2016 PLP 139 (YLRN)

MUHAMMAD AMEER BHATTI, J.

This revision petition is directed against the judgment dated 17.07.2001 passed by the learned first appellate Court whereby it while setting aside the judgment and decree of the learned trial Court dated 05.10.2000, decreed the suit of respondents.

2. This revision petition was admitted for regular hearing by this Court vide order dated 30.07.2001 and possession of the petitioners with regard to the land was protected by granting injunction. Subsequently, C.M. No.01-C/2004 was moved for withdrawal of the C.R. No.1630/2001, which was allowed and C.R was dismissed as withdrawn. Subsequently, an application under section 12(2), C.P.C. for setting aside the order dated 30.03.2004 was moved, which was allowed by this Court vide order dated 14.05.2010 and C.R. was restored to the extent of petitioners Nos.2, 9 to 12.

3. It is argued by the learned counsel for the petitioners Nos.2, 9 to 12 that the learned first appellate Court decreed the suit by emphasizing mainly that transaction in dispute was hit by Martial Law Regulation No.115 (Land Reforms Regulation), therefore, he accepted the appeal of respondents and set aside the transaction in dispute with the result the suit of respondents stood decreed.

4. When the learned counsel for the respondents was confronted that neither was there any issue nor parties had led their evidence, as they were not aware of this controversy, learned counsel for the respondents submits that as the transaction was hit by Martial Law Regulation No.115 (Land Reforms Regulation) and this was the legal question which could have been raised at any stage, therefore, the learned first appellate Court had not committed any illegality or irregularity while entertaining the legal objection of respondents, therefore, decision of learned first appellate Court was consonance with the law and facts of the case, therefore, interference is not warranted. He has placed reliance on Dawood v. Husein Ebrahim Foundation and 9 others (1980 CLC 1161), The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82), COTECNA INSPECTION SA and another v. Messers Ismail & Co. and 6 others UIB (2001 CLC 899), Shahzada Shahpur Jan v. The Auditor General of Pakistan and another (PLD 1984 SC 430) and Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1).

5. I have considered the arguments of the learned counsel for the parties and examined the record of the case as well as case law referred by the learned counsel for the respondents.

6. The case law relied upon by the learned counsel has no nexus with question involved in this case. Even after examining the pleadings and evidence it is found that it was not the case of the plaintiff before the learned trial Court. It is settled law that all the legal and factual controversy must have been pleaded through their pleadings and accordingly issues were framed so that parties required to lead their evidence must be cognizant about the controversy as beyond pleadings if the evidence even brought on record could not be considered part of record to determine the rights of parties being not permissible under the law. It is expedient to reproduce the relevant provision of Order XIV, Rule 1, C.P.C.:

1. Framing of issues.

(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (5) At the first hearing of the suit, the Court shall, after reading the plaint and the written statement, if any, and after such examination of the parties as may appear necessary, assertion upon what material propositions of Act or of law the parties are at variance, and shall thereupon proceed to frame and record the issue on which the right decision of the case appears to depend.

7. In this view of the matter, judgment and decree to the extent of petitioners Nos.2, 9 to 12 passed by the learned first appellate Court is hereby set aside and matter is remitted back to the learned first appellate Court to re-decide the appeal of the respondents strictly in accordance with law. It is also directed that if the learned first appellate Court finds that any additional issue is required to be framed and any amendment is necessary in the pleading of the parties, he shall also decide the same strictly in accordance with law.

8. Parties are directed to appear before the learned first appellate Court on 30.04.2015, who shall take on this matter either himself or entrust it to any other learned Civil Judge for adjudication.

9. With above observation this petition to the extent of Petitioners Nos.2, 9 to 12 is allowed as a consequence whereof judgment and decree to their extent is set aside. No order as to costs. ZC/B-20/L Case remanded.