2000 PLP 1064 (CLC)

(d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115 & O.XLI, R.31‑‑‑Dastur‑ul‑Amal Dewani, Kalat‑‑‑Non compliance of provisions of O.XLI, R.31, C.P.C.‑‑‑Effect‑‑‑None‑of the issues framed by Trial Court was given up by either party‑‑‑Lower Appellate Court failed to decide all the issues‑‑‑Validity‑‑‑Where Lower Appellate Court failed to comply with the provisions of O.XLI, R.31, C.P.C. judgment rendered by the Court could not be treated as a proper judgment and the same was set aside‑‑‑Revision was allowed accordingly. Nazir Ahmad for Petitioner. Haji Muhammad Sadiq.Ghuman for Respondents: This civil revision petition has been directed against the judgment and decree, dated 23‑9‑199,9 passed by the learned Majlis‑e‑Shoora, Sibi whereby the appeal filed by the petitioner against the judgment and decree, dated 29‑4‑1999 passed by the learned Qazi, Dhadar was dismissed.

2. Briefly stated the facts of the case are that the petitioner filed a suit for declaration and. permanent injunction in the Court of Qazi, Dhadar with the averments that the petitioner is Buzgar of respondents and cultivating the agriculture lands situated in Monza Gor, Sub‑Tehsil Bala Nari, District Bolan bearing Khata No. 15, Khalooni No. 57, Khasra No. 238, measuring 57 rods, since time of his forefathers. It is stated that the petitioner is giving 1/3rd share in produce of the above land to the respondents, but in spite of the same they are trying to dispossess the petitioner from the lands in question forcibly. The respondents contested this suit by filing written statements.

3. Out of pleadings of .the parties the learned Qazi, Dhadar framed the following issues:‑‑ The parties in support of their respective claims produced evidences. The learned Qazi, Dhadar after assessment of the evidence decided Issues Nos. 1, 2 and 4 in favour of the petitioner and came to the conclusion that as the petitioner is tenant‑at‑will of the respondents, therefore, the owner can dispossess him at anytime. The Qazi, Dhadar granted a decree against which appeal was preferred before Majlis‑e‑Shoora, Sibi which was dismissed by upholding the judgment of learned Qazi, Dhadar vide impugned judgment and decree, dated 23‑9‑1999. The petitioner then filed present civil revision petition against the said judgment and decree of learned Majlis‑e‑Shoora, Sibi.

4. I have heard Mr. Nazir Ahmed, Advocate, learned counsel for the petitioner and Haji Muhammad Sadiq Ghuman, learned counsel for the respondents. Learned counsel for the respondents at the very outset has raised an objection regarding limitation. The contention of the counsel for respondents is that revision is filed under section 24 of the Dastur‑ul‑Amal Dewani, Kalat, wherein time limit of 60 days is prescribed for filing of revision. As per clause (c) of the said section 24 of Dastur‑ul‑Amal Deward, Kalat an appeal would lie against final decree and‑ revision would lie against interim or interlocutory order and the provision of Dastur‑ul‑Amal Dewani, Kalat does not provide for revision against final order.

5. This is settled law that where there is a provision in Dastur‑ul‑Amal Dewani, Kalat with corresponding provision in the Civil Procedure Code, the latter would prevail and the provisions in Dastur‑ul‑Amal Dewani, Kalat A would be deemed to have been repealed by application of section 4(1) of Central Laws (Statute Reforms) Ordinance XXI of 1960. In the case of Mir Saeed Muhammad v. Mir Chakar and others reported in PLD 1975 Quetta 43 it was held that section 24 by operation of this Ordinance stood repealed. l e This observation related to section 24 of Dastur‑ul‑Amal Dewani, Kalat, so for it related to second appeal. I am of the view that section 4 of the Central IC Laws (Statute Reforms) Ordinance XXI of 1960 also repeals the provisions of section 24 of the Dastur‑dl‑Amal Dewani, Kalat, so far as it relates to revisions and provisions of section 115, C.P.C. would be the one applying to C the revision. Since the period prescribed for filing of revision under section 115, C.P.C. is 90 days, therefore, the objection raised by the learned counsel for the respondents has no force.

6. It is relevant to note that none of the issues framed by the learned trial Court was given up by either of the parties, therefore, the learned Majlis‑e‑Shoora was under legal obligation to decide all the issues. The learned counsel for the respondents has also produced a photostat copy of cross‑objections by the respondents under Order XLI, Rule 21, C.P.C. which they had filed before the learned Majlis‑e‑Shoora. Learned counsel for the respondents has also submitted that cross‑objections were not disposed of by the learned Majlis‑e‑Shoora, Sibi.

7. For the foregoing reasons the judgment rendered by the learned Majlis‑e‑Shoora, Sibi in the circumstances cannot be treated as a proper judgment and also on account of non‑compliance of the provision of Order XLI, Rule 31 of the C.P.C. Further comments may prejudice either of the party. In view of above position the judgment and decree of the learned Majlis‑e‑Shoora, Sibi is set aside. Case is remanded to the learned Majlis‑e Shoora, Sibi for fresh decision in accordance with law after giving opportunity to the parties. The appeal shall be disposed of as early as possible. Q.M.H./M.A.K./27/Q Case remanded.