1987 PLP 1183 (CLC)

Muhammad Sharif Khokhar for Petitioner. Abdul Majid Khan for Respondent. Date of hearing: 9th December, 1986. Facts giving rise to this civil revision are that the respondent, Ahmad Raza, filed a suit against the petitioner, Raza Ahmad Khan, for possession of a house through redemption of its mortgage. The suit was dismissed by a Civil Judge. The respondent filed appeal which was accepted by an Additional District Judge and a preliminary decree was passed in his favour. That decree was challenged by the petitioner by means of revision before this Court but without success. Thereafter, respondent made an application to the learned trial Court foe passing a final decree. In his reply to the application it was inter alia alleged by the petitioner that he made improvements in the disputed house and had carried out repairs thereon and was, therefore, entitled to recover cost of the improvements, repairs, etc., from the respondent. He also claims interest. His plea was not entertained by the learned trial Court on the ground that it was not raised in the written statement. Final decree was, therefore, passed in favour of the respondent without directing him to pay cost of improvements etc., or interest. Feeling aggrieved by the final decree, the petitioner preferred appeal before an Additional District Judge which was dismissed. He has, therefore, come up in revision to this Court.

2. Learned Civil Judge ought to have examined the petitioner's claim qua the final decree in the light of the provisions of Rules 10 and 11 of Order XXXIV of the Code of Civil Procedure, but this was not done by him or by the learned Additional District Judge. The petitioner had claimed compensation for improvements effected by him after passing of the preliminary decree. He could not possibly claim the same in his written statement. Whether, or not the petitioner spent something on the disputed property after the passing of the preliminary decree is a question of fact which cannot be decided without recording evidence. The case will, therefore, have to be remanded to the learned trial Court for fresh decision.

3. Accordingly, this civil revision is accepted, final decree passed by the learned trial Court as also the judgment on which it is based, together with the judgment and decree passed by the learned appellate Court in relation thereto are set aside and the suit remanded to the learned trial Court for redeciding the matter in the light of above observations, and in accordance with law. Needless to say that the preliminary decree passed in the suit will not be effected by this judgment.

4. Parties are directed to appear before the learned trial Court on 22nd January, 1987.

5. Since it is an old matter, the learned trial Court shall re‑decide it within three months. H.B.T/R‑6/L Revision accepted.