of Issue No. 13 the suit was dismissed with no order as to costs. After the dismissal of the suit the respondents preferred Civil Appeal No. 112 of 1986, which was heard by the learned District Judge Naushero Feroze and in pursuance of the hearing the appellate Court has framed the following points:-- "(1) Whether the judgment and decree passed by trial Court is illegal, without appreciation of evidence and passed without application of mind? (2) Whether the judgment and decree of lower Court is illegal to be set aside? (3) What should the decree be?" The learned appellate Court answered the Points Nos. 1 . and 2 in the affirmative and in respect of the findings on point No.3 the appeal was allowed and the judgment and decree of the trial Court was set aide, therefore, the present revision application has been filed by the petitioners. It is contended by the learned counsel for the petitioners that during the trial proceedings the trial Court has framed 13 issues and decided the case by discussing all the issues on merits whereas the appellate Court has only considered/framed 3 issues in appeal and other issues have not been touched on merits, therefore, the judgment and decree of the appellate Court may be set aside and the case be remanded to the appellate Court for fresh decision on each of issues framed by the trial Court. It is further contended by the learned counsel for the petitioners that the appellate Court has committed error as per Order 20, Rule 5, C.P.C. as the Court has to discuss each issues in its decision. The Order 20, Rule 5, C.P.C. is reproduced as under:

"Rule 5 of Order

20. C.P.C. Court to state its decision on each issue.

In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit." The learned counsel for the petitioners has cited the cases of Ali Muhammad v. Muhammad Hayat and others, reported in 1982 SCMR 816 and Muhammad Hayat and others v. Ali Muhammad and others, reported in 1982 CLC 2380. The learned counsel for the petitioners has further contended that the appellate Court has ignored to consider the Issue No.9, as there was clear admission on the part of the respondents that their one sister Mst. Fateh Khatoon was alive and she was necessary party but she was not joined as party in the case by the respondents as such the suit was bad in law and not maintainable for non-joinder of necessary party. The learned counsel has cited the case of Akhtar Ali Khan and another v. Settlement Commissioner Peshawar and 4 others, reported in 1989 SCMR

506. The learned counsel further states that the appellate Court has ignored to consider the entry made in the Revenue Record in favour of the petitioners. The learned counsel for the petitioners has prayed that the case may be remanded to the appellate Court for fresh decision by discussing all the issues. Mr. G.M. Abbasi, learned counsel for the respondents, has supported the impugned judgment and decree of the learned appellate Court and states that there is conflicting findings and the findings extended by the appellate Court appear to be reasonable and the present revision application be dismissed. In support of his contention, learned counsel for the respondents, has relied upon the following authorities:-- (1) Syed Ghulam Mustafa Shah and 2 others v. Syed Muhammad Hussain Shah and others. (PLD 1993 Kar.369), (2) Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lahore 480), (3) Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and others , (PLD 1994 SC 462) (Plasitium L & F), (4) PLD 1977 Lahore 481 (Messrs Gharibwal Cement Ltd., Lahore v. Messrs Universal Traders, Gakhar Mandi), (5) PLD 1993 Lahore 836 (Muhammad Azam Khan and others v. Rehmat Ali and others), (6) PLD 1993 Peshawar 36 (Haji Khan Baz Khan and 8 others v. Abdul Rahim and 5 orders), (7) PLD 1993 Kar. 140 (Messrs Asad Brothers v. Ibadat Yar Khan) and (8) PLD 970 Lahore 412 (Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others). I have gone through the evidence part and the judgment and decree of the trial Court and also examined the judgment and decree of the appellate Court. The trial Court while deciding the suit had framed 13 issues and on each issue the trial Court had extended reasons while dismissing the suit and the suit was dismissed as it was barred by limitation, but while deciding the appeal the learned District Judge Naushero Feroze only framed 3 issues separately and, therefore, the appellate Court had disregarded mandatory provision of Order 20, Rule 5, C.P.C. and has acted in exercise of his jurisdiction with material irregularity and the case cited by the learned counsel for the petitioners (1982 SCMR 816) is relevant in the present circumstances of the case. The operative part of the said dictum laid down by the apex Court is reproduced as under:-- "Attention in this connection was drawn to the provisions of Order XX, rule 5 of the C. P. C. which provide that 'in suits in which issues have been framed, the Court shall state its findings or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit and it was observed that the trial Judge was bound to give reasons for his decision on each separate issue and the disposal of the Issues Nos. 1 to 5 by simply observing that all these issues have no substantive force in view of findings given under issue No.6 was not a proper decision in accordance with law. He, therefore, accepted the revision petition, set aside the impugned judgment and decrees of the trial Court and that of the learned Additional District Judge and remanded the case to the trial Court for re-writing the judgment after hearing the parties with the direction that the trial Court should decide the case within two months. This petition for leave to appeal is directed against the aforesaid judgment of the High Court. We do not agree. The learned trial Court had disregarded the mandatory provisions of Order XX, rule 5, C.P.C., and, therefore, had acted in exercise of his jurisdiction with material irregularity. The High Court in exercise of its revisional jurisdiction was competent to make such order as in the case as it thought fit." In view of the requirement of Order 20, Rule 5, C.P.C. it is very much clear that in the instant case the learned appellate Court has not given reasons for its decision on each separate issue framed by the trial Court and therefore, the observation of the appellate Court has no force in view of the rule laid down by the law and from the perusal of judgment and decree it extends an impression that the learned District Judge had only observed formality inasmuch as he has only touched the 3 issues framed by him and has not fully applied his mind and it is well-settled principle of law that the characteristic of a good judgment is that it must be self-evident and self-explanatory, in order of word it must contain reasons that justify conclusions arrived at and these reasons should be such that a disinterested reader can find them convincing at least reasonable. The grounds urged by the learned counsel for the respondents and case law relied by the learned counsel for the respondents have no relevance at this stage when the appellate Court had disregarded the mandatory provisions of Order 20, Rule 5, C. P. C. For the foregoing reasons, this Revision Application is accepted arid the impugned judgment and decree of the appellate Court is set aside and the case is remanded to the learned District Judge Naushero Feroze for hearing the parties and decide the case in accordance with law. The learned appellate Court is directed to rewrite the judgment after due hearing the concerned parties. The parties are directed to appear before the learned District Judge, Naushero Feroze on 16-6-2001 and no fresh notice will be issued by the appellate Court. Q. M. H. /M. A. K./S-117/K Revision allowed.