2007 PLP 765 (CLC)

SYED ASGHAR HAIDER, J.

This petition is directed against the judgment and decree, dated 15-11-2006, passed by the Additional District Judge, Khushab, affirming the judgment and decree, dated 5-7-2006, passed by the Civil Judge, Khushab, whereby the suit of the plaintiff/respondent was decreed.

2. One Mst. Fazlan was owner of the suit property, she sold it to the petitioners/defendants, the respondent/plaintiff claiming superior right of pre-emption, after fulfilling the requirements of section 13 of the Punjab Pre-emption Act, filed a suit for pre-emption, the defendants/petitioners contested the suit, of the divergent pleadings of the parties issues were framed, parties were put to trial and thereafter the suit was decreed. Aggrieved thereof the petitioners filed an appeal, which was also dismissed, hence, the present petition.

3. Learned counsel for the petitioners contended the impugned judgment is not in consonance with the requirements of Order XLI, rule 31, C.P.C., record clearly reflects that the petitioners/defendants produced witnesses and the documentary evidence, however, while deciding issue No.6-D the lower Appellate Court did not advert to the same and therefore, the judgment is not tenable in law. He relies on the following precedents:-- (i) Malik Aman v. Safdar Ali 1987 CLC 1832, (ii) Mehrban v. Hamid Khan 1985 CLC 1780, (iii) Qamaruzzaman V. Khair Din and others PLD 1979 Note 117 and (iv) Haji Nazir Ahmad v. Municipal Corporation, Faisalabad 1985 CLC 1748.

4. Learned counsel for the respondent supported the impugned judgment and stated that there was no need of deep appraisal of evidence and in these circumstances the lower Appellate Court has not committed any material illegality.

5. I have heard the learned counsel for the parties and perused the impugned judgment. While adverting to Issue No.6-D the lower Appellate Court observed, that this issue is of vital importance and the whole case hinges upon its decision, thereafter it proceeded to observe "I fully agree with the trial Court to hold that the respondent has successfully proved making of Talb-i-Muwathibat on 1-6-2006, in presence of witnesses, likewise he proved Talb-i-Ishhad in accordance with law as provided by section 13 of the Punjab Pre-emption Act, 1991". The requirements of Order XLI, rule 31, C.P.C. are clear and unambiguous, they have been enumerated as follows:-- "Rule 31, C.P.C. Contents, date and signature of judgment.

The judgment of the Appellate Court shall be in writing and shall state

(a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." Therefore, it is a mandatory requirement of law that judgment should state (a) points for determination (b) decision thereon and (c) reasons for decision. The requirement of Rule 31, C.P.C. in letter and spirit is that the Court records the points of determination and thereafter proceed to deal with these points and decide them with illuminative, rationale and sound reasons, therefore, the Court is required to appraise and decipher the evidence tendered by the parties (oral and documentary), if the parameters set in rule 31, C.P.C. are not adhered the judgment is not in consonance with law. First appeal is a substantive right granted, therefore, evidence tendered and the arguments addressed should be meticulously attended to, appraised, deciphered and thereafter decided with reasons in accordance with law, as any departure made can compromise valuable rights of the parties. The lower Appellate Court did not care to appraise or discuss evidence tendered or the submissions made. It decided the matter without convincing reasoning or application of judicial mind, therefore, on the bench mark set in rule 31 of Order XLI, C.P.C. the impugned judgment is not sustainable. I am fortified in this contest by Malik Aman v. Safdar Ali 1987 CLC 1832, Mehrban v. Hamid Khan 1985 CLC 1780 and Haji Nazir Ahmad v. Municipal Corporation, Faisalabad 1985 CLC 1748. Resultantly, this petition is allowed, the impugned judgment and decree is set aside, the proceedings are remanded to the lower Appellate Court to decide Issue No.6-D again as ordained by Order XLI, rule 31, C.P.C. No order as to costs. M.H./M-48/L Case remanded.