1988 PLP 1836 (SCMR)

S.A.NUSRAT, J.‑‑The parties to the suit out of which this petition has arisen, are Mandokhale and permanent residents of Mauza Takri, tehsil and district Zhob. Some dispute having arisen between the parties about the custom of Killi, a compromise was entered into between them as far back as 4‑11‑1915. The petitioner feeling aggrieved that the compromise in question was not being adhered to, an appli cation was filed by him on 31‑12‑1980 before the Political Agent praying that the respondents and three other persons may be directed to act in accordance with the terms of the agreement. The matter was referred to Naib‑'Tehsildar, who submitted his reports on 4‑2‑1981 and 1‑3‑1981. The respondents meanwhile filed their written statement on 19‑2‑1981. By an order dated 22‑3‑1981, the matter, was referred by the Political Agent to Qazi, Zhob for decision in accordance with the Baluchistan (Civil Disputes) Shariat Application Regulation, 1976. However, three of the contestants entered into a compromise binding themselves to abide by the terms of the compromise whereupon the names of the said three persons namely Khial, Azim and Mansoor Khan were struck off from the proceedings. The suit was decreed by Qazi, Zhob by order dated 23‑10‑1982 in favour of the petitioner. The respondents thereupon filed a time‑barred appeal on 13‑3‑1983 before the Mallis‑e Shoora, which was accepted on 12‑12‑1985 and the case was remanded to the Qazi with the directions that an issue regarding limitation be framed and the evidence of the parties be recorded. Besides, three more issues were ordered to be framed, the last one being whether the Razinama dated 4‑11‑1915 was in accordance with Shariat". As regards the above issue, a note providing certain guidelines was given to be followed in the case. This order was not appealed against and hence became final. After the remand, the learned Qazi did not frame issues as per directions of the first appellate Court and by order dated 28‑7‑1986, the suit of the plaintiff /petitioner was dismissed. Aggrieved by such decision, an appeal was taken by the petitioner to the Majlis‑e‑Shoora, Loralai Division, wherein it was specifically stated' that the direction contained in the remand order dated 12‑12‑1985 had not been followed. This appeal, however, was dismissed by the Majlis‑e‑Shoora on 21‑4‑1987. The petitioner feeling aggrieved of the two orders dated 28‑7‑1986 made by the Qazi, Zhob dismissing the suit of the petitioner and the appellate order of the Majlis‑e‑Shoora dated 21‑4‑1987, filed a revision application in the High Court of Baluchistan on 14‑6‑1987, which was dismissed as per impugned judgment. 2. It was contended by the learned counsel for the petitioner that the learned Single Judge in the High Court had erred in holding that the plaint of the petitioner did not disclose any cause of action and was liable to be rejected, although no such issue was framed anywhere in the proceedings. The learned counsel pointed out that in the order of remand passed by the Majlis‑e‑Shoora dated 12‑12‑1985, certain specific guidelines had been given, which were not followed by the learned Qazi, which aspect of the case was ignored even by the Mallis‑e‑Shoora while dismissing the appeal. The learned counsel invited our attention to the following passage occurring in the impugned judgment:‑ "No doubt there is force in the submissions of learned counsel for petitioner that trial Court should have complied with guidelines and directions contained in judgment of Majlis‑e Shoora dated 12-12‑1985. Obviously non‑compliance of specific directions given by the appellate Court is highly deprecated. However, in the given circumstances of this case in the second round same appellate Court has not taken any serious note about its previous judgment whether it would be worthwhile to remand the matter again to trial Court simply to perform procedural formality." The learned counsel made a grievance that on the foot of such observations, the revision application of the petitioner was liable to be accepted. The learned counsel further pointed out that even after holding that the plaint of the petitioner was liable to be rejected under Order VII Rule 11 C.P.C., the High Court had chosen to make following observation on the merits of the case:‑ "It may also be clarified that observations of two courts below regarding question of limitation are not warranted because admittedly no issue to that effect was framed." 3. the contentions noted above require examination and leave is accordingly granted. Security Rs.2,000. M . Y . H . / M‑542/ S ‑‑‑ Leave to appeal granted.