1999 PLP 1808 (CLC)

Salma Abbasi v. Ahmad Suleman 1981 CLC 462 ref. Ch. Muhammad Hussain for Petitioner. Ch. Muzammal Khan for Respondent. Date of hearing: 26.th November, 1997. .. This judgment will govern two revision petitions namely C.R. No. 1846 of 1990 filed by Alif Din and C.R. No.376/D of 1991 filed by Mst. Soni Bibi. These have arisen out of judgment and decree passed by the learned Additional District Judge, Sialkot, dated 12‑7‑1990. As both these revision petitions involve examination of similar questions of law and facts, these are being dealt with through a single judgment.

2. The material facts to be noted are; that Rabloo son of Ruldoo was the original right holder/the sole proprietor of suit land. On his demise, mutation of inheritance No, 1'36 was attested on 30‑7‑1979 in favour of Mst. Sohni as daughter and Alif Din as nephew. Feeling aggrieved, Mst. Sohni brought a suit under section 42 of Specific Relief Act against Alit Din/contending that she was the daughter of Rabloo; that Alif Din was not his nephew and so was not entitled to inherit from the legal estate left by Rabloo; that she was his sole legal heir. This suit: was contested by Alif Din. In his written statement, he maintained that Sohni was not the daughter of Rabloo; that in fact he was his nephew and mutation of inheritance must have been attested in his favour only. On the pleas of the parties necessary issues were framed: Both the parties led their oral as well as documentary evidence in support of their respective pleas. Upon the consideration of the same, the learned trial Court found that Sohni was not the daughter of Rabloo; that Alif Din was his legal heir being his nephew and on this conclusion‑he dismissed the suit.

3. Feeling dissatisfied Mst. Sohni preferred an Appeal No.42 of 1990 which was dismissed by the learned Additional District Judge vide decision, dated 12,‑7‑1990. It was held that Mst. Sohni has failed to prove that she was the daughter of Rabloo/deceased, that Issue No.4 and latter part of issue No.5 were not germane to the controversy and so were unnecessary issues. These findings are in following terms:‑‑ The plaintiff challenged the mutation of inheritance to the extent of 1/2 share of the defendant and the said mutation was found to be lawful and operative. This finding adequately calls for dismissal of the suit of the plaintiff. The learned lower Court by‑passed the barrier imposed by law for determining the material propositions arising out of pleadings of the parties for resolving their claim inter se in the property and gave findings on alien facts thereby depriving the plaintiff from her share in the property and thereby giving the property to the defendant which is not subject‑matter in the suit. This can never be the intention of law to give findings on controversies governing the rights of the parties in respect of the property not disputed in the suit. In my view, these issues were not necessary to be framed. The learned lower Court has framed Issue No.4 and latter part of Issue No.5 unnecessarily. To avoid implication of these findings, I strike out Issue No.4 and later part of Issue No. 5 under Order 14, Rule 5, C.P.C: ... " This is how these two revision petitions have come to this Court.

4. The learned counsel for Mst. Sohni contended that she was daughter of Rabloo; that the learned Appellate Court had affirmed the decision of the Court below without any reason and rhyme and without applying his judicious mind to the facts and circumstances of the case. It was next contended that Issues Nos'4 and 5, in the context of pleas of parties material issues between the parties and the learned Appellate Court had no reason, whatsoever, to treat them as unnecessary and struck them out. According to the learned counsel,‑ Mst. Sohni has affirmatively pleaded that she was the daughter of Rabloo deceased and that , Alif Din was not his nephew; that this position was controverted by Alif Din as defendant. This being the nature of pleas of parties, the learned trial Court had correctly framed the aforesaid issues and the learned Appellate Court must have decided Issues Nos.4 and 5 alongwith other issues. On the aforesaid line of argument, it was suggested that the decision rendered by the learned Appellate Court was contrary to terms of Order XLI, Rule 33, C.P.C. On the other hand, the learned counsel for Alif Din, opposed these contentions. He, however, was f not able to controvert aforenoted pleas had been taken in, the plaint/written statement and so these were matters directly and substantially in issue between the parties. 5.I have heard the learned counsel for the. parties at great length. The perusal of the decision .of the first Court of appeal shows that impugned decision A does not satisfy the requirement of Order XLI, Rule 33 of C.P.C. It is manifest from the perusal of the plaint and the written statement that Mst. Sohni had asserted that she was daughter of Rabloo and Alif Din was not his nephew; that Alif Din has similarly stated in his written statement that Mst. Sohni was not the daughter of Rabloo and that he was his nephew. The issues were so framed according to pleas of parties embodied in their pleadings. Order XIV of C.P.C. relates to framing of issues. Rule 1 of this Order clearly indicates that issues are framed with regard to material facts as alleged in the plaint and denied in the written statement and from any other material alongwith pleas of the parties. Issues are necessary matters directly and substantially in issue between the litigants. On these state of affairs I have no difficulty in coming to the 1B conclusion that the learned Appellate Court erred in law in finding that Issue No‑4 and later part of Issue No.5 was unnecessary and so he did not render any decision on these issues. This approach of the learned Appellate Court is in defiance of Order XIV, Rule 1 and Order XVII, Rule 5, C.P.C. This error, in my view, shows the biased approach of the learned Appellate Court and I am very clear that the learned Appellate Court must have decided the above issues by taking into consideration the facts and circumstances of the case and the material placed on record by both the parties. It is well‑settled law that the Court possesses wide powers and had to decide the lis, irrespective technicalities and must render decision on each and every issue distinctly and separately on the basis of material produced by the parties. It has been held that even Courts have power to grant relief on the grounds which were not even urged in the plaint. If I C any reference is needed see Salma Abbasi v. Ahmad Suleman 1981 CLC

462. In the case in hand the learned Appellate Court had not decided Issues Nos.4 and 5 at all. These issues, to my mind were material and ought to have been decided on the basis of evidence produced by the parties. The decision of Appellate Court, on account of above infirmity, cannot be sustained. 6.Having regard to all the circumstances of the case, I am persuaded to allow these 'revision petitions. Resultantly, the judgment and decree passed by the learned Appellate Court, dated 12‑7‑1990 is hereby set aside. The appeal, filed by Mst. Sohni, shall be treated as pending adjudication and the case is remanded to the learned District Judge, Sialkot with the direction to decide it himself within a period of two months commencing from the receipt of this order, strictly in accordance with law and without being influenced by any observation made in this order. The parties are directed to appear before the learned District Judge, Sialkot on 16‑12‑1997. The office shall inform the parties about the date of hearing before the District Judge. There shall be no order as to costs. Q. M. H. /A‑345/L Revisions accepted