1991 PLP 1460 (CLC)

Taqi Ahmad Khan for Petitioner. Nemo for Respondents. Date of hearing: 3rd April, 1991. One Civil Suit No.27 of 1988 brought by Mohammad Sadiq, a Dhobi, against Mohammad Malik for declaration of title in a shop and another suit bearing C.S. No.26 of 1988 for a decree for possession of the same shop, brought by Muhammad Sadiq (a Sheikh and brother of the above‑named Muhammad Malik) 32 persons in all; were considered and after contest decided on 25‑5‑1988 by the trial Court to decree the first‑mentioned suit (No.27) of Mohammad Sadiq Dhobi against Mohammad Malik and dismiss the second suit of the other Mohammad Sadiq Sheikh and 31 others. Two appeals thereagainst brought by the losing party of Mohammad Malik, one in his own name and the other by all 32 losing plaintiffs, came up for hearing before Mr. Tasawwar Hussain Qureshi, Additional District Judge, Sialkot who, without adverting to the evidence existing on the record, proceeded to accept both the appeals by the judgment dated 25‑7‑1989 by remanding the cases to the trial Court with the direction as under:‑

"to frame other issues that clearly arise from the pleadings of the parties as discussed above and decide the cases afresh in accordance with law."

2. Appellate Judge observed in para: 12 of his judgment, "1t is an admitted law that it is the duty of the Court to frame all the issues which clearly arise from the pleadings of the parties." That is the only treatment which the appeals can be said to have received at the hands of the appellate Judge. Such an assumption regarding the legal proposition is wholly incorrect and is clearly opposed to the law laid down in the case of Mst. Sughran Bibi (reported as 1988 S C M R 4) wherein it was observed that failure to frame one or other issues at the trial stage would not nullify the trial because it is also the duty of the parties to get proper issues framed if they have any objection or suggestion regarding the framing of the issues. Their Lordships also reached the conclusion in the circumstances that no prejudice had been caused by the trial held on the basis of the so‑called improper issues. To the same effect is also the case of Mehr Din (1985 S C M R 1) wherein the governing consideration happened to be that throughout the trial the parties had been duly cognizant of the real issues arising from the pleadings and they had even adduced their evidence in respect thereof and as such, no prejudice could be said to have been done to any of the parties in the failure of the Court to frame proper issues out of the pleadings. Again, practice of lightly remanding cases was strongly deprecated in Pramatha Nath Chowdhury v. Kamir Mondal (P L D 1965 S C 434) wherein it was further laid down that Appellate Court should make every effort to itself decide the appeal on the basis of evidence existing on the record.

3. In the above state of the law, impugned judgment of learned Additional District Judge is not possible to be sustained because, let alone the effort to decide the appeal on the basis of record, he has not made even a feeble reference to the evidence adduced in the trial Court, before disposing of the appeals before him. In this way, the appeals below have not been dealt with according to law and they deserve to the decided afresh in accordance therewith.

4. Result of the foregoing is that revision‑petition is accepted and the impugned judgment dated 25‑7‑1989 passed by Additional District Judge, Sialkot is set aside and both the appeals filed in the District Court are required to be re?heard and expeditiously decided afresh either by learned District Judge himself or by some other judge of competent jurisdiction to whom he may assign them but he will not be the Additional District Judge who has earlier dealt with those appeals. Since the respondents have not entered appearance to contest these appeals which have been heard ex‑parte against them, therefore, there is not made any order about the costs hereof. H.B.T./M‑2848/1???????????????????????????????????????????????????????????????????? Revision Accepted.