1991 PLP 1660 (CLC)

This R.S.A. arises out of a suit for declaration filed by the respondents 1 and 2 on 14‑6‑1963 in the Court of the Civil Judge, Mandi Bahauddin. The: suit was decreed in favour of the plaintiffs to the extent of 26/40 shares in the suit land and dismissed in respect of the remaining 14/40 shares by the trial Court vide judgment and decree dated 3‑11‑1964. The plaintiffs preferred an appeal in the Court of District Judge, Gujrat which was allowed by the learned A.D.J, Gujrat vide his judgment and decree dated 20‑2‑1968.

2. Respondents No.l and 2 are represented by Baqir Gardaizi, Advocate who has not entered appearance. Notices were also issued to the respondents but no one has appeared on their behalf. Under these circumstances, they are ordered to be proceeded against ex parte.

3. I have heard the learned counsel for the appellant. The main ground urged by the learned counsel for the appellant is that there was no proper disposal of the appeal by the learned Addl. District Judge. He has pointed out per that the appellate judgment is the verbatim copy of the written arguments submitted by the learned counsel for the respondents. Only one line has been added at the end which is to the following effect: "the appeal is accordingly accepted with costs."

4. It is unfortunate that the learned Addl. District Judge did not apply his judicial mind to the facts of the case and merely felt content by reproducing the written arguments submitted by one of the parties to the appeal, added the above referred line at the end and disposed of the appeal. This is nothing but dereliction of duty and complete failure to exercise jurisdiction. The impugned judgment clearly demonstrates lack of conscious application of judicial mind to the facts of the case, the points for determination and reasons for decision of the Court. Being violative of the provisions of Order 41, rule 31 of the C.P.C., it is no judgment in the eye of law. Had the Court independently considered the material on the record and passed a conscious judgment, the language of the judgment would have been different from the written arguments submitted by the respondent's learned counsel.

5. I am fortified in my view by the following judgments (referred to by the petitioner's learned counsel):‑ (i) Upendra Nath Saha v. Adhar Chandra Saha and others (1921 IC Calcutta 436); (ii) Rafiq Abbas Zaidi v. Mst. Shahida Begum and others (1983 C L C 2036), and (iii) Syed Hassan Shah v. Malook Shah and another (1987 C L C 2281). Though on distinguishable facts, in the above‑quoted precedents it was found that the appellate Court had failed to apply its conscious mind to the facts of the case and passed judgments without complying with the provisions of Order 41, rule 31 of the C.P.C. Hence the impugned judgments were held to be illegal and suffering from‑material irregularity. Similar views were expressed in the cases of Talib Hussain v. Barkat Ali (1988 M L D 1294), Muhammad Zafar Nabi v. Kutiyana Memon. Association (1988 M L D 2524) and Ferzand Raza Rizvi v. Zaheer Mustafa (1988 M L D 463). In Talib Hussain's case the first appellate Court had given history of the case and noted contentions of the parties and thereafter disposed of the appeal with general observation that the conclusion reached on legal and factual position by trial Court did not suffer from any illegality, infirmity, misreading or non‑reading of material evidence, hence was not liable to be reversed. Disposal of the appeal in this manner was considered to be in violation of Order 41, rule 31 of the C.P.C. It was emphasised that the Court was required bylaw to record its own findings on the contentions raised before it after independent appraisal of the material on the record. In Muhammad Zafar Nabi's case it was held that the appeals must be intelligently disposed of after taking note of arguments advanced, points arising from arguments and other material for deciding the points properly. In Ferzand Raza Rizvi's case, it was emphasised that the appellate Court was bound to observe the mandatory provisions of Order 41, Rule 31 of the C.P.C. and that failure to comply with those provisions would not be a mere irregularity but an illegality. It was further observed that the intention of the legislature was that the second appellate Court or the Court exercising extraordinary jurisdiction should be in a position to find out track traversed by first appellate Court which could not run away from its onerous duty of recording findings of fact and/or discussing evidence.

6. For the foregoing discussion, I accept this appeal, set aside the judgment' and decree dated 20‑2‑1968 passed by the Additional District Judge and remand the case to the learned District Judge, Gujrat for fresh decision in accordance with the law. He may decide the appeal himself or entrust the same to any other Additional District Judge in the District. Since it is an old matter the appellate Court shall decide the appeal within a period of 4 months after the receipt of this order. The parties are left to bear their own costs. AA./I‑269/L???????????????????????????????????????????????????????????????? Case remanded.