2002 PLP 923 (MLD)

Date of hearing: 9th October, 2001. The appellant/defendant has filed the present appeal thereby challenging the judgment and decree, dated 2‑6‑1992, whereby the Additional District Judge dismissed the appeal filed by the appellant and confirmed the judgment and decree, dated 26‑6‑1990, through which he decreed the suit of the respondents/plaintiffs for possession through specific performance of an agreement to sell.

2. Brief facts leading to the filing of the present appeal are that respondent No. l filed a suit for possession through specific performance of an agreement to sell, dated 29‑1‑1981, pertaining to land measuring 31 Kanals, 3 Marlas (elaborately described in the impugned judgment) and also challenging mutation of Gift No.319 dated 21‑10‑1991, being illegal and ineffective against the appellants. During the pendency of the aforesaid suit the respondent No.4 also filed a suit for specific performance of contract against respondents Nos.2 and

3. Both the suits were consolidated by the learned trial Court, which were contested by the parties culminating to the framing for consolidated issues. The learned Civil Judge after recording the evidence of the parties decreed the suit, filed by the respondent No.1 again a appellants and respondents Nos.2 to 4 and also declared mutation of gift as illegal Simultaneously, the learned trial Court decreed the suit of the respondent No.4 for recovery of Rs.‑38,500 against respondent No.2 with costs vide consolidated judgment and decree, dated 26‑6‑1990. Feeling aggrieved, the appellant filed an appeal, but without any success as the said appeal was dismissed by the learned Additional District Judge, Toba Tek Singh, vide judgment and decree, dated 2‑6‑1992, hence,, this second appeal.

3. Respondents Nos.1 and 4 are represented despite the fact that names of the learned counsel have been printed in the cause list but they are absent. Office has reported that registered post cards were issued to the respondents Nos.2 and 3 but none has entered appearance on behalf of the said respondents, thus, all the respondents are proceeded ex-parte. 4 The leaned counsel for the appellant has contended that the learned Appellate Court while rendering its findings has not all adverted to the evidence produced by the appellant both oral as well as documentary and thus, the judgment has been passed in complete oblivion of the evidence of the appellant.

5. In view of the submission of the learned counsel of the appellant, I have perused that impugned judgment and do find that the argument of the learned counsel has considerable force. The learned Lower Appellate Court although have discussed the documentary and oral evidence produced by the respondents, yet has comprehensively failed to take into account the evidence produced by the appellant. The learned Appellate Court did not discuss even the single document produced by the appellant and has mainly relied upon the evidence produced by the respondents. Needless to observe that the learned Appellate Court was under a legal obligation to take into consideration the evidence, both the oral as well as documentary, produced by the respective parties and then to have rendered its findings. The learned counsel is right in submitting that the findings rendered by the learned Additional District Judge are in complete oblivion of the evidence produced by the defendants. It appears from the tenor of the judgment that as if only the respondent/plaintiff produced the evidence and the appellant failed to adduce any evidence in support of his defence. It is evident from the record that the appellant produced D. W.1. Muhammad Ramzan, D.W.2 Haji Allah Dad, D.W.3 Allah Ditta and himself appeared as D.W.4. Apart from this Zahoor Shah appeared as D. W.1/4. The appellant also produced the documents EXh.D.l/4, Exh.D.2/4 Exh.D.3/4 and Exh.D.4/4, but the learned Additional District Judge neither discussed the oral or documentary evidence produced by the appellant. No findings are forthcoming on this crucial aspect of the case and the appeal was dismissed completely ignoring the evidence of the appellant as observed above.

6. Upon the examination of the impugned judgment, the contention of the learned counsel appears to be correct. The impugned judgment is exceptionable and I am inclined to exercise revisional jurisdiction of this Court in the matter.

7. In view of the above reasons and conclusions, the present appeal' is accepted and the impugned judgment and decree, dated 2‑6‑1992, passed by the learned Additional District Judge, Toba Tek Singh, is hereby set aside and the case is remanded to the learned District Judge, Toba Tek Sindh. The result would be that the appeal titled "Muhammad Ali v. Ghafoor Ahmad and others" filed by the appellant shall be deemed to be pending before the learned District Judge, Toba Tek Singh, who shall decide the same afresh after hearing the parties and, of course, in accordance with law, preferably within a period of three months. ??????

8. Office is directed to transmit the copy of the order as well as records of both the Courts to the learned District Judge, Toba Tek Singh, immediately. H.B.T./M‑1061/L? ????????????????????????????????????????????????????????????????????????????? Appeal accepted