1988 PLP 2030 (CLC)

These are three Civil Revision Applications under Section 115 C.P.C, arising out of a single judgment dated 5th November, 1983 passed by 6th Additional District Judge, Karachi in Civil Appeal Nos.43,44 and 45 of 1980 upholding the decrees dated 10‑1‑1980 passed by Ist Civil Judge, Karachi in consolidated Suits Nos.515/77, 2009 and 2198 of 1976, whereby the learned Civil Judge dismissed Suit No.515 of 1977 and Suit No.2198 of 1976 for declaration and injunction filed by the applicant and decreed Suit No.2005 of 1976 (an inert-pleader Suit) filed by respondent. (2). Since these three revisions have arisen out of the single judgment passed in three appeals, as aforesaid, I intend to dispose of the above three revision applications by this common judgment.

3. It is submitted by the learned counsel for the applicant that the applicant (Suraya Akhtar) on 29‑4‑1972 booked a 'B' type flat for Rs.19,000 with respondent, Messrs A1‑Ahram Builders and paid Rs.600Q as advance instalment. The applicant who is a pardah‑Nasheen lady had authorised her brother Azhar lqbal (respondent No.l in suit No .2009/76) to do all necessary correspondence with the Builders who on 21‑8‑1972 got changed the allotment from ' B' type to 'D' type for total cost of Rs.27,

000. It is further submitted by the counsel that her brother in collaboration with the Builders through a forged application purported to have been signed by the applicant got the allotment changed in his name. The applicant, however, made payment of Its. 31,500 to the Builders through her brother Azhar lqbal. The respondent builders demanded additional amount of Rs.4,500 through a notice sent to Azhar lqbal which was not paid. In the meantime the applicant came to know of the alleged collaboration. She sent a notice dated 19‑8‑1976 to the respondent Builders, which was replied by the said Builders on 30‑8‑1976 informing the applicant that because of the non‑payment of the demand of Rs.4,500 by Azhar lqbal, the allotment of flat was cancelled as long as 4th August, 1976.

3. The respondent Builders, then, instituted an interpleader suit against the applicant and her brother Azhar Iqbal on 1‑11‑1976 bearing suit No.2009/76. However, the applicant on 30‑11‑1976 also‑ filed a suit No. 2198/76 for declaration that she is a lawful allottee of the said flat and for injunction against the respondent Builders not to allot the flat to anyone else.

4. Thereafter the possession of the flat in question was obtained by the applicant, as alleged by the applicant, under the cover of Martial Law Authorities. Finding herself under a threat of eviction by the respondent, the applicant filed another suit bearing No. 515/77 for declaration that she is a lawful allottee and injunction against the Company not to eject her .from the flat. After hearing the learned counsel for the parties, the learned Civil Judge dismissed the two suits filed by the applicant and decreed the suit of the respondent. Appeals filed by the applicant also failed.

5. I have heard Mr. Mohammad Asghar Khan learned counsel for applicant and Mr. S.F. Abdullah learned counsel for respondent. It appears that Suits Nos.2198/76 and 515/77, pending before another Court, were transferred to the Court of First Senior Civil Judge where Suit No.2009/76 was already pending. On 2‑8‑1978 an application for consolidation of all the three suits was made by respondent before the learned 1st Senior Civil Judge on which the following order was passed:‑ "The application for consolidation of Suits Nos.2009/76, 2198/76 and 515/77 is allowed by consent. Suit No.515/77 is to be treated as the main suit and the evidence recorded in this suit will be treated as evidence in all the suits. The issues have been settled in Suit No.515/77 only on 15‑10‑1977, while in the other two suits no Issues have been framed. Put off to for re‑casting of issues" As per case diary, the case was adjourned to 26‑9‑1978, It appears that on 26‑9‑1978 instead of re‑casting the issues or framing consolidated issues in all the three suits, the learned Ist Civil Judge proceeded to record evidence on the issues already framed in Suit No.515/77 and disposed of all the three suits by his judgment, as aforesaid. Learned counsel for the applicant, therefore, contended that the learned Ist Senior Civil Judge, while dismissing the applicant's two suits and decreeing the interpleader Suit, committed an illegality in not framing the issues in the other two suits. Learned counsel for the respondent submitted in reply that there was no need for framing separate issues in Suits Nos.2198/76 and 2009/76 do not find myself in agreement with the learned counsel for respondent and feel that the learned 1st Sr. Civil Judge appears to have acted with material irregularity in proceeding with trial of the three suits on the basis of the issues already framed in Suit No.515/77, in presence of the order passed by learned Ist Senior Civil Judge himself for re‑casting the issues. I find that there are on the file a number of proposed issues filed by the counsel for respondent in Suit No.2009/76 which ought to have been consolidated with the issues already framed in suit No.515/77, besides one or two issues arising out of Suit No.2198/76. What I mean to say is that as per order dated 2‑8‑1978 the learned Judge, before proceeding to record the evidence of the parties in all the three consolidated suits, should have re‑cast, re‑framed or framed consolidated issues arising out of the pleadings of the parties in all the three suits.

6. Learned counsel for respondent while admitting the fact that the issues were not re‑cast and no consolidated issues were framed in the three suits, submitted that this Court while exercising its revisional jurisdiction cannot go into the question of fact as there is concurrent finding of fact given by the two Courts below. Reliance is placed on S. Bionaabati Devi v. Ramendra Narayan Roy and others (AIR (34) 1947 P.C. 19) and Makelmuddin v. Kasem Ali Howaldar and others P L D 1960 Dacca

884. It is true that the High Court in exercise of its revisional jurisdiction should not enter .normally into the question of fact particularly when there is a concurrent finding of the two Courts below on the question of fact. But, in the instant case, I am not reviewing the facts or findings thereon. The case before me involves the question of procedure adopted by the learned 1st Senior Civil Judge which goes to the very root of the matter. By non‑framing of consolidated issues the learned 1st Senior Civil Judge has acted in a manner which has resulted in an injustice to the applicant. It is pertinent to note that the ground of non‑framing of consolidated issues was taken before the learned appellate Court as appears from grounds Nos.vii and xii in the Memo of Appeal.

7. For the reasons as aforesaid, I accept the three Revision Applications, set aside the impugned judgment dated 10‑1‑1980 passed by the learned Ist Sr.Civil Judge, Karachi and judgment dated 31‑10‑1983 passed by the learned VI Additional District Judge, Karachi and remand the suits to the learned Ist Senior Civil Judge, Karachi to proceed with the trial of the suits, after framing consolidated issues in all the three suits.

8. There will be no order as to cost A. A. /S‑174/ K Revisions accepted.