2006 PLP 1993 (MLD)

MIAN SAQIB NISAR, J.

The petitioner brought a suit for the specific performance of an agreement to sell against the respondent, which was contested by the respondent, and in the written statement, it was claimed that the agreement, is the product of fraud. Anyhow, inter alia, issue No.1, was framed as follows:-- (1) Whether the plaintiff entered into agreement to sell with the defendant in consideration of Rs.90,000, in respect of the suit-land? OPP.

2. After enabling the parties to produce evidence, on the conclusion of the trial, the learned Civil Judge, decreed the suit of the petitioner, on 23-11-2000, against which, the respondent preferred an appeal, and the learned Appellate Court, has accepted the same, vide judgment and decree, dated 17-1-2003, and remanded the matter to the learned Trial Court on two counts; firstly, that though there was a specific plea of fraud taken in the written statement, but no specific issue has been framed, and secondly, the learned Trial Court, was supposed to give finding on each issue, as per the provisions of Order XX Rule 5, C.P.C. but the collective findings have been given.

3. I have heard the learned counsel for the parties and find, that issue No.1, is a comprehensive issue and embodies the plea of fraud of the respondent as well. The petitioner, in order to get a decree had to prove a valid agreement in his favour, and under the same issue, the-respondent, was obliged to disprove the same, inter alia, on account of fraud, resultantly, no separate issue on the plea of fraud was required to be framed; moreover, at the time of framing of the issues and during the course of trial, the respondent never applied for the framing of any additional issue or for the correction of issue No.1. Even otherwise, no prejudice is shown to have been caused to the respondent, by non-framing of the issue vis-a-vis the question of fraud, therefore, the remand of the matter on this score, is absolutely erroneous and illegal.

4. As far as the question of separate findings on each issue is concerned, the Court of Appeal, is a Court of fact, and thus, the said Court, after considering the evidence on the record, itself has to see, whether the conclusion of the Trial Court, even collectively given on all the issues, is a valid or invalid. The important thing, is that there has to be finding on the material points of controversy between the parties. The technical plea that each issue has not been captioned is hardly a ground for remanding the matter on the alleged non-compliance of Order XX Rule 5, C.P.C. Resultantly, by allowing this revision, the impugned judgment and decree of the Court of Appeal, is set aside, and the appeal of the respondent, shall be deemed pending before the Appellate Court. The parties are directed to appear before the Court on 22-6-2004, with the direction that the Court of Appeal, shall decide the appeal, within three months, from the above-said date. H.B.T./G-52/L Case remanded.