2015 PLP 213 (MLD)

MUHAMMAD DAUD KHAN, J.

Through this Revision Petition, the petitioners assailed the consolidated judgment and decree dated 22-12-2012 of Additional District Judge, Lakki Marwat, whereby the judgment and decree dated 31-7-2002, passed by Senior Civil Judge, Laidd Marwat was modified.

2. The respondents/plaintiffs instituted a suit bearing No.81/1 of 1979 for possession through pre-emption of land, fully detailed in the head note of the plaint. The instant case having chequered history as it was instituted in the year 1979 under N.-W.F.P. Pre-emption Act, 1950 and has passed three rounds of litigation up to the apex Court of Pakistan. In the last round the learned trial court partially decreed the suit of respondents/plaintiffs vide judgment and decree dated 31-7-2002, which was assailed in appeal before learned Additional District Judge, Lakki Marwat by both the parties. The learned appellate Court vide judgment and decree dated 31-1-2004, modified the decree by accepting the appeal of respondents, while appeal of petitioners was dismissed. The same judgment and decree of learned Appellate Court was maintained by this Court at D.I. Khan Bench vide judgment dated 16-10-2009.

3. Both the parties filed their Civil Petitions before Hon'ble Supreme Court which were allowed and both the judgments of Appellate Court as well as Revisional Court were set aside and the case was remanded back to the Appellate Court for rehearing and decision in light of directions or Hon'ble Supreme Court. For convenience the judgment of Hon'ble Supreme Court is reproduced as under:-- "MIAN SAQIB NISAR, J. During the course of hearing these petitions, learned counsel for the parties have agreed that by granting leave and converting these petitions into appeals and by accepting those and setting aside the judgment and decree of the first appellate Court dated 17-9-2002, and that of the revisional Court dated 31-3-2004, the matters be remanded to the first Court of appeal for re-hearing and decision after considering the oral as well as documentary evidence on the record and also meeting the reasoning of the learned trial Court given in the judgment about the right of pre-emption of the plaintiffs and the extent to which such right of pre-emption can be exercised.

2. It has also been prayed that the parties be permitted to move an application to the Court for producing additional evidence, which request shall be considered by the Court on its own merits.

3. In the light of above, by converting these petitions into appeals and allowed the matters are remanded to the first appellate Court to decide/disposed of in terms of the compromise/agreement between the parties as highlighted above. The record be sent back with the direction that the decision shall render within a period of six months from the date of appearance of the parties before the Court which shall be 2nd of March 2011"

4. Bare reading of order reveals that it is directive in nature, to the Appellate Court for rehearing and decision after considering the oral as well as documentary evidence on the record and also meeting reasoning of the trial Court.

5. After remand the learned appellate Court decided the appeal vide impugned judgment and decree dated 22-12-2012.

6. During arguments, the learned counsel for the parties took me through the entire record of the case and the impugned judgment of the learned Appellate Court.

7. It appears from the record that the parties are at issue as to the price and market value of the suit land and on divergent averments issues Nos.7 and 8 were framed by the trial court and its findings on said issues were also questioned in the memo of appeals by the parties but the learned Appellate Court did not render its findings on the said issues.

8. Appeal is continuation of the suit and appellate court was under legal obligation to render its findings, after determination of the important points involved in the suit, on each and every issue but the Appellate Court has not given its findings in terms of mandatory provision envisaged in Order XLI, Rule 31 of C.P.C. In this respect reliance may be placed on case law "Syed Iftikhar-ud-Din Haider Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others" (1996 SCMR 669) and "Umar Din v. Ghazanfar Ali and others" (1990 SCMR 1816).

9. The provision of section 25 of the N.W.F.P. Pre-emption Act, 1950 put an obligation upon the court that it shall determine the market value of the suit property. It is obligatory provision. The wisdom behind is that if at any subsequent stage the case of pre-emptor succeeds, there would have already been determined the value of the suit property. It is equally true that market value of the suit property has been determined by the learned trial court. The Hon'ble apex Court remanded the case back to the learned Appellate Court with the direction that "meeting the reasoning of the learned trial court". It was incumbent upon the learned Appellate Court to meet the reasoning of learned trial court on the point of market value. The learned Appellate Court has not rendered its findings on this important issue, which is mandatory under the law when this aspect of the impugned judgment is pointed out, both the learned counsel candidly agreed to remand the case to the. Appellate Court.

10. So, without touching the merits of the case, lest it may prejudice the right of either party, this Court deems it appropriate to remand back the case to the learned Appellate Court. Hence, the petition in hand is allowed, impugned judgment and decree of the appellate Court is set aside and case is remanded back to the Appellate Court with the directions to rehear the arguments of the learned counsel for the parties, determine the market value of the suit land and render the judgment in speaking manner in terms of Order XLI, Rule 31, C.P.C. by giving findings on determinative point of the case. As the case is old one and parties are litigating for more than three decades, learned Appellate Court is directed to decide the case within two months positively after receipt of copy of order of this Court. ARK/353/P Petition accepted.