2015 PLP 805 (CLC)

ROOH-UL-AMIN KHAN, J.

Through the instant revision petition, the petitioner has called in question the judgment and decree dated 8-8-2011 passed by the learned Additional District Judge-V, D.I. Khan, vide which her appeal against the judgment and decree dated 21-2-2011 of learned Civil Judge-III, D.I. Khan has been dismissed.

2. The brief facts giving rise to the instant revision petition are that the petitioner/plaintiff had brought a suit against the respondents/ defendants for declaration to the effect that the respondents/ defendants are not entitled to alienate the suit property partially without proper partition and the official respondents are not competent to attest the mutation in Khata Nos.760 and

761. She also challenged mutations Nos.7315, 7990, 8842, 8103, 8590, 8457, 8458, 7988 and 7989.

3. The suit was contested by the respondents/ defendants by filing their written statement. The pleadings of the parties were reduced to six issues including the relief. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-III, D.I. Khan dismissed the suit vide judgment and decree dated 21-2-2011.

4. Dissatisfied with the judgment and decree dated 21-2-2011, the petitioner/plaintiff filed an appeal which was also dismissed by the learned Additional District Judge-V, D.I. Khan vide judgment and decree dated 8-8-2011, hence the instant revision petition.

5. Having heard the arguments of learned counsel for the parties, the perusal of record shows that the appeal filed by the petitioner/ plaintiff against the judgment and decree dated 21-2-2011 has been dismissed by the learned Additional District Judge-V, D.I. Khan in limine without giving notice to the respondents/defendants, which is against the consistent practice of the Court. No doubt, the rule that the first appeal is not to be dismissed in limine is not an inflexible rule, but it has remained established and consistent practice of the Court, which could not be departed from in view of the law laid down by the apex Court in its landmark judgment, captioned Abid Hussain v. Mst. Afsar Jehan Begum and others (PLD 1973 SC 1). Admittedly appeal is in continuation of suit and the appellate Court is final Court of facts, thus dismissing the appeal at preliminary stage without hearing the other side is intensely disliked and discouraged by the apex Court.

6. The instant suit was brought by the petitioner/plaintiff seeking declaration to the effect that she is co-owner in dispute Khata numbers and the respondents/defendants are not entitled to alienate the entire suit property in particular Khatas. The moot question for determination before the Court was as to whether a co-sharer would be entitled to transfer or alienate property from joint Khata in a specific Khasra or not and that too, in absence of proper official partition? Sufficient oral as well as documentary evidence has been produced by the parties in support of their respective claims. In the circumstances, the appellate Court being last Court of facts was legally obliged to state points for determination and the reasons for decision thereon. It was incumbent upon, the appellate Court to deal with each and every aspect of the case while hearing the appeal by re-opening the entire controversy. The appellate Court was required to go through the entire evidence recorded by the trial Court and discuss threadbare, to its satisfaction. In the instant case, the bare reading of the impugned judgment of the appellate Court would divulge that the learned appellate Court has decided the appeal in limine, without calling the record of the case, despite the fact that counsel for the appellant had requested for adjournment.

7. Undoubtedly, as discussed above, the appeal is in continuation of suit, therefore, it is the duty of the appellate Court to assess the entire evidence, pro and contra, produced by the parties, examine findings recorded by the trial Court and to give reason for upholding or reversing the same. The learned appellate Court was under legal obligation to decide the dispute in the manner prescribed by Order XLI, Rule 31, C.P.C. If the appellate Court fails to comply with the mandatory provisions of Order XLI, Rule 31, C.P.C, it will be certainly failing in the performance of its duties and the judgment would not be in accordance with law. The manifest object of the above provision is to provide a pavement to the appellate Court for writing a good, characteristic and self-explanatory judgment. It must contain reasons justifying the conclusion arrived at by the appellate Court. The legislature has entrusted a very important duty to the appellate Court. It is for the appellate Court to decide finally all the questions of facts and law involved in the case, because the judgment of the trial Court will disappear and merge in the judgment of the appellate Court and then remains in existence only one judgment i.e. of the appellate Court. The judgment of the appellate Court shall contain the points for determination of the dispute and must have reasons for decision, which are lacking in the impugned judgment.

8. For the reasons mentioned above, the instant revision petition is accepted, the impugned judgment and decree dated 8-8-2011 is set aside and the case is remanded to learned Additional District Judge-V, D.I. Khan for decision afresh on merits in accordance with law and the observations made above, after calling the record and hearing the parties. The matter being old one, the learned appellate Court is directed to dispose it of within a period of two months positively. AG/346/P Case remanded.