2006 PLP 282 (CLC)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts leading to the filing of instant civil revision are, that Dilbar Khan and others petitioners instituted suit on or about 21-7-1996 in the Court of Civil Judge Wari, Dir against Talizar Khan and others, respondents for declaration, possession and redemption of two Paisa Dafter out of 12 Paisa Dafter of Kotkai Illaqa Wari Khel, Dir, described in the plaint as eight plots mentioned by boundaries. The petitioner claimed that first four plots were mortgaged since last 50/51 years for Rs.180 to respondents 1 to 6 and the remaining plots 5 to 8 were given to respondent No.8 on `Batai' since the last 50/52 years.

2. The suit was contested by 14 respondents out of 33 respondents on various grounds, legal as well as factual. It was pleaded that necessary parties were not impleaded and that respondent No.8 was dead, therefore, the suit was not competent. One of the respondents namely Nadir Khan confessed judgment and stated that he was prepared to return the share in his possession as the property belonged to the petitioners. Necessary issues were framed and after recording such evidence as the parties wished to adduce, learned trial Judge dismissed the suit vide judgment and decree, dated 2-12-1997. An appeal was preferred there against, which was also dismissed by Additional District Judge, Dir Bala at Wari, vide judgment, dated 11-10-1999.

3. The petitioners feeling aggrieved, have filed the present civil revision assailing the concurrent findings of the Courts below.

4. Mr. Abdul Samad Khan, Advocate for the petitioners, while challenging the impugned judgments and decrees of the Courts below, attempted to argue that the material on record has not been appreciated and evaluated in its true perspective, which has resulted in manifest injustice and that a Local Commission should have been appointed in the case, to clinch the matter and resolve the controversy between the parties. The learned counsel also contended that no suit can be dismissed on account of non-joinder or mis-joinder of the parties under Order I, rule 9, C.P.C. and the Court could not proceed further till the necessary parties were impleaded. The learned counsel further maintained that respondent No.8 Muhammad Jan being dead, the legal representatives of the deceased should have been brought on record and the petitioners should have been directed to file an amended plaint. In the last limb of arguments, the learned counsel urged that the impugned judgment of the Appellate Court is not in consonance with the provision of Order XLI, rule 31, C.P.C. and as such, cannot be allowed to remain intact and the matter be remanded to the trial Court for redecision. To substantiate the contentions, reliance was placed on PLD 1973 Quetta 24 and 1989 SCMR 1132.

5. Mr. Muhammad Aman Khan, Advocate for the respondents, on the contrary, submitted that both the Courts below have embarked upon all the issues involved in the case, appreciated documentary as well as oral evidence in its true perspective and reached to the proper conclusion to which no exception can be taken. The findings recorded by both the Courts are not only in consonance with the record of the case, but also in accordance with law on the subject. He maintained that learned counsel for the petitioners could not point out any grave legal infirmity in the impugned judgments justifying to unsettle the concurrent findings of fact arrived by both the Courts below. In this regard reliance was placed on 1975 SCMR 311; 1979 SCMR 630 and 2000 SCMR 1008.

6. I have heard the arguments of the learned counsel for the parties at considerable length in the light of the material on record.

7. Remand of case can be ordered where it becomes absolutely necessary and inevitable in view of insufficiency or of inconclusive evidence on record. Remand of the case on technical reasons, cannot be appreciated when the Appellate Court could itself dispose of a case, it should refrain from remanding the case, unless it feels that the evidence on record was not sufficient. But this too is to be avoided particularly when the parties have had full of opportunities of presenting their evidence.

8. The Court of law is to decide a case keeping in view the rights and liabilities of the parties in the light of the record on file, and not merely to dispose of a case in a hurry. The Courts, being the ultimate protectors of the rights of the litigants, have the responsibility to ensure that the valuable rights of such litigants are not destroyed by their unintentional faults and innocent mistakes.

9. In the instant case, I find that the matter has been dealt with in a cursory manner without application of independent mind, which has resulted in manifest injustice. Both the Courts below have failed to appreciate and, assess the evidence properly and decide the case in its true perspective. Needless to emphasize that no suit can be dismissed on account of non-joinder or mis-joinder of the parties under Order I, rule 9, C.P.C. and the Court could not proceed further until the necessary parties were impleaded. Again, Muhammad Jan respondent No.8 being dead, his legal heirs should have been brought on file with direction to the petitioners to file an amended plaint. The omission on the part of the trial Court to do so, amounts to refusal to exercise its jurisdiction. Learned counsel for the petitioners contended with justification that one of the respondents Nadir Khan admitted the claim of the petitioners but his statement was put at shelf without any valid reason. The property consisted of 12 Paisa Dafter out of which 2 Paisa C Dafter was, claimed the area extends over 2 to 3 miles as, it was necessary to examine the owners of the remaining 10 shares. The Courts should have appointed a Commission for finding out the real owners from the admitted owners of the rest of the 10 Paisa Dafter. The objection raised on behalf of the petitioners regarding non-compliance of the provision of Order XLI, rule 31, C.P.C. is also substantial. The judgment of the Appellate Court has been recorded in a mechanical manner without application of judicial mind and as such, is not sustainable. In the result and for the foregoing reasons, I accept the revision petition, set aside the impugned judgments and decrees of the Courts below and remand the case to the trial Court for decision afresh after impleading necessary parties and providing a fair chance to the parties to produce evidence in support of their respective contentions. For this purpose, the parties and their counsel' are directed to appear before the trial Court on 5-12-2005 and cooperate with the trial Court so that the matter may be finalized at the earliest. No order as to costs. H.B.T./585/P?????????????????????????????????????????????????????????????????????????????????????? Revision accepted.