1990 PLP 1129 (MLD)

In the present case no particular points were expressly framed at the appellate level but issues in the suit had been reproduced and discussion on such issues was, substantially, recorded in the Appellate judgment. In actuality, the Appellate Court had even reversed the finding of the trial Court in the context of the applicability of the doctrine of Res Judicata, holding that an earlier decision, referred at trial, did not pertain to the same parties and, as such, that doctrine did not apply. It would, no doubt, have been better had the appellate judgment, apart from the issues also separately recorded specific points for determination or observed that it takes the issues to be such but the want of it, though not apposite, need not be fatal. If substantial compliance is made and issues are recast and discussed, making it manifest that the Judge was conscious of the matters involved and the judgment did not operate in oblivion of the record, no serious exception need be taken. Course of judicial dispensation is, principally, calculated to ensure that justice is done irrespective of and notwithstanding any technicality. Hassan Shah v. Malook Shah 1987 C L C 2281 ref. Ubedullah Ansari for Applicant. ?????????? Nemo for Respondents. In this Revision Application the concurrent findings of fact given in the two Courts below have been questioned. Such findings, which pertain to a suit for specific performance, filed by the applicant, are that the alleged agreement of sale, on which the suit was based, is a forged document, inscribed on a stamp paper obtained from a place, at quite some distance from the place of its execution, that neither the attesting witnesses nor the scribe of such agreement have been examined, all allegedly having died and that the suit itself, unaccountably was instituted, after the demise of the respondent‑seller (through legal representatives). Other contradictions noted are that the applicant‑plaintiff during the course of his examination, stated that he purchased the relevant stamp paper, utilized for the disputed document, several days earlier than the date of its user but, on scrutiny, it was found to have been purchased only a day earlier and that also not in the name of applicant but of quite another person. Besides, even though case of the applicant was that he is and has been in possession, no documentary evidence whatever in the context was produced, and preponderance of the oral and documentary evidence in rebuttal was to the contrary. In these circumstances, the learned Courts below found no case for grant of specific performance.

2. In a suit for specific performance, the burden of proof of the agreement of sale is, initially, that of the plaintiff. In the event of denial of such agreement, as in this case, it is for the plaintiff to show, through convincing evidence, that, in fact, such agreement subsisted between the parties. If execution is not admitted, signatures of the opposite party are to be proved by comparison thereof with admitted specimen or through other recognized modes. Collaterally, attesting witnesses, scribe, if any, and, if the pertinent stamp paper is controversial, the stamp vendor, alongwith supporting documentary material, are to be examined and produced. None of this was done in the instant case. As to the alleged demise of the scribe and attesting witnesses, while that circumstance does not seem to have been, uncontrovertedly, established, such line of approach was neither exclusive nor, in any way, conclusive. The conclusion, therefore, as to absence of proof of the disputed agreement does not warrant a different view.

3. Another ground of attack, specific to the judgment in appeal, is based on the decision of my learned brother Saeeduz Zaman Siddiqui, J., reported as Hassan Shah v. Malook Shah 1987 C L C 2281. The contention is that the appellate Court, in line with Order 41 Rule 31, C. P. C., did not frame points for determination, before arriving at the conclusion in appeal and, as such, on the ratio of the cited case, the order is bad. Not only that, even a jurisdictional error is involved and interference can be made under section 115 of C. P. C. At the outset, it requires to be stated that Order 41 Rule 31, C. P. C. enshrines the salutary rule that an appellate Court, in its judgment, is obliged to state the points for determination, decision thereon; reasons for the decision and, where the decree appealed from is reversed or varied the relief to which the appellant is found entitled. These requirements are directed to ensure proper application of mind at the appellate level as also to guarantee a speaking order, essential for all judicial pronouncements. No particular form for a statement of points for determination is in contemplation in the rule. Such term only refers to all the important questions involved in the case and need not include points which have been abandoned and not urged at the hearing or are not necessary for the disposal.

4. It is correct that in this case no particular points were expressly framed at the appellate level but issues in the suit had been reproduced and discussion on such issues was, substantially, recorded in the appellate judgment. In actuality, the learned appellate Court has even reversed the finding of the trial Court in the context of the applicability of the doctrine of Res Judicata, holding that an earlier decision, referred at trial, did not pertain to the same parties and, as such, that doctrine did not apply. It would, no doubt, have been better had the appellate judgment, apart from the issues also separately recorded specific points for determination or observed that it takes the Issues to be such but the want of it, though not apposite, need not be fatal. If substantial compliance is made and issues are recast and discussed, making it manifest that the Judge was conscious of the matters involved and the judgment does not operate in oblivion of the record, no serious exception need be taken. The case of Hassan Shah ibid does not lay down any different rule. ???????????

5. There, thus being, in substance, due compliance with Order 41 rule

31. C. P. C., if what the learned counsel maintains is accepted that will amount to taking too technical a view of the matter, when the recent course of judicial dispensation is, principally, calculated to ensure that justice is done irrespective of and notwithstanding any technicality. Indeed, justice seems to have been done here, foreclosing all avenues of available procedural objections. No other question was raised. As such, this Revision Application is dismissed in limine. M. B. A./A‑768/K?????????????????????????????????????????????????????????????????????????????? Revision dismissed.