2006 PLP 2889 (YLR)

ABDUL SHAKOOR PARACHA, J.

This civil revision was fixed on 15-10-2003. Despite notice none has entered appearance on behalf of the respondents, therefore, they were proceeded ex parte and the case was adjourned for arguments. Arguments have been heard. Record perused.

2. Learned counsel for the petitioner contends that the learned Addl. District Judge committed irregularity by disposing of the appeal without passing any order on the three applications filed by the petitioner (appellant) before the Court of Addl. District Judge. Therefore, the order of the dismissal of the appeal is not warranted under the law. Reliance has been placed on Haji Ibrahim v. Ismail and 9 others PLD 1976 Karachi 1075; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 and Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731.

3. There are three applications i.e. (i) application under Order VI, Rule 17, C.P.C. for amendment of the appeal dated 15-7-1996 (ii) application under Article 163 of Qanun-e-Shahadat Order, 1984 dated 24-10-1996 and (iii) Application under Order VI, Rule 17 read with Order I, Rule 10 with section 151, C.P.C. for amendment of plaint dated 15-7-1996 on the record.

4. The above said applications were not disposed of before dismissing the appeal of the petitioner by the Court. Therefore, the first Appellate Court order is illegal and liable to be set aside as held in case Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334, wherein it has been held that, "it was incumbent upon the Court to first ensure that every miscellaneous application filed by any of the parties stood disposed of irrespective of the fact whether the party concerned pressed same or not." In case of Haji Ibrahim v. Ismail and 9 others PLD 1976 Karachi 1075, it has been held that, "order passed by successor Judge without deciding pending application and hearing arguments set aside." In case of Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 it has been held that, "non-disposal of pending application under Order XVI, Rule 27, C.P.C. being substantial defect, case was to be remanded to appellate Court."

5. The other irregularity is about the framing of issues by trial Court. Issue No.10 was framed by Court regarding adverse possession. Nowhere, the petitioner-plaintiff has asserted in the plaint that he has become the owner of the land by way of adverse possession. Issue has not been framed out of the divergent pleadings of the parties. While deciding the appeal, learned Addl. District Judge shall also advert to this point and may delete the Issue No.10.

6. For what has been discussed above, this civil revision is allowed and the case is remanded to the learned District Judge for the disposal or entrustment to any Additional District Judge who shall decide the abovementioned three applications and decide the appeal on merits. Parties to bear their own costs. M.I./S-74/L???????????????????????????????????????????????????????????????????????????????????????? Case remanded.