1986 PLP 1448 (MLD)

S.S. Hamid for Petitioner. S. H. Mujtaba for Respondent. Date of hearing: 17th April, 1986. This Second Appeal under section 100, C.P.C. is filed by the defendant‑appellant against the judgment and decree passed by the learned Vth Additional District Judge, Karachi in Appeal No. 261 of 1977 as a result of reversal of the judgment passed by the trial Court in Suit No. 2547 of 1975. 2. The respondent instituted above‑mentioned suit against the appellant for possession and mesne profits. The suit was resisted by the appellant on the ground that it is time‑barred and that the decree in the previous suit is not binding on him. It may be mentioned here that prior to the institution of Suit No. 2547 of 1977, the respondent plaintiff had instituted Suit No. 899 of 1969 against the appellant seeing the following reliefs: "The plaintiff prays as under: (a) Declaration that the defendant No.1 has no right or title of interest in the Quarter No. 579, Block No. 8. Liaquatabad, Karachi, or in any part or portion of the said quarter and he has been occupying the portion of the said quarter as a licensee. (b) Permanent injunction restraining the defendants from transferring the said portion to anybody else in any manner whatsoever and/or getting the same transferred in his name. (c) Costs of the suit; (d) Any other relief." Suit No. 899 of 1969 was decreed ex parte in favour of respondent and the application of appellant for setting aside the ex parte decree was rejected. The certified copy of the decree is on record as Exh. 6. The appellant thereafter instituted another Suit No. 2208 of 1975 for setting aside the decree in Suit No. 899 of 1969 but this suit was also dismissed. The effect of the above proceedings in Suit No. 899 of 1969 has attained finality and is parties. The trial Court dismissed the suit of the reaching the above conclusion, except, referring to the contentions of the parties. The First Appellate Court, therefore, rightly held that it was not possible for the trial Court to have decided the contention that the suit is barred under Order II, rule 2, C.P.C. without recording evidence. However, while holding that the suit is not hit by Order II, rule 2, C. P. C . the first appellate Court also fell into the same error which was committed by the trial Court as the first appellate Court also decided this plea without recording any evidence in this behalf. Mr. S.H. Mujtaba, learned counsel for the respondent contends that neither it was contended in the written statement by the appellant that the suit is barred under Order II, rule 2, C.P.C. nor any such issue was framed by the trial Court and as such the first appellate Court rightly held that the suit was not barred under Order II, rule 2, C . P. C . The contention of the learned counsel does not appear to be correct. In first appeal under section 96 of C.P.C. parties are entitled to agitate both questions of facts and law. The plea that the suit is barred under Order II, rule 2, C.P.C. is a mixed question of law and facts which could be raised before the first appellate Court and special in the circumstances, where the trial Court had found that the sui instituted by the plaintiff was barred under Order II, rule 2, C . P. C . The first appellate Court, however, having found that this, plea was decided by the trial Court without evidence, should have either remanded the case back to the trial Court or allowed the parties to lead evidence at the appellate stage. In so far the findings of 1st appellate Court on issues Nos. 1 to 4 are concerned, they are quite in accord with the evidence on record and no interference is necessary. However, as the first appellate Court held that the suit of respondent was not barred under Order II, rule 2, C.P.C. without having any evidence before him I remand the case back to 1st appellate Court to decide the following issue and issue No.5 in the case after recording evidence of the parties in accordance with the law:‑ "Whether the suit instituted by the plaintiff is barred under Order 11, rule 2, C.P.C." Since the suit was originally instituted in the year 1975 the first appellant Court is directed to dispose of the case within six months from the date of receipt of the R b P. There will be no order as to costs. A. A. Case remanded.