2005 PLP 620 (MLD)

The brief facts out of which the present regular second appeal arises are that the appellant's predecessor-in-interest filed a suit for specific performance of the contract with consequential relief in the Court of Civil Judge 1st Class, Sheikhupura on 15-2-1993 against the respondents. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether plaintiff is entitled for the specific performance of agreement dated 30-11-1991 as claimed for? OPP (2) Whether exchange deed between defendants Nos.1 to 4 and 5 is illegal, void and ineffective against plaintiff's rights? OPP (3) Whether plaintiff is stopped by his words and conduct to file this suit? OPD (4) Whether suit is false, frivolous, vexatious as such defendants are entitled to special costs under section 35-A, C.P.C.? OPD (5) Relief. The learned trial Court dismissed the suit vide impugned judgment and decree dated 23-5-2000. The appellant being aggrieved preferred an appeal in the Court of District Judge, Sheikhupura along with an application under Order 41, rule 27 read with section 151, C.P.C. The First Appellate Court dismissed the application for additional evidence vide order dated 9-12-2003 and also dismissed the appeal vide impugned judgment and decree dated 9-12-2003. The appellant being aggrieved filed this regular second appeal. The learned counsel of the appellant submits that both the Courts below erred in law to dismiss the suit of the appellant without application of mind and without proper appreciation of evidence on record. He further urges that the appellants were non-suited by the First Appellate Court on the ground that the appellants failed to produce the documentary evidence whereas the appellants have filed application under Order 41, rule 27 read with section 151, C.P.C. before the First Appellate Court, which was dismissed by the First Appellate Court vide order dated 9-12-2003, which is at page 25 of the file. He further submits that the order of dismissing the application under Order 41, rule 27 read with section 151, C.P.C. does not contain any reason.

3. The learned counsel of the respondents submits that both the Courts below have decided the case against the appellants after proper appreciation of evidence. This Court has very limited jurisdiction to interfere in the findings of the Courts below while exercising power under section 100, C.P.C. He further submits that the First Appellate Court rightly dismissed the application for additional evidence with cogent reasons as is depicted from the impugned order dated 9-12-2003. He further submits that documents in question were with the appellants who could not produce the same well in time before the trial Court, therefore, the First Appellate Court, was justified to dismiss the application of the appellants, which is in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon Manzoor Elahi v. Surrayya Jabeen (PLJ 2004 Pesh. 150) and Khizar Yasin and others v. Mst Khadija Bibi and others (2003 CLC 1622).

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. Without adverting to the contentions of the learned counsel of the parties on merits, I intend to decide this appeal whether the First Appellate Court was justified to dismiss the application of the appellants for additional evidence vide impugned order dated 9-12-2003. It is better and appropriate to reproduce the operative part of the impugned order dated 9-12-2003 and grounds of application to resolve the present controversy:-- "The production of the said documents cannot be permitted as additional evidence because it is not shown that how these documents are necessary for dispensation of justice in this case. Moreover, reason for non-production of these documents before the trial Court is not satisfactory. The application is without merits. It is hereby dismissed." "That the documents referred in Para No.1 of this application are public documents and their presence is already explained by the P.W.6. This score is sufficient to connect the relevant record with the statement of P.W.6. The right of the respondents in this way cannot be jeopardized because to resolve the real controversy between the parties at variance these documents may please be allowed as additional evidence in the aforesaid case so that a natural justice can be done between the parties. Affidavit attached herewith." In case the impugned order and grounds of application are put in a juxta-position then it is crystal clear that the First Appellate Court has decided the application through the impugned order dated 9-12-2003 without application of mind. It is the duty and obligation of the First Appellate Court to decide the application of the appellants after application of mind which is condition precedent as per law laid down by the Honourable Supreme Court in the following judgments:-- Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others (PLD 1970 SC 158). The relevant observation is as follows:-- "Such an order, we regret to say, does not disclose proper application of the mind of the High Court to the merits of the case that was before it. As was pointed out by this Court in the case of Adamjee Jute Mills Limited v. The Province of East Pakistan". Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). The relevant observation is as follows:-- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance." It is pertinent to mention here that the judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. After addition of section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the controversy between the parties after application of mind as per law laid down by the Honourable Supreme Court in M/s. Airport Support Services v. The Airport Manager (1998 SCMR 2268). As the First Appellate Court has decided the application without application of mind and the impugned decree is also dependent upon this order, therefore, impugned order and the impugned judgment and decree are set aside. Meaning thereby the appeal and application are pending adjudication before the First Appellate Court. Parties are directed to appear before the First Appellate Court on 22-12-2004 who is directed to decide the case afresh after application of mind preferably within four months. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be decided within the prescribed period. In case any of the parties/their counsel fail to cooperate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against the said party. With these observations the appeal is disposed of. Case Remanded. H.B.T./N-5/L Order accordingly.