2002 PLP 315 (CLC)

‑‑‑‑O. XLI, R.23‑‑‑Remand of case‑‑‑Scope‑‑‑Remand of case should not be adopted as a matter of course to allow a party or an authority to fill in lacuna or to improve upon the case‑‑‑Where omission on the part of Appellate Court had materially resulted in miscarriage of justice, the case was remanded to the Appellate Court. Alhaj Sardar Bahadur Khan for Petitioner. Mehboob Ahmad Khan for Respondents. Date of hearing: 29th May, 2001. Mst. Iftikharun Nisa and her minor sons plaintiffs, instituted suit against Mst. Razia Begum and others defendants for a declaration to the effect that plaintiffs are owners of suit Haveli described in the head-note of the plaint, by virtue of sale‑deed No.556 attested on 28‑5‑1980; that defendant No. l who was allowed to reside in the same as licencee, has no concern with it and that the Registered sale‑deed No.358 attested on 20‑11‑1972 in favour of Shaukat Hayat Khan defendant No.4 is illegal, void, fraudulent, and without consideration and thus, liable to cancellation. A prayer for grant of permanent injunction and possession was also made in the suit.

2. The defendants in their written statements denied the averments contained in the plaint and defendants Nos. l to 3 claimed to be in possession of the suit Haveli for the last more. than 40 years. Shaukat Hayat Khan defendant No.4 also asserted to have purchased the suit Haveli from its original owner Muhammad Farid Khan on the basis of registered sale‑deed No.358, dated 20‑11‑1972 in consideration of Rs.20,

000. Necessary issues arising out of the pleadings of the parties were formulated. Both the parties led oral as well as documentary evidence in support of their claims. Upon consideration of the evidence, learned Senior Civil Judge, Haripur seized of the matter, came to the conclusion that defendant No.4 Shaukat Hayat Khan has become the owner of the suit Haveli vide registered sale‑deed No.356, dated 20‑11‑1972 and that subsequent sale‑deed No.556, dated 28‑5‑1980 is ineffective upon the rights of defendants and does not confer any title on the plaintiffs. Having held so he dismissed the suit vide his judgment, and decree, dated 16‑3‑1993 which was maintained in appeal through judgment, dated 19‑5‑1994 of Additional District Judge, Haripur.

3. Mst. Iftikharun Nisa petitioner, feeling aggrieved of the aforesaid judgments has assailed them by filing instant revision petition principally on the ground that the evidence produced by the petitioner has not been properly assessed and evaluated and has been put at shelf without any justifiable reason which has materially prejudiced the rights of the petitioner. The second grievance of learned counsel for the petitioner is that an application was moved by the petitioner on 19‑4‑1993 before the First Appellate Court for grant of permission to amend the plaint so as to include Muhammad Saeed Khan son of Muhammad Daud Khan resident of Sarai Saleh Haripur, but without disposing of the said application the appeal of the petitioner was dismissed on merits and as such it suffers from an illegality: To support the contention he relied upon 1993 CLC 334 (Karachi) and PLD 1976 Kar. 1075.

4. Mr. Mehboob Ahmad, Advocate for the respondents on the contrary, supported the impugned judgments and decrees of the Courts below and contended that conclusions arrived at by the trial Court and affirmed in appeal are quite proper and convincing. No error of law or procedure has been pointed out in the impugned judgment and decree of the Appellate Court which could justify interference by this Court in exercise of revisional jurisdiction. He added that conclusion arrived at by the lower Courts are sound and plausible and even otherwise normally interference in the appellate judgment is not warranted. He relied on 1989 CLC 1819 (Quetta), PLD 1986 Pesh. 1 and 2001 MLD 125 (Lahore).

5. A perusal of the file would reveal that on 19‑4‑1994 an application (Annexure "S") was moved on behalf of the petitioner for grant of permission to amend the plaint but this application remained unattended. The appellate Court had neither adverted to the application referred to above nor any indication regarding its disposal is available on the record. The submission of the learned counsel that omission on the part of the First Appellate Court to decide the application in one way or the other, has materially prejudiced the rights of the petitioners and frustrated the ends of justice, has force. Having been seized with the application under reference the same should have been disposed of before proceedings further in the matter. The omission on the part of the appellate Court to do so has certainly affected the rights of the petitioner. The object of the judicial function is to reach the truth and to do justice between the parties.

6. I am not unmindful of the fact that remand of case is not a routine matter nor it should be adopted as a matter of course to allow a party or an authority to fill in the lacuna or to improve upon the case but in the instant matter I find that the omission on the part of the learned Appellate Court to decide the application, dated 19‑4‑1993 has certainly resulted in miscarriage of justice.

7. For the reasons detailed above, the impugned judgment and decree of the learned Appellate Court are set aside and the case is remanded to it for its fresh decision after disposing of the application of the petitioner for amendment, referred to above. For this purpose the parties shall appear before the learned Additional District Judge, Haripur on 16‑6‑2001 who shall make all endeavoures to decide the appeal as expeditiously as possible not exceeding six months from the date of receipt of this order. The revision petition accordingly succeeds and is allowed with no order as to costs. Q.M.H./M.A.K./402/P Case remanded.