2022 PLP 1601 (CLC)

ABDUL HAMEED BALOCH, J.

The petitioners/ defendants questioned judgments and decrees dated 17th March, 2018 and 19th August, 2020, (impugned judgments and decrees) passed by Civil Judge-IV, Quetta and Additional District Judge-X, Quetta, (trial and appellate court), whereby the suit filed by respondent No.1/plaintiff was decreed and appeal filed by the petitioners/defendants was dismissed by upholding the judgment arid decree of the trial court.

2. Concise facts of the case are that the respondent No.1/plaintiff filed a suit for declaration, recovery of damages, mandatory, perpetual injunction and consequential relief against the petitioners/defendants and respondents Nos.2 to 4 in the court of Civil Judge-IV Quetta, which was contested by the petitioners/ defendants on legal as well as factual grounds by filing written statement. The trial court framed issues out of the pleadings of the parties, on which the parties produced pro and contra evidence. On conclusion of trial, the trial court vide judgment and decree dated 17th March, 2018 decreed the suit of the respondent No. 1/ plaintiff. Being dissatisfied the petitioners/defendants filed appeal, but same was dismissed vide judgment and decree dated 19th August, 2020, hence this revision petition.

3. Heard and perused the record. The record reflects that the appellate court while deciding the appeal has failed to observe the mandate of Order XLI, Rule 31, C.P.C., which reads as under: "Order XLI, Rule

31. The judgment of the Appellate Court shall be in writing and shall state - a. the points for determination; b. the decision thereon; c. the reasons for the decision; and, d. where, the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

4. Under the referred to Rule the appellate court while passing the judgment is under its obligation to state point for determination, the decision thereon, reason for the decision, whether the decree appealed from was reversed or varied. The phrase "point for determination" in Order XLI, Rule 31(a), C.P.C. referred to all important questions involved in the case. The object of the above referred Rule was to provide a pavement to the appellate court for writing a good judgment. It is incumbent upon the appellate court to give findings on issue-wise while passing the judgment. The provision of Order XLI, Rule 31, C.P.C. is mandatory in nature. The appellate court while writing the judgment should follow the prescribed procedure within its letter and spirit.

5. Under the above referred provision it was mandatory upon the appellate court to frame points for determined, reasons for decision thereon. It reflects from the judgment of the appellate court that the appellate court failed to adhere the above referred provision. The civil court has to decide the dispute issue-wise. It is not the case of respondent/plaintiff that issues were abandoned by. consent of the parties. In Syed Iftikhar-ud-Din Haider Gardezi case, (1996 SCMR 669) ,he Honorable Supreme Court held: "This case is also hit by rule 31 as all the points which were argued and relied upon by the learned counsel for the appellants were not considered for their proper determination on the basis of available evidence.

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6. The appellate court should applied independent mind while deciding the appeal. Mere reproduction of judgment of trial court dismissing the appeal is not the scheme of law. The appellate court should decide the appeal independently. The appellate court has to frame point for determination, conclusion thereon on the basis of evidence on record. The appellate court should not step the judgment of trial court mechanically without applying its mind. Reliance is placed on the case Punjab Industrial Development Board v. United Sugar Mills Limited, 2007 SCMR 1394, wherein it was held: "

6. It is also a settled law that Appellate Court has to decide the appeal after independent application of mind and mere reproduction of the judgment of the trial Court and thereafter dismissing the appeal is not in consonance with the law laid down by this Court in Ghulam Mohayyauddin's case PLD 1964 SC

829. After addition of section 24-A in the General Clauses Act, even the public functionaries are duty bound to decide the applications of citizens while exercising statutory powers with reasons after judicial application of mind as laid down by this Court in Airport Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. As the Appellate Court has decided the case in violation of the dictum laid down by this Court in aforesaid judgments and has not decided the appeal after perusing material on record in accordance with the law. This Court normally does not interfere with the findings of fact reached by the learned High Court and the Court below when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding of any provision of law or any accepted principle concerning appreciation of evidence. In the instant case however, it is difficult to avoid the impression that the conclusions reached by the learned appellate Court suffer from errors of law while not deciding the appeal in terms of the dictum laid down by this Court in various pronouncements including the aforesaid judgments. Therefore, the learned Appellate Court has committed material irregularities as laid down by this Court in Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53."

8. The record reveals that the trial court framed as many as eight issues, discussed each issue. While the appellate court while deciding the appeal neither framed point for determination nor discussed the evidence for arriving the conclusion. Where the evidence was sufficient for deciding the issues the appellate court should decide the appeal as provided under Order XLI, Rule 31, C.P.C. The Honorable Supreme Court in case of Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 held; "8 Regarding duties of the Appellate Court, specially the first Appellate Court, learned Narayan, J, in paragraph 22 of judgment in the case of Sailajananda Pandey and another (supra) has dearly stated that "it has been repeatedly pointed out that the legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the lower Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty". In the instant case, a bare perusal of the judgment of the first appellate Court clearly reflects that it has not given due attention to the available evidence on record." The Honorable Supreme Court further held: "

The High Court, if it was of the opinion that the first Appellate Court has not adhered to Order XLI, Rule 31, C.P.C. should have sent the case back to the appellate Court with some directions and should not have decided the case in revisional jurisdiction as the scope of revision, to some extent, is limited. In the case in hand the appellate Court has given cursory judgment mainly depending on the decision of the trial Court although sufficient material in the shape of evidence was available. before it. The judgment of the first appellate Court is itself a big reason for remand of the case." For foregoing reasons I reached to an irresistible conclusion that the judgment of the appellate court is not in accordance with law and dictum laid down by the superior courts, as such not sustainable. Under such circumstances the revision petition is accepted. The judgment and decree dated 19th August, 2020 passed by Additional District Judge-X, Quetta, is set aside. The matter is remanded to the appellate court for decision afresh in accordance with the provisions Order XLI, Rule 31, C.P.C. after hearing the parties possibly within a period of two months after receipt of copy of the judgment of this court. The parties are left to bear their own costs. ZH/190/Bal. Case remanded.