2016 PLP 111 (CLCN)

IBAD-UR-REHMAN LODHI, J.

The revision petition is still at pre-admission stage but on account of long pendency as the same has been filed in the year 2010, with the concurrence of learned counsel for the parties, the same is being heard as Pacca case today.

2. During pendency of first appeal before the learned Additional District Judge, Depalpur, an application on behalf of the present petitioner was moved under the provisions of Order XLI, Rule 25, C.P.C. for framing of additional issues which by means of impugned order dated 12.02.2010 was dismissed.

3. Brief history relevant for the disposal of the present revision petition is that a suit was filed on 01.03.2001 by the present respondent Muhammad Rafiq for declaration and permanent junction and the learned trial Court seized of the matter, framed seven issues in presence of both the parties and their learned counsel. The learned trial Court by means of judgment dated 04.12.2008 decreed the suit where against the unsuccessful defendant preferred first appeal which remained pending before the learned first appellate Court and during the pendency of appeal as noted hereinabove an application under the provisions of Order XLI, Rule 25 of C.P.C. was moved praying for framing of additional issues relating to the jurisdiction of the Civil Court to adjudicate upon the suit of the plaintiff and regarding valuation of suit and fixation of court fee accordingly which application through impugned order dated 12.02.2010 was dismissed, hence this petition before this Court.

4. The learned counsel for petitioner has submitted that the learned trial Court was bound to frame issues which were highlighted in the application under Order XLI, Rule 25, C.P.C. as the same arose from the divergent pleadings of the parties and similarly the learned first appellate Court has committed error while not allowing the application under Order XLI, Rule 25, C.P.C.

5. The learned counsel for respondent has defended the impugned order and has submitted that the issues were framed on 20.09.2001 in presence of learned counsel for the parties and no other issue was pressed to be framed by either side. Rather on the move of the plaintiff/respondent on 01.06.2005 an additional issue viz. 2-A was framed and even at that point of time, the defendant/petitioner never raised his voice for framing of any issue as now being prayed for.

6. After hearing the learned counsel for parties and going through the record what emerges is that the issues originally were framed in presence of learned counsel for the parties on 20.09.2001 and on such issues both the parties produced their respective evidence and even when additional issue 2-A was framed, the defendant never felt it appropriate to ask for framing of any other additional issues. When the suit was decreed the defendant filed a regular appeal. The memo of appeal which contained the grounds from to but in whole of memo of appeal such plea was never raised. The basic question as to the jurisdiction of the learned Civil Court to adjudicate upon the suit is presently being pressed vigorously by the petitioner/defendant and now framing of additional issues in this regard is prayed for.

7. The conduct adopted by the defendant, after framing of issues and production of his evidence on already framed issues, do indicate that the defendant surrendered to the jurisdiction of the Civil Court and thus by implication he withdrew from his claim whereby he originally at the time of filing of written statement challenged the jurisdiction of the Civil Court. The contention of the petitioner to the effect that when issue as to jurisdiction of Court was not framed, he was deprived to produce his evidence on the said issue again is misconceived as on such legal issue, no evidence of any party was required and the question of jurisdiction was only to be argued by the side which challenges the jurisdiction and as noted hereinabove neither at the time of final arguments before the learned Civil Judge nor at the time of filing of first appeal before the learned District Judge, such contention of the petitioner was made part of the record.

8. The bare reading of the provisions of Order XLI, Rule 25 of the C.P.C. give an unequivocal impression that the learned appellate Court may frame additional issues where the Court from whose decree the appeal is preferred has omitted to frame or try an issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits. The words "appears to the Appellate Court essential" are of much significance. It is the findings of the Appellate Court which are necessary and relevant but where from the record it is not evident that at any stage of the proceedings, the Appellate Court felt it essential for the right decision of the lis to frame additional issue, the requirements of Order XLI, Rule 25 were not met with.

9. This Court in case titled Sharifan Bibi and 7 others v. Nasim Ahmed and 13 others (2004 YLR 30) has held that material on record had shown that issues were framed in presence of counsel for the parties and despite the fact that suit remained pending for number of years after framing of issues, no one raised any objection in that respect, the parties to the litigation could avail Rule 5 of Order XIV and Rule 25 of Order XLI, C.P.C. in case any issue was left to be framed but no steps were taken by the parties during such long period which had shown that parties were satisfied with the form, content and scope of issues framed by the Court. The Hon'ble Supreme Court of Pakistan, in case titled Abdul Karim v. Haji Noor Badshah (2012 SCMR 212), in similar situation has held that defendant was well aware of the case filed against him and had led evidence without making application to amend issues and thus no prejudice has been caused to such defendant. Further held that defendant when filed appeal had not raised any such objection in memo of appeal, as such same could not be allowed to be raised at a subsequent stage.

10. For what has been discussed above, the result would be that the application moved at a belated stage under the provisions of Order XLI, Rule 25, C.P.C. was not maintainable rather in fact it was an attempt to cause delay in disposal of the appeal filed against the decree. The learned first Appellate Court by means of impugned order 12.02.2010 has rightly dismissed the application which under the law did not lie. The revisional jurisdiction of this Court is not available to interfere in any findings of the courts below, which does not suffer from any illegality or irregularity, hence the impugned order is not liable to be interfered with in revisional jurisdiction of this Court, the same is therefore, upheld and this revision petition having no force is dismissed. ARK/A-97/L Revision dismissed.