2015 PLP 1384 (MLD)

LAL JAN KHATTAK, J.

This civil revision under section 115, C.P.C. is directed against the judgment and decree dated 20-11-2011 of the learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai, whereby appeal of the petitioner, against the judgment and decree dated 14-4-2012 of the learned Civil Judge/Illaqa Qazi-III, Malakand at Dargai, has been dismissed.

2. Brief facts of the case are that the petitioners had filed a suit against the respondents for declaration, permanent injunction and possession of the landed property fully detailed in the heading of plaint. It was the petitioners' case that the suit land was their ancestral property which was given by them to the respondents for its management as they had been at Quetta by then. According to averments of the plaint, on return from Quetta, petitioners demanded the respondents to hand over possession of the suit land but they refused and asserted their rights over it on which the petitioners filed their suit which was contested by the respondents by filing their written statement wherein they denied the petitioners' claim. Parties to the suit led their respective evidence on the case issues whereafter, the learned trial Court dismissed the suit which dismissal was impugned in appeal but that was dismissed, hence the instant civil revision.

3. Arguments heard and record gone through.

4. Learned counsel for the petitioners, at the very outset of hearing in the case, submitted that before the appellate Court the petitioners had filed two miscellaneous applications, one for amendment of the plaint and other for the appointment of a local commission but without deciding these applications, the learned appellate Court had dismissed the appeal.

5. Perusal of the case record would reveal that the petitioners had filed two applications, as mentioned above but the learned appellate Court did not advert to either of the applications and decided the appeal sans a decision thereon. It is now well-settled that when any miscellaneous application is filed by any of the parties before any Court, then the Court is required to decide the same either prior to disposal of the lis or alongside it, but in no way, the application would be left undecided. Wisdom in this respect is derived from a judgment reported in 2008 SCMR 1259.

6. As the learned appellate Court has failed to exercise its jurisdiction so vested in it by law, therefore, this Court in the exercise of its jurisdiction under section 115, C.P.C. is constrained to accept the instant civil revision. Consequently, the impugned judgment and decree dated 20-11-2011 is set aside and the case is remanded to the learned appellate court for disposal of the appeal afresh along with both the miscellaneous applications within a period of one month. Parties present in Court are directed to appear before the learned appellate Court on 1-7-2014. AG/358/P Case remanded.