2005 PLP 657 (MLD)

The brief facts out of which the present revision petition arises are that the petitioner filed a suit for declaration with permanent injunction on 27-4-1992 in the Court of Civil Judge 1st Class, Kamalia against the respondent. The contents of the plaint reveal that the petitioner/plaintiff is an owner of House No.259/B whereas respondent/defendant is an owner of adjacent House No.258/B. The partition wall with the length of 36/37 feet is existing between the two houses. The contents of the plaint further reveal that respondent/ defendant claiming herself to be sole owner of the entire wall and started construction over the wall in question. This controversy gave a cause of action to the petitioner/plaintiff to file the suit for declaration that the disputed wall is a common property of the parties to the suit and the respondent/defendant cannot claim herself to be a sole owner of the same. The respondent/defendant filed the written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:-- (1) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD (2) Whether the suit is hit by Order 7, rule 11 of C.P.C.? OPD (3) Whether the suit is not proceedable in its present form? OPD. (4) Whether the defendant is entitled to special cost under section 35-A, C.P.C.? OPD (5) Whether defendant is exclusive owner of the disputed wall? OPD (6) Whether the disputed wall is jointly owned by the parties? OPP (7) Relief. The learned trial Court decreed the suit vide judgment and decree dated 13-7-1995. The respondent being aggrieved preferred an appeal in the Court of District Judge, Toba Tek Singh, who accepted the same vide impugned judgment and decree dated 19-5-1997, hence the present revision petition.

2. The learned counsel of the petitioner submits that the judgments of both the Courts below are at variance. He further submits that the First Appellate Court reversed the findings of the trial Court without adverting to the reasoning of the trial Court. He further urges that the First Appellate Court has not given any findings on Issue No.5, therefore, judgment of the First Appellate Court is not in accordance with the mandatory provisions of law and the law laid down by the superior Courts. In support of his contention, he relied upon Syed Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd. Lahore and 2 others (1996 SCMR 669). He further urges that both the houses were allotted to the parties by the Central Government under the provisions of law, therefore, nobody can claim exclusive ownership with regard to the wall, which is situated in between the two houses as the properties in question were allotted to the parties with all easement rights attached with the properties. In support of his contention, he relied upon Mst. Jannat Bibi v. Ch. Azim Bakhsh (1994 CLC 1695). He further urges that the Court has ample jurisdiction to pass the mandatory injunction in favour of the petitioner qua the easement right. In support of his contention, he relied upon Durga Parshad v. Jheetar Mal (AIR 1954 Punjab 125) and (AIR 1931 Lahore 373) (There is no judgment at the cited page). He further submits that wall between the two houses is always terms as a common wall jointly own by owners of both the houses as per law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- Hira Lal and another v. Milkhiram (AIR 1928 Lahore 598) Baiji Nath v. Janki Prasad (AIR 1930 Allahabad 318) Muzaffar Ali v. Muhammad Amin (PLD 1975 Lahore 479)

3. The learned counsel of the respondent submits that the trial Court wrongly placed onus of Issue No.5 on the respondent/defendant as is evident from the contentions of the counsel of the respondent/defendant before the First Appellate Court noted in para. 6 of the impugned judgment of the First Appellate Court. He further submits that onus of Issue No.6 is upon the petitioner/plaintiff as is highlighted by the First Appellate Court while noting the contentions of the respondent in para. 6 of the impugned judgment of the First Appellate Court. He further urges that the First Appellate Court has reversed the findings of the trial Court after proper appreciation of the evidence on record as is evident from the operative part of the impugned judgment of the First Appellate Court vide para. 9 read with para. 6 of the impugned judgment of the First Appellate Court.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. In case findings on Issues Nos.5 and 6 of the trial Court and the impugned judgment of the First Appellate Court are put in a juxta-position then it is crystal clear that the First Appellate Court has reversed the findings of the trial Court without adverting to the reasoning of the trial Court which is not in consonance with the law laid down by the Honourable Supreme Court in Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617). The relevant observation is as follows:-- "The learned Appellate Court, however, accepted these receipts without adverting to the very cogent reasoning given by the trial Judge for their rejection. The High Court was, therefore, right in the view that a finding reached by the First Appellate Court which totally ignored the reasons given by the trial Court Judge for a contrary finding, could not be upheld in second appeal". It is also settled principle of law that the Presiding Officers are duty bound to decide the cases between the parties after judicial application of mind. Para. 9 of the impugned judgment of the First Appellate Court clearly reveals that the First Appellate Court has reversed the findings of the trial Court without judicial application of mind, which is not in consonance with the law laid down by the Honourable Supreme Court in Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others (PLD 1970 SC 158). The relevant observation is as follows:-- "Such an order, we regret to say, does not disclose a proper application of the mind of the High Court to the merits of the case that was before it. As was pointed out by this Court in the case of Adamjee Jute Mills Limited v. The Province of East Pakistan." The aforesaid view was also taken by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). The relevant observation is as follows:-- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", judicial process to authoritarian decree without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance." Section 24-A is added in the General Clauses Act, which is procedural in nature, therefore, same has retrospective effect as per law laid down by the Honourable Supreme Court in Zain Yar Khan v. The Chief Engineer (1998 SCMR 2419). After addition of section 24-A in the General Clauses Act it is the duty and obligation of the public functionaries to decide the cases of the citizens with reasons within reasonable time as the law laid down by the Honourable Supreme Court in M/s Airport Support Services v. The Airport Manager (1998 SCMR 2268). As mentioned above, the First Appellate Court has reversed the findings of the trial Court without judicial application of mind and without reappraisal of the evidence, therefore, the appeal of the respondent was decided by the First Appellate Court without judicial application of mind. In case the First Appellate Court has decided the case in violation of the parameters prescribed by the Honourable Supreme Court then it is termed as material irregularity committed by the First Appellate Court as per law laid down by the Honourable Supreme Court in the following judgments:-- "Kanwal Nain's case" (PLD 1983 SC 53) "Shaukat Nawaz's case" (1988 SCMR 851). It is also settled principle of law that the judgment of the Honourable Supreme Court is binding on each and every organ of the State as envisaged by Articles 189 and 190 of the Constitution. The First Appellate Court has decided the appeal of the respondent without judicial application of mind, therefore, same is set aside and the case is remanded to the First Appellate Court to decide the appeal of the respondent afresh after judicial application of mind as expeditiously as possible. I myself do not reappraisal the evidence on record. By doing so one of the parties will lose right of revision before this Court and this Court will also not be benefited by the findings of the First Appellate Court.

6. In view of what has been discussed above, the revision petition is accepted meaning thereby the appeal filed by the respondent shall be deemed to be pending adjudication before the First Appellate Court. Parties are directed to appear before the learned First Appellate Court on 26-2-2005, who is directed to decide the appeal of the respondent afresh in terms of the aforesaid observation without being influenced by the observation of this Court after reappraisal of the evidence on record and after judicial application of mind as expeditiously as possible. M.H./J-60/L Case remanded.