1995 PLP 1014 (MLD)

Sh. Naveed Shaheryar for Respondents. Date of hearing: 3rd July, 1993. This civil revision is directed against the order, dated 24‑9‑1992, by which an Additional District Judge at Gujrat, after accepting the appeal of Rehmat defendant‑respondent, set aside the judgment and decree of the trial Court, dated 1‑4‑1991, and remanded the case to it for fresh decision, with the directions that "an issue regarding the applicability of res judicata would be framed by the learned trial Judge and both the parties shall be given opportunity to adduce further evidence, if any, in support of their versions. The learned trial Judge should also look into the exhibits which have remained unsigned by the learned Civil Judge".

2. The main contention of the learned counsel for Nawab plaintiff -petitioner is that the learned Additional District Judge, by the impugned order, happened to give directions to the trial Court for framing an issue on the question of applicability of the principle of rcs judicata and asked him to record evidence of the parties thereon but without appreciating the fact that in the written statement of the defendant‑respondent here' was no objection regarding res judicata.

3. Learned counsel for the defendant‑respondent, with reference to some case‑law, has tried to defend the impugned order by contending that on the facts admitted or proved, the Court can, without a formal issue having been framed, consider the applicability of the relevant law and there was no necessity of raising the question of res judicata by inserting objection to that effect in the pleadings because the material on the record by itself reflected and supported this question.

4. I have not been able to persuade myself to agree with the views of the respondent's counsel. If his client wanted to press into service the said objection, the proper course for him was to have sought the permission of the trial Court or that of the appellate Court for the amendment of the written statement and if the same had been granted, then an issue should have been framed and the same should have been decided after recording the evidence of the parties, but this course was not adopted by the defendant‑respondent. The impugned order is, therefore, not sustainable.

5. In view of the above, the civil revision is accepted, the impugned order is set aside and the appeal of the respondent shall be deemed to be still pending before the learned appellate Court. The respondent shall, if he is really serious in raising objection of res judicata make an application to it for the amendment of his written statement. If his application is ultimately accepted by the learned appellate Court, it shall frame an issue on the question of res judicata, allow the parties an opportunity to adduce evidence thereon and after recording the same, re-decide the appeal in accordance with law.

6. Parties are directed to appear before the learned District Judge, Gujrat on 14‑7‑1993, who may retain the appeal on his own file or entrust the same to some Additional District Judge. AA./N‑299/L Case remanded.