2025 PLP 1802 (YLR)

Jawad Hassan, J.

The Appellant/Plaintiff (the "Appellant"), through this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (the "C.P.C.") has impugned the judgment and decree dated 25.07.2024, passed by the learned Civil Judge Ist Class, Rawalpindi, being illegal and unlawful.

2. Learned counsel for the Appellant submitted that the Appellant filed a suit for recovery of Rs.96710000/- against the Respondents/ Defendants. The Respondents/ Defendants did not appear in response to the summons/notice, hence, they were proceeded against ex-parte. The learned trial Court recorded the ex parte evidence of the Appellant and partially decreed the suit. Added that the claim of the Appellant remained unrebutted, even then the learned trial Court ignored the material facts and wrongly dismissed his claim of using the amount in question for 51 years, hence, the impugned judgment and decree is liable to be set aside.

3. Heard. Record perused.

4. Perusal of record shows that the Appellant filed the suit on 15.11.2023 and the Respondents were proceeded against ex-parte on 06.05.2024. Thereafter, the learned trial Court recorded the ex-parte evidence of the Appellant and proceeded to decide the matter on merits, culminating in the impugned judgment and decree dated 25.07.2024. It is evident that the learned trial Court evaluated the ex-parte evidence, which comprised primarily on a legal notice (Mark-P1) and a courier receipt (Ex.P1); and on that basis partially decreed the suit only to the extent of the principal amount Rs.1,13,000/-; while the remaining claim regarding markup was dismissed for want of sufficient oral and documentary proof.

5. Bare reading of the judgment also reveals that the learned trial Court acknowledged that no material evidence had been produced by the Appellant to substantiate the alleged oral commitment by the Respondents regarding payment in terms of gold or its market value in 1972. Despite this, trial Court proceeded to decree the suit to a limited extent on the basis of the Appellant's unrebutted testimony, while simultaneously discarding the remainder of the claim. Such an approach appears to be based on assumptions and selective reliance on the evidence without adhering to settled principles of appreciation of ex-parte evidence. The inconsistency in accepting certain parts of the Appellant's evidence while discarding the rest, without cogent reasoning, renders the judgment confusing and legally unsustainable. The exercise of discretion in a piecemeal manner amounts to a flawed application of judicial mind, which is not warranted under the law.

6. This Court finds that the impugned decree suffers from a fundamental infirmity, as it was passed without proper consideration of the entire evidence on record. A partial decree, while permissible in certain circumstances, cannot be sustained when it selectively relies on fragments of evidence while disregarding material facts and documents crucial to a just adjudication. The failure to evaluate the totality of the evidence has resulted in a manifestly erroneous decision, prejudicing the rights of parties. Judicial propriety demands that courts examine all relevant evidence in a holistic manner before arriving at a conclusive finding. Since the decree in question was rendered without such due consideration, it amounts to a miscarriage of justice. The Hon'ble Supreme Court in the judgment reported as Barkatali v. Muhammad Nawaz (PLD 2004 SC 489), has held that "High Court is competent to reverse the findings of Appellate Court when it is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumptions of facts and consideration of inadmissible evidence". Moreover, in light of the principles established in the judgment reported as Government of N-W.E.P. v. Messrs Tahir Shoaib-Rashid Shoaib (1998 CLC 1680), it is evident that the trial Court committed a grave legal error by passing an ex-parte decree without properly considering the available evidence on record. The impugned judgment was rendered summarily, without any judicial determination of the merits of the case, as the Court failed to evaluate the pleadings, the plaintiff's recorded statement, or any other material evidence; "it is apparent that the trial Court in passing the impugned decree acted illegally and without lawful authority. Consequently, this Regular First Appeal is accepted, the impugned judgment/decree is set aside and the case is remanded back to the trial Court to allow the parties to produce their evidence".

7. In view of powers conferred under Section 107 of CPC, this Appellate Court is of the considered view that a remand of the case is necessary for the proper adjudication of the real subject matter in dispute. The lower court's judgment fails to adequately address critical aspects of the evidence on record, resulting in an incomplete and inconclusive determination of the issues. To ensure a just and effective resolution, it is imperative that the case be remanded to the trial court. For ready reference provisions of law are hereby reproduced:

107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power: (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Consequently, the impugned judgment and decree cannot be allowed to hold the field, even to the extent of the partial decree of Rs.1,13,000/-.

8. In view of above, in order to advance the cause of justice and to prevent the miscarriage of justice, this appeal is allowed, impugned judgment and decree dated 25.07.2024 is hereby set aside and the case is remanded to the trial Court, who shall frame proper issues on the subject and then decide the lis after recording of evidence, within a period of three (03) months, after receipt of certified copy of this order. UN/A-39/L Case remanded.